Employee Vaccine Mandates: Observations of a Vaccine Rights Attorney

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Employee Vaccine Mandates: Observations of a Vaccine Rights Attorney

The U.S. Department of Health and Human Services' "Healthy People 2020" initiative states a goal of vaccinating 90% of the nation's healthcare workers with the influenza vaccine annually by 2020,[1] a goal well underway to being achieved. A separate DHHS goal aims to vaccinate 80% of all U.S. employees annually with the influenza vaccine by 2020.[2]

There's no light at the end of this tunnel. With literally hundreds of new vaccines in the works,[3] there will always be another person to get a vaccine, and another vaccine to give a person. Taxpayers, through state and federal governments, pay:

  1. Billions of dollars in subsidies to pharmaceutical companies to research and develop new vaccines,[4]
  2. Our state and federal representatives to pass laws mandating more vaccines for children and adults while restricting access to vaccine exemptions,[5]
  3. For vaccines purchased by government health agencies,[6] and
  4. Over $100 million annually to compensate vaccine injury and death victims and their families.[7]

Vaccine manufacturers have no liability, yet these same companies routinely engage in criminal behavior that routinely results in criminal fines in the 100's of millions of dollars - a billion dollars in some cases.[8]

We can expect more or the same unless and until we become legislatively active and get laws passed giving us the right to make informed vaccine choices, and giving us proper access to complete information. In the meantime, here's a look at what's happening around the country with employee influenza vaccine mandates.

What Does the Science Say?

First, are policies mandating flu shots for employees scientifically justified? Multiple peer-reviewed medical studies and other mainstream medical sources tell us that influenza vaccines don't work. In fact, the research reveals that they may actually lower protection and cause an increase in flu-like illnesses, while studies favoring the vaccine have been shown by independent sources to be fatally flawed.[9] Meanwhile, the very real, serious vaccine-induced injuries and deaths are downplayed or ignored altogether. Over 60% of recent government vaccine injury and death payouts have been for death and disability caused by influenza vaccines, more than all other vaccines combined,[10] and federal officials have admitted that 90-99% of serious vaccine adverse events never even get reported.[11] So, the origins of influenza vaccine policies have little to do with public health.

We should be concerned about mandates that impose on our personal health choices generally, but especially one aggressively promoted and coercively applied that is based on false pretenses such as the influenza vaccine campaigns. To understand what's going on in the vaccine world, you have to understand medical politics. Vaccines are a growing multi-billion dollar international industry. Ironically, concerns about the underlying corruption and politics won't help healthcare workers get an exemption, because hospital administrators, with respect to healthcare worker influenza vaccine mandates, for example, are just not in a position to debate the science due to the money that is involved. Rather, these are points for our state representatives, in a face-to-face meeting if you want them to actually see or hear and respond to your concerns.

What Does the Law Say?

Several sources have claimed that hospitals must vaccinate 90% of their employees to avoid losing up to 2.5% of Medicaid and Medicare reimbursements, which could be a "make-it-or-break-it" proposition for many hospitals, financially. However, applicable regulations require only that hospitals report healthcare workers influenza vaccine data, they do not have a minimum vaccination rate requirement.[12] This may be why many hospitals have yet to implement strict influenza vaccine mandates, but more have been doing so with each passing year in recent years. Regardless, more and more hospitals are implementing influenza vaccine mandates for their employees, and the policy is often pursued aggressively, with many hospitals naively seeking 100% compliance from their employees.

Meanwhile, most state exemption laws apply to students only, and not employees, so most U.S. employees don't have a state exemption law they can use to refuse vaccines required for work. But employers are required, in effect, to provide an exemption once one is properly requested, under federal law, as discussed below.

What's Really Happening?

