More than 300 deaths among “fully vaccinated” in 69 days

December 5, 2022:- Until July 2022, the Massachusetts Department of Public Health (DPH) used to publish a regular report that stated the number of “fully vaccinated” people who had been hospitalized from COVID-19 and the number who had died. Then, when the number of deaths passed 3,000, DPH stopped publishing its weekly report.

In November I submitted a public records request to DPH asking for the new numbers. Today I received the response.

[T]here have been 314 COVID-19 vaccine breakthrough deaths among vaccinated MA residents reported to the Department between June 26, 2022- September 3, 2022. A COVID-19 breakthrough case is defined as an individual who has tested positive for COVID19 at least 14 days after being “fully vaccinated” against COVID-19.

So there you have it. In the 69-day period June 26-September 3, 2022, 314 people died of COVID-19, a disease against which they were “fully vaccinated.” That number is in addition to the 3,000+ “fully vaccinated” people who had died before DPH stopped publishing the figures.

A reminder of why these numbers matter to those of us who do not know the victims or the families and friends they left behind: Hundreds of people in Massachusetts were discharged from their jobs because their religious beliefs prevented them being injected with products advertised as “COVID-19 vaccines.” Their employers, including State government agencies, contend that letting them continue working without being injected would have been an “undue hardship,” i.e. the un-injected workers were more likely to catch and spread COVID-19 than the injected workers.

That contention rests entirely on the premise that the injections stop you catching the disease. When, if ever, will employers just admit the obvious falsity of this belief? That’s a rhetorical question, by the way.

As Allysia Finley points out in today’s edition of the Wall Street Journal:

But by last fall it was clear that vaccinated Americans were catching and spreading the virus. Then the administration rolled out third doses it claimed would strengthen individual and collective protection.

To many Americans, the boosters came as a bait-and-switch. They’d been led to believe vaccines offered a lifelong warranty against infection. Public-health officials at the outset should have set more realistic expectations.

… The CDC’s website in September showed that, since April, Americans who got the original boosters were testing positive at higher rates than those who had only two doses.

Employers — government agencies in particular — that imposed the No Jab, No Job policy under false pretenses should own up and admit that they either did not know the products did not work, or knew and lied about it. Is that really too much to ask? That’s another rhetorical question.

Mika Baumeister on Unsplash

Vaccines contaminated, says congressional report

May 20, 2022:- In a development that will be of interest to people discharged because of the No Jab, No Job policy (e.g. 1,000 or so State employees in Massachusetts) a congressional report has revealed that approximately 400 million doses of COVID-19 vaccines had to be destroyed for “quality control reasons.”

The House Committee on Oversight and Reform’s Select Subcommittee on the Coronavirus Crisis just issued a report titled The Coronavirus Vaccine Manufacturing Failures of Emergent Biolsolutions. It describes cross-contamination in Emergent’s production of Johnson& Johnson and AstraZeneca vaccines. For the report click here; for the subcommittee, click here.

If you were one of those State employees who thought you had the right to consider this sort of information (contamination at the vaxx plant) before deciding to receive or decline a COVID-19 shot, you quickly learned that your boss had other ideas.

In Executive Order 595, which mandated vaccines for executive-branch employees, Governor Baker wrote:

WHEREAS, COVID-19 vaccines are safe and effective, as evidenced by the fact that COVID-19 vaccines have satisfied the U.S. Food and Drug Administration’s rigorous scientific standards for safety, effectiveness, and manufacturing quality needed to permit widespread use and distribution, and to date, more than 357 million doses of COVID-19 vaccines have been safely administered in the United States, with more than 9 million safely administered in the Commonwealth, and negative side effects have proven exceedingly rare…

You didn’t get to decide whether to receive the jab. Governor Baker made that decision for you when he issued Executive Order 595 on August 19, 2021. Meanwhile, according to the congressional report:

Due to poor quality control approximately 240 million vaccine doses had to be destroyed in late 2020 and early 2021— significantly more than revealed previously. Following the discovery that Emergent had cross-contaminated vaccine doses in March 2021, the Biden Administration halted Emergent’s manufacturing from April to July 2021.

