Federal appeals judges hear arguments against MSU vaccine mandate

CINCINNATI – A Michigan State University employee and two former staffers argued Wednesday that a district court judge erred in tossing the federal lawsuit they filed against the university over its COVID-19 vaccination requirement.

Jenin Younes, litigation counsel for the New Civil Liberties Alliance, who is representing one current employee and two others who were fired after refusing to get vaccinated, told a panel of U.S. Court of Appeals judges that District Judge Paul Maloney erred in not recognizing her clients' natural immunity, which she argued eliminates the need for her clients to follow MSU’s mandate and get a COVID-19 vaccination.

Maloney dismissed the suit in February, ruling that the employees failed to prove that MSU was irrational by not providing an exception to the vaccination requirement for employees with natural immunity from the virus.

“At the very least, this is a factual issue that should have been put before a jury or should have been allowed to proceed to discovery, rather than being resolved at the motion to dismiss stage,” Younes told the appeals court judges on Wednesday.

Stephanie Gutwein, an attorney representing MSU, said the current and former employees "have no fundamental interest in avoiding an employee vaccine mandate." The mandate, she continued, was aimed at upholding public health and safety.

Even if MSU were to include natural immunity under the list of exemptions to the vaccination requirements, there would be many questions left to answer, Gutwein said, on issues ranging from time after an infection to qualify as being naturally immune to determining which types of doctor's opinions would be sufficient in determining whether someone is naturally immune.

"There are all kinds of questions that would be contemporaneous with even thinking about some kind of implementation of that type of policy," Gutwein said. "MSU made the judgment, especially in light of all of the public health guidance, that it's beneficial for individuals who previously had been infected with COVID-19 to be vaccinated. That's a reasonable judgment to make."

It’s unclear when U.S. Court of Appeals judges will rule on the request to return the case to district court.

Now-retired Michigan State University President Samuel Stanley Jr. announced in July 2021 that all students, faculty and staff would be required to be vaccinated against COVID-19 if they planned to learn or work on campus that fall. Unless the student, staff or faculty member received a medical or religious exemption, refusing vaccinations would result in discipline ranging up to termination.

Jeanna Norris, a supervisory administrative associate and fiscal officer at MSU who lives in Portland and works remotely, with the NCLA filed a lawsuit against Stanley and the MSU Board of Trustees in August 2021, challenging the mandate for all employees. She claimed a natural immunity to COVID-19 after contracting the virus in 2020.

A doctor said she didn’t need a vaccine, Norris claimed, according to court records. MSU’s threat of discipline or termination for refusing to get vaccinated violates her personal health autonomy and constitutional rights, she argued..

Norris requested a temporary restraining order against the mandate, which a federal judge denied in August 2021.

Kraig Ehm, a video producer who lives in Laingsburg, and D'Ann Rohrer, an extension educator who lives in Ludington, were fired in November 2021 for refusing COVID-19 vaccinations, according to the NCLA. They joined the NCLA lawsuit shortly after the restraining order was denied. They also claim to have natural immunity after recovering from COVID-19.

The vaccine mandate continued to stand on Oct. 8, 2021 after Maloney denied Norris’ request for a preliminary injunction for reasons including the lack of a “fundamental right” to decline the vaccine.

On Feb. 22, Maloney ruled that Norris, Rohrer and Ehm failed to “establish that it was irrational for MSU not to provide an exception to its vaccine mandate for individuals who have acquired natural immunity. In his ruling, Maloney dismissed one count and previously dismissed two additional counts.

As of May 2022, MSU had fired 28 permanent employees for failing to get a COVID-19 vaccine, according to MSU spokesperson Dan Olsen

Contact Mark Johnson at majohnson2@lsj.com. Follow him on Twitter at @ByMarkJohnson.

This article originally appeared on Lansing State Journal: Federal appeals judges hear arguments against MSU vaccine mandate