By Honorable David Langham
Deputy Chief Judge of Compensation Claims
There is so much information circulating about the SARS-CoV02 vaccinations. We have been told we will all get a booster shot, then that an FDA committee recommends only those at higher risk get a booster shot, then that some of those at higher risk already got a booster shot, then that getting a booster is selfish in our world. Much of this is highlighted in a recent post, Show me the Science (September 2021). Many have been vaccinated, almost 6 billion doses administered worldwide and a daily rate over 30 million doses, and some of those want more. Others, are completely opposed to vaccination and would not accept it if was free (it is free, by the way).
Not everyone is happy about the idea of being vaccinated. I respect their choice. I am vaccinated to protect myself from the virus. I continue to practice social distancing when people will allow me to. I do not frequent high-volume venues such as concerts and shows. And, frankly speaking, I mostly enjoy outdoor activities such as walking and there is simply minimal risk in those. Regrettably, however, any of us may become infected and thus have potential to spread this virus. Vaccination diminishes the probability of that, but not to zero.
Why people object to the vaccine is interesting. There are reasons cited based upon science, religion, and more. In a legal sense, and this is a legal blog, there is an interesting argument being raised against mandated vaccination. The idea of mandates may have multiple societal and legal implications, and for the employer and employee in the workers’ compensation community it is worthy of discussion.
In September 2021, the United States announced that vaccination against SARS-CoV-2 would be mandatory for “federal workers, large employers(,) and health care staff.” The CNN characterized that as “a sweeping attempt to contain the latest surge of Covid-19.” It explained that this dictate “could apply to as many as 100 million Americans,” that is “close to two-thirds of the American workforce.” In announcing the new dictate, President Biden said “we’ve been patient, but our patience is wearing thin, and your refusal has cost all of us.” Clearly, there is blame being directed broadly at those who do not wish to, or cannot, be inoculated.
CNN also notes that the safety of the vaccines has been proven and there is “full approval of one.” Some of the workplace implications of this were recently addressed by Chitra Goel on WorkersCompensation.com. That is an interesting read. The Society of Human Resource Managers (SHRM) also has an interesting discussion of the potential liabilities from an employer-mandated vaccination program. Does the government mandate do anything to insulate an employer or alter the potentials for liability? Would legislation regarding liability for side effects of a vaccine be of use? Alabama is discussing that.
Mandates are not new. There have been hospitals imposing such mandates, some have fired workers for refusal. Some mandates have reached the courts, and have been affirmed. Other employers are backing away from mandates, perhaps because of the potential for resulting labor shortages. With a national mandate, some have questioned whether labor shortages will be exacerbated, particularly in the healthcare fields.
One of the objections cited in refusing the vaccines has been religion-based. The fact is that all of the SARS-CoV-2 vaccines were tested using “cells grown in a laboratory based on aborted fetal cells collected generations ago,” according to the University of Nebraska. Generations ago, and yet still aborted. The questions surrounding abortion “divides Americans more than any other issue,” according to Fortune. There are avenues for religious exemption from government regulation and mandates. One hospital is responding to those seeking religious exemption from vaccination by insisting they also “swear off” other remedies that have connection to such cells. This seems like a litmus test, and is at best interesting.
Others refuse the vaccine as it is “experimental.” They contend that no “fully approved” vaccine is available in the U.S. They concede that Pfizer has been granted full FDA approval, but insist that approval is for a strain of vaccine produced by that company yet not available in the U.S. That allegation was published by The Defender. It contends that a designation of “experimental” is critical under both the Nuremberg Code and U.S. Federal law, in the context of any mandated vaccination.
The Washington Post refers generally to allegations regarding theories about the vaccine not being approved as a “false claim.” The USA Today has also provided a “fact check,” in which it disagrees with contentions of non-approval. The Food and Drug Administration (FDA) has published that is has approved the Pfizer vaccine. However, it is fair to note that full approval came only in August 2021. Many of us received vaccines under emergency use authorizations (EUA). While that made their use legal, they were not (some remain under that, so “are not”) FDA approved. Thus, there is at least one FDA approved vaccine. Recent research suggests that particular vaccine is not the best at retaining its efficacy, but it is FDA approved and the efficacy remains impressive.
As a premise for the remainder of this discussion, it is immoral to perform experiments on people without their knowledge. It is also illegal. Beyond that, there is the point that any consent to care or treatment must be voluntary and informed.
Coincidentally, I was in Nuremburg recently, visiting the Palace of Justice. This is where the famous Nuremberg trials occurred in the 1940s, following World War II. The importance of those proceedings is discussed in History in the Making (September 2021). Obviously, part of the concern they sought to address back in the wake of that war was the horrendous mistreatment of people by the National Socialist Workers (Nazis).
As noted by the National Holocaust Memorial Museum, there were various experiments conducted on prisoners: “without patient consent or any safeguards.” A recent visit to Buchenwald reminded me of the National Socialist Workers’ profound evil, of which such experiments were a part. I cherish so many moments of my recent time in Europe, but my days in Weimer (Buchenwald) and Nuremburg are so salient.
