A private employer’s mandatory COVID-19 vaccine policy does not violate public policy under the common law doctrine of retaliation in West Virginia, a federal judge has ruled, dismissing an employee’s claim against the employer. McCutcheon v. Enlivant ES, LLC, no. 5:21-cv-00393, 2021 USA Dist. LEXIS 216671 (SDW From Nov 9, 2021).
The prosecution, Stephanie McCutcheon, worked at an assisted living facility. Her employer gave her until June 1, 2021 to get or end the COVID-19 vaccine. The company terminated her after she refused.
McCutcheon sued the company under the common law principles of retaliation, alleging its termination was against public policy. The company asked the court to drop the case because no public order protected McCutcheon from termination after refusing guidelines.
Court dismisses claim
The court agreed with the company, ruling that a viable claim for waiver through retaliation requires the existence of a clear public policy expressed in law and regulation.
The court also relied on West Virginia’s historic encouragement of vaccinations, such as mandating immunizations for students. It noted that public efforts to encourage COVID-19 vaccinations are consistent with the Supreme Court’s “perpetual mandate to legalize state-imposed mandatory vaccination for infectious diseases.”
The court also rejected McCutcheon’s argument that public order could be found in federal law. It ruled that the regulation on the authorization of the use of vaccines did not affect the rights and responsibilities of private employers, and thus did not express any public policy regarding them.
Finally, the court rejected McCutcheon’s argument that parts of the Nuremberg Code that prohibit inhumane and deadly medical experiments on humans created a public policy against mandating a federally approved COVID-19 vaccine.
Jackson Lewis PC © 2021National Law Review, Volume XI, Number 316