Deadline looms for unvaccinated Los Alamos lab employees

Oct. 15—Time is running out for Los Alamos National Laboratory workers who have refused to get vaccinated.

The lab's primary contractor, Triad National Security LLC, in August ordered all eligible employees to be immunized by Oct. 15 or face being fired — and now that deadline is upon them with a judge set to rule Friday on a request to block the vaccine mandate.

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

Lab Director Thom Mason, Medical Director Sara Pasqualoni and Triad are named in the 259-page lawsuit, which is the latest legal challenge to vaccine mandates in New Mexico.

After hearing arguments Thursday, state District Judge Jason Lidyard said he would make a decision on the injunction Friday morning.

Most of the lab's 12,000 employees have been vaccinated. A spokesman said officials have been advised by counsel not to comment on the case or even give basic data on employees until the judge makes a ruling.

During a recess in the hearing, attorney Jonathan Diener, who is representing the employees, said if there's no injunction, he expects some unvaccinated workers will be fired after the deadline passes.

The lab already is being rigid about the vaccination policy, Diener said. It is denying most requests for medical exemptions, he added, and claims to grant workers religious exemptions, but the lab then put those employees on unpaid leave.

"It's a bogus granting," Diener said of the religious exemptions. "They [workers] are being suspended without pay indefinitely."

If Lidyard decides against an injunction, Diener said his clients could appeal the ruling or might push ahead for a civil trial in which they could present evidence and have the case judged on its merits.

However, a trial could take a couple of years to materialize, he added.

In an August memo, Mason announced all regular employees, new hires and on-site contractors and subcontractors would be required to get the full series of shots, and those who failed to do so by the deadline could be fired.

Unvaccinated employees who work on-site would receive weekly tests.

The order coincided with the U.S. Food and Drug Administration's decision to grant full authorization of the Pfizer vaccine for people who are 16 and older, giving those who oppose vaccination one less reason to refuse the shots.

In a memo, Mason wrote 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.

However, the lawsuit contends the mandate is a violation of personal liberty, and workers have the right to make their own medical choices.

It also claims the vaccine doesn't make a person less contagious and can cause adverse reactions, sometimes more severely in people who have already had COVID-19.

A vaccine suppresses the virus's symptoms, but it doesn't remove it from the body, Diener said, making it erroneous to require everyone to get the shots in an attempt to eliminate spread.

"The evidence is clear at this point that vaccinated people do spread it, and that vaccination is no ultimate protection against COVID-19," Diener told the judge.

Those arguments run counter to the positions taken by the U.S. Centers for Disease Control and Prevention, the National Institutes of Health and Johns Hopkins University, though they acknowledge vaccination alone will not eradicate the virus.

However, they cite extensive research showing vaccines reduce a person's chance of contracting and transmitting the virus, and that the shots' side effects are mild in the vast majority of recipients, including people who have already had COVID-19.

CDC and statewide tracking also show a correlation between communities with higher vaccination rates and a drop in COVID-19 cases, hospitalizations and deaths.

Attorney Michael Weil, representing Triad, said no one is forcing anyone to get vaccinated, but it is a condition of being employed at the lab among other people.

Unvaccinated workers, he said, are a hazard in this setting.

"That creates risks to other employees, it creates risks to the lab," Weil said.

Weil argued Triad is a private contractor and not "a state actor" — or governmental entity — so it can require vaccinations for employees without concern about infringing on their constitutional rights.

But Diener said although Triad is a private contractor, it is tied enough to government entities that it must abide by laws limiting the degree to which the government can force medications on people.

There are a series of rulings, including from the U.S. Supreme Court, backing a person's right to refuse medication, Diener said.

Attorney Vanessa DeNiro, who also is representing employees, condemned Triad's policy of placing employees with religious exemptions on indefinite unpaid leave, arguing it's a retaliatory move. "They're being fired for exercising their religion," DeNiro said.

Weil countered unpaid leave is a way to accommodate those with a religious exemption while keeping these unvaccinated workers off the 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.

The attorneys haggled over a 1905 case — Jacobson v. Massachusetts — in which the Supreme Court ruled the state had the authority to require smallpox vaccinations for every resident.

This case has been at the heart of recent rulings in favor of vaccine mandates, including a recent case in which a federal judge found in favor of Gov. Michelle Lujan Grisham's order requiring health workers to get the shots.

Diener argued the Jacobson decision involved different factors. Unlike with the current pandemic, the vaccine had been used for more than a century against a scourge far deadlier than COVID-19, he said.

And the ruling was made before some basic civil liberties were established and religious freedom cases came before the courts, he said.

But Weil said only the Supreme Court can overturn that ruling, and so far, has let it stand.

"Jacobson is the law of the land," Weil said.