Mandatory Vaccinations for UNR Students Upheld
A recent decision in Gold versus Brian Sandoval, et al., Case No. 3:21-cv-00480-JVS-CBL, filed in the United States District Court, District of Nevada was decided on December 3, 2021, and should be of interest to you whether you are a student at a university, have family members who are students there, or are involved in any organization which is considering enacting mandatory vaccinations. As I think we all know by now, COVID is not going anywhere any time soon.
On August 20, 2021, the University of Nevada-Reno (“UNR”) enacted the Student COVID-19 vaccine requirement (“Policy”) which requires all students to be fully vaccinated against COVID-19 before enrolling for the spring 2022 semester. Gold, who is currently enrolled as an undergraduate at the University, alleges that he previously contracted COVID-19 and recovered. He claimed, correctly, that he was not able to enroll in in-person classes for the spring semester because of the Policy. He sought an injunction preventing UNR from enforcing the Policy against him because he alleged that his prior infection gives him superior immunity to COVID 19 than vaccinated individuals.
In denying Gold’s injunction, the Court looked at various constitutional issues, including violation of Gold’s substantive due process rights protected by the Fourteenth Amendment; violation of the Equal Protections Clause of the Fourteenth Amendment; and violation of the Fourth Amendment. Gold alleged that the Policy violates his “right of self-determination, personal autonomy and bodily integrity, as well as the right to reject medical treatment.” The Court first ruled that there is no fundamental right under the Constitution to refuse vaccination.
The Court also rejected Gold’s argument that the Policy violated the Equal Protection Clause. To prevail, Gold would have to show that others similarly situated were treated disparately. The Court held that Gold did not belong to a suspect class, as there was no suspect class for nonvaccinated people. Further, the Court stated the purpose of mitigating the spread of COVID-19 and preventing severe illness, hospitalizations and deaths is clearly a legitimate purpose.
Gold also alleged that the Policy violated his Fourth Amendment rights by infringing on his privacy. The Court held that nasal swab testing for COVID-19 does not create an intrusion under the skin, does not involve any genetic testing, and there is no sue of the sample for law enforcement purposes. In a stinging comment from the Court, it stated that Gold not only failed to show a likelihood of success, but he did not raise any serious questions going to the merits. The Court relied on U.S. Supreme Court law in Bruesewitz v. Wyeth LLC, 562 U.S. 223 (2011), describing the elimination of communicable diseases through vaccination as “one of the greatest achievements of public health in the 20th century.” Based on that analysis, the Court denied the request for a temporary restraining order and declined to issue an order to show cause why a preliminary injunction should not issue.
This decision appears to be very consistent with the trends in many courts across the country who are being faced with making decisions on mandatory vaccinations and masks. The United States Supreme Court has consistently declined to hear similar cases that are making their way to that tribunal. As recently as December 13, 2021, it turned away yet another challenge to New York state’s vaccine mandate for health care workers, a mandate that provides no exceptions for religious objectors. While OSHA’s emergency temporary standard (“ETS”) on COVID-19 is temporarily stayed by the Sixth Circuit, it will inevitably end up at the U.S. Supreme Court for review, probably sooner rather than later. If recent past decisions are any predictor of what will happen with the ETS, there is every indication those mandates will be upheld. But if we know nothing else in these unpredictable times, anything can happen.
If you have any questions, or need help with developing policies, you are invited to contact any of the employment lawyers at Lemons, Grundy & Eisenberg.