The United States Holocaust Museum notes that when the National Socialist’s experimentation was discovered, “the Nuremberg Code was created.” This specifically “included the principle of informed consent and required standards for research.” That Code was an outgrowth of one of the Nuremberg trials, a “case known as the ‘Doctors trial.'” In the midst of that trial, a memorandum of “six points that defined legitimate medical research” was prepared and proposed. That was later “revised . . . into ten” points which became known as The Nuremberg Code.” From violence and evil, through judicial process, came definition and protection.
The Nuremburg Code is now being cited by some who oppose the mandatory vaccination against SARS-CoV-2. Reuters reports that various propaganda on the social media platforms now assert that the International Criminal Court has “‘accepted’ a complaint that claims Israel’s COVID-19 vaccination program violates the Nuremberg Code.” Reuters points out that “anyone can submit information about alleged crimes to the ICC,” but the Court’s receipt or even acknowledgement of such a filing is not “a decision on the merits of the information.” Thus, the use of “accepted” may signal nothing other than delivery.
The article includes a link to the allegations purportedly signed by two representatives of various “attorneys, physicians, public and general advocates” who have elected to forego the SARS-CoV-2 vaccine. Their entreaty is dated in January, and thus its representations that the vaccine has not received “approval,” but only EUA was accurate at the time. These signatories contend that the government of Israel “signed an agreement with the Pfizer Company,” to obtain “millions of vaccine portions.” They contend that Israel was given “preference over other countries,” in exchange for which “(residents of Israel) will serve as experimenters” for the pharmaceutical company.” This seems to allege a defined quid pro quo that includes experimentation, but it is an allegation.
This, they contend, would be experimentation without consent if government mandated vaccination. And, the signatories contend that the agreement “was not published,” and was not “subject to total transparency towards the wide public.” The signatories take further issue with their contention that there are risks associated with the vaccine, and that a mandate removes an individual’s ability to personally assess and determine the various risk benefit factors and make an informed decision. It is impractical in this age to determine if something on the Internet is genuine, but this entreaty is interesting reading. Under the Nuremburg Code, can a population be forced to inoculate? If it can, what disclosure and consent considerations are pertinent? The Code requirements are restated at the conclusion of this post, and are available on the website of the Holocaust Memorial Museum.
In the wake of the President’s mandate announcement, some Governors are threatening legal action from another perspective. It is described in the press as “another major clash between federal and state rule.” With little know as to the details of the dictate, some legal scholars have nonetheless weighed in with the conclusion that the rules “appear() to be on firm legal ground” because it is “in the name of protecting employee safety.” One law professor noted “the degree of risk that (unvaccinated individuals) pose, not only to themselves but also unto others” is pertinent in evaluating whether federal authority is appropriately asserted in this context.
Traditionally, the “health, safety, and welfare” of U.S. citizens lies with the states. This is discussed in an informative overview on the Cornell University School of Law website. Against the backdrop of state authority in these concerns is the undoubted power of the federal government to “tax and spend,” which has been repeatedly affirmed by the courts in topics like a national speed limit and drinking age mandates. Two of the President’s current mandates, regarding federal contractors and those who receive payments under Medicare, are seemingly squarely within that spending parameter.
In another vein, vaccination mandates are not new. An excellent overview published by the Center for Disease Control is in Malone, Kevin & Hinman, Alan; Vaccination Mandates: The Public Health Imperative and Individual Rights. There is discussion of the individual, risks to person and public, and more. In short, the mandatory process of inoculation is not new or novel to the SARS-CoV-2 pandemic or to America.
In the end, there are some certainties with the idea of a mandate. The first: some people do not want to be told what to do. The second, for now, is that although widespread (100 million Americans), the federal mandate is not absolute. Those who wish not to inoculate have some choice for now, such as changing employment. The third is that this issue will remain contentious. Regardless of one’s logic or conclusion for or against inoculation, it appears that opinions are entrenched and perhaps intractable. Finally, the situation for employees and employers will remain uncertain and litigation is a near certainty. How and when courts will sort out final conclusions on these objection questions remains to be seen. The process, however, is unlikely to be quick or inexpensive.
The Nuremburg Code:
1. The voluntary consent of the human subject is absolutely essential.
2. The experiment should be such as to yield fruitful results for the good of society, unprocurable by other methods or means of study, and not random and unnecessary in nature.
3. The experiment should be so designed and based on the results of animal experimentation and a knowledge of the natural history of the disease or other problem under study that the anticipated results will justify the performance of the experiment.
4. The experiment should be so conducted as to avoid all unnecessary physical and mental suffering and injury.
5. No experiment should be conducted where there is an a priori reason to believe that death or disabling injury will occur; except, perhaps, in those experiments where the experimental physicians also serve as subjects.
6. The degree of risk to be taken should never exceed that determined by the humanitarian importance of the problem to be solved by the experiment.
7. Proper preparations should be made and adequate facilities provided to protect the experimental subject against even remote possibilities of injury, disability, or death.
8. The experiment should be conducted only by scientifically qualified persons. The highest degree of skill and care should be required through all stages of the experiment of those who conduct or engage in the experiment.
9. During the course of the experiment the human subject should be at liberty to bring the experiment to an end if he has reached the physical or mental state where continuation of the experiment seems to him to be impossible.
10. During the course of the experiment the scientist in charge must be prepared to terminate the experiment at any stage, if he has probably cause to believe, in the exercise of the good faith, superior skill and careful judgment required of him that a continuation of the experiment is likely to result in injury, disability, or death to the experimental subject.