Vaccine will have legal implications beyond the pandemic

Ronald J. Rosenberg, BridgeTower Media Newswires

Shortly, the COVID vaccine will be available to everyone. Employers across Long Island and the nation will then have a decision to make. Among them: can they and do they make the vaccination a mandated requirement for continued employment?

The law concerning mandated vaccinations is evolving and not fully settled, nor as clear cut as it should be.

In many circumstances, employers may require that its employees vaccinate against COVID-19 as a condition of continued employment to further the employer’s legitimate interest in creating a safe working environment that offers an assumed barrier against the highly contagious disease.

Workers may be able to seek legal exemptions from being required to get the vaccination required by their employer. Among recognized exemptions is one based on medical grounds.

Employees may also be able to request an exemption based on “genuine and sincere” religious beliefs. In an analogous situation, the federal Second Circuit Court of Appeals in 2015 upheld as constitutional a New York statute which compelled public school students to receive a vaccine to attend public school, a statute that also allowed students with “genuine and sincere” religious beliefs against vaccination to go to school without getting one. The court noted that the statue also validly empowered school officials to send any student who did not get the vaccination due to an exemption home from school, in the event there was an outbreak of the disease the vaccine was created to prevent.

Amidst the breathless coverage of vaccines leaving the Pfizer plant for national distribution there is a significant legal shadow that falls across its path. These vaccines have been ruled “safe” without the typically lengthier testing periods usually conducted for previous vaccines that have been previously approved. For example, the Salk vaccine that eradicated polio in the 1950s took some three years between cracking the code to offering a viable, safe, mass produced injection.

There is a possibility that employees who are compelled to get the vaccine may try to sue employers to hold them liable if the employee, was seriously injured or killed from it. To coin a phrase, “Feeling lucky?”

Such an injury claim would just be the start of a very bad day for that employer and employers should try to secure insurance coverage from such claims if not already covered under their existing policies.

Reuters reported this autumn that AstraZeneca has been granted immunity from future liability claims related to its COVID-19 vaccine by many of the countries with which it has agreements to provide the shot. Those companies recognize potential liability when they see it and thus while the vaccine manufacturer might also be sued, the claims against it may be barred by the immunity given to it by the government.

The issue regarding the employer’s and/or governments right to compel you to be vaccinated versus your Constitutional right to refuse such vaccination is critically important. It is the proverbial confrontation between individual liberty and the government’s right to compel you to get or do something you don’t want to do based upon the government’s claim that such compulsory action is necessary due to a national health emergency.

Like so many aspects of the COVID pandemic, the global vaccine crusade has no easy answers, ready solutions, or obvious results. For example, the vaccine is believed to prevent the recipient from getting a severe case of COVID, but it is not certain if it will prevent virus transmission from those vaccinated to non-vaccinated people.

We must be very careful that we don’t allow the current COVID crisis to serve to permanently give the government dictatorial powers which destroy our individual freedoms, whenever a “health emergency” is declared by the government. The government’s claims to having only good faith reasons in its requiring people to get the COVID vaccination should be no justification and recalls that age old wise saying: “The road to hell is paved with good intentions.”

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Ronald J. Rosenberg, a graduate of St. John’s University Law School and resident of Old Westbury, is senior founding partner of Rosenberg, Calica & Birney LLP, a Garden City law firm.