ULA: Federal COVID vaccine requirement trumps state law

Nov. 19—United Launch Alliance, faced with a lawsuit by five Decatur employees over its failure to grant religious and medical exemptions from a COVID vaccine mandate, argued that a new state law on the issue is preempted by a federal executive order.

The state law, passed in special session and signed by the governor Nov. 5, allows employees to appeal denials of their exemption requests to an administrative law judge appointed by the Alabama Department of Labor and forbids employers from terminating employees while the appeal is pending.

On Sept. 8, President Joe Biden issued an executive order mandating that federal contractors require their employees to be vaccinated against COVID. Each of the five ULA employees sought religious or medical exemptions from ULA's vaccine mandate before the state law passed but refiled their requests after the law went into effect.

In a brief opposing the plaintiffs' request for an injunction preventing ULA from terminating them, the company argued to U.S. District Judge Abdul Kallon that statements from the White House-led Safer Federal Workforce Task Force indicate that the federal executive order trumps the contradictory state law.

Responding to a question about whether the rules for federal contractors apply in states with laws that prohibit vaccine mandates, the Task Force in Sept. 24 guidance responded: "Yes. These requirements are promulgated pursuant to federal law and supersede any contrary state or local law or ordinance."

State Rep. Parker Moore, R-Hartselle, was a proponent of the state law. He said on Thursday the law was designed to be sensitive to the situation of federal contractors as well as their employees.

"One thing we were careful to do when we were drafting that legislation was to remember that both sides — the employer and employee — were the victims here," Moore said. "We didn't want to put something in place that would victimize one side over the other. We tried to be as balanced as possible."

Each of the plaintiffs filed affidavits, but the most thorough — 73 pages including exhibits — was by 28-year-old mechanical tool design engineer Benjamin Eastman.

Eastman noted in a Nov. 10 email to ULA, attached to his affidavit, that the Task Force guidelines require federal contractors to impose the vaccine mandate "except in limited circumstances where an employee is legally entitled to an accommodation." Eastman said that because he is merely asking for an accommodation as contemplated by the Task Force, "there is nothing in the Alabama law that is in conflict with the executive order."

In the same email, Eastman said he was filing an appeal of the denial of his exemption request with the Alabama Department of Labor. ULA rejected Eastman's argument and treated his failure to comply with the vaccine mandate as a voluntary resignation. — Appeal process

If valid, the state law would allow those appealing a denied exemption significant paid leave. The law requires the Department of Labor to draft rules detailing the appeals procedure. Labor spokesperson Tara Hutchison on Thursday said the department "is planning to have them ready on Nov. 26."

An administrative law judge appointed by the Department of Labor would have 30 days to rule on any appeal, and the employee could then appeal an adverse ruling to a circuit court. The law prohibits an employer from terminating or reducing the pay of the employee until the appeals have all been resolved.

As ULA notes in its brief, however, the law does not say what remedy an employee has if the employer violates the requirement. Rather, the law specifically says it "does not create or imply a private cause of action for employees who are terminated after refusing to receive a vaccination mandated by their employer."

In addition to alleging ULA violated the state law, the employees' complaint also alleges the company violated federal laws requiring employers to accommodate workers' religious beliefs and medical conditions when they can do so without "undue hardship." — 100-plus requests

According to a Religious Accommodation Appeal Form that ULA issued to Eastman denying his appeal, "ULA received more than 100 religious accommodation requests related to the vaccine policy." The ULA Accommodation Committee said it concluded most of the requests were based on sincerely held religious beliefs, but that granting the requests would create an undue hardship on ULA.

The committee cited several reasons that allowing the employees to continue working without being vaccinated would cause ULA significant problems.

—Having lots of unvaccinated employees, it said, would compromise workplace safety and would likely lead to additional COVID cases and more quarantines. "If a work group is exposed to an infected team member, it can result in significant disruption of operations, potentially impeding ULA's ability to meet deliverables."

—Employees who were unvaccinated would have to be tested at least weekly, the committee said, and that would mean ULA would have to assign workers to oversee and administer the tests, and that employees being tested would lose work time while being tested and awaiting the results.

