Colorado Appellate Court Sides With Employers Mandating COVID-19 Shots

The 10^th Circuit court in Denver, Colorado sided with employers in two lawsuits brought by workers who were fired for refusing to comply with a COVID-19 shot mandate by their employers. The Colorado based Appellate Court had consolidated the two cases challenging health care workplace COVID shot mandates and sided with the employers.¹

In the first case, a set of plaintiffs called the “Timken plaintiffs” sued their employer, the South Denver Cardiology Associates, after being fired for refusing to take the controversial shot. The second case involved another group of workers called “The Sweeney plaintiffs” who sued their employer, UCHealth after they were terminated for declining to take the COVID shot.²

At the time the Plaintiffs were fired, the Colorado Department of Health had implemented a mandatory COVID shot policy for healthcare employees and contractors. However, employees had the option to apply for a medical or a religious exemption to the mandate.³ While the Plaintiffs in both cases declined to get investigational biological products that were still in the U.S. Food and Drug Administration (FDA) licensing review process, none of them applied for an exemption and all were fired from their jobs.⁴

Plaintiff’s Argue They Should Not Be Forced to Take an Unlicensed Drug to Keep Their Job

The plaintiffs set forth constitutional, statutory and contractual arguments, enforceable under 42 U.S.C § 1983. The employees’ main argument is that legally they have the right to refuse to take unlicensed drugs without the threat of losing their job. The district court had dismissed the cases claiming that adequate grounds for relief had not been pled. The three-judge Appellate panel affirmed the lower court ruling finding that plaintiffs failed to show that 42 U.S.C § 1983 unambiguously gave them the right to refuse the mandated shot.⁵

The Appellate court reviewed the district court’s dismissal of the cases under Rule 12(b)(6) de novo.⁶ A 12(b)(6) motion is made by a defendant seeking to dismiss plaintiff’s claims because, even if all of the factual claims made by the plaintiff were true, they failed to make a claim upon which relief could be granted by the court.

Rather than arguing that the Plaintiff’s allegations are not true, a 12(b)(6) motion instead contests the legal sufficiency of the complaint.⁷ The court must consider all of Plaintiff’s allegations to be true and consider them in a light most favorable to the Plaintiffs. De novo means that the Appellate court was looking at the case without giving any credit to the lower court ruling. It is akin to looking at the case with a fresh set of eyes with no bias.⁸

Plaintiffs Claim Federal Right Violations Under § 1983

42 U.S.C § 1983 (§ 1983) establishes the legal basis for violations of federal rights by a person or entity acting under state law. The plaintiff in these two cases set forth six § 1983 claims based on constitutional and statutory rights. The court stated that when a §1983 claim is based on a federal statute the court must look at whether the statute, “secures an enforceable right, privilege, or immunity, and does not just provide a benefit or protect an interest.” In addition, the plaintiff must show that the statute, “clearly and unambiguously uses rights-creating terms.” The U.S. Supreme Court has stated that this standard is so strict that this test is rarely met.

Furthermore, even in the rare case where this standard is met, courts may side with the defendant when they can show that Congress did not intend for that §1983 claim to enforce the rights sought by the plaintiff. Accordingly, Congress must have intended that the state enforce the rights the plaintiff is seeking to enforce. In addition, the statute in question may explicitly prevent a §1983 argument.⁹

Plaintiffs Assert They Must Be Given Effective Informed Consent to Use of Unlicensed Pharmaceutical Products

In the Sweeney case, the Plaintiffs argue that three statutes create an enforceable federal right to “legally effective informed consent” including the Emergency Use Authorization (EUA), the Public Readiness and Emergency Preparedness (PREP) Act, and a Title 10 provision covering using humans as research subjects. The Plaintiffs in the Tinker case also argue that these statutes confer a right against being, “subject to investigational drug use.”¹⁰

Court Finds Federal Statutes Give Powers to Government, Do Not Confer Individual Rights