The discovery about the contamination was in March 2021. So that was before August 19, 2021. The report continues:

After Emergent was permitted to resume manufacturing in July 2021, an additional 90 million newly manufactured coronavirus vaccine doses had to be destroyed for quality control reasons, and 135 million remain sequestered pending further testing.

Was the trouble with the vaccines top secret? Not at all. Here’s a quote from an article published in April 2021 (four months before Governor Baker issued E.O. 595):

An FDA report cites multiple failures in an Emergent BioSolutions plant tapped to produce vaccines for Johnson & Johnson and AstraZeneca. The vaccine plant had been forced to discard up to 15 million doses of Johnson & Johnson’s COVID-19 vaccine in a single manufacturing batch.

Here’s a quote from another article published in April 2021:

An FDA report has illuminated problems at Emergent BioSolution’s Baltimore manufacturing site, where the CDMO recently had to scrap up to 15 million Johnson & Johnson COVID-19 vaccine doses over a production error.

Thing is, the FDA flagged Emergent for very similar issues almost a year ago to the day. During an April 2020 inspection of the CDMO’s contract testing laboratory, the FDA said Emergent failed to adequately prevent data tampering or deletion, neglected to follow its quality control procedures or put them in writing and, notably, didn’t do enough to stop contamination or mix-ups. 

I mention all this because the State, whether acting as government or as employer, should allow people to make their own decisions about medical interventions. Is this my quirky personal predilection? No, it’s a principle that the United States endorsed as part of the Universal Declaration on Bioethics & Human Rights, article 6 of which provides:

Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice.

Consent is not “free” when your lack of consent leads to lack of your job. And I think loss of one’s job counts as a “disadvantage or prejudice.” Is the consent “informed” when your Governor issues an official order proclaiming the product’s safety? Answers on a postcard, please.

If you or someone you know lost a State job because of Executive Order 595, please feel free to contact my office for a free consult.

By the way, for the latest figures on COVID-19 hospitalizations in Massachusetts, click here. Spoiler alert: the percentage of COVID-19 patients who are fully vaccinated against COVID-19 is 65%.

Mika Baumeister on Unsplash

Captain Albert Brox and religious liberty

March 1, 2022:- Today Attorney Patrick Daubert talked with me about the case of Captain Albert Brox v. Wood’s Hole, Martha’s Vineyard, and Nantucket Steamship Authority, which concerns religious liberty and medical-product mandates. Attorney Daubert represents employees of a State agency who are seeking religious exemptions from the mandate that their employer imposed at the beginning of the year. After the State court judge enjoined the authority from enforcing its mandate, the authority removed the case to federal court.

To watch and listen to the conversation, click here.

Photo by Jack Sharp on Unsplash

No Jab, No Job: Are you a public employee facing discrimination?

If you are a State or municipal employee facing religious discrimination, I would like to hear from you.

For example, if your employer requires you to receive a product known as a “COVID-19 vaccine” as a condition of your employment (the No Jab, No Job rule) and refuses your request for a religious exemption, you may have legal recourse. To set up a free 20-minute consult, use the contact form below.

Religious Freedom

As you may know, Massachusetts law (M.G.L. c. 151B) prohibits discrimination on the basis of religion. If your employer denied your request for a religious exemption from the No Jab, No Job rule, you may have a claim under that law. The place to file your claim is the Massachusetts Commission Against Discrimination (MCAD) and the filing deadline is 300 days after the discriminatory act.

This is a complicated and shifting area of law, so it is worth reading up on the subject even before talking to a lawyer. The New Civil Liberties Alliance has articles and press releases about its courtroom efforts against mandates, the Pacific Justice Institute provides free resources on protecting religious rights in the workplace, and the Christian Legal Aid Society offers a Religious Freedom Toolkit. You may also want to check out Attorney Aaron Siri’s site, Injecting Freedom.

