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Mandatory Vaccination?

Goldfinch Winslow recently had a potential client consult with us after suffering a horrific reaction after her employer had vaccines given to all of his employees, while at work.  Interestingly, the first‐​in‐​the‐​nation case against mandatory COVID vaccination was filed by a New Mexico detention officer who claims he was fired for refusing to receive the first dose of the mRNA vaccine. Last month the County Manager mandated vaccination of all county‐​employed first responders—which includes sheriff’s deputies, firefighters, and detention officers.

According to a report in the Las Cruces (N.M.) Sun‐​News, the plaintiff, Isaac Legaretta, argues that the Centers for Disease Control and Prevention’s advisory committee stated that vaccines given emergency use authorization should not be mandated. Further, the plaintiff points to federal law protecting the right of patients to refuse administration of any unapproved product, asserting that emergency use authorization is not the same as formal approval.

The County Manager’s office contends that, unless special working arrangements are made for those refusing vaccination, “being vaccinated is a requirement and a condition of on‐​going employment with the County due to the significant health and safety risks posed by contracting or spreading COVID-19.”

Advocates of mandatory vaccination often point to the landmark 1905 U.S. Supreme Court decision in Jacobson v Massachusetts to claim that states may mandate vaccination. Actually, the decision was more nuanced. The Court upheld the Massachusetts Supreme Judicial Court’s finding that the state did not have the power to vaccinate by force a person that “deem[s] it important that vaccination should not be performed in his case.” However, the state could require the person to pay a nominal fine, which it did not consider a violation of that person’s “fundamental right.” In that case, in which the city of Cambridge, Massachusetts instituted compulsory smallpox vaccination, Henning Jacobson, after losing in the Massachusetts Supreme Judicial Court, took his case to the U.S. Supreme Court. He ultimately paid a fine but did not get vaccinated.

The true legal question is whether in a free society, a person should initiate force against another for any reason other than defense.  Forcibly injecting substances into someone else’s body cannot be justified as an act of self‐​defense because there is no way to determine if the person will ever be responsible for disease transmission.  On the other hand, people cannot be forced to associate with someone they consider—rightly or wrongly—to be a threat to their health. And employers cannot be forced to employ people they consider a threat to the health of their customers, clients, other employees, or themselves.

While this case sounds as if it may bring into question the concept of mandatory vaccines, I believe this case may bring into the question the true extent of employer/employee rights in an at will employment.  At will employment allows the freedom for both parties to part ways for any reason other than a discriminatory reason.  Should there be a valid reason, such as a disability, then an accommodation must be provided to the employee.  Why did this employee refuse the vaccine – did he have a disability?  Was it a religious belief?

I truly believe that unless you are involved in the case you do not know the facts of the case.  One of the most famous examples is the  McDonald’s Hot Coffee Case.  Did you know these facts:

  • By corporate requirements, McDonald’s sells its coffee at 180 to 190 degrees Fahrenheit, in order to reduce refills.
  • Coffee at that temperature, if spilled, causes third-degree burns (the skin is burned away down to the muscle/fatty-tissue layer) in two to seven seconds;
  • Third-degree burns do not heal without skin grafting, debridement and whirlpool treatments that cost tens of thousands of dollars and result in permanent disfigurement, extreme pain and disability of the victim for many months, and in some cases, years
  • McDonald’s admitted that it has known about the risk of serious burns from its scalding hot coffee for more than 10 years — the risk was brought to its attention through numerous other claims and suits, to no avail;
  • From 1982 to 1992, McDonald’s coffee burned more than 700 people, many receiving severe burns to the genital area, perineum, inner thighs, and buttocks;
  • McDonald’s admitted that its coffee is “not fit for consumption” when sold because it causes severe scalds if spilled or drunk;
  • Moreover, the Shriner’s Burn Institute in Cincinnati had published warnings to the franchise food industry that its members were unnecessarily causing serious scald burns by serving beverages above 130 degrees Fahrenheit.
  • The Jury awarded $3,000,000; the Judge reduced it to $500,000, but McDonalds appealed and she settled for even less than that for a life long disability to her groin.
In the law it is almost always impossible to know what will happen in a case.  Thus, it will be interesting to see if the Court will believe this to be a vaccine case, employment case, a public health case, a personal rights case, or something else that we don’t even know.  That is the beauty of the law; if you allow the system to work, it works.  You may not like the answer, but the system will give you an answer and you have the ability to vet that answer through multiple layers of experienced, educated, and respected Judges.

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