ALBUQUERQUE, N.M. -- A corrections officer is suing a New Mexico county over a requirement that first responders and other employees be vaccinated, setting up another legal fight during a pandemic that is testing local and federal public health laws.
Legaretta is facing termination for declining a vaccination. His attorney, N. Ana Garner, is seeking an injunction to keep the county from firing or disciplining the officer before a ruling is issued. The attorney said that while she's not aware of a similar lawsuit in the U.S., she would be surprised if there was none.
The complaint cites guidance from the FDA and the Centers for Disease Control and Prevention, including statements made by federal health officials during a public meeting last year in which they said vaccines under emergency use authorizations may not be mandated.
The complaint also argues that federal law preempts state laws or local requirements such as Dona Ana County's vaccination directive.
“Defendants’ failure to comply with the federal law clearly is an obstacle to the purpose of the federal law, which is to allow people to not be compelled to take an unapproved drug or vaccine,” the complaint states.
Dona Ana County Attorney Nelson Goodin said the county stands behind its policy. He pointed to guidance from the FDA that gives deference to state and local laws when it comes to vaccinations as well as federal employment guidelines that say employers can require vaccines with exceptions for religious or medical reasons.
Goodin said a handful of waivers have been issued for county employees but most have been vaccinated.
Dona Ana County is among the few spots in New Mexico considered high-risk as spread rates and new per-capita cases continue to be above targets set by the state Health Department. Goodin also pointed to lawsuits that have been filed in New Mexico and elsewhere over prison conditions amid the pandemic.
“We're doing our best to protect the inmates in our facility, we’re doing our best to protect the employees who work in that facility and coworkers as well,” he said. “That’s the driving force — provide a safe workplace and safety for inmates who don’t have the choice to go home and quarantine.”
New Mexico health officials said Tuesday they were not aware of any other counties or municipal governments that were requiring first responders or other employees to be vaccinated at this point. Top officials with the state's largest health care providers also said since the vaccination campaign began months ago that they would not force their workers to get the shots given the emergency use status.
None of the vaccine makers with emergency authorization in the U.S. has applied for full approval yet.
Employers have been contacting attorneys and human resources consultants as they try to figure out how to handle vaccinations.
The complaint notes that despite a 1905 U.S. Supreme Court ruling upholding the ability of states to enforce compulsory vaccination laws, the court has decided many critical cases over the decades that recognize limits on governmental power and expand the reach of the Bill of Rights. If the county were to fire Legaretta for refusing to take a vaccine, the complaint argues that would be a violation of his rights and run counter to those previous rulings.