by Emmanuel S. Tipon, Esq.
Did you see the Afghan president flee Afghanistan with a mask on and in all likelihood after having been vaccinated against COVID-19?
Did you see the Taliban occupy the presidential palace laughing without masks and in all likelihood without having been vaccinated?
Who says the Taliban don’t believe in civil liberties?
In America, the so-called “land of the free and the home of the brave,” the burning question is whether all residents should be forced to be vaccinated against the COVID-19 virus.
There are compelling reasons for or against it. Those who believe that the residents of America should all be vaccinated argue that vaccination is effective and the unvaccinated spread the virus and kill others. Those who are against vaccination argue that the vaccine was not approved by the Federal Drug Administration and if so FDA must not believe in its efficacy; that the vaccine has not been fully tested; that it can lead to complications like erectile dysfunction, miscarriage, birth defects, and sterility; that once injected it is irreversible and ask what will happen if the vaccine is found later to be defective; and most importantly that a person has a right over his own body based on natural law and the constitutional provision against deprivation of liberty without due process of law.
Scores of cases have been filed relating to COVID-19.
In this article, we shall focus on whether an employer can compel an employee to be vaccinated under the threat of being fired for refusing to do so.
Employees have filed lawsuits against their employers challenging employer mandates for vaccination. The latest case was filed in Hawaii on August 13, 2021, when city and county workers instituted a class-action lawsuit against the state in U.S. District Court challenging a mandate that such workers must be vaccinated by a certain date otherwise they can be suspended without pay or even fired, subject to medical and religious exemptions.
Pro-vaccinationers cite a 1905 U.S. Supreme Court decision holding that local governments may impose criminal sanctions against a person who refuses to be vaccinated against smallpox. Jacobson v. Massachusetts, 197 U.S. 11 (1905).
Their reliance on this decision is misplaced, to use a familiar phrase used by judges in pooh-poohing court decisions cited to support an argument where the facts are not similar to the case at bar.
Jacobson involved smallpox where the consequences are more deadly, and the effect is more glaring because it leaves pockmarks on the face. There is a town in Ilocos Sur, Philippines where many inhabitants have pockmarks on their faces evidencing that they suffered from smallpox but survived. Smallpox is the only disease known to have been eradicated by vaccination. COVID-19 does not leave a mark. COVID-19 vaccine has not eradicated the disease because a number of people who have been vaccinated against COVID-19 suffered from COVID-19 anyway.
Jacobson involved the police power of a State pursuant to which a state may issue reasonable regulations to protect public health and safety. Massachusetts had enacted a law providing that the board of health of a city if it is necessary for the public health or safety, shall require and enforce the vaccination and revaccination of all inhabitants and provide them free vaccination, and whoever refuses or neglects to comply with such requirement shall forfeit five dollars.
In Hawaii, there is no state legislation requiring inhabitants to be vaccinated. The Governor simply issued a proclamation imposing the vaccination mandate for state and county employees. The Governor is not a legislator. Massachusetts did not require the invasion of the body of an inhabitant by injecting him/her with a needle to administer the smallpox vaccine. There was no deprivation of liberty. Massachusetts simply imposed a $5 fine if an inhabitant refused or failed to be vaccinated. In Hawaii, the body of an employee will be injected with a vaccine against his/her will because if the employee refuses the employee will be suspended without pay and eventually fired.
We found a U.S. District Court for Southern District of Texas order dated June 12, 2021, dismissing an action by hospital employees challenging the hospital’s policy of requiring employees to be vaccinated against COVID-19 by June 7, 2021, which sought to block the injection requirement and the termination of the employees, alleging that the hospital is unlawfully forcing its employees to be injected with one of the available vaccines or be fired. Jennifer Bridges, et al. vs. the Houston Methodist Hospital, Civil Action H-21-1774.
The Court said that Texas law only protects employees from being terminated for refusing to commit an act carrying criminal penalties to the worker. The court said that Bridges did not specify what illegal act she has refused to perform. The court pointed out that receiving a COVID-19 vaccine is not an illegal act. The court rejected Bridges’ argument that the injection requirement violates public policy, saying that Texas does not recognize this exception to at-will employment, and if it did, the injection requirement is consistent with public policy.
The court rejected Bridges’ argument that she is being forced to be injected with a vaccine or be fired, saying that “this is not coercion.” The court explained that the hospital is trying to do its business of saving lives without giving them the COVID-19 virus. It is a choice made to keep staff, patients, and their families safer. Bridges can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else.
The court concluded: “If a worker refuses an assignment, change office, earlier start time, or other directive, he may be properly fired. Every employment includes limits on the worker’s behavior in exchange for his remuneration. That is all part of the bargain.”However, until the Supreme Court decides the issue, the question of no jab, no job remains unresolved in the United States.
No jab, no job in the Philippines
In our beloved native land, the Department of Labor and Employment advised employers against a “no vaccine, no work” policy. The Department’s Labor Undersecretary said, however, that the Department had not yet received any formal complaint that a company has adopted the “no vaccine, no work” policy. He said that an employee who is suspended or terminated because such employee refuses to be vaccinated retains the right to file a case against the employer for illegal suspension or illegal dismissal.
The information provided in this article is not legal advice. Publication of this information is not intended to create, and receipt by you does not constitute an attorney-client relationship.
ATTY. EMMANUEL S. TIPON was a Fulbright and Smith-Mundt scholar to Yale Law School where he obtained a Master of Laws degree specializing in Constitutional Law. He has a Bachelor of Laws degree from the University of the Philippines. He is admitted to practice before the U.S. Supreme Court, New York, and the Philippines. He practices federal law, with emphasis on immigration law and appellate federal criminal defense. He was the Dean and a Professor of Law of the College of Law, Northwestern University, Philippines. He writes law books and legal articles for Thomson-Reuters and writes columns for newspapers. He wrote the best-seller “Winning by Knowing Your Election Laws.” Listen to The Tipon Report which he co-hosts with his son Attorney Emmanuel “Noel” Tipon. They talk about immigration law, criminal law, court-martial defense, and current events. It is considered the most witty, interesting, and useful radio show in Hawaii. KNDI 1270 AM band every Thursday at 8:00 a.m. Atty. Tipon was born in Laoag City, Philippines. Cell Phone (808) 225-2645. E-Mail: firstname.lastname@example.org. Website: https://www.tiponlaw.com.