COVID-19 has been absolutely awful for America and the world. It has been awful for everyone. It has been awful for my practice. And thanks to the emergence of variants, we are confronting the possibility of new general masking, distancing, and possibly lockdown orders. This isn’t done yet.
I am, however, starting to see a number of new case inquiries addressing the issue of employer mandates for vaccinations. Based on that, I hope it will be convenient for people interested in possibly retaining my services to understand my office policies about COVID cases.
I am enthusiastically pro-vaccine and support anti-transmission policies, because:
- Reducing the prevalence of COVID-19 is as compelling a matter as can be imagined, literally a matter of life and death for about 3% of the people who get it and develop symptoms; over 610,000 people have died in the United States in the past year and a half since COIVD-19 appeared in the USA. This disease was responsible for the greatest disruption in the national and global economy in all of recorded history. Stamping out COVID-19 is the crisis of our generation and it requires all of us, as individuals, to do our parts.
- All three vaccines in use in the United States (Moderna, Johnson & Johnson/Janssen, and Pfizer/BioNTech) have by now been shown through substantial practical experience to be safe and effective for the overwhelming number of people who have received them, including myself. See, e.g., Allergic Reactions Including Anaphylaxis After Receipt of the First Dose of Pfizer-BioNTech COVID-19 Vaccine — United States, December 14–23, 2020. MMWR Morb Mortal Wkly Rep 2021;70:46–51 (anaphylaxis rate of Pfizer vaccine is 11.1 cases per million doses, or .001109%). This means that of a nation of 331,449,281 people (per the 2020 Census) we would expect that approximately 3,676 people are unsuitable candidates for vaccination with the Pfizer vaccine. You might be one of those 3,676 people, but you probably aren’t. Even if Moderna’s and Johnson & Johnson’s vaccines have higher anaphylaxis rates, they won’t be that much higher. Meanwhile, as noted above, 166 times as many people have died of COVID or complications arising from it. Moreover, an anaphylactic reaction is usually treatable, while death isn’t.The math isn’t even close: getting the vaccine is far safer for an individual than risking getting the disease.
- Vaccination is the most effective means available to either create immunity to COVID-10 in a person, or to mitigate the effects of COVID-19 should it be contracted, in most cases to asymptomatic levels. This includes immunity residual to actual in-the-wild infection with the COVID-19 virus itself.
- Almost everyone is an appropriate candidate for vaccination; only a vanishingly small number of people (such as those with particular kinds of autoimmune disorders, reactions of anaphylaxis when exposed to vaccine ingredients, or organ transplant recipients) are not suitable candidates for vaccination. Vaccination is therefore desirable and should be encouraged.
- Policies such as mandatory masking and social distancing, are intended to and at least somewhat effectively do, reduce the risk of transmission of COVID-19. They are the least intrusive means available for reducing the risk of COVID-19 transmission in most circumstances. They are therefore desirable and should be not only permitted but encouraged; they should and most likely would survive a strict scrutiny examination, although as health and safety regulations they most likely only need withstand rational basis analysis in most circumstances.
- The law should always encourage safety. Specifically in my area of professional interest, this means that workplaces should be made as safe as is reasonably possible for employees, customers, vendors, and others who have to be in them; more specifically for this discussion, workplaces should have the lowest risk of COVID-19 transmission as is reasonably achievable.
Therefore my policies for taking on legal work with respect to COVID-19 issues are as follows:
For employers:
- I am available to assist an employer in creating and implementing a policy to mandate vaccines in the workplace, and to help guide the employer through the interactive process of employees who present requests for exemptions from those policies and of appropriately informing employees of the consequences of failure to provide proof of vaccination. (See 21 U.S.C. § 360bbb-3.) I am pleased to help employers fashion policies and practices that encourage employees to get vaccinated.
- I am NOT available to assist a business in creating a workplace or commercial environment that discourages vaccinations, proof of vaccinations, masking, social distancing, or other governmental requirements intended to reduce the risk of transmission of COVID, regardless of the scientific evidence concerning the efficacy of such policies.
- I am NOT available to challenge governmentally imposed mandates for vaccinations, proof of vaccinations, masking, social distancing, or other governmental requirements intended to reduce the risk of transmission of COVID, regardless of the scientific evidence concerning the efficacy of such policies.