Over the past 3-4 years, I've helped over 300 healthcare workers from New England to Hawaii avoid mandatory vaccines in the workplace, and that has given me some unique insights. One medical doctor reported having 4 patients that developed Guillaine Barre Syndrome (GBS) from the flu shot; 3 of them died. This is a far cry from some health officials' "one in a million" claims. Nor is this an isolated case; many doctors report multiple GBS cases in their practices. And death, while perhaps a rare occurrence in terms of the percentage of vaccines administered, is nevertheless a common occurrence.[13] The severe adverse events of influenza vaccines are disturbingly misrepresented by public health officials, and no one can tell you your risk - whether or not you will be the next vaccine victim - unless you refuse the vaccine, in which case the odds are pretty good that you won't have a severe vaccine reaction. But employees are increasingly finding it difficult to exercise that option.

Anecdotal reports suggest that it is difficult for hospital employees to get a vaccine exemption. Nurses from different parts of the country have reported that their hospital systems received over 1,000 exemption requests, more than 1,500 in one instance; yet, hospital administrators bragged about allowing only four exemptions in one instance, and few to none in other cases. So, this is one exemption arena that can be difficult to navigate without formal legal counsel and support.

While every situation is ultimately unique, some broad consistencies have stood out among my healthcare worker clients and their hospital employers. First, the vast majority of hospitals implement policies that violate federal law; they are overly restrictive in their zealous effort to maximize vaccine rates. Some of the most common unlawful policy provisions include:

  1. Requiring a letter from a member of the clergy for religious exemptions,
  2. Requiring employees to sign a statement saying they agree with "facts" about exemption consequences with which the employee disagrees,
  3. Openly identifying unvaccinated employees--for example, with colored dots on their name badges, and
  4. Requiring unvaccinated employees to wear a face mask at all times during flu season. How to deal with these unlawful policies is another question, as hospital administrators are not likely to make policy changes based on their employees' objections or opinions about the law.

Another alarming consistency is the large percentage of hospitals that have either recently been bought out, are in the process or being bought out, or are about to be bought out. There is a rapid consolidation of hospitals going on throughout the country. While the underlying agenda is not entirely clear to this author, one obvious consequence is that decision-making authority is moving up; more and more people are falling under the control of fewer and fewer decision-makers. Many other industries have been experiencing rapid consolidations as well, while state and federal governments have been assuming more and more power, stepping over Constitutional boundaries while power continues to become more and more centralized. We are in the midst of a rapid restructuring of our society as we once knew it, and the results include less and less individual autonomy and control over our lives. We should be very concerned about where this is all heading, and what steps we can take to reverse this transformation as soon as possible.

One disturbing example of this in the hospital world is that some hospital administrators refuse to revise their policies, to bring them into compliance with federal law, when confronted with the fact that their policies are unlawful, despite at least implicitly admitting that their policies are unlawful by granting my clients the exemption. I have never had a hospital attorney argue that the hospital policy is lawful in such instances, but sometimes, hospital administrators will replace one unlawful policy with another unlawful policy in an effort to keep the number of exemptions as low as possible. But the risk from these shots, which offer little if any protection, is permanent disability and death. So, it's clear that the nation's healthcare system is pretty severely dysfunctional. This assertion was profoundly underscored in June of 2014, when the CDC's vaccine safety research was exposed as flawed and falsified in a peer-reviewed medical journal.[14] This journal article was an amazing step forward toward exposing the truth about vaccines, but it will take a lot more than this to heal the system.

Medical Exemptions

I see a national trend of hospitals moving to more restrictive medical exemption policies. For example, an egg allergy used to be a commonly accepted basis for receiving a medical exemption in the workplace, but the trend is toward allowing medical exemptions only when there is a history of anaphylactic shock from a vaccine or Guillaine Barre Syndrome (GBS) within six weeks of a vaccine. One nurse had letters from three medical doctors each presenting a different medical basis for an exemption, but the employer still said "get the shot or you're fired." Equally disturbing, pregnancy is increasingly rejected as a medical basis for refusing a flu vaccine. It may be possible to mount a legal challenge against employers in these situations, but ultimately, medical exemptions may boil down to a battle of the experts, theirs against yours, and if all other things are equal, public policy, which favors vaccines, may determine the outcome.

