NM county moves ahead with vaccine mandate despite union concerns, threatened litigation

The union representing Doña Ana County firefighters questioned why paid county first responders are required to receive the COVID-19 vaccine while volunteers are not required


Algernon D'Ammassa
Las Cruces Sun-News, N.M.

LAS CRUCES, N.M. — Doña Ana County is reportedly moving forward with requiring some of its employees to receive a COVID-19 vaccination, despite questions about whether the mandate is legal, calls from two labor unions to negotiate the issue and threatened litigation.

County manager Fernando Macias announced in January that all first responders employed by the county — including sheriff's deputies, detention center officers and other employees making direct contact with detainees — must obtain the vaccination or an accommodation in order to keep their jobs.

Doña Ana County plans to move forward with mandating COVID-19 vaccines for county employees, including all paid county first responders, despite concerns from labor unions and threats of litigation.
Doña Ana County plans to move forward with mandating COVID-19 vaccines for county employees, including all paid county first responders, despite concerns from labor unions and threats of litigation. (Photo/Algernon D'Ammassa, Las Cruces Sun-News)

Because both vaccines currently being administered against the SARS-CoV-2 coronavirus in the United States are still undergoing the full approval process and have only been authorized for emergency use, the directive appears to conflict with the Food, Drug and Cosmetic Act.

The federal statute requires disclosures to individuals about an unapproved medical product's risks and benefits, including "the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks."

Dr. Amanda Cohn of the federal Centers for Disease Control and Prevention underscored last summer that, as long as they are under Emergency Use Authorization, "vaccines are not allowed to be mandatory."

Santa Fe attorney Nancy Ana Garner informed the county that she intends to seek an injunction in court, in a letter to Macias dated Friday and provided to the Las Cruces Sun-News.

"State and municipal employers may be held liable for damages caused by the experimental shots if employees are not given full freedom of choice without threat of consequences," Garner wrote to Macias. "We will seek to hold personally liable each government official who imposes COVID-19 vaccine mandates. Coercion or duress under the threat of job loss is a violation of Federal law, which requires voluntary and full informed consent to any product marketed under the Emergency Use Authorization."

The county acknowledged queries from the Sun-News for this report, but did not respond by press time Friday.

Garner, representing the New Mexico Stands Up group, had sent a cease and desist letter earlier in February, and on Thursday Garner said she had not received any response from the county.

Unions seek negotiation on mandate

Paul Castañeda, a staff representative for the Communication Workers of America, which represents Doña Ana County sheriff's deputies for collective bargaining, said Friday that all members of the bargaining unit had either received vaccinations or been granted an exemption, while the union had demanded the county negotiate the directive.

Meanwhile, International Association of Firefighters Local 5037 President Travis Simpson told the Sun-News that, due to tight supplies of vaccine, county firefighters were currently required to demonstrate they had signed up on New Mexico's COVID-19 vaccine registry, while volunteer firefighters were not.

Simpson said he had met with county staff over the directive, but "it has been a very hard line from the very beginning that this was non-negotiable. There was not to be any debate about it."

Yet volunteer firefighters are not subject to the mandate, Simpson said, and the union had not received an answer as to why.

"Volunteer firefighters run emergency calls, interact with the public on a frequent basis, interact and work alongside paid staff, and perform the same functions as a member of the paid staff in varying degrees depending upon their involvement and time," Simpson wrote in a letter to the county's legal and human resources departments Thursday.

Simpson argued that the policy was contradictory and discriminated against paid staff, since the volunteer firefighters were being allowed to serve without being required to take the vaccine. On those grounds, he asked for the directive to be postponed for further discussion.

As far as protections in the firefighters' contract, Simpson said, "It's difficult to navigate because, within management's rights, there is a stipulation that ... they can do what they view as necessary for matters of public health."

Gov. Michelle Lujan Grisham and state health officials have maintained they have no plans to make COVID-19 vaccination mandatory, and state law regarding public health emergencies does not provide for involuntary vaccination.

Under statute, during a public health emergency the health department "may isolate or quarantine a person who is unable or unwilling for reasons of health, religion or conscience to undergo vaccination." A similar provision applies for those who decline treatment for the disease.

However, the statute shields individuals from being terminated by their employer if they do so.

Read next: Can public safety employers require employees to get the COVID-19 vaccine?

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(c)2021 the Las Cruces Sun-News (Las Cruces, N.M.)

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