With COVID-19 cases declining again in the Department of Energy weapons complex and government officials considering how to deal with an emerging variant of the virus, much of this week’s industry focus is on courtroom battles concerning a small number of employees who refuse to comply with a vaccination mandate for federal contractors.
On the numbers side, there were 65 confirmed active cases of COVID-19 among workers within the DOE Office of Environmental Management (EM) footprint this week, or 11 less than the 76 recorded the week before, a spokesperson for the cleanup office said in a Thursday email.
Likewise, the latest EM case count is below the 99 tallied in the first week of November and well below the surge of late September, when the weekly case count was up to around 250.
Nationally, reports in the general press of late are focusing on travel restrictions and other steps launched by the administration of President Joe Biden to slow the spread of the so-called Omicron variant of COVID-19 in the United States.
Meanwhile, an attorney representing about 97 plaintiffs suing the prime contractor of the Savannah River Site in South Carolina thinks a judge could soon rule on his client’s request to block the company from firing them because they did not comply with a COVID-19 vaccine mandate.
U.S. District Judge Michelle Childs has said from the bench this week her goal is to rule in the litigation against Fluor-led Savannah River Nuclear Solutions (SRNS) by close of business Friday, Don Brown, the plaintiffs Charlotte, N.C.,-based attorney, said by phone Thursday.
Perhaps two or three of the original plaintiffs, “a very small number,” might have received the vaccination since the suit was filed, Brown said by phone Thursday.
Asked by Weapons Complex Monitor whether SRNS will proceed with firings now that the Nov. 30 deadline for full vaccination against COVID-19 has passed, Brown said “I don’t know the answer to that.”
But an SRNS spokesperson said Thursday evening that no employees so far “have been terminated based solely on their vaccine status” and that “SRNS continues to emphasize that actions taken by SRNS to mandate the COVID-19 vaccine for all employees were done solely to protect the health and safety of the workforce.
“With the current increase in COVID-19 cases in the region and additional concerns about potential new variants, we believe that following the CDC guidance for vaccinations continues to be the safest course of action for our employees and the public,” the SRNS spokesperson said.
The vaccine-refusing plaintiffs, in a revised complaint they hope will convince the judge to block expected firings arising from the SRNS order, alleged that two of their coworkers were pressured into resigning before the official deadline for getting the vaccine.
Two “resignations” by vaccine refusers occurred in advance of the Nov. 30 vaccination deadline, and should be treated as firings, according to the plaintiffs’ latest complaint. The document said one female employee resigned “in the presence of armed guards” and her decision should be treated as a “construction discharge.”
That revised complaint was filed Wednesday and Judge Michelle Childs will weigh it, along with filings by the contractor, in deciding whether to issue an injunction against the vaccination order. Lawyers for both sides presented their oral arguments Tuesday.
For the most part, the 89-page complaint revisits arguments the plaintiffs first put forward in mid-October, when SRNS told employees refusing vaccination to turn in their site badges in anticipation of being fired.
The plaintiffs question the language and legality of the vaccination rules for federal contractors, developed to comply with executive orders issued in September by President Biden. In their suit, they suggest the parent companies of SRNS — Fluor, Newport News Nuclear and Honeywell — are trying to curry favor with DOE in hopes of winning future contracts.
While the SRNS litigation has reached a key juncture, other lawsuits continue over vaccine policy at DOE properties such as the Hanford Site in Washington state, and the Oak Ridge National Laboratory in Tennessee.
Telephone Arguments Planned in Lawsuit to Stop Hanford Vaccination Firings
A federal judge in Eastern Washington will hear oral arguments by telephone Dec. 17 on whether to issue a temporary restraining order that could stop DOE contractors from firing guards and other employees at the Hanford Site who refused to get a COVID-19 vaccination.
U.S. District Judge Thomas Rice in a Tuesday order also instructed defendants, which include all of Hanford’s major contractors, DOE site manager Brian Vance and President Joe Biden, to file their response by Dec. 10 to the plaintiffs’ motion for a temporary restraining order.
In mid-November, about 290 Hanford workers, many of them guards, filed suit against the government and federal contractors in the U.S. District Court of Eastern Washington.
The workers are seeking an injunction against the vaccine order at the former plutonium production complex that is now a major DOE nuclear cleanup.
The DOE, which does not typically comment on litigation, did not respond to a request for comment by deadline.
The Hanford plaintiffs are represented by a law firm retained by the Silent Majority Foundation, an organization active in a number of legal challenges to vaccine mandates in Washington state.
Oak Ridge Lab Plaintiffs Receive Extra Time on Response
A lawsuit over the Oak Ridge National Laboratory’s vaccine mandate will go on at least a little longer, now that a federal judge has allowed the plaintiffs until Dec. 22 to file a response to the lab prime contractor’s motion to dismiss the case.
UT-Battelle, a team of the University of Tennessee and Battelle, is trying to get the case thrown out after U.S. District Judge Charles Atchley in November refused to grant an injunction blocking the contractor’s vaccine mandate.
Just before Thanksgiving, on Nov. 22, Atchley agreed to give the roughly half-dozen vaccine refusers suing the lab until Dec. 22 to brief the court on why the case should continue.
At the outset of the case, Atchley issued a temporary injunction to prevent the plaintiffs’ dismissal so that he could be briefed on the suit, which the lab employees filed in mid-October in the U.S. District Court in Eastern Tennessee.
But about a month ago, Atchley refused to issue a preliminary injunction to block the vaccine mandate for the duration of the case. In the ruling, he said the plaintiffs did not establish that they would be irreparably harmed by the mandate.
“Plaintiffs conflate the alleged irreparable harm arising from UT-Battelle’s challenged accommodation with the personal difficulty of choosing whether to decline the vaccine requirement,” Atchley wrote in a November decision. “Plaintiffs are not being forced to take the vaccine, thus depriving them of the right to exercise their religious beliefs, and the defendant has not terminated their positions.”
Shortly after the judge’s ruling on the injunction, the UT-Battelle asked that the entire case be dismissed, in part because plaintiffs had yet to exhaust their potential remedies before the Equal Employment Opportunity Commission. That was expected to happen by Christmas.
After about a half-dozen vaccine holdouts filed suit Oct. 12, the judge initially issued a temporary restraining order holding up the DOE lab manager’s plans to place the unvaccinated staff, some with religious exemptions, on unpaid leave.
The plaintiffs have complained that the laboratory contractor’s vaccine order is “absolute” with little leeway for accommodations such as remote work or mask-wearing as an alternative to vaccination.
