This is Bloomberg Law with June Brussel from Bloomberg Radio. Employers generally have the power to set rules in the workplace, and vaccination mandates for influenz and other infectious diseases have been commonplace and healthcare organizations for years. In addition, the Equal Employment Opportunity Commission has recently confirmed that employers can require workers to get vaccinated against COVID nineteen, although they may need to make reasonable accommodations due to a health
condition or religious belief. But that hasn't stopped some workers from filing lawsuits against employers requiring vaccinations. There are suits against Houston Methodist Hospital, the Los Angeles Unified School District, a sheriff's department in North Carolina, and Attention and a detention center in New Mexico. Joining me is Eric Fellman, a professor of law, health policy, and medical ethics at the University of Pennsylvania, tell us about this lawsuit filed
by hospital employees against Houston Methodist Hospital. Yeah, I mean, it's not much of a lawsuit from a legal point of view, I don't think, but it certainly expresses the frustration or anger that we've seen. I think for quite a while in the anti vaccination community. That's really come
out in full force, I think during COVID nineteen. So I take the lawsuit not so much as articulating a set of really complicated legal issues, though it does manage to raise one issue, but much more a sign of the distress and distrust of the medical establishment, as we've been seeing really over and over again over the past fifteen months or so. What are the alleging is the basis for their claim that the hospital shouldn't be able
to tell them to get vaccinated. So the claim they's been the most time on is, unfortunately, I think, from their perspective, the one that's likely to get the least sympathy from any court that's actually focused on the law, and that's the claim that they are they being. Those who are being required to be vaccinated are basically the same as people who would be subject to medical experimentation.
And the analogy that's drawn very sharply in the lawsuits is that this is akin to the medical experimentation by the Nazis on those who are in the concentration camps. Then, of course those notorious medical experiments which were litigated and brought to light during the Nuremberg trial involved people who were involuntarily confined and on whom treatments quote unquote were tried that had absolutely no data, and the things that
were done to the prisoners are absolutely horrific. The litigants here, the lawyers, are claiming what we have as a group of individuals who are being forced against their will to subject themselves to this untested vaccine. And that's just wrong scientifically, and I think it's wrong morally, and it's wrong legally. There's a distinction that's not drawn in this lawsuit between
mandatory vaccination and compulsory vaccination. Compulsory vaccination literally is holding people down and jabbing a needle in their arms and forcing them to get vaccinated against their will. Mandatory vaccination isn't forcing anyone to get vaccinated. Nobody in the Houston hospital has to get vaccinated. They have options, and if they choose to not get vaccinated, depending upon their reason, they may find themselves put in a different position in
the hospital, they may find themselves unemployed. But that's different than forcing them to get the vaccine. So that's the weakest of claims here, and what's one of the stronger
claims made in the lawsuit. The stronger claim made in this lawsuit, and and it's an issue that's been vatted about on legal laws and others, is whether or not the fact that the COVID ninet team vaccines that are currently authorized to be used in the US are authorized on their emergency you thought zation whether the eu A status of these vaccines means that they cannot be mandated, And it gets into really the regulatory we's here, But
there's a section of the regulations about the Emergency Youth Authorization that discusses the requirements that people who are receiving a vaccine approved under Emergency Youth Authorization have to be told about the consequences of accepting and not accepting, etcetera. And that's been read by some and not inappropriately, as
suggesting that eu A vaccines cannot be mandated. Anothers say, there's really nothing about the language and the regulation that would mean that mandates were illegal or inappropriate, And so that's where the legal fight is. Wearing a mask became a political issue, and now vaccines are becoming a political issue.
Are there any political motivations behind these lawsuits? And one thing about the Houston lawsuit I think really underscores the degree to which one needs to look at this as a political statement or or a sort of an ideological folly, rather than a really serious effort at legal articulation. The lawyer who's representing the plaintiffs against Houston Hospital as a gentleman named Jared wood Fille. He was chair of the Republican Party in Houston for over a decade and has
recently been involved in the Stop the Steal litigation. So he's someone with an iron laws agenda, and fair enough to people have ideological agenda, But I think the lawsuit here is really much more about putting that agenda into the courts, bringing the agenda to the public through media attention and the interviews like these, than it is a serious effort at a lawyer. And when the FDA completes the process of approval for the vaccine, will the basis
of this lawsuit then disappear? I think when you know the FBIA is expected to provide uh full approval of the vaccines at some point in the fall, I think no one is quite sure exactly when, but I believe both MADERNA Adviser have approved I have have applied for full approval.
