New Mexico Gov. Michelle Lujan Grisham earlier this month, along with other state and federal lawmakers called on private businesses to make COVID-19 vaccinations a condition of employment and patronage through an open letter that received two dozen signatures.
Grisham and the supporters of her suggestion to mandate the vaccine say the requirements are necessary to dampen the spread of the virus throughout New Mexico, while the opposition has called out Grisham's suggestion as allegedly illegal.
Ana Garner, lead counsel for New Mexico Stands Up, told New Mexico Sun that Grisham is asking businesses to do something that she is not legally able to do, and that these sort of vaccine requirements are only permitted under the Emergency Use Authorization Act of the FDA, "which clearly states that anyone getting this experimental product has the right to refuse or accept."
"You cannot coerce or mandate someone to take an experimental biological product into their body," Garner said.
According to the New Mexico Department of Health's COVID-19 dashboard, the state's vaccination rate of 74.5% adults receiving at least one dose exceeds the U.S. average of 59% respectively as reported by the New York Times.
The Wall Street Journal also reported that hospitalizations per 100,000 in New Mexico is far under the national average.
New Mexico Stands Up's site describes the group as a volunteer nonprofit organization providing public interest legal action and support for "loss of health freedom [...] the reality of the declared public health emergency and [New Mexicans'] rights with regard to mandated medical interventions." The group will be circulating fliers to area businesses that can be posted to inform customers that Grisham's suggestion is not being upheld at the establishment.
Garner said that businesses posting these fliers would help the public see if the place they are patronizing is "constitutionally complaint," citing 42 U.S. Code § 1983 which would hold a business liable for a mask- or vaccine-related injury to one of its customers or employees.
"I don't want businesses to be liable to someone for any damages that could occur as a result of enforcing these illegal mandates," Garner said. "For example, if you require people who have medical conditions [...] to wear a mask, and they pass out for lack of oxygen and split their skull open, that's an injury to them that a store owner can be liable for."
New Mexico Stands Up wants to protect businesses from Grisham's suggestion, according to Garner. The attorney said the organization's fliers are meant to help businesses show consumers where they can safely shop and get services, where owners are not enforcing vaccine mandates "at the cost of their own liability."
"If you mandate vaccines, you better be prepared to pay for damages that are caused by these vaccines," she said.
Business participation in the fliers will vary by the community, Garner said, but she thinks some will be scared to post the flier because of the social consequences.
"People will disparage a business and say 'this business is putting our health and safety at risk.' No, do your research," Garner said. "Masks do not prevent viral transmissions and the vaccines do not prevent you from getting COVID."
The Centers for Disease Control says both the Moderna and Pfizer vaccines have shown more than 90% effectiveness, and masks are universally accepted as a way to prevent the spread of COVID-19.
Small business owners remain skeptical and are concerned about how implementing a mandate on customers and employees would affect business. Matthew Dominguez, general manager of an Albuquerque restaurant, told KOB4 that it's not a bad idea, but it could hurt business. Josh Kastenberg, a University of New Mexico law professor, said if companies implement vaccine mandates, they cannot discriminate against "a legitimate religious belief or a medical condition, or they are protected by a union agreement".
Last year's lockdown almost put the economy in the grave and shuttered many small businesses forever, Garner said, adding, "New Mexico can't weather another economic devastation like this."
"I'm telling businesses that it is your absolute constitutional right not to be deprived of life, liberty and property," she said. "And your business is property."
The lawyer hopes that Grisham witnesses a pushback "the likes of which she has never seen" to the call for vaccine mandates. She welcomes any businesses unjustly trapped in fines once again to contact her or the organization for aid.
"[Grisham] is asking private businesses and private employers to do something that she knows the state can't do. [...] It may be just as much a veiled threat to us saying 'you're not going to be able to shop anymore if I can get all these businesses to do my bidding," Garner said. "She's trying to send a message to those of us who know that this is illegal that she's going to do her best to squeeze us out of our freedoms, what's left of them."