Genetic Discrimination

In addition to the law against religious discrimination, Massachusetts also forbids discrimination on the basis of genetic information. Similarly, a federal statute called the Genetic Information Non-Discrimination Act (GINA, Title II) makes it unlawful for an employer

to limit, segregate, or classify the employees of the employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee, because of genetic information with respect to the employee.

This information page and Q&A show where the Equal Employment Opportunity Commission (EEOC) stands on GINA and vaccines. Bear in mind, these EEOC documents are not law (they are not statutes, regulations, or judicial decisions) but courts usually defer to the EEOC when the agency is interpreting the statutes in its purview. The EEOC documents are helpful insights for employees who wish to use GINA to challenge the No Jab, No Job rule.

Bioethics

Another helpful resource for employees is Article 6 of the UNESCO Universal Declaration on Bioethics and Human Rights, which the General Conference of UNESCO adopted in 2005.

The relevant paragraph of Article 6 provides that:

Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice.

Although it does not have the force of law, the Declaration is something that judges may choose to take note of in some cases, e.g. the Second Circuit Court of Appeals decision in Abdullahi v. Pfizer, a case about Pfizer’s drug trials in Nigeria.

The principle of prior, free, informed consent should guide courts and adjudicatory bodies like the MCAD when considering No Jab, No Job cases.

Consult

To set up a consult, please use this form.

Court of Appeals tells District Court to reconsider denial of injunction in vaccine mandate case

February 18, 2022:- Yesterday the Fifth Circuit Court of Appeals sent a vaccine-mandate case back down to the District Court for the judge to re-consider the employees’ request for a preliminary injunction. The case is Sambrano, et al, v. United Airlines, Inc., United States District Court for the Northern District of Texas USDC 4:21-CV-1074.

The employees are suing the employer because the employer requires them to receive a COVID-19 vaccination. The District Court had denied the employees’ request for a preliminary injunction on the grounds that the employees could not show “irreparable injury,” but the Court of Appeals disagreed:

Plaintiffs allege a harm that is ongoing and cannot be remedied later: they are actively being coerced to violate their religious convictions. Because that harm is irreparable, we reverse the district court.

Check here for updates on this case.

Photo by Mika Baumeister on Unsplash

Court stops OSHA vaccine mandate

January 14, 2022:- Last year, President Biden issued a vaccine mandate through the Occupational Safety & Health Administration (OSHA). The regulation that OSHA issued would have required employers with 100+ employees to ensure that their employees either received vaccination against COVID-19 or to wear masks and undergo weekly testing. Yesterday, the Supreme Court of the United States issued a stay of OSHA’s regulation, effectively putting an end to it.

The case is NFIB v. Dept. of Labor, 595 U.S. _____ (2022).

The court pointed out that COVID-19 is a life hazard, not an occupational one:

Although COVID–19 is a risk that occurs in many workplaces, it is not an occupational hazard in most. COVID–19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.

Congress gave OSHA the limited task of regulating workplace safety, not the unlimited task of regulating the safety of society as a whole:

Permitting OSHA to regulate the hazards of daily life—simply because most Americans have jobs and face those same risks while on the clock—would significantly expand OSHA’s regulatory authority without clear congressional authorization.

The court pointed out the difference between job-specific risks and the general, everyday risks that we all face both at work and elsewher:

That is not to say OSHA lacks authority to regulate occupation-specific risks related to COVID–19. Where the virus poses a special danger because of the particular features of an employee’s job or workplace, targeted regulations are plainly permissible… But the danger present in such workplaces differs in both degree and kind from the everyday risk of contracting COVID–19 that all face.

Again, the statutes that Congress has enacted that give OSHA the legal authority to issue regulations confine that authority to occupational safety, not to safety in general. If Congress wishes to give OSHA the authority to regulate the safety of everyone, everywhere, all the time, then Congress needs to do so via statute. OSHA cannot just give itself that power, even at the direction of the President. The court’s decision recognizes this basic principle of the separation of powers.