At the point at which the vaccines received full approval, I think a lot of the steam behind these lawsuits is likely to disappear because it's going to be really tough to make any claim at all about UH the language and the regulation of Emergency Youth authorization being relevant anymore.
I may not stop the lawsuits. There have been plenty of losses around vaccine mandates that did not involve the eu A. But the novelty of the COVID nineteen vaccine is that it is approved under eu A, and so it would be the first or is the first vaccine under eu A that various entities, universities, private businesses, hospitals, et cetera have been mandated, So it's really the eu
A who that's been the focus. Once that's gone, I think those who are bringing lawsuits are going to have to find a different basis on which to make their claims. Many employers and institutions have apparently received letters threatening lawsuits against vaccination mandates. Does the threat of a lawsuit stop
a lot of employers from mandating vaccines? Yeah? So there has been a fairly well coordinated national effort I think driven by several organizations that are strongly objecting to the idea of the COVID nineteen vaccine mandated to find sympathetic lawyers and law firms around the country to bring these claims to the courts. And so you have a a series of lawsuits that would percolate around the country making similar arguments. And I think the hope is and and
it's and it's not a bad political strategy. The hope is that's going to serve to dissuade those who might otherwise have mandated the vaccine to back off. And I think there's probably some truth to that that nobody likes to be sued, particularly to the degree that one is being sued by one employee by one's employees. I think what you end up seeing is the deterioration of workplace morales.
You have workers who are unhappy. You have divisiveness between the workers who say they wouldn't go to work unless everyone was vaccinated versus those who say I'll never get vaccinated. You have arguments about privacy, about freedom, about fundamental values. So even without the lawsuit, I think most employers, most of the time would prefer to see everybody embrace the idea of vaccination without a mandate, but in a variety of settings. Let's say, airlines would be an obvious one,
cruise shifts would be another. Academic institutions and medical institutions certainly another. Relying on volunteerism, while would be nice, probably isn't enough. So you know, University of Pennsylvania Hospitals, the hospital where at the university where I work, has mandated vaccines for faculty and staff. I believe that am going to be increasingly the trend across the country. Just as hospitals have mandated the influenza vaccine for faculty and staff,
universities are increasingly mandating it. But businesses, I think, if they can find ways of mandating it and happily stay out of the courts, are likely to probably go in that direction rather than the direction of a vaccine mandate.
Had there been lawsuits against the hospitals or the universities who mandate the influenza vaccine, there have been lawsuits, and I think the law has been pretty clear since the beginning of the twentieth century that there's a strong public health justification for mandating vaccines, and that's been the case in schools. That's indicate in communities more broadly, and so while there has been litigation, that litigation has generally failed. Um, just just I think that to add one more point
to the question you raised a second ago. Uh, there are some schools in the University of California or cal state system. I think is a good example of one that I suppose with an eye towards avoiding litigation that they would find to be bad publicity, time consuming, and expensive. Has said that the vaccine is the COVID nineteen vaccine is required a students, faculty, and staff once the FDA provides full approval of the vax vaccine, but not before.
So they're sidestepping, I think, thoughtfully and cleverly the possibility of litigation based upon the emergency youth authorization of the vaccine and saying we will mandate it, but not until it's fully approved because we're we're pretty confident that we're on strong legal ground even if we're to mandated sooner, but we know where on very firmly ground if we put it off, And so putting it off has been
the you see strategy, and it's increasingly the strategy. I think it's some other institution, the E E. O C. The Equal Employment Opportunity Commission recently confirmed that employers can require workers to get vaccinated. Does that carry any weight in a lawsuit? The e o c S recommendation the you know, it's going to depend upon the state. There. There are a variety of states that have, either through executive order or legislative action or both past laws that
prohibit vaccine mandates. Are certainly if they don't prohibit the mandate, they prohibit the enforcement of the mandate by telling employers both private and public, that they cannot ask anybody to demon straight or provide proof that they've been vaccinated, and if they do, for example, in Florida, they're subject to a fine of up to five thousand dollars. So I think in a place where there's a state law, that
state law is likely to override UH federal guidelines. Here from the e o C that said, there are lots of states that don't have those laws. And also that's that I think the e o c S guidance is really important because it didn't just say it was okay
to mandate vaccines UH by employers. It said that bandating the vaccines and most circumstances would not be a violation of GENA, the Genetic Information on Discrimination Act, or of Title seven of the Civil Rights Act, which prohibits discrimination based upon race and religion and other categories, or of
the Americans with Disabilities Act. And then it also spoke in some detail about the kind of incentives that employ could provide to employees so that they could nudge people towards getting vaccinated without mandating vaccines, and that I think it's become an increasingly important way of getting people vaccinated without requiring them to be vaccinated. Offer the money, offer them a day off, offer them some sort of a thanks for being on the Bloomberg Laws Show. That's Professor
Eric Felban of the University of Pennsylvania Law School. The Biden Administration's decision to defend former President Donald Trump in a defamation lawsuit over his rape denial surprised many and angered some. In a letter to Attorney General Merrick Garland, the House Judiciary Committee called the decision misguided and demanded that the Johnstice Department reverse its decision to defend the case.
