Lawsuits begin as first workers lose their jobs
Under federal guidance issued last month, employers can legally require that employees who come into work be vaccinated against COVID-19, except those with medical conditions or religious objections.
But another question looms, especially as the government prepares to give full approval to two of the three vaccines currently available on an emergency basis: Businesses and organizations may be free to mandate vaccinations for their workers, as NewYork-Presbyterian just announced for its staff, but should they?
Walter Olson believes so, although he is a fellow with the libertarian-minded Cato Institute, which advocates individual rights, free markets and limited government. Olson, during a forum on Monday (June 8) hosted by The Hastings Center, a bioethics think tank based in Garrison, said his default position is “highly skeptical and dubious” of vaccination mandates, but “part of the freedom that we are to expect is the freedom of civil society to protect itself.”
“That means thousands of enterprises — the cruise ships and the hair-cutting salons and the dance studios — get to make their own decisions about whether to require vaccination credentials of their customers or of their workforce,” he said.
Only about 4 percent of non-farm businesses with fewer than 500 employees reported requiring proof of vaccination from employees before allowing them to come to work, according to a survey conducted by the U.S. Census Bureau between May 24 and May 30. The rate was slightly higher in New York state, at 6.2 percent.
Nationally, businesses providing educational services, accommodations and food services, and health care and social assistance led the way in requiring shots.
NewYork-Presbyterian, whose system includes Hudson Valley Hospital in Cortlandt Manor and a medical group in Cold Spring, notified staff on Friday (June 11) that they will have to be vaccinated with at least their initial shot by Sept. 1 to remain employed. The mandate also applies to volunteers and vendors, and will be required of new hires.
Employees who cannot be vaccinated for medical or religious reasons, or because they are pregnant, have until Aug. 1 to apply for an exemption, the hospital system said in a memo signed jointly by Steven Corwin, president and CEO, and Laura Forese, executive vice president and chief operating officer. They called the vaccine “the most important and responsible action we can take as NYP team members for the safety and well-being of our patients and visitors, our communities, and ourselves.”
Two days earlier, the Maryland Hospital Association announced that its members, which include the Johns Hopkins Hospital (31,000 employees) and the University of Maryland Medical Center (29,000), will require that staff and contract employees become vaccinated as a condition of employment. About 70 percent of Maryland hospital employees are fully vaccinated, the MHA said.
“It’s been a long tradition that employers or businesses can set conditions on either a return to work or for their customers: no mask, no shirt, no shoes, no service,” said Lawrence Gostin, who directs the O’Neill Institute for National and Global Health Law at Georgetown University and is a Hastings Center fellow.
In New York state, colleges have been at the forefront. Students returning to in-person classes at SUNY and CUNY campuses in the fall will need to show proof of vaccination, with exemptions for medical or religious reasons.
Both Marist and Vassar colleges in Poughkeepsie are among the private schools that have announced similar policies, and Marist’s mandate will extend to faculty and staff. Its president, Dennis Murray, said on May 21 that the school expects to be fully operational, with classroom instruction, in-person dining and sports and student activities; he views “widespread vaccination” as key.
Accompanying the first mandates are the first lawsuits challenging their legality.
Houston Methodist Hospital, with 26,000 employees, was sued by 117 staffers faced with termination because they refuse to become vaccinated. The employees claim that the hospital’s policy violates the Nuremburg Code, which was created after World War II in response to Nazi experimentation on humans. A federal judge dismissed the lawsuit on Saturday (June 13).
In Durham, North Carolina, a former deputy is suing the sheriff, alleging he was fired after refusing vaccination. Another lawsuit has been filed by a detention center employee in New Mexico. Both claim the mandate is illegal because the vaccines have only been authorized by the federal government for emergency use.
Olson said he is alarmed that lawmakers in some states say they will prevent businesses, nonprofits, schools and local officials from requiring proof of vaccination as a condition of entry or to receive services. Such laws could prevent cruise lines from offering vaccinated-only trips, for instance.
“It means that for those small businesses, Florida and probably other states are going to be telling them, ‘We don’t trust you to make the right decision. The government’s going to make that decision for you,’ ” he said.
The opposition and/or hesitancy experienced in some of the general public re: mandates of the current vaccination program, is indicative of the cynicism, skepticism, lack of confidence fueled by the inconsistent, often misinformed and politicized media-driven environment of the last year. No better indication of this environment is the misguided attempt to employ the Nuremburg Code as a support for the anti-vac position. HIPAA guidelines include vaccine status but HIPAA only applies to HIPAA-covered entities – health care providers, health plans and health care clearinghouses – and their business associates. If an employer asks an employee to provide proof that he or she has been vaccinated in order to allow that individual to work without wearing a face mask, that is not a HIPAA violation as HIPAA does not apply to most employers.
I would say no. (You asked.)
When in history has anything like this been “mandated”, without significant negative consequences and without any right of appeal, for any person or persons to whom the mandate was directed? I can’t think of any similar case: therefore this would be without precedent. Unprecedented!
There are too many uncertainties, too many unknowns: just what is in these rapidly-made-available vaccines, what are the risks, and what are the long-tern hazards? Of course all other types of (reversible) protective measures and precautions should be followed as much as reasonably can be expected. How about vitamin D, zinc, selenium and any other supplements and measures to maintain and strengthen the immune system? How about common sense and adhering to well known sanitation practices, physical (not social!) distancing, and good ventilation?
Has no one writing for or reading this paper studied immunology?
Hospitals requiring certain vaccinations for staff is not new. When I had an internship at Mount Sinai in the 1990s, I had to show proof of vaccination for measles. I also had to show proof of measles, mumps and rubella (MMR) vaccination to attend college. One key difference at the moment is that the COVID-19 vaccinations still only have emergency-use authorization. [via Facebook]
Bribing people to get a shot is weird. Offering to free inmates early if they get a shot is weird. Giving someone a hamburger, doughnut or a rolled joint for getting a shot is weird. Being entered into a lottery if you get a shot is weird. Getting work bonuses if you get a shot is weird.
It’s weirder that the media is saying if you get the shot, you get your “freedoms” back. And saying you’re not comfortable get-ting a shot that hasn’t gone through testing for approval by the Food and Drug Administration doesn’t make you an “anti-vaxxer.” It doesn’t mean you don’t care about other people. It shows you are using critical thought and you care about your own health.
Ask your doctor if you have questions. Relying on celebrities for guidance is absurd. Believing the government has your best interest is lunacy. I never thought a shot could be made political and create division, but here we are. [via Facebook]
I have three close friends who share Hope’s hesitancy and skepticism and are awaiting final FDA unequivocal determination re: the vaccines. This episode brought to mind another instance of a raging health crisis: the AIDS epidemic rampaging throughout the homosexual community in the 1980s without hope of any therapeutics in sight. That community, however, stormed the FDA to nevertheless release those therapeutics, as yet not research approved, to stem the tide of this then-fatal disease. Under pressure, the FDA did so and slowly the AIDS calamity was brought somewhat under control, so that it became chronic and the death rates plummeted. I believe we are in the same circumstances. In the midst of uncertainty, that community chose life; I, at very high risk, chose life and was vaccinated.