Vaccine Mandates and Employer Liability

We have seen varying degrees of public hysteria since the beginning of Covid 19 and more than a little government overreach. Some of that may begin to subside now with reduced new cases and rollout of the vaccines, but with the vaccines we are also starting to see some new abuses in the form of vaccine mandates.

Some employers are trying to force their employees to vaccinate, including health care organizations, police and fire departments, some school boards and other businesses. As the Covid vaccines are still experimental, not FDA approved, these mandates are most likely illegal for state and local governments and problematic at best for private businesses.

Employers could also be exposing themselves to wrongful termination claims if employees are fired for refusing the vaccine or personal injury claims if employees are forced to take the vaccine and are injured by it, especially if those employees are not adequately warned of all the potential risks. Vaccine mandates also raise thorny issues under the Americans with Disabilities Act and in many cases legal obligations to accommodate employees who decline the vaccine

Forced vaccinations are fundamentally unfair when these experimental Covid vaccines have only been allowed on an interim, emergency basis after limited testing, based on an “emergency use authorization” (EUA) pending clinical trials and additional studies. Ongoing testing and studies are likely to take another year or two and research on longer-term injuries may take many years. In the meantime, we are already learning of serious side effects and health risks. The Food, Drug and Cosmetics Act says that individuals receiving medical products under the EUA  must be made aware of significant known and unknown potential risks and given the option to refuse the product. (see 21 USCS § 360bbb-3.)

If and when the Covid vaccines do receive FDA licensing, mandates will still be vulnerable to legal challenge based on principles of privacy, rights to bodily integrity, religious rights and other basic freedoms.

Many employers hope to avoid the legal risks that come with mandates by encouraging but not requiring their employees to take the vaccine, but that also comes with risks. Incentive programs can lead to claims of unfair discrimination against employees who do not want to vaccinate. An employer could face personal injury claims by an employee who is persuaded to vaccinate and then suffers vaccine injury, especially if there was any implied coercion or the employer did not fully disclose all possible health risks.

The Centers for Disease Control (CDC) website warns that “side effects can occur after receiving the vaccines, especially after the second dose.” These can include but are not limited to allergic reactions, possible risks for pregnant women, unknown possible dangers for breastfed babies, people with weakened immune systems or autoimmune conditions.

According to the Children’s Health Defense organization, founded by Robert F. Kennedy, the Covid-19 vaccines use mRNA gene therapy that has never before been approved in this context. There are no long-term studies and it could take months or years before we see all the side effects from this genetic manipulation.

The Moderna vaccine uses a compound known as polyethylene glycol (PEG) that can trigger a serious adverse immune response and result in a severe allergic reaction known as anaphylaxis. Children’s Health Defense further warns of a potential for “pathogenic priming” where a vaccinated person, if later exposed to the same virus, suffers an exaggerated and sometimes deadly immune reaction.

According to Children’s Health Defense, in just two months from December 14, 2020, to February Feb. 18, 2021, vaccine injuries reported to the CDC’s “Vaccine Adverse Event Reporting System” included 1,095 deaths and 3,767 serious injuries.  These included 160 affecting pregnancy, including miscarriages and preterm births; 1,135  anaphylactic reactions; and 257 reports of Bell’s Palsy. These are not small numbers considering the likelihood that less than 1% of all injuries and deaths are even reported.

Early reports from the CDC suggest that as many as 1 out of every 42 Covid vaccinations results in injuries.

Not surprisingly, the big drug companies making Covid vaccines are largely immune from lawsuits for vaccine injuries under the 2005 Public Readiness and Emergency Preparedness (PREP) Act.  However, this will not necessarily protect employers who try (unlawfully) to mandate or coerce their employees to take non-FDA approved vaccines or who fail to disclose potential health risks. The PREP Act is complicated and litigation may be needed just to resolve the threshold legal issues.

The push to force vaccinations is even more perplexing when we consider the fact that people who take the vaccine may still be contagious as “carriers.” The CDC website states “ We don’t yet know whether getting a COVID-19 vaccine will prevent you from spreading the virus that causes COVID-19 to other people, even if you don’t get sick yourself.”

What right does any organization have to force its employees to take an experimental, potentially dangerous vaccine that may not even protect the people that organization serves?  Isn’t it even more dangerous to hospital patients, school children and teachers, and to the public in general, if vaccinated people go to work or mingle in public without knowing they are contagious?

Hopefully the aggressive push for vaccinations will end as we gradually move past the current panic.

Perhaps employers will rethink mandates that are unnecessary and cause good employees to quit. Maybe businesses like airlines, professional sports teams and theaters will realize it is a mistake to turn away customers who refuse the vaccine.  In the meantime, employers are treading on thin legal ice if they try to mandate vaccinations or if they encourage vaccinations by unfair incentives or without disclosing all known and unknown risks.

Employers may think they are solving a problem by pushing vaccinations, but they may find that they are walking right into other, larger problems, creating fertile ground for lawsuits by aggressive trial lawyers in the coming days.

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