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Court Rejects Challenge to West Virginia Private Employer’s Mandatory COVID-19 Vaccine Policies

A private employer’s mandatory COVID-19 vaccine policy does not violate public policy under West Virginia’s common law retaliatory discharge doctrine, a federal judge has held, rejecting an employee’s claim against the employer. McCutcheon v. Enlivant ES, LLC, No. 5:21-cv-00393, 2021 U.S. Dist. LEXIS 216671 (S.D. W. Va. Nov. 9, 2021).

Background

The plaintiff, Stephanie McCutcheon, worked at an assisted-living facility. Her employer gave her until June 1, 2021, to get the COVID-19 vaccine or be terminated. The company terminated her after she refused.

McCutcheon sued the company under common law retaliatory discharge principles, claiming that her termination violated public policy. The company asked the district court to dismiss the case because no public policy protected McCutcheon from termination after refusing directives.

Court Rejects Claim

The court agreed with the company, holding that a viable claim for retaliatory discharge requires the existence of a clear public policy expressed in laws and regulations.

The court also relied on West Virginia’s historic encouragement of vaccinations, such as mandating inoculations for students. It noted that public efforts encouraging COVID-19 vaccinations align with the “century-old Supreme Court mandate legalizing state-imposed mandatory vaccination for contagious disease.”

The court also rejected McCutcheon’s argument that a public policy could be found in federal law. It held that the regulation addressing approval of vaccine use did not affect the rights and responsibilities of private employers, and thus expressed no public policy relating to them.

Finally, the court rejected McCutcheon’s argument that portions of the Nuremberg Code outlawing inhumane and deadly medical experiments on humans created a public policy against mandating a federally approved COVID-19 vaccine.

Jackson Lewis P.C. © 2022National Law Review, Volume XI, Number 316
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About this Author

Marla Presley, Employment Labor Litigation Attorney, Jackson Lewis Law Firm
Principal and Office Litigation Manager

Marla N. Presley is a Shareholder in the Pittsburgh, Pennsylvania office Jackson Lewis P.C. Prior to joining Jackson Lewis, Ms. Presley was a litigation attorney at both a regional and national law firm, concentrating in the field of labor and employment litigation, including individual and collective action discrimination and wage and hour claims.

Ms. Presley’s practice is focused exclusive on the representation of employers in employment related litigation before administrative agencies and courts on both the state and federal levels. Ms....

(412) 232-0404
Laura C. Bunting Employment Attorney Jackson Lewis Pittsburgh, PA
Of Counsel

Laura C. Bunting is Of Counsel in the Pittsburgh, Pennsylvania, office of Jackson Lewis P.C. She brings her past experience as a federal law clerk and employee-side employment attorney to exclusively provide employers with focused and results-oriented representation in matters involving claims of discrimination and retaliation under Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Family and Medical Leave Act, and various state laws and common law theories.

Ms. Bunting has jury trial experience in federal and state...

412-338-5147
Michael J. Roche Jr Attorney Workplace Law Jackson Lewis Pittsburgh
Associate

Michael J. Roche Jr. is an associate in the Pittsburgh, Pennsylvania, office of Jackson Lewis P.C. Michael served in the Pennsylvania Air National Guard, an experience providing him a core set of disciplines, assets in his legal practice.

He focuses on representing employers in workplace law matters, including pre-litigation claims and litigation, as well as preventive advice and counseling. Michael attributes his working closely with clients to successfully litigating matters on their behalf before state and federal courts...

412-232-0404
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