By the way, here in Massachusetts, according to the Department of Health dashboard, the number of people currently in hospital with COVID-19 is 3,180. Of that number, 1,505 (approximately half) are fully vaccinated.

Vaccination mandates and employer liability

January 10, 2022:- An op-ed in today’s edition of the Wall Street Journal titled “Omicron makes Biden’s vaccine mandates obsolete” will prove important, I think. It states that the vaccinations that are supposed to protect us against COVID-19 may make us more susceptible to catching the latest version of the disease known as the Omicron variant:

One preprint study found that after 30 days the Moderna and Pfizer vaccines no longer had any statistically significant positive effect against Omicron infection, and after 90 days, their effect went negative—i.e., vaccinated people were more susceptible to Omicron infection. Confirming this negative efficacy finding, data from Denmark and the Canadian province of Ontario indicate that vaccinated people have higher rates of Omicron infection than unvaccinated people.

One of the two co-authors is Jed Rubenfeld, a professor at Yale Law School. The other is Dr. Luc Montagnier, who won the 2008 Nobel Prize for Physiology or Medicine. But be advised, Wikipedia warns us about Dr. Montagnier:

During the COVID-19 pandemic, Montagnier was criticised for using his Nobel prize status to “spread dangerous health messages outside his field of knowledge”[6] for promoting the conspiracy theory that SARS-CoV-2 was deliberately created in a laboratory. Such a claim has been refuted by other virologists

Of course, Wikipedia also states that the total number of deaths from COVID-19 in China (pop. 1.4 billion) is about 5,000, which is roughly the same as the death toll in Ireland (pop. 5 million). According to Wikipedia:

Around March 2020, there was speculation that China’s COVID numbers were deliberately inaccurate, but now China’s COVID elimination strategy is considered to have been successful and its statistics are considered to be accurate

When weighing the credibility of Wikipedia on the subject of Dr. Montagnier, it’s worth considering the credibility of Wikipedia on the subject of the Chinese government’s COVID-19 statistics. To be a little more blunt, if you believe that the number of COVID-19 fatalities in China is the same as the number in Ireland, perhaps I could interest you in the purchase of a certain bridge.

So with that word of caution about Dr. Montagnier from Wikipedia, and my own word of caution about Wikipedia’s word of caution, let me move on to the legal implications.

If the vaccinations make people more susceptible to COVID-19, what are the implications for those employers who imposed a vaccine mandate on their employees? I have in mind the companies that gave their workers a simple choice: Either (A) get vaccinated; or (B) you’re terminated.

And what if the workers who chose option A (i.e. they got vaccinated) then caught COVID-19 — not in spite of but because of the vaccine — and became sick? Do they have any legal recourse, and if so against whom?

First, are the pharmaceutical companies liable? No, obviously not.

Second, is the government liable for urging you to do it? I doubt it (that’s what the National Vaccine Injury Compensation Program is for).

Is the employer liable? I wonder.

If you are a public employee and are curious about your rights, feel free to use the contact form and sign up for a no-charge consult.

Court nixes vax mandate

On November 12, 2021, the Fifth Circuit Court of Appeals affirmed its decision to stay (pause) the COVID-19 vaccine mandate that President Biden issued via the Occupational Safety and Health Administration (OHSA). You can read the decision here.

The court had several reasons for finding the mandate unlawful, including the following:

[T]he Mandate’s strained prescriptions combine to make it the rare government pronouncement that is both overinclusive (applying to employers and employees in virtually all industries and workplaces in America, with little attempt to account for the obvious differences between the risks facing, say, a security guard on a lonely night shift, and a meatpacker working shoulder to shoulder in a cramped warehouse) and underinclusive (purporting to save employees with 99 or more coworkers from a “grave danger” in the workplace, while making no attempt to shield employees with 98 or fewer coworkers from the very same threat). The Mandate’s stated impetus—a purported “emergency” that the entire globe has now endured for nearly two years, and which OSHA itself spent nearly two months responding to—is unavailing as well.

