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Employment Law

Can Vaccination Requirements be Enforced in the Workplace?

Can Vaccination Requirements be Enforced in the Workplace?

Amanda Milgrom
Amanda Milgrom

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As COVID-19 continues to rage across the country, the question of vaccines – and whether they can be imposed on an individual or not – is a hotly debated topic. Folks have strong opinions on both sides of the discussion. Some stand for individual liberties, arguing the individual’s choice is more important. Others argue for the collective, contending that one person’s liberty should not come at the expense of exposing the group. As an employment lawyer, I get a lot of questions from my clients asking whether they can force their employees to get the COVID-19 vaccine. As we’ve written about in prior blog posts, the answer is a qualified yes.

Another way to analyze the question of imposing vaccine mandates is to ask: what would the Supreme Court do? Notably, the Supreme Court was forced to confront this issue back in 1905 during the smallpox epidemic. In Jacobson v. Massachusetts, 197 U.S. 11 (1905), the Supreme Court upheld the authority of states to enforce compulsory vaccination laws. In a majority opinion written by Justice Harlan, the Court concluded that individual liberty is not absolute and is subject to the police power of the state. There, the plaintiff had a bad reaction to a vaccine as a child, and so when the smallpox vaccine was made available, he was fined $5 for not getting it. The case wound its way through the courts until it reached our highest court. There, the Supreme Court declared in a 7-2 ruling that one man’s liberty could not deprive his community of their own liberty (i.e., avoiding disease).

The Plaintiff’s arguments were very similar to those we are hearing today: that the U.S. Constitution protects your right to decide whether to inject a vaccine into your body; that the government does not have the authority to intervene and impose it on you. These challenges have not yet come before a court regarding the COVID vaccine. However, as more employers are imposing a vaccine requirement on their employees, (see Delta Airlines, for example), we can expect that they will. Particularly now that the vaccine has passed full FDA approval. At that time, it will be interesting to see how Courts apply Jacobson and its precedential ruling that a state can impose a vaccine requirement.

While the structure of the Court is quite different today compared to 1905, the Jacobson case offers us significant insight into how a challenge against a vaccine mandate would be handled and can provide employers further assurance that a mandate is permissible under the law.

ABOUT THE AUTHOR

PARTNER & EXECUTIVE DIRECTOR

Amanda Milgrom represents individuals and businesses of all sizes in various litigation matters regarding employment, intellectual property, and business disputes. She practices employment law, representing employees in discrimination lawsuits and counseling employers on best practices, drafting employee handbooks, and putting together suites of employment contracts.

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Intellectual Property

What is the Trademark Modernization Act of 2020?

What is the Trademark Modernization Act of 2020?

Amanda Milgrom
Amanda Milgrom

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Trademark practitioners, it is time to get excited! Trademark applicants? Registrants? You can get excited, too! The United States Patent and Trademark Office (USPTO), the office that decides who can own the rights to a mark, word, or design logo, has proposed long-needed changes to the trademark rules of practice via the Trademarks Modernization Act (TMA).

If you practice trademark law, you are well aware that much of the process can be antiquated, slow, and inefficient. The proposed changes are intended to make the trademark process more efficient and to allow businesses new ways to remove unused marks from the register. The TMA amends the Lanham Act (which governs trademark law) in three key ways, all of which will be discussed in more detail below.

1. New Tools to Remove Inaccurate Claims of Use

The USPTO has proposed two new methods by which an entity can cancel an unused registration: expungement and reexamination. These tools would provide faster and less expensive alternatives to the current inter partes cancellation proceeding before the Trademark Trial and Appeal Board (TTAB).

Expungement – Third parties would be able to request the cancellation of some or all of the goods and services in a registration based on the fact that the registrant never used the mark in commerce in association with those particular goods and services. An expungement proceeding must be requested between three to ten years after the registration date.

Reexamination – Third parties would be able to request the cancellation of some or all of the goods and services in a registration based on the fact that trademark was not used in commerce with those goods and services on or before a particular date. A reexamination proceeding must be requested within the first five years after a registration.

Either of these tools offers a less expensive, less burdensome, and faster alternative to a cancellation proceeding.

2. Proposed Changes to Existing Procedures

New ground for TTAB cancellation proceeding – The proposed changes under the TMA would add a new ground for cancellation: the trademark has never been used in commerce.

Shorter three-month response period for office actions – Under the TMA, applicants and registrants will be required to respond to office actions within three months (instead of the current six-month period). Practitioners, you will likely be excited about this change, as it would promote efficiency in examination and would speed up the registration process significantly.

Third-party submissions during examination (letters of protest) – The TMA would provide statutory authorization for the USPTO letter of protest practice. This practice allows third parties to submit evidence to the USPTO, prior to a mark’s registration, regarding the registrability of the mark. The TMA would set a two-month deadline for the USPTO to act on these letters.

The TMA became law on December 27, 2020, and will take effect on December 27, 2021. It is currently open to the public for comment until July 19, 2021. You can submit comments at www.regulations.gov. Enter docket number PTO-T-2021-0008 on the homepage and click search. Please reach out to Milgrom & Daskam with further questions.

ABOUT THE AUTHOR

PARTNER & EXECUTIVE DIRECTOR

 

Amanda Milgrom represents individuals and businesses of all sizes in various litigation matters regarding employment, intellectual property, and business disputes. She practices employment law, representing employees in discrimination lawsuits and counseling employers on best practices, drafting employee handbooks, and putting together suites of employment contracts.

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Can Vaccination Requirements be Enforced in the Workplace?

As COVID-19 continues to rage across the country, the question of vaccines – and whether they can be imposed on an individual or not – is a hotly debated topic. Folks have strong opinions on both sides of the discussion. Some stand for individual liberties, arguing the individual’s choice is more important. Others argue for the collective, contending that one person’s liberty should not come at the expense of exposing the group. As an employment lawyer, I get a lot of questions from my clients asking whether they can force their employees to get the COVID-19 vaccine. As we’ve written about in prior blog posts, the answer is a qualified yes.

Read More »