Los Angeles Daily Journal Â March 22, 2021 by Gina Kim
A group of Los Angeles Unified School District employees say the district is forcing them to get the COVID-19 vaccine in violation of a federal statute that gives people the option to choose whether or not they want to access experÂimental medical. products during public emergencies.
“None of the currently availÂable vaccines for COVID-19 has received final approval from the Food and Drug Administration,” the complaint states. “Rather, each one of the COVID vaccines is an unapproved product that has been authorized for emergency use unÂder a series of emergency use auÂthorizations. The statute granting the FDA the power to authorize a medical product for emergency use requires that the person beÂing administered the unapproved product be advised to his or her right to refuseÂ· administration of the product.” California Educators for Medical Freedom vs. Los Angeles Unified School District, 2:21-CV- 2388 (C.D. Cal., filed March 17,2021).
The complaint’ cites 21 USC 360bbb-3(e)(l)(A). Ordering teachers to get vaccinated usurped the statute’s public policy object, wrote John W. Howard, founder of JW Attorneys, who represents the plaintiffs: teachers, counselors, a librarian, an electrician and a carÂpenter.
A school district spokesperson said in a statement Friday that emÂployees are not being forced to get vaccinated and instead the district is providing access and encouraging them to do so, saying it will lead to schools reopening to safely and quickly.
“The choice is theirs. The comÂmunities we serve are among the hardest bit in the nation by the viÂrus and many staff members have told us they fear they might conÂtract the virus and become ill or bring it home to a household memÂber,” the statement read. “We exÂpect in time, like tests for tuberculosis or vaccines for the measles, mumps and whooping cough, the COVID vaccine will be essential to keeping school safe. One should expect federal and state health authorities to take actions in this area in the coming months.”
On behalf of the plaintiffs, Howard said, “This lawsuit is really about freedom, personal autonoÂmy and federal preemption. You can’t force someone to do this. if the vaccine were FDA-approved then it would be a totally different thing, but this is an experimenÂtal substance. If LAUSD enters into a stipulation where they acknowledge it’s not mandatory, and there’s no adverse consequence for refusing the vaccine, this case may be over relatively quickly.Â We have no interest in extenuating the case, we just want to make sure the individual autonomies of teachers and other staff are respected.”
A March 4 school district memo said employees were eligible to get vaccinated. Those experiencing adverse effects were allotted an extra three days sick leave, and those with reactions that prohibited them from returning to work for more than three days could coordiÂnate to see if work could be done remotely, the memo stated.
However, a letter sent by the InÂternational Brotherhood of TeamÂsters 572 union to district employees states that all are required to be vaccinated, with no exceptions or accommodations reached with other bargaining units, accordÂing to the lawsuit. The union also wrote to teachers that the district believed workers’ compensation leave could be used by those who cannot come to work if they expeÂrience reactions to the vaccine.
Employment law experts said the case, and similar challenges, could prompt lawmakers to take another look at the law. Section 306bbb-3 does not give guidance on whether an employer can termiÂnate employees who refuse experimental treatment, said Janice P. Brown, principal at Meyers Nave.
“It’s going to have to be a balÂancing act between the Food, Drug and Cosmetic Act, and the interest of the state to make sure everyone’s safe,” Brown said. “This statute hasn’t been tested. It’s going to be really interesting because the question is: Will the federal government change its leÂ gal standard because they had to make these vaccines under this process because we were in such bad straits?”
Ronald Zambrano of West Coast Trial Lawyers said the dispute raises concerns about a constitutional taking but in this case the taking would be “your body” which “is your own property.”
“It can be commodified to a certain extent.Â You can donate blood or organs.Â So when you’re told to put something in it by mandate, you’re essentially putting something in there that you don’t want, without your consent”, Zambrano said.
In the end though he said it is likely the school district would prevail..Â The district could argue that it has an overriding and compelling interest in protecting the public as a whole, and bringing children back to school to protect their educational progress and mental health, Zambrano said.
“That’s an overriding interest that’s more important than these select few school employees not wanting to get vaccinated,” ZamÂbrano said. “I think LAUSD will meet that compelling interest. These kids lost an entire year of learning.”
DATE:Â Monday, March 22, 2021