—One of ULA's major customers is the National Reconnaissance Office, which oversees satellite launches for the Department of Defense. ULA summarized numerous NRO requirements that the company would have to meet if unvaccinated employees worked on NRO projects. "This is a highly labor-intensive process," the committee said. "Due to the size and structure of ULA, it is not possible to segregate employees who support an NRO contract and those who do not."

Eastman, like several of the other plaintiffs, argued he could do almost all of his job remotely and noted that he had done so early in the pandemic. The committee responded that allowing numerous employees to "work remotely on a full-time basis for an indefinite period of time would cause undue hardship by undermining the collaborative nature of our work."

When they filed their complaint Nov. 12, the five employees requested an immediate temporary restraining order preventing ULA from mandating the vaccine for those seeking an exemption for religious or medical reasons, which the judge denied.

The employees also requested a preliminary injunction, which is longer in duration and typically is only granted after a hearing in which both sides can present evidence. Kallon said he would rule on this request after ULA and the plaintiffs had filed briefs on the issue.

In its brief, ULA noted that preliminary injunctions are only appropriate if the plaintiffs show a likelihood of success in their legal action. The company cited numerous recent cases in which courts had declined to block mandates aimed at slowing the spread of COVID-19. — Other rulings

In a case brought by employees of a Texas hospital, a federal court ruled, "The public's interest in having a hospital capable of caring for patients during a pandemic far outweighs the vaccination preferences of 116 employees. The plaintiffs are not just jeopardizing their own health, they are jeopardizing the health of doctors, nurses, support staff, patients and their families."

Another court said its refusal to block enforcement of a vaccine mandate "serves the public interest in combating COVID-19, at an infinitesimally small risk to plaintiffs' health or liberty."

The plaintiffs seeking religious exemptions from ULA all did so on the basis that each type of vaccine "was manufactured and/or tested on cell lines derived from stem cells of aborted fetuses."

According to The Associated Press, none of the three COVID vaccines contain fetal cells. The Moderna and Pfizer vaccines were tested during development with a line of fetal cells originating from a fetus in 1973. Production of the Johnson & Johnson vaccine uses fetal cells that trace back to a fetus in 1985. Other vaccines produced using the same fetal-cell method used for the J&J vaccine include those for chickenpox, rubella, hepatitis A, shingles and rabies.

Eastman said in his affidavit that he is Catholic and that he does not know if vaccines he took as a child were developed from the cells of aborted fetuses, but to his knowledge none he has received as an adult were.

The Vatican's doctrinal office in December said that when alternative vaccines are not available, it is morally acceptable to receive COVID-19 vaccines developed or tested using cell lines originating from aborted fetuses.

In one of their briefs, the plaintiffs' lawyers argued ULA placed their clients in an impossible position.

"The Hobson's choice to which ULA forced its employees has already resulted in a number of employees ... succumbing to ULA's mandate in violation of their conscientious objection to the vaccine instead of suffering the loss of income, which would put them at risk of violating another religious duty, namely, to provide for one's family." The brief, like the employees' affidavits, cites a passage in 1 Timothy 5:8 that anyone who fails to provide for his relatives "has denied the faith and is worse than an unbeliever."

ULA countered that it is not forcing anyone to get a vaccine. In its brief, ULA quoted a court ruling that a vaccine mandate was not coercive because the employee "can freely choose to accept or refuse a COVID-19 vaccine ... if she refuses, she will simply need to work somewhere else."

Moore said Biden's executive order also places ULA and other federal contractors in an impossible position.

"They were put between a rock and a hard place where they had to determine, 'Do we want to lose our federal contracts and not enforce this or do we want to enforce this and keep our contracts, but be in jeopardy of losing our employees?' It was a no-win situation," Moore said.

In one of his requests to ULA for religious accommodation, Eastman said he was disappointed in the company.

"I am disheartened ULA would force me into a position where I have to choose between following my conscience and providing for my family," he wrote. "I pray that our company's leadership will understand the gravity of what they are asking and undo this mandate."

— eric@decaturdaily.com or 256-340-2435. Twitter @DD_Fleischauer.