The Johnstice Department's court filing strongly back Trump's assertion that his calling advice columnist E. Jene Carol, a liar in after she accused him of raping her in the ninety intees was an official act shielded from lawsuit joining me? Is Bloomberg Legal reporter Eric Larson start with telling us about this law that would allow former President Trump to dodge a defamation lawsuit. So it's it's fairly acure law that doesn't pop up a lot in the news, but
it's called the Westfall Act of nine UM. What it does is it protects federal employees government employees UM from litigation against them civil lawsuits UM filed against them that relates to their job duties. So one example that popped around a lot is you know of USPS mail carrier, you know, crashes into a car and get sued by the document of that car. This is a type of law that would get that suit thrown out because they it would make the United States government essentially the defendant
rather than the individuals. So the position of the Trump administration was that his alleged defamation ee, Gene Carroll, would fall under this law. What did the government argue? Why did they think that this applied to Trump in this case? So the Trump administration argued that when Ejing Carroll accused him in two thousand nineteen of raping tour of two
decades ago, and then the saming Carol by denying it. Uh, the government argued that the president should be removed from the lawsuit and that the United States government should be the defendant in the case instead, because under the West Ball actually argued Trump was carrying out a presidential duty of some sort by denying the claims made by Eejan Carroll.
And it's part of that that motion if the government is substituted for Trump, and essentially the cases over the cases dismissed because you can't see the government for defamation.
So this was litigated. Tell us what the lower court judge decided in the case and why so in October that the report judge in Manhattan disagreed with the Trump administration and ruled in favor of aging Carol and said that Trump was not carrying out a presidential duty when he denied her allegations and essentially accused her of lying of making this up for political purposes um, claiming that she had made similar allegations against other men um which
wasn't actually true. And it also said frankly that she wasn't his type, or to use his word, So he came out pretty strongly denying Miss Carroll's claims, and she accused him of defamation. And when the government tried to have the case thrown out under the west Ball Act, the federal judge just disagreed, and now, uh, there's an
appeal underway. The appeal was filed before President Biden was elected h so when he won, the judge said, well, let's wait and see what the Biden administration has to say about whether or not the west Ball Act applied to this case. So everyone went in the case was just waiting to see what uh Merritt Darland k would say.
And this was sort of a surprise when they came out with the exact same argument that the Trump administration has not only a surprise, but it's really caused a lot of consternation, so much so that the Democrats on the House Judiciary Committee just sent a letter to Merrick Garland to ask them to change their position. Let's talk about what might be behind this, because during the campaign, Biden criticized the d o J intervening in the case.