With regard to the supposed “emergency” that could justify the OHSA rule, the court added:

And, of course, this all assumes that COVID-19 poses any significant danger to workers to begin with; for the more than seventy-eight percent of Americans aged 12 and older either fully or partially inoculated against it, the virus poses—the Administration assures us—little risk at all.

As with the President Biden’s use of the CDC to ban evictions for non-payment of rent, this latest attempt to usurp the legislative function has failed, for the time being anyway.

President Joe Biden

Adam Schultz, photographer

Official portrait of President Joe Biden, taken in the Library room at the White House

https://www.loc.gov/resource/ppbd.01261/

New MCAD decisions published

March 4, 2020:- The Massachusetts Commission Against Discrimination (MCAD) has published three new decisions (link).

One of the cases (Chase, et al v. Crescent Yacht Club, et al) involves an award of attorney’s fees and cots in the amount of approximately $83,000.00 on top of a damages award of almost $30,000.00.

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Peter Vickery, Esq.

New rules in effect at MCAD

February 28, 2020:- New rules of procedure have taken effect at the Massachusetts Commission Against Discrimination (MCAD). One welcome addition: Rule 1.13(9)(b)(3), which allows for a stay of the investigation pending the adjudication of a motion to dismiss for lack of jurisdiction (my personal hobbyhorse). I’ll drink to that.

For my earlier post on the subject, click here.

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New MCAD rules: I’ll drink to that.

Progress at the MCAD

January 15, 2019:-  The Massachusetts Commission Against Discrimination (MCAD) has published its draft procedural regulations, and I am happy to report that the draft includes a proposal of mine, or at least a version of it.

Readers may recall that back in 2017 I wrote a bill to cover situations where there is doubt that the MCAD has jurisdiction to investigate a complaint. (New MCAD Bill Filed). If a person accused of discrimination files a motion to dismiss for lack of jurisdiction, the MCAD should rule on that motion first, before launching an investigation. In the meantime, the Investigating Commissioner should stay (i.e. suspend) the investigation.

The new proposed rules give the Investigating Commissioner clear authority to issue a stay.

Generally, investigation of a complaint shall not be not stayed pending the ruling on a motion. However, where the Commission’s jurisdiction or authority to proceed is challenged by a motion filed with the Commission, the Investigating Commissioner may stay investigation of the merits of the charge pending a ruling on the motion.

Draft 804 CMR 1.13 (9)(b)(3). Here is a link.

Although not as good as an automatic stay, this is a very welcome step. Well done, MCAD.

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Peter Vickery, Esq.

 

Marijuana: respect for voters trumps supremacy clause

July 17, 2017:- Today the Supreme Judicial Court (SJC) held that where an employer fired an employee for her off-site use of marijuana, the employee may sue for handicap discrimination. The name of the case is Barbuto v. Advantage Sales and Marketing, LLC, and you can read it by clicking here. The decision does not sit easily with the Supremacy Clause of the Constitution of the United States, to put it mildly.

The case involves the Massachusetts anti-discrimination law, chapter 151B. Under 151B an employee who is a “qualified handicapped person” may seek “reasonable accommodations.” In this case, the employee asked for one particular accommodation, namely marijuana use. Faced with this request the employer demurred, arguing that marijuana use is a crime and, therefore, inherently unreasonable.

Certainly, in 2012 Massachusetts enacted the medical marijuana act. But the use of marijuana is illegal under the federal Controlled Substances Act, which Congress enacted and has not repealed. The SJC referred to this contradiction between state and federal law as an “unusual backdrop.” That is one way of putting it, I suppose.

Now, admittedly I am no judge and nobody asked me, but my starting point in resolving the contradiction would have been clause 2 of article VI of the Constitution of the United States, which provides:

This Constitution and the laws of the United States which shall be made in pursuance thereof… shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.

