Court challenges that block workplace vaccine mandates

Two challenges to a U.S. workplace vaccine mandate, currently before the Cincinnati-based 6th U.S. Circuit Court of Appeals, include a Michigan employer’s case that makes the case that the requirement violates the rights of employees to keep and receive their own medical care. And a plan by the district court in West Virginia to strike down the threshold issue clause in the mandate for limited-government proponents also has been appealed.

Under a 1977 federal law that exempted agricultural employers from making vaccination requirements for their workers, an employee can share her or his personal medical information in drawing up employment paperwork. Once those requirements are issued, the employee can then opt to have vaccine-preventable diseases such as meningitis and measles administered under a locked-safety closet.

But there is a rub for employers: Employees opting out of vaccines for fear of contagious diseases with which they have no personally elevated health risks don’t necessarily need to be immunized against diseases that do present themselves and which fall under federal jurisdiction. A number of employers have argued that this regulation violates their workers’ due process rights.

In 2006, an Indiana-based company called Algeta brought a suit against a West Virginia-based manufacturer of catheters and similar medical supplies, lab equipment and accessories, arguing that the requirement violated the company’s workers’ rights because members of the company’s then-plant workforce at the Virginia-based world headquarters weren’t advised on meningitis and certain other vaccine-preventable diseases by their superiors. As a result, one employee hired at the plant in 2004 who became ill was unable to seek medical treatment; he was then killed by a meningitis that went undiagnosed until the spring of 2006.

But when the lawsuit was resolved, the workers union that had been negotiating collective bargaining with the company lost its claim on behalf of the employees.

Now, the district court in a labor dispute has instructed a judge in the Cincinnati-based 6th Circuit to decide whether the mandate is subject to constitutional scrutiny. In so doing, the district court has to decide whether the challenge raises a “substantial” question under the U.S. Constitution of “whether an agency action imposing a requirement on employer action qualifies as a form of commandeering subject to strict scrutiny.”

If the question is “sufficiently substantial,” it would have to be determined whether the mandate “appears to a rational observer to be a commandeering exercise,” according to analysis in the Sixth Circuit cited by an appeals court in the 2016 Obamacare case of King v. Burwell. That ruling, which is now considered a key roadblock to health care repeal, found that the regulation was not subject to strict scrutiny because the reason for not requiring vaccination from some employees falls under strict scrutiny. The same court cited by the administration before it, the 7th Circuit, in approving the mandate and dismissing a challenge to it for “unclear constitutional concerns.”

The challenge in West Virginia filed in conjunction with the Algeta case is far more particular in that it seeks to strike down the mandate.

The Florida-based pharmaceutical manufacturer Wyeth, which is owned by Pfizer, notes that the vaccine-preventable diseases included in the mandate are typically covered under an employer-provided group health plan or if it is offered as an employee benefit at a separate location. But Wyeth said that, under the landmark 2010 Affordable Care Act, the mandate imposes “further intervention” in an industry that is “certainly not unique to the pharmaceutical industry.”

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