patrick.net

Dear Boss,
Compelling any employee to take any current Covid-19 vaccine violates federal and state law,
and subjects the employer to substantial liability risk, including liability for any injury the
employee may suffer from the vaccine.
Many employers have reconsidered issuing such a mandate after more fruitful review with
legal counsel, insurance providers, and public opinion advisors of the desires of employees
and the consuming public. Even the Kaiser Foundation warned of the legal risk in this respect.
( https://www.kff.org/coronavirus-covid-19/issue-brief/key-questions-about-covid-19-vaccinemandates/ )
Three key concerns: first, while the vaccine remains unapproved by the FDA and authorized
only for emergency use, federal law forbids mandating it, in accordance with the Nuremberg
Code of 1947;
Second, the Americans with Disabilities Act proscribes, punishes and penalizes employers
who invasively inquire into their employees’ medical status and then treat those employees
differently based on their medical status, as the many AIDS related cases of decades ago
fully attest;
and third, international law, Constitutional law, specific statutes and the common law of torts
all forbid conditioning access to employment upon coerced, invasive medical examinations
and treatment, unless the employer can fully provide objective, scientifically validated
evidence of the threat from the employee and how no practicable alternative could possible
suffice to mitigate such supposed public health threat and still perform the necessary
essentials of employment.
At the outset, consider the “problem” being “solved” by vaccination mandates.
The previously infected are better protected than the vaccinated, so why aren’t they
exempted?
Equally, the symptomatic can be self-isolated. Hence, requiring vaccinations only addresses
one risk: dangerous or deadly transmission, by the asymptomatic or pre-symptomatic
employee, in the employment setting.
Yet even government official Mr. Fauci admits, as scientific studies affirm, asymptomatic
transmission is exceedingly and “very rare.”
Indeed, initial data suggests the vaccinated are just as, or even much more, likely to transmit
the virus as the asymptomatic or pre-symptomatic.
Hence, the vaccine solves nothing. This evidentiary limitation on any employer’s decisionmaking,
aside from the legal and insurance risks of forcing vaccinations as a term of
employment without any accommodation or even exception for the previously infected (and
thus better protected), is the reason most employers wisely refuse to mandate the vaccine.
This doesn’t even address the arbitrary self-limitation of the pool of talent for the employer:
why reduce your own talent pool, when many who refuse invasive inquiries or risky treatment
may be amongst your most effective, efficient and profitable employees?
First, federal law prohibits any mandate of the Covid-19 vaccines as unlicensed,
emergencyuse-authorization-only vaccines. Subsection bbb-3(e)(1)(A)(ii)(III) of section 360 of Title 21 of
the United States Code, otherwise known as the Emergency Use Authorization section of the
Federal Food, Drug, and Cosmetic Act, demands that everyone give employees the “option to
accept or refuse administration” of the Covid-19 vaccine.
(https://www.law.cornell.edu/uscode/
text/21/360bbb-3)
This right to refuse emergency, experimental vaccines, such as the Covid-19 vaccine,
implements the internationally agreed legal requirement of Informed Consent established in
the Nuremberg Code of 1947. ( http://www.cirp.org/library/ethics/nuremberg/ ).
As the Nuremberg Code established, every person must “be able to exercise free power of
choice, without the intervention of any element of force, fraud, deceit, duress, overreaching,
or other ulterior form of constraint or coercion; and should have sufficient knowledge and
comprehension of the elements of the subject matter involved as to enable him to make an
understanding and enlightened decision” for any medical experimental drug, as the Covid-19
vaccine currently is. The Nuremberg Code prohibited even the military from requiring such
experimental vaccines. (Doe #1 v. Rumsfeld, 297 F.Supp.2d 119 (D.D.C. 2003).
Second, demanding employees divulge their personal medical information invades their
protected right to privacy, and discriminates against them based on their perceived medical
status, in contravention of the Americans with Disabilities Act. (42 USC §12112(a).) Indeed,
the ADA prohibits employers from invasive inquiries about their medical status, and that
includes questions about diseases and treatments for those diseases, such as vaccines.
As the EEOC makes clear, an employer can only ask medical information if the employer can
prove the medical information is both job-related and necessary for the business.
( https://www.eeoc.gov/laws/guidance/questions-and-answers-enforcement-guidancedisability-related-inquiries-and-medical ).
An employer that treats an individual employee
differently based on that employer’s belief the employee’s medical condition impairs the
employee is discriminating against that employee based on perceived medical status
disability, in contravention of the ADA. The employer must have proof that the employer
cannot keep the employee, even with reasonable accommodations, before any adverse
action can be taken against the employee.
If the employer asserts the employee’s medical status (such as being unvaccinated against a
particular disease) precludes employment, then the employer must prove that the employee
poses a “safety hazard” that cannot be reduced with a reasonable accommodation.
The employer must prove, with objective, scientifically validated evidence, that the employee
poses a materially enhanced risk of serious harm that no reasonable accommodation could
mitigate.
This requires the employee’s medical status causes a substantial risk of serious harm, a risk
that cannot be reduced by any another means. This is a high, and difficult burden, for
employers to meet.
Just look at all the prior cases concerning HIV and AIDS, when employers discriminated
against employees based on their perceived dangerousness, and ended up paying millions in
legal fees, damages, and fines.
Third, conditioning continued employment upon participating in a medical experiment and
demanding disclosure of private, personal medical information, may also create employer
liability under other federal and state laws, including HIPAA, FMLA, and applicable state tort
law principles, including torts prohibiting and proscribing invasions of privacy and battery.
Indeed, any employer mandating a vaccine is liable to their employee for any adverse event
suffered by that employee. The CDC records reports of the adverse events already reported
to date concerning the current Covid-19 vaccine.(https://www.cdc.gov/coronavirus/2019-ncov/
vaccines/safety/vaers.html )
Finally, forced vaccines constitute a form of battery, and the Supreme Court long made clear
“no right is more sacred than the right of every individual to the control of their own person,
free from all restraint or interference of others.”
( https://www.law.cornell.edu/supremecourt/text/141/250 )
With Regards,
Employee of the Year
XXX