The clause means that a law passed by Congress becomes part of “the supreme law of the land.” That is why we call it the Supremacy Clause. Lest there be any doubt, the clause includes the proviso “any thing in the constitution or laws of any state to the contrary notwithstanding.”  If a State does not like a Federal law, the judges of that State may not repeal it.  Nullification is not an option.  I believe we fought a war about this.

However, the SJC held that respect for the supreme law of the land must take second seat to something else, something not referred to in the Constitution of the United States:

“To declare an accommodation for medical marijuana to be per se unreasonable out of respect for the Federal law would not be respectful of the recognition of Massachusetts voters, shared by the legislatures or voters in the vast majority of States, that marijuana has an accepted medical use for some patients suffering from debilitating medical conditions.”

That is a very difficult sentence for me to understand.  Don’t get me wrong: I can read English, so I understand the words. I just do not understand how (with all due respect to the SJC) one can square that sentence with the plain language of the Supremacy Clause or with the body of precedent on the subject of field preemption.

After all, the Supremacy Clause is a straightforward answer to this simple question: Where there is a clear conflict between a federal law and a subsequent state law, which prevails? Federal law, says he Supremacy Clause. State law, says the SJC.  Why? Because it is better to ignore the federal law than fail to be “respectful” of the voters.

Perhaps this is one of those instances where the framers and ratifiers tacked on an exception using invisible ink, so that to the cognoscenti the Supremacy Clause actually concludes with the words “and the judges in every State shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding, except when they decide not to be.” Hold your copy of the Constitution up close, then at arms’ length. If that doesn’t work, try holding it up to the light.

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Peter Vickery, Esq.

New MCAD bill filed

February 23, 2017:- If you are charged with discrimination and you file a motion to dismiss for lack of jurisdiction, must the Massachusetts Commission Against Discrimination (MCAD) rule on your motion before launching an investigation? No, not at present. But that will change if H. 775 becomes law.

Titled “An Act Streamlining the Investigation Process of Discrimination Complaints,” the bill would require the MCAD to adjudicate a respondent’s motion first and start its investigation only if it determines that jurisdiction is proper.

Why does this matter? The main reason is the constitutional principle of the separation of powers: an executive agency should not hale people in if the Legislature has said it should not. For example, when it enacted Chapter 151B the Legislature said that the MCAD would have no jurisdiction to investigate businesses with fewer than six employees (the small-business exemption). So when the MCAD does investigate businesses with fewer than six employees it is, in effect, exercising the legislative function by re-writing the statute.

But there are pocket-book reasons too. Defending against a charge of discrimination can prove costly, which rather stacks the deck in favor of the complainant who is represented either by a lawyer working on a contingent-fee basis or by the MCAD itself. Add to that the MCAD’s institutional bias toward early resolution (which is not necessarily a bad thing) and you have an incentive for respondents to fold faster than Superman on laundry day, as Jerry Seinfeld put it.

As things stand a respondent will be tempted to settle at a commission-mandated conciliation conference early on, even if the case should never have been on the agency’s docket in the first place. Real money is at stake here, and business owners should not have to fork over for claims that should be thrown out on jurisdictional grounds. That is not an efficient use of resources. Screening out cases like these would allow businesses to devote those resources to other purposes, e.g. improving products and services to benefit their customers and creating new jobs.

The bill has been assigned to the Joint Committee on the Judiciary. Stay tuned for updates, and click here for a previous post on this subject.

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Peter Vickery, Esq.

Speed-up at MCAD

February 9, 2017:- Earlier this month the Massachusetts Commission Against Discrimination (MCAD) announced a significant cut in its backlog of cases.

In 2016, the agency substantially reduced the number of cases that were more than 2 years old. Of the 3,811 investigations currently open at the MCAD, just 318 remain over 2 years old, down from 1,134 in 2015, a reduction of 72%.

Approximately 3,000 new complaints are filed with the MCAD every year, so the dramatic reduction in the old cases is quite an achievement. Complainants and respondents alike should hope that the agency manages to maintain this level of efficiency.