For employees:
- I am available to assist workers or job applicants who have a physiological condition that renders them unsuitable candidates for vaccination, IF they have documentation from a reputable M.D. or D.O. that they have such a condition AND that reasonable alternatives to vaccination exist.
- If a potential client comes to me fearful of being disciplined or terminated for failure to vaccinate (or failure to provide proof of vaccination), and can provide a written medical opinion from a reputable doctor indicating that the worker is not a suitable candidate for vaccination and indicating what alternatives to vaccination would have been appropriate for that person given their physiological conditions and job requirements, I will help. A potential client with such issues should be prepared to place a fee deposit and pay my regular hourly rate for my advice and assistance, because the goal of this representation will be to AVOID litigation with the employer, and therefore AVOID situations in which contingency fees might be a possibility.
- If a potential client comes to me to evaluate a termination based upon failure to vaccinate (or failure to provide proof of vaccination), I will not prosecute such a claim until and unless I have a written medical opinion from a reputable doctor indicating that the worker is not a suitable candidate for vaccination and indicating what alternatives to vaccination would have been appropriate for that person given their physiological conditions and job requirements. There may be and probably will be other facets of that case that will be relevant to my evaluation of it in addition to this, but the medical opinion is something I will require as a condition of my taking on and prosecuting such a case.
- I am NOT available to assist workers or job applicants who present claims of religious objection to vaccinations or non-physiological impediments to vaccinations. While I recognize that these are in many cases legitimate and good faith issues in need of resolution, I choose to not take those matters on because I choose to not put myself in a position where I must make a moral judgment about whether I believe my client is proceeding in good faith. There are surely many other attorneys in California and Oregon who would be willing to take on such matters.
- I am NOT available to assist workers or job applicants who wish to challenge proof-of-vaccination policies or anti-transmission laws (or regulations or rules). Such policies are presumptively valid, in my legal opinion; such polices do not violate HIPAA, in my legal opinion. This includes workers or job applicants who contend that they were terminated for refusing to provide proof of vaccination, for refusing to get vaccinated, or who wish to provide false information to their employer regarding vaccination status or otherwise conduct themselves in bad faith through a vaccination policy for any reason or claim of right.
Some people may wish to debate my legal opinion that mandatory proof-of-vaccination policies are legally valid and enforceable, or that terminating an employee for failure to produce proof of vaccination (given reasonable circumstances) is, absent a legal exception, not a legally sufficient reason to justify a wrongful termination suit.
Some people may be tempted to debate my personal opinion that vaccination, and mandatory proof-of-vaccination policies, are legally enforceable, desirable as a policy matter, and that their widespread adoption will be helpful to society as a whole.
Some people may be tempted to debate the science of the effectiveness of vaccinations (either pre- or post-infection) or of anti-transmission policies. I choose to believe the scientific consensus, which is reflected in the data published by the CDC and other subject matter experts — in other words, people and ideas likely to at least survive a Daubert challenge in court (lawyers will know that this is not a particularly exacting standard in practice, but one which is as a threshold matter intended to filter out “junk science”).
To be frank, I am not very interested in having such debates with people who are not yet clients or are not part of my immediate circle of friends and acquaintances. And regardless of who you are, you are free to disagree with me about the science, the law, or the policies. Now, if you are in the market for legal services concerning a matter relating to COVID-19, and you disagree with my opinions, chances are very good that you wouldn’t want someone like me to be your lawyer in the first place, particularly concerning these issues. I feel it’s fair to let you know these things before we discuss the particulars of your case.
I may or may not be vindicated, when these kinds of claims are ultimately adjudicated in courts. But I have to decide today what kinds of cases I’m going to accept and what kinds of cases I’m going to pass on. As the judiciary works through the cases that will inevitably address these issues, I may modify my legal opinions on matters to respond to those developments. As the science develops and more data about COVID-19 accumulates, I may modify my perception of what we as a society should be doing and encouraging to respond to this crisis.
In the meantime, if you want to go to court and attempt to do the sorts of things that I am not willing to take on as described above, there are other lawyers who are willing to take on the kinds of work, claims, and cases that I choose not to.