Religious Exemptions

While most states do not have exemption laws for employees (MD, NH and ME are exceptions), federal civil rights law requires employers to "reasonably accommodate" their employees' religious beliefs and practices, and this law can provide a "religious exemption" for employees (where the business has 15 or more employees). It is critical to understand that this law is not about "religion" as most of us think of it in common sense terms, but rather, it concerns how the law defines 'religion' for legal purposes. A complete explanation is beyond the scope of this article, but in brief, it does not matter whether or not you belong to any religious organization at all, or what your religion is if you do belong to one. In fact, there is even a category of moral and ethical beliefs you could hold as an atheist that are protected religious beliefs. So, you needn't discount the possibility of a religious exemption just because you're not a Christian Scientist or Amish, for example.

However, most employees run into trouble when they write their own statement of religious beliefs opposed to vaccines, because the law on that point is just not consistent with most people's common sense approach to the task. For example, vaccine safety and effectiveness issues are, legally, matters of science and medicine, and will usually cause a closely scrutinized religious exemption request to be rejected. So while the scope of protected religious beliefs is quite broad, employee religious exemptions are tricky with respect to what specific beliefs qualify. For this reason, getting support from a knowledgeable attorney is advisable. It's hard to come back later, after your exemption request is rejected, and say, "Oops - what I meant to say was ..."

Where Do We Go From Here?

There are two broad areas of concern on this issue: Current policy and law, and future policy and law. Regarding the latter, while some states such as Colorado mandate vaccines for healthcare workers (though in most states, it's the employer, and not state law, that mandates employee vaccines), Oregon has a law prohibiting hospitals from mandating influenza vaccines for their employees. Where the rubber meets the road on this issue, then, is primarily in the state legislatures. In recent months, there have been as many as 100 or more vaccine bills pending in over 30 states,[15] and most of those bills, if they become law, would advance a highly questionable pro-vaccine policy. So, if you want the right to make an informed choice, you'll need to persuade your state representatives to pass laws giving you that right.[16] The more we allow our government to control our healthcare practices, the more opportunity there is for industry to influence that control to its benefit, while our health takes a back seat to those private agendas.

Regarding the former - current policy and law - it is critical to get reliable information about your rights and how best to exercise them, and to understand what your options are if you don't get your employer's cooperation. For example, with federal civil rights law, you can't sue your employer even if you want to, unless you first file a complaint with the Equal Employment Opportunity Commission (EEOC), the agency tasked with enforcing anti-discrimination laws in the workplace. Since there's no cost for filing a complaint with the EEOC, this option provides a potentially powerful tool for employees to enforce their rights. On a final note, there's no need to be concerned if you are an "at will" employee who can be fired at any time. While such employees may be fired for essentially no reason, they cannot be fired for an unlawful reason. So, requesting an exemption is not likely to result in a retaliatory termination, and would be unlawful if that did happen. But getting the vaccine could "terminate" your job if you are among those who experience a severe vaccine reaction, including death. Just one of more than 120 U.S. law firms that handle vaccine injury and death cases lists 166 cases over four years that includes nine deaths, and most of these injuries and deaths are from influenza vaccines.[17]

[1] U.S. Dept. of Health and Human Services, HealthyPeople.gov, 2020 Topics and Objectives, Objectives, Section IID-12.9

[2] U.S. Dept. of Health and Human Services, HealthyPeople.gov, 2020 Topics and Objectives, Objectives, Section IID-12.5

[3] "More Than 270 Vaccines in Biopharmaceutical Pipeline Offer Hope to Prevent/Treat Wide Array of Diseases," Yahoo News 

[4] See, e.g.,
a) Financing Immunizations, National Network for Immunization Information
b) "Nation's preparedness for health threats will be reviewed," The Washington Post, December 2, 2009

[5] For a list of important pending vaccine bills, see the National Vaccine Information Center Advocacy Portal, click here.  For how much we pay our state legislators, see "How much are your legislators paid?" The Washington Post, August 23, 2013, click here.