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Peter Vickery, Esq.

 

New harassment enforcement guidelines

February 3, 2017:- The Equal Employment Opportunity Commission (EEOC) is soliciting public comment on its proposed new Unlawful Harassment Enforcement Guidelines. You can read the guidelines and comment on them here.

One item that employers should note: Harassment of a “transgender individual ” can include “using a name or pronoun inconsistent with the individual’s gender identity in a persistent or offensive manner.”

The word “or” means that the use of the pronoun/name need only be offensive, and not necessarily persistent, in order to qualify as harassment under these enforcement guidelines.

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Peter Vickery, Esq.

 

 

Hospital settles with flu vaccine refuseniks

May a hospital fire employees who refuse the flu vaccine on religious grounds? Saint Vincent Health Center in Erie, Pennsylvania, must have thought so back in 2014 when it terminated the employment of six vaccine refuseniks, but now that it has agreed to shell out $300,000 in back-pay and compensatory damages it probably realizes that the short answer is no. The Equal Employment Opportunity Commission (EEOC) press release states:

“While Title VII does not prohibit health care employers from adopting seasonal flu vaccination requirements for their workers, those requirements, like any other employment rules, are subject to the employer’s Title VII duty to provide reasonable accommodation for religion… In that context, reasonable accommodation means granting religious exemptions to employees with sincerely held religious beliefs against vaccination when such exemptions do not create an undue hardship on the employer’s operations.”

Last year I wrote an article about Boston Children’s Hospital fending off a discrimination complaint after it fired an employee who had refused the flu vaccine on religious grounds. The judge found that the hospital had offered reasonable accommodations and the accommodation that the employee requested would have imposed an undue hardship on the hospital.

The lesson for health-care providers?  If employees object to the vaccine on religious grounds, work hard with them to devise some reasonable accommodations and document those efforts carefully and thoroughly.

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Peter Vickery, Esq.

Free speech for public employees?

October 28, 2016:- If you are one of the 139,000+ people employed by state or local government in Massachusetts, today’s decision about speech-rights at work might be of interest.

The case involves an erstwhile employee of the Worcester County Sheriff’s Office, Jude Cristo, who complained about a colleague’s use of official time and facilities while campaigning for Scott Bove, a candidate running for Sheriff (unsuccessfully, as it turned out). After the election the new Sheriff, Lew Evangelidis, fired Cristo, who brought an action under federal law for violation of his civil rights, namely his right to freedom of speech guaranteed by the First Amendment.

Cristo lost. The Appeals Court applied the federal test, which protects the speech of public employees only if they are speaking as citizens and not “pursuant to their official duties.” Cristo’s complaints were pursuant to his duties, said the Appeal Court.

But in a footnote, the court left open the possibility that public employees’ speech rights under the Massachusetts Declaration of Rights might be greater than under the First Amendment. If the speech that triggered the firing was whistle-blowing, the court hinted, then the fact that it was job-related whistle-blowing would not necessarily prove fatal. In other words, the  employee might have a viable free-speech claim. Click here to read the case, Cristo v. Evangelidis.  The footnote in question is number 6 on page 15.

Election 2016: one call to make the day after

October 26, 2016:- With less than a fortnight to go until the general election, now is the time to start thinking about the day after.

In addition to choosing the state’s presidential electors, in 13 days’ time Massachusetts voters will elect the state legislature, officially known as the Great and General Court of Massachusetts. Perhaps “elect” is too strong a word given that almost 80% of the seats are uncontested, earning Massachusetts a competitiveness ranking of 44 out of 50. Nevertheless, even without the ordeal of an actual race many freshly re-elected politicians tend to experience feelings of relief and generosity of spirit, which makes Election Day + 1 an ideal time to ask them for a favor.

