Camille Broadway
An Eighth Circuit Court judge said Monday she expects to rule quickly on a preliminary injunction involving Gainesville’s COVID-19 vaccine mandate for employees and contractors.
Jeff Childers, the attorney for approximately 250 employees and contractors suing the city over the vaccination requirement, asked Judge Monica Brasingson for a preliminary injunction to stop the mandate.
“To my understanding, this is the first [government employee vaccine mandate] to be ruled on in the state of Florida,” Brasington said during a Zoom hearing. “I want, for all of your sake, for me to get it right, so I am going to take the time to do that. However, I am going to do it quickly for the benefit of everyone.”
She instructed Childers and Daniel Nee, one of the city’s attorneys, to submit competing orders to her by noon Tuesday, and said she would issue her final ruling on the injunction afterward.
Brasington also said she would rule later on whether to accept an amicus brief from the state of Florida about the case.
During the two-hour hearing, Childers argued that the city’s vaccine requirement was a violation of the employee’s right to privacy under Florida law. Because the policy involves the right to privacy, Childers further argued that it needed “strict scrutiny” from the court.
Strict scrutiny is the highest standard of judicial review that can apply to a law and involves the government proving that a law serves “a compelling public interest” and that the law is narrowly tailored enough to meet that public interest.
The city’s attorneys seemed to be caught off guard by the plaintiffs’ focus on the right to privacy and the argument for strict scrutiny.
In its written response to the request for the preliminary injunction, the city argued the court should not issue an injunction because the plaintiffs had not provided enough evidence to meet the requirements, which would include proving the city’s policy caused irreparable injury to the employees.
The city seemingly prepared to argue that point but had not prepared to counter the right to privacy/strict scrutiny arguments.
Nee said the city had not planned to call any witnesses during the hearing and had not submitted affidavits relating to the development of the vaccine mandate—a point Brasington pressed during her questioning of the city’s attorneys.
“I don’t have an affidavit or a declaration from anyone, including the city manager, the mayor, anyone who has responsibility for the city, saying they relied on these things you are referring me to in order to come up with this policy,” Brasington said. “I don’t have anyone from the city telling me that they considered the [Alachua County COVID] dashboard. I don’t have anyone saying anything about anything. What would you like me to do with that?”
Nee said that the city was prepared to argue about whether the case met the requirements for an injunction:
Nee: “The first part of the preliminary injunctions test would have been insurmountable [for the plaintiffs to successfully prove].”
Brasington: “So you thought you didn’t need to submit any evidence because it was a slam dunk?”
Nee: “I wouldn’t put it that way, your honor. But I do think that the city’s approach to the employee regulation was not as it would be in [passing] a law of general application.”
Brasington: “Why would these employees have any less protection under Florida’s right to privacy and the Constitution than would the citizens under a law of general application? Maybe that’s the disconnect? Help me with that.”
Nee: “And the disconnect, your honor, is that we are talking for the first time of an employee vaccination policy being implicated in the right to privacy. If that’s what’s happening, then yes, the rules are different and we would certainly understand going forward.”
Brasington did not indicate how she would rule in the injunction, but the majority of the arguments during Monday’s hearing centered on the employees’ right to privacy, which gives them the right to control whether they undergo medical treatments.