[6] See Note [4]a.

[7] U.S. Department of Health and Human Services, Health Resources and Services Administration, National Vaccine Injury Compensation Program, Statistics Reports

[8] See, e.g.:
a) "Public Citizen Study: Pharmaceutical Industry Is Biggest Defrauder of the Federal Government Under the False Claims Act"  
b) "GlaxoSmithKline to pay $3 billion fine after pleading guilty to healthcare fraud - the biggest in U.S. history," MailOnline 
c) "Johnson & Johnson to pay $2 billion for false marketing," CNN Money 

[9] See., e.g.:
a) Vaccines for preventing influenza in healthy adults 
b) Vaccine News and Commentary from the University of Pennsylvania Centers for Bioethics, This website cites 75 Fed. Reg. 35497 (June 10, 2010)
c) "Flu Shots, Fosamax and Pharmaceutical Fakery: The Common Use of Misleading Statistics in the Medical Literature," Gary G. Kohls, M.D., Dec. 3, 2011 
d) National Vaccine Advisory Committee Meeting Minutes, September 13-14, 2011, APPENDIX B: OSHA Position Statement, as submitted by Mr. Borwegen, representative of the Service Employees International Union
e) What, in Fact, Is the Evidence That Vaccinating Healthcare Workers against Seasonal Influenza Protects Their Patients? A Critical Review, Int J Family Med. 2012; 2012: 205464
Influenza: marketing vaccine by marketing disease, BMJ 2013;346:f3037, May 16, 2013
f) Study: Getting flu shot 2 years in a row may lower protection, CIDRAP, March 1, 2013 

[10] See, e.g.:
a) "Government Pays Damages to Vaccine Victims: Flu Shot Most Dangers with GBS and Death Settlements," Health Impact News Daily, August 5, 2014; and
b) Client Compensation for Vaccine Injuries; Maglio, Christopher & Toale, just one of over 120 U.S. law firms that prosecute vaccine injury and death claims 

[11] See, e.g.:
a) Less than 1%, according to Barbara Fisher, citing former FDA Commissioner David Kessler, 1993, JAMA, in the Statement of the NVIC.
b) Less than 10%, according to KM Severyn, R.Ph., Ph.D. in the Dayton Daily News, May 28, 1993. (Vaccine Policy Institute, 251 Ridgeway Dr., Dayton, OH 45459)
c) 10%, according to the American Association of Physicians and Surgeons (AAPS), Fact Sheet on Mandatory Vaccines

[12] Operational Guidance documents, CMS Resources for NHSN Users, CMS Requirements, National Healthcare Safety Network (NHSN), Centers for Disease Control and Prevention. The four listed/linked documents that concern hospital reporting of Healthcare Personnel influenza vaccination data are: a) Operational Guidance for Acute Care Hospitals, b) Operational Guidance for Ambulatory Surgery Centers, c) Operational Guidance for Long-term Acute Care Facilities, and d) Operational Guidance for Inpatient Rehabilitation Facilities).

[13] See, e.g., footnote 10b, just one U.S. firm's list of settlements in the National Vaccine Injury Compensation Program (NVICP), which lists 9 deaths out of 166 cases over a four year period, or 5.4% of the claims.

[14] Methodological Issues and Evidence of Malfeasance in Research Purporting to Show Thimerosal in Vaccines is Safe, BioMed Research International 

[15] See, e.g., the National Vaccine Information Center's Advocacy Portal 

[16] I recommend a face-to-face meeting; state officials rarely respond to individual letters and emails. Have a well-referenced, bullet-point list of facts and a clear objective. For help with vaccine legislative activism, contact the author at this website and see the NVIC Advocacy Portal at this website.

[17] See Note [10]b.

Disclaimer: This article is not intended to provide medical advice, diagnosis or treatment. Views expressed here do not necessarily reflect those of GreenMedInfo or its staff.

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