The first federal lawsuit challenging employer-mandated COVID-19 vaccines has added a second plaintiff who claims that he was let go after refusing the county’s vaccine mandate.
Anthony Zoccoli, a former employee of the Doña Ana County Detention Center in New Mexico, claimed he was fired from his job because he refused to receive the “experimental injection,” according to an amended complaint filed on May 4.
The lawsuit resulted from a January directive issued by county manager Fernando Macias that all Doña Ana county first responders, including detention center officers and “other staff who have face-to-face contact with inmates,” get the COVID-19 vaccine as a condition for continued employment.
“As required by OSHA and in accordance with the County’s duty to provide and maintain a workplace that is free of known hazards, we are adopting a mandatory COVID-19 vaccination directive,” Macias wrote in a Jan. 29 memo, adding that vaccination is a “requirement and a condition of on-going employment with the County.”
Macias is one of the five defendants named in the complaint. The other four are detention center director Bryan Baker, Captains Ben Mendoza and Joshua Fleming, and the County of Doña Ana.
A Department of Labor spokesperson, in an email to The Epoch Times on March 15, said the Occupational Safety and Health Administration (OSHA) does not require employers to mandate the vaccine.
“OSHA does not mandate that businesses require its employees to be vaccinated, but an employer may do so if it is consistent with other Federal, state, or local labor and employment laws,” the spokesperson wrote.
County Attorney Nelson Goodin, representing the defendants, denied Zoccoli was dismissed as a result of not getting inoculated.
“Mr. Zoccoli was a probationary employee and as such could be terminated with or without cause,” Goodin told The Epoch Times via email. “He was terminated during his probationary period as is permitted by county policy.”
“He was not terminated because he declined to be vaccinated. The policy of the county is that when a probationary employee is terminated they are only advised that it is because they are probationary and as such are at will,” he added.
At-will employment means that an employer has the authority to dismiss an employee at any time for any reason, as long as it’s not illegal. Likewise, an employee may leave a job for any or no reason without the worry of legal ramifications.
New Mexico is one of the 49 states that is an at-will state. Montana is the only state not at-will as a result of a law that was passed in 1987 that states employers must have just cause to fire an employee after the probationary period is over.
Goodin also confirmed to The Epoch Times that Isaac Legarreta, a former detention center officer and the original plaintiff bringing the suit, was “no longer working at the detention center” as he had “voluntarily resigned.”
In the amended complaint, after refusing to get the COVID-19 vaccine, Legarreta “received a ‘coaching and counseling’ write up for not complying with the directive” and was later reassigned to a “less desirable position” in the juvenile section of the detention center following the filing of the lawsuit. In addition, he claimed that he was “dismissed from a position he had on the Detention Center’s emergency response team which resulted in a loss of income.”
Legarreta’s attorney, Ana Garner of New Mexico Stands Up! organization, told The Epoch Times that her client left his job because “the employer created hostile working conditions, which resulted in a constructive termination.”
Constructive termination occurs when an employee resigns due to the employer making work conditions intolerable.
But Goodin says Legarreta was not let go from the emergency response team but was “placed on operational pause due to the risk of potential exposure to himself and other employees or detainees” and that “he continued to receive the stipend up through the time of his resignation.”
Federal Law
The central issue of the lawsuit is that mandating an “unapproved” medical product available under an emergency use authorization (EUA) is in violation of both the Food and Drug Administration’s (FDA) guidance on the emergency authorization of medical products and the federal Food, Drug, and Cosmetic Act that states people have the choice to be vaccinated or not.
Section 360bbb-3 of the Act states that individuals have “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.”
All three COVID-19 vaccines used in the United States are currently being distributed under EUA, not federally approved by the FDA, and still in a clinical trial where its safety and efficacy continue to be collected and investigated for another year or two.
Any medical products distributed under EUA are considered an investigational drug and would be discontinued if there was an available, approved, and adequate medical product to treat COVID-19, the disease the CCP (Chinese Communist Party) virus causes.
The Centers for Disease Control and Prevention (CDC) also stressed last fall that any COVID-19 vaccines issued under an EUA cannot be mandated.
“I just want to remind everybody that under an emergency use authorization, an EUA, vaccines are not allowed to be mandatory,” Dr. Amanda Cohn, executive secretary of the CDC’s Advisory Committee on Immunization Practices, said in August 2020. “So early in this vaccination phase, individuals will have to be consented and they won’t be able to be mandated.”
The New Mexico Department of Health says it will not mandate the COVID-19 vaccine, however “some private entities may require their employees to get vaccinated.”
Mark Sadaka, trial lawyer and founder of Law Offices of Sadaka Associates, told The Epoch Times that businesses may require their employee to get the vaccine, but there are factors to consider.
“Employers making COVID vaccine a requirement also run the risk of losing qualified staff who do not want to be vaccinated,” Sadaka wrote in an email in March.
“The converse is true also. Qualified staff may leave if an employee does not make COVID vaccines a requirement, especially if there is a lot of in-person interaction as a requirement for the job.”
Garner said that she and her co-counsel, Jonathan Diener, hope that the court will “declare that the federal law says what it says, and that is, it rules over any mandate that a state or local agency would make” and that “potential recipients of the injunction” have the right to refuse the vaccine without claiming a medical or religious exemption.
“In this case, we were looking specifically for people who did not claim one of the exceptions because we want to have it available, we want the declaratory relief [court’s judgment declaring rights of plaintiff] to be available for all people who want to refuse, and they don’t have to give a reason.”
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