The court rejected the EUA argument stating that EUA gives powers to the U.S. Secretary of Health and Human Services rather than providing unambiguous individual federal rights to the plaintiffs. EUA status allows the Secretary of Health and Human Services to provide that a vaccine injector inform a recipient that he may decline the biologic, it does not confer any limiting rights on an employer’s vaccine policy.¹¹

The court concluded that the plaintiff’s reliance on the PREP Act was also misplaced. According to the court, the PREP Act not only fails to confer an individual right enforceable by §1983, it precludes a §1983 claim. The court limited PREP Act claims to Plaintiffs that claim to have suffered death or serious injury.¹²

Court Finds DOD Did Not Perform Human Experiments on Plaintiffs

Plaintiffs also relied on 10 U.S.C. §980, which sets forth that the U.S. Department of Defense (DoD) may not use funds for research on humans as experimental subjects unless informed consent is given in advance. The court agreed with the district court finding that Plaintiffs failed to allege that any of the DoD’s funds were used to experiment on them and did not show a link as to how the employer would be responsible for the DoD’s actions.¹³

Court Concludes Employers Did Not Violate the Constitution’s 14^th Amendment

Sweeney set forth a Fourteenth Amendment equal protection claim alleging that the PREP Act conferred a choice to take the shot but only those who refused the experimental shot were punished. The district court denied this claim using the rational basis test.

The rational basis analysis requires that the statute in question have a legitimate state interest and that there is a rational connection between the statute and the government’s goals. The rational basis test is the least strict of the scrutiny evaluations used by courts and laws are generally upheld under this analysis. It is used when there is no violation of one’s fundamental constitutional rights or there is no suspect class.¹⁴ The Appellate court declined to even consider an equal protection argument as plaintiff failed to provide case law or legal source that would contrary to the lower court’s ruling.¹⁵

Both groups of plaintiffs argue that their substantive Due Process rights conferred by the Fourteenth Amendment were violated by their employers. Plaintiff’s point out that informed consent and the right to refuse experimental drug treatments, along with liberty interest in bodily autonomy, are fundamental rights and urge the court to use strict scrutiny. The Appellate Court agreed with the district court’s analysis that the plaintiffs were fundamentally claiming right to continued employment without receiving a COVID shot and, therefore, the rational basis test should be used.

Statutes Given Authority by Congress’s Spending Power Do Create a Private Cause of Action

Plaintiff’s assert that the CDC program, EUA statute, 10 U.S.C. §980, and 45 C.F.R. §46.122 were given authority via Congress’s Article One spending power and therefore confer § 1983 enforceable rights which were infringed upon by their employers. The Supreme Court has found that legislation passed by way of Congress’s spending power is, “more likely to create a §1983 enforceable right than laws passed under other enumerated powers.”¹⁶

 The Appellate court found that the standard course of action for these claims would be for the Federal Government to discontinue funds to the state rather than inferring a private cause of action. Further, the court stated that the EUA statute, the Provider Agreement and 45 C.F.R. §46.122 were not passed by way of Congress’s spending power. Therefore, the Court found that the plaintiffs’ arguments fail.¹⁷

Plaintiff’s Fail to Show Constitutional Violation

Plaintiff’s base their final §1983 claims on the unconstitutional-conditions doctrine which prevents the government from, “deny[ing] a benefit to a person because he exercises a constitutional right.”¹⁸ Plaintiff’s assert that their employers’ vaccination policies conditioned their continued employment on the plaintiff’s willingness to give up their fourteenth amendment rights of due-process and equal-protection claims.  The three-judge panel concluded that since the plaintiffs failed to meet the burden to show that their constitutional claims were violated, they have no basis to assert an unconstitutional- conditions claim.

The Court’s deference to the employers and skeptical view of plaintiff’s claims further erodes constitutional rights and the human right to autonomy and informed consent in the U.S., giving  a green light to employers to mandate use of biological products (vaccines) as a condition of employment, as long as the employer includes exemptions for medical reasons and religious beliefs.¹⁹

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