Now the White House says it wasn't consulted by Justice on the decision to file the brief or its contents. Is the Department of Justice trying to make a point about its independence here, Well, I don't know if they're trying to make a statement about it, but it certainly does suggest that, uh, the d o J is coming up with their their own argument here. That is different
from what Biden said on on the campaign trail. So Biden said that he was going to keep the d o J on lanky, wasn't going to try to use it as a personal law firm, as the accused Trump of doing so. The fact that they have the President and the d o J have a different views on this could be explained as just the d J doing what it does. Of course, others see it as as the d o JA trying to protect the office of the presidency at the expense of other people who might
want to do the president. But we we really don't know. We can say though, that, as the DJ pointed out under both Trump and Biden, that the west Ball Act has been applied to previous president um including Barack Obama and Bill Clinton George W. Bush, So it's not unusual for lawsuits against presidents to be dismissed under this law. What Aging Carol and her lawyers say is that it's
just not the same. The cases against or other presidents and other federal employees are much more related to something pertaining to their job duties as federal government employees, and that ablicly denying a rape allegation from twenty years ago doesn't fall under any kind of duty. So that's why I think Eating Carol and her lawyers thought that they were going to get Biden d O J on their side, but it doesn't turn out that way. That DJ is is putting a very applying this very broadly. Um, not
just the Biden but future presidents as well. Eric. The law has also been used to block a wrongful death and defamation lawsuit against former Secretary of State Hillary Clinton, and the language by the DC Federal Appeals Court it was pretty broad, that's right. Um. This was a case that was filed against Hillary Clinton by two family members of two individuals who were killed in that attack on the US facility in Benghazi. Um. They accused her of
defaming them. They also accused her of causing the wrongful death of their loved ones by all really sending sensitive information about that facility over her private email server. UM. So you know this case was thrown out under under the west Ball Act. Um. The judge um in the Federal appeals court agreed that this related to all of this related to do Hillary Clinton's duty of the Secretary of State and the best precisely what the west Ball
Act was passed for. UM, And you're correct that it's say the Federal Peals Court in Washington did use very broad language saying that there was extensive precedent had made it clear um that alleging of federal employees violated policy or even laws in the course of her employment, including specific allegations of defamation or potentially criminal activities, does not take that conduct outside the scope of employment. Kind of a long quote, but it really does show how broadly
the Washington Appeals Court interpreted that. Of course, the case we're talking about is now before there's a second circuit in New York. Uh, still be interesting to see how how their decision comes down. It's Trump raising a similar defense in lawsuits against him over the Capital insurrection. Yeah, that's really interesting because he is and uh, the d J hasn't come down with um with any sort of determination on that yet. But I think that there are
are people who are concerned. You know, we quoted one of them and one of our stories saying that they were very concerned about its broad interpretation. UM. And it's it's interesting too because you could see how the arguments from both sides would apply to this case as well. UM. The difference thing in this case, Uh, the president then President Trump was making comments that really worked directly related to UM, an election that it just happened, it relates
to his election. UM. Obviously we know what happened to when people took what he was saying literally and believed, Um, his his wise about the election being stolen. UM. But you know, clearly they're going to argue that this was just his job as president. He was just making commentary as presidents do. And the other side is going to argue he went way too far. That conciding an insurrection surely is not what Congress intended when they passed through
Westball Act. So again, it's a it's going to be another test of this this law. I want to talk a little bit about the lawyer who is representing E. G. Carol in her lawsuit against Trump, ROBERTA. Kaplan because you did a story on her first of all, tell us a little bit about her and and her background. Yeah, So, Robbie Chaplin, she is a civil rights lawyer. Um. She is one of the lawyers who helped pay the way for the legalization of things that marriage in the Supreme Court.
She argued the case that overturned the Defense of Marriage Actuh. So she also helps campaign for Lary Clinton. UM knows her and and and she was confident that she was going to win and perhaps to get a job at the Justice Department. Of course that didn't happen, so she left. She had left her her job at Paul White, where she's been for over two decades, and instead of going to work for the Justice Department under Hillary Clinton, decided
to found her own law firms. So that's what she did. Um. And they've been taking on, uh, you know a lot of very interesting cases, teaching Carol's cases one of them. They're also representing Trump. Meet Mary Trump and her fraud lawsuit against the President, accusing him of ripping her up
millions of dollars um. They're also running lawsuits. One of the first lawsuits they filed with against some of the organizers of the United Rights Rally and Charlottesville, like so many injuriespended deaths, um and that's potentially going to trial in October. But on top of that, they're doing all kinds of spent regular commercial work as well and looking for big Wall Street client and fortune side hunter companies, things like that, doing commercial work, white collar crime, representing
companies in congressional investigations and things like that. So she's attracting a lot of in demand young lawyers because of the public interest work that she does, or just because of the nature of the firm. Well, she says that it's both. These are she describes their their lawyers they're hiring and um, you know, very talented younger lawyers who
are very interested in public interest work. They're kind of work that they're they're putting at the center of their firm, but also want to, um, you know, get involved in in corporate litigation, the kind of the kind of legal work that's so common in you know, in New York Wall Street related stuff. So really that's what they're telling where they can work on both, um, both types of law here and and surrive doing both. That's that's how they pitch it. To their thanks for being on the show. Eric.
That's Bloomberg Legal reporter Eric Larson, and that's it for this edition of The Bloomberg Law Show. Remember you can always get the latest legal moves on our Bloomberg Lawn podcast. You can find them on Apple Podcasts, Spotify, and at www dot Bloomberg dot com, slash podcast slash Law. I'm June Grosso and you're listening to Bloomberg