If you are willing to make one post-election request of your state representative and senator, please consider asking them to co-sponsor a bill to restore some balance to the Massachusetts Commission Against Discrimination (MCAD). The goal is quite modest. If enacted, this piece of legislation would require the MCAD to make sure that it only handles cases that fall within its jurisdiction. In fact it does not even go that far. It puts the onus on the respondent (the person being accused of discrimination) to file a motion to dismiss, which would automatically stay, i.e. pause, the investigation until the MCAD determines that it does, in fact, have jurisdiction.

Why is this necessary? Because, as a report by the State Auditor showed, the MCAD routinely investigates cases that are outside its statutory remit, which not only contributes to the agency’s four-year backlog but is unfair to the individuals who are haled in and investigated without justification. Click here for my article on the subject in the Massachusetts Bar Association’s Lawyers Journal.

Invidious discrimination is real, and there are enough cases that do fall within the MCAD’s jurisdiction without the agency having to spend its budget investigating cases that do not. The new legislation would restore some balance. If you would like a copy of the bill and a bill summary for legislators and their aides, email peter@petervickery.com with the words “MCAD Bill” in the subject line.

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Tick, tock: Justice delayed

Invidious discrimination does occur, and we are fortunate to have an agency tailor-made to address it, namely the Massachusetts Commission Against Discrimination (MCAD). But the current four-year backlog of cases at the MCAD is hurting litigants on both sides, employers and employees alike. Justice delayed is justice denied, as the saying goes. And most reasonable people would agree that the MCAD should not handle cases outside its jurisdiction.

So what should we do about the problem? Check out my article in the current edition of the Massachusetts Bar Association’s Lawyers Journal by clicking here.

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Attorney Peter Vickery

No sex please, we’re Bay Staters

July 22, 2016:- When Governor Baker signs into law Senate Bill 2199, titled “An Act to Establish Pay Equity,” Massachusetts employment law will un-define (not merely re-define) an important word. Here is the text of the very first section of the bill:

Section 1 of chapter 149 of the General Laws, as appearing in the 2014 Official Edition, is hereby amended by striking out the definition of “Woman”.

So, farewell “woman,” a word that the statute used to define as “a female eighteen or over” but now does not define at all.

And farewell “sex,” too. Out with the hackneyed old phrase “no employer shall discriminate in any way in the payment of wages as between the sexes,” and in with the new: “No employer shall discriminate in any way on the basis of gender in the payment of wages.”

Pondering the replacement of sex with gender, and mulling over one of the other laws enacted this session, An Act Relative to Transgender Discrimination, which prohibits discrimination in public accommodations on the basis of gender identity, I see the potential for some mischief.

Could an employer charged with discriminating on the basis of gender raise the defense that the gender of her employees is information to which she is not privy? After all, gender is a matter of identity not physiology. I know this because I just read it in the relevant statute (clause 59, if you’re curious), which tells me in pertinent part:

“Gender identity” shall mean a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.

Got that? Gender identity means “gender-related identity, appearance or behavior.” If you are not satisfied with that definition and worry about the challenges of establishing gender identity in the courtroom, fear not; the Legislature recognized the need for greater clarity as to “when and how gender identity may be evidenced” and saw the need for guidance. In addition to having a stab at it themselves (the statute says that litigants may offer any of the following: “medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity, or any other evidence that the gender-related identity is sincerely held as part of a person’s core identity”) lawmakers delegated the task of crafting said guidance to the Attorney General and the Massachusetts Commission Against Discrimination. They are due to report to the Legislature by September 1, 2016.

In the meantime, what do we know? Well, we have replaced wage discrimination on the basis of sex (a matter of physiology) with wage discrimination on the basis of gender (a matter of identity). Of course, how a person “identifies” is not always obvious, and some think it shows rather poor manners to ask. So in the inevitable litigation, I can imagine a cross-examination of an employer along these lines:

Q. Does your employee Valery earn more than your employee Valerie for comparable work?

A. Yes.

Q. What gender is Valery?

A.  I don’t know.

Q. What about Valerie?

A. No idea.

Goodbye woman, goodbye sex. Hello protracted litigation.

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Attorney Peter Vickery