The controversy over whether an employer can fire an employee who refuses to take the COVID-19 vaccine heated up this week, we think it is a delicate balancing act between public safety and individual freedoms.
At issue is a mandate by St. Francis Hospital (Franciscan Missionaries of our Lady Health System) issued Tuesday requiring all staff, employed physicians, residents, students in clinical rotation, and volunteers to have both doses of the COVID vaccine or an approved exemption by October 31 or face suspension without pay. If employees have not completed vaccinations by November 30th they will be terminated.
The controversy is raised because no COVID vaccine has been licensed by the Food and Drug Administration as of yet. All present vaccines have an Emergency Use Authorization. Which means at this point the vaccine is still in a clinical trial stage and has not been fully approved by the FDA or studied and monitored for long-term adverse effects.
Once a vaccine is approved, such as those for Polio, Measles, Diphtheria, etc. it means the government is sure that it is safe and that new batches of the vaccine can be made that will produce the same results. The COVID 19 vaccine is in stage 3 of the five stages of approval. Stage four gets the FDA safety stamp of approval and Stage five involves monitoring after its approval for unexpected adverse events and continued safety.
In normal situations, drugs would only be released to the general public at stage four. However, because of the Pandemic, the government launched “Operation Warp Speed” which resulted in three COVID vaccines that were produced in nine months including tests on thousands of humans and animals. It was enough for the FDA to OK its use on an emergency basis as the trials continue.
The St. Francis issue is whether or not it can force its employees to take a vaccine that does not have FDA approval.
The answer is “Yes” and “No” and it is tied to two Federal laws: The American Disabilities Act (ADA) and the Equal Employment Opportunity Act. Both of these laws protect citizens from forced participation in medical events they do not trust or that violate their religious beliefs or convictions.
St. Francis or any employer can legally “exclude” a person from the workplace if the employee chooses not to be vaccinated, but it can only terminate an employee under certain conditions.
Any employee can be exempted from the vaccine requirement if 1)They would be forced to reveal information about other conditions and disabilities in order to get the vaccine, 2) If taking the vaccine violates a sincerely held religious or moral belief.
Reasons some have given for vaccine hesitation include the fact that they must reveal information about medical disabilities to an employer or third party. Medical information in the USA is extremely private, and some choose not to give that information. Others have religious reasons such as Jehovah’s Witnesses and others. The religious reasons do not have to be explained by an employee, only stated to receive an exemption.
In both instances, laws apply. Employers have the right to “exclude” unvaccinated and exempted employees from the workplace, but they have the obligation to provide accommodations such as work-from-home or reassignment solutions. Termination is not a legal option for exempted employees, but “exclusion” is an option. Rules about wearing masks, frequent sanitation, and testing are also legal options for employers.
The St. Francis notice of possible termination meets the legal requirement because terminations will only apply to those who have not received an approved exemption by October 31st.
This will be a sticky issue because the State of Louisiana filed suit this week against VCOM the medical school on ULM’s campus. The school is requiring students to take the vaccine or be blackballed and ostracized in the medical community. Students were told all requests for exemptions would be denied. Three of the school’s 300 students refused have lawyered up.
These students hired a team of lawyers to represent them including: Mickey DuBos and Adam Karamanis, with Breithaupt, DuBos & Wolleson, as well as Solicitor General Elizabeth Murrill. State Attorney General Jeff Landry has joined their suit. The state cites a number of state laws that protect students from requirements to participate in clinical trials. The state also includes an affidavit from a local heart surgeon Dr. Greg Sampognaro who says VCOM could use a number of methods to reduce risks for students other than vaccines.
We believe that every citizen has a right to refuse unapproved vaccines and drugs. We also believe that employers have the right to ensure a safe and healthy workplace.
As much as possible persons with serious legal objections to the vaccine should be accommodated or excluded using other risk reduction methods.
If we ever reach the point where the government can force citizens to participate in clinical trials or use unapproved drugs and vaccines, then we will be one step closer to an authoritarian state in which every aspect of our lives will be dictated by the government.
What is certain is “vaccine or no vaccine,” every citizen should mask up, sanitize and follow social distancing rules.
It is the least any citizen can do regardless of their opinion about the efficacy of the vaccine itself.
