Honolulu lawyer Jeffrey Harris, a labor and employment attorney advising businesses on how to implement Covid-19 mandates for employees, has one piece of advice for Honolulu Mayor Rick Blangiardi: move immediately to dismiss a federal lawsuit brought by first responders challenging the city and county’s policy of requiring them to be vaccinated.

“It’s directly against U.S. Supreme Court precedent,” Harris told a webinar organized by the Chamber of Commerce Hawaii, during which member businesses clamored for details on how to implement vaccine mandates.

Lawyers for the Honolulu firefighters, paramedics and police objecting to the mandated vaccinations disagree with Harris. They’ve laid out their reasons in a 60-page complaint filed recently in Honolulu federal court.

Central to their complaint is an argument that the law simply doesn’t allow the government to force people to be what amount to human guinea pigs in medical experiments. The oft-cited Supreme Court case mentioned by Harris does not apply to what’s going on now, said plaintiffs’ attorney Shawn Luiz. The lawyers have asked the court to rule the mandates invalid.

Regardless of who is right, Harris’ remarks showed how top-of-mind the first responders’ suit is for legal experts, as businesses and governments seek to navigate the pandemic by making sure workers have gotten vaccines. Data shows that such policies are becoming increasingly popular as the virus has seemed to spiral out of control in recent weeks due to the highly contagious delta variant.

Sherry Menor-McNamara, the chamber’s president and chief executive, said the idea of mandating vaccines is gaining momentum among businesses. During the webinar, she said most businesses are considering a mandate, although some 57% of 266 businesses in a chamber survey said the opposite: that they did not plan to require vaccinations for their employees. The chamber’s webinar featured Harris, a labor lawyer with Torkildson, Katz, Hetherington, Harris & Knorek, along with his partner John Knorek, explaining how to do just that.

Some of Hawaii’s largest employers have announced mandates requiring most workers to be vaccinated or undergo regular testing. These include the 2,500-employee Hawaiian Electric Cos., Bank of Hawaii and the medical giant Hawaii Pacific Health.

And many more businesses, including smaller ones, appear nearly ready to join the big firms in making workers get the shots. Approximately 350 chamber members attended the webinar, Menor-McNamara said.

“Of all the webinars we’ve had since the pandemic began, and we’ve had quite a few, this by far had the most signups and the most questions,” she said.

Although much of the webinar consisted of detailed questions and answers on how to implement a mandate, Harris kicked off his part of the presentation by blasting the first responders’ suit. He pointed to a 1905 case, Jacobson v. Massachusetts, that let the state force people to get smallpox vaccinations. He also recommended the mayor’s administration ask the court to sanction the first responders’ attorneys: Shawn Luiz, Michael Green and Kristin Coccaro.

A hearing is scheduled for Sept. 8.

“Recent case law and the 116-year-old case it carefully analyzed lend support to the Governor and the Mayor mandating vaccines, based on their interest in protecting public health and safety,” Harris wrote in a memo sent to Chamber members participating in the webinar.

The Hawaii Department of Health reported 680 new cases per day as of Wednesday, according to a seven-day average. Meanwhile, 61.5% of the population has been vaccinated.

Despite reports of vaccinated people becoming infected, Ray Vara, the chief executive of Hawaii Pacific Health, said during Wednesday’s webinar that most severe cases are among those who haven’t gotten the shots.

“Vaccine is good, no vaccine is bad: it’s as simple as that,” Vara said. “This is truly a pandemic of the unvaccinated.”

A Fundamental Right To Oppose Vaccination

But for the firefighters and others opposing the city’s mandate, it’s a matter of principle, as well as the law.

The city’s policy requires employees to be fully vaccinated, partially vaccinated, or to have submitted a request for a medical or religious exemption. City employees who are partially vaccinated, having gotten only the first dose of a two-dose vaccination series, have until September 16 to get their second dose. Employees who don’t comply could be terminated.

Kaimi Pelekai, a captain with the Honolulu Fire Department, said whether to take the vaccine should be a personal choice.

“All we really want is the freedom to choose,” Pelekai said in an interview. “If you believe that it works, you can choose it.”

He also said very few, if any, first responders have caught the virus from someone they treated.

“I want to say that zero people have contracted Covid from a patient,” he said.

Other named plaintiffs in the class action include nearly a dozen other firefighters, paramedics, lifeguards and police officers.

Central to the first responders’ legal argument is that the vaccine has not been fully approved by drug regulators. Instead, the vaccine is being given out under an “emergency use authorization.” And, the complaint argues, the emergency use authorization statute requires people give consent before taking what amounts to an experimental drug.

“Plaintiffs have a universally recognized, fundamental right to be free from human medical experimentation, a right that is protected by recognized international legal standards, international treaties to which the United States is a member, the laws and regulations of the United States, and the Due Process Clause of the Fourteenth Amendment,” the complaint says.

“Moreover, Plaintiffs have a universally recognized, fundamental right to give informed consent to any medical treatment, a right that is secured by the Due Process Clause of the Fourteenth Amendment.”

The oft-cited Jacobson case simply does not apply to the current facts, Luiz said in an interview. Among other things, he said, that case dealt with the question of a state’s police powers to impose a vaccination and not the administration of a federal law that governs vaccines and other drugs.

Regardless, the lawsuit quotes the Jacobson decision itself to show that a state’s power to require vaccines is not limitless.

“There is, of course, a sphere within which the individual may assert the supremacy of his own will, and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution, to interfere with the exercise of that will,” the suit says, quoting Jacobson.

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