Wisconsin Spotlight | Feb. 4, 2021
MADISON — A Rock County-owned nursing home policy that mandates employees get the COVID-19 vaccination or be laid off is “illegal and unenforceable,” according to a cease-and-desist letter filed on behalf of a nursing home employee.
“By implementing its vaccine mandate, your (facility) is attempting to coerce all of its employees into receiving one of the COVID-19 Vaccines,” Elizabeth Brehm, attorney at New York-based Siri Glimstad law firm, wrote on behalf of Amber DeJaynes, a staff member at the Rock Haven skilled nursing facility in Janesville.
The legal effort appears to be led by the Informed Consent Action Network, a Texas-based vaccine skeptic organization, sources tell Wisconsin Spotlight. It also runs counter to Equal Employment Opportunity Commission guidance that allows employers to mandate vaccinations, with exceptions.
The letter, obtained by Wisconsin Spotlight, was sent to Rock Haven Interim Nursing Home Administrator Sara Beran and Rock County Administrator Josh Smith on Tuesday. It informs each that the mandatory vaccination policy is depriving the employees of their statutorily guaranteed rights to decide whether to receive the shot.
“Your company is doing so openly without any regard for the personal medical decisions of the employee,” Brehm wrote. “We hereby demand that you withdraw your COVID-19 vaccine requirement … Failure to do so immediately will result in legal action being filed against you to strike down this illegal requirement. Govern yourselves accordingly.”
Beran and Smith did not return Wisconsin Spotlight’s phone messages seeking comment. Neither did the attorney.
But the letter lays out why employers cannot make the COVID-19 vaccination compulsory.
The Food and Drug Administration in December granted emergency use authorization for two vaccines — produced by Pfizer and Moderna. They are said to be 95 percent effective in preventing COVID-19, but they are in many ways experimental, unlicensed vaccines. They have not been fully approved by the FDA. Much remains unknown about the long-term effects and efficacy of the vaccines, which, by drug approval standards, were developed at lightening speeds.
As the cease-and-desist letter points out, the same law that authorizes emergency use requires the public to have “the option to accept or refuse administration of the product.”
The statutory prohibitions are included in FDA and Centers for Disease Control and Prevention guidance and regulations, according to the legal letter. Dr. Mandy Cohen, executive secretary of the CDC Advisory Committee on Immunization Practices, has publicly stated under Emergency Use Authorization, “vaccines are not allowed to be mandatory.”
“Sheets for Recipients and Caregivers for both COVID-19 vaccines state on the first page, ‘It is your choice to receive the (COVID-19 Vaccine,” the letter states.
But EEOC guidance asserts that employees who refuse to get a COVID-19 vaccination may be excluded from the workplace.
“Moreover, the EEOC’s Guidance underscores that anti-discrimination laws do not prevent employers from adhering to public health directives from the Centers for Disease Control and Prevention (CDC) or other federal, state, and local public health agencies,” according to the National Law Review.
There are exceptions. Employees do have protections under civl rights, disability and religious conviction laws. And employers should exhibit extreme caution before firing someone over a compulsory vaccination policy.
“ ..(W)hile the employer may exclude that employee from the workplace, it should avoid terminating the employee or taking additional adverse actions before carefully evaluating whether the employee can work remotely or has protected rights under other employment laws or regulations at the federal, state, and local level,” the National Law Review piece advises.
Wisconsin lawmakers have introduced a bill that would prohibit the kind of mandatory vaccination policies in question at Rock Haven nursing home.
Sources close to the situation tell Wisconsin Spotlight nursing home administrators have bullied the staff with the policy. Employees were told they would not be eligible for unemployment benefits if they were laid off for refusing to receive the vaccine. Other sources claim some of the staff members suffered from “severe reactions” to the first shot, with one ending up in the Emergency Room.
Several employees have been let go or quit because of the policy, sources say.
In a letter to the county board, Rock Haven maintenance worker Ron Machaj said he knows of at least six employees who chose not to get the shot. He said one employee was laid off indefinitely, or until they comply with vaccination, and two chose to retire early, although they had not intended to do so. Another quit. That was in early January. The numbers have grown since.
“I have spoken with many others who felt they were strong-armed into getting vaccinated,” Machaj wrote.
Betty Halverson, in a letter written on Jan. 12, said she has been employed at Rock Haven for nearly 20 years. She said she’s 65 and has concerns about the vaccine, and she wasn’t getting good answers.
“My only option is to take a layoff and lose my insurance,” she wrote. “What kind of gratitude is that for an employee that has given almost 20 years to help care for our elderly and rehab residents, and worked many, many hours to help keep them safe.”
“Please to not make the COVID-(19) vaccine mandated. Let us decide.”