Judge denies request to block lab operator's vaccine mandate

·5 min read

Oct. 16—A judge denied a request Friday to block a vaccination order by Los Alamos National Laboratory's primary contractor, clearing the way for employees to be fired if they refuse to be inoculated.

State District Judge Jason Lidyard ruled the attorneys representing roughly three dozen lab employees failed to present arguments that meet the criteria for suspending the vaccine mandate.

Lidyard rejected arguments that a policy requiring employees to be vaccinated or else lose their jobs is coercive.

"No one is sticking a needle in anyone's arm," Lidyard said. "All that is being said is, if you don't get vaccinated, you must find work somewhere else."

Employees of Triad National Security LLC had until 4 p.m. to show they have been vaccinated or risk being fired. Triad set the deadline in August after the coronavirus's faster-spreading delta variant caused a surge in cases in the state and throughout the country.

In an August memo, Thom Mason, who heads both the lab and Triad, wrote that vaccinating employees was vital to meet the lab's critical mission and was the best tool for curbing the spread of a potentially severe disease.

A lab spokesman wrote in an email that the order was made after considerable thought.

"The safety and health of our employees remains our top priority as we fulfill our national security mission, and as a result our vaccine mandate remains in effect," the spokesman wrote. "We appreciate the thorough review and consideration provided by the court on the important issues presented at the hearing."

So far, 96 percent of LANL employees have been fully vaccinated, according to the lab. Those who received the first shot between Oct. 1 and Oct. 15 must take vacation or unpaid leave until they are fully immunized.

The request for an injunction was made by the attorneys representing employees in a lawsuit challenging the lab's authority to impose the order and claiming the shots could worsen some people's medical problems.

Mason, Medical Director Sara Pasqualoni and Triad are named in the 259-page complaint.

Jonathan Diener, one of the employees' attorneys, said the judge ignored the written statements by two doctors who call into question the vaccine's ability to quell the virus's spread.

"He made a bad decision," Diener said.

A vaccine helps the body to fight the virus, but it doesn't make the person less infectious, Diener said, arguing that an inoculated person can transmit the virus as much as someone who hasn't gotten the shots.

A blanket policy barring unvaccinated employees from working at the lab as a way to curtail spread is "a red herring," Diener said.

The judge took brief note of Diener's medical experts but made clear he sided with the extensive research showing vaccines reduce a person's chance of contracting and transmitting the virus.

Triad requiring employees to be immunized is a reasonable measure to protect other workers and the public from an infectious disease and doesn't violate anyone's constitutional rights, Lidyard said, citing a list of legal precedents to back his stance — including several court rulings made during the current pandemic.

"The courts have held for over a century that mandatory vaccination laws are a valid exercise of state police power, and such laws have withstood constitutional challenges," Lidyard said.

The judge said the attorneys failed to show the vaccine order would cause irreparable harm to their clients, one of the key requirements for an injunction.

Diener and attorney Vanessa DeNiro argued Thursday that lab employees are in specialized jobs, some of them highly classified, so if they're fired or put on extended unpaid leave, they may be unable to find comparable work elsewhere. That would result in irreparable harm, they said.

Lidyard dismissed that argument, saying the workers were making a choice and could avoid that problem by getting the shots.

However challenging it might be, they are free to look for a job that doesn't require vaccination, Lidyard said.

A contentious point in the proceedings was Triad's granting of religious exemptions, then putting those employees on indefinite unpaid leave. DeNiro called it retaliatory and said the employer was essentially firing them rather than accommodating them in a reasonable manner.

During Thursday's hearing, attorney Michael Weil, representing Triad, said unpaid leave is a way to accommodate those with a religious exemption while keeping these unvaccinated workers off-site. Most have jobs that can't be done remotely, he said, and many don't cite an actual religion but claim their vaccine refusal is an act of conscience, which isn't enough for this type of exemption.

Lidyard agreed with Weil's points in making his decision Friday.

He cited a passage from the U.S. Supreme Court's 1944 ruling in Prince v. Massachusetts.

"The right to practice one's religion freely does not include liberty to expose the community to communicable disease," Lidyard said, quoting the majority's opinion.

Lidyard went on to say the lab's policy is neutral and applies to all employees, regardless of their religious beliefs. An employer, he said, must reasonably accommodate those seeking a religious exemption — in this case, using unpaid leave — but is not required to make an accommodation the employee wants.

Diener said he and his clients will discuss their next move, which might be arbitration instead of continuing to a jury trial.

Lidyard said approving an injunction request also requires attorneys to show they are likely to win their case, something else he thinks they failed to do.

"It's not that their circumstances aren't compelling, but rather the law is simply not on their side," Lidyard said.

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