Vax Mandates and Employee Termination: Arbitrary and Capricious

Support for the unjustly terminated

I was recently engaged to develop documentation that could be used in support of unjust termination prosecution of US employers who had required COVID-19 vaccination of their employee(s) under threat of termination for non-compliance.

On October 25, 2022 (one year ago), the NY State Supreme Court acted to reinstate all employees terminated for non-compliance with the State COVID-19 vaccine mandates. The story was covered at the time by Fox reporter Anders Hagstrom:

New York Supreme Court reinstates all employees fired for being unvaccinated, orders backpay

State Supreme Court found that being vaccinated 'does not' stop the spread of COVID-19

A New York state Supreme Court ordered all New York City employees who were fired for not being vaccinated to be reinstated with back pay.

The court found Monday that "being vaccinated does not prevent an individual from contracting or transmitting COVID-19." New York City Mayor Eric Adams claimed earlier this year that his administration would not rehire employees who had been fired over their vaccination status.

NYC fired roughly 1,700 employees for being unvaccinated earlier this year after the city adopted a vaccine mandate under former Mayor Bill de Blasio.

Many of those fired were police officers and firefighters.

Again, for emphasis, the NY State Supreme Court determined that "being vaccinated does not prevent an individual from contracting or transmitting COVID-19." - The exact same claim I made on the steps of the Lincoln Memorial on January 23, 2022, for which the Washington Post called me a liar while asserting that the CDC had demonstrated that these “vaccine”products reduced the risk of hospitalization or death from COVID-19, which endpoints I did not mention in my speech at that time. Now we know that data from all over the world are indicating “negative effectiveness” of the boosters for COVID-19 hospitalization. So if anyone lied at that point, it was not me. Apparently my sin was being able to interpret the data available circa January 2022 prior to the NY State Supreme Court drawing a similar conclusion during October 2022.

Then, 11 months later on September 22, 2023, the NY State Supreme Court upheld a lower state court ruling removing the State COVID-19 vaccine mandate for healthcare workers, and many of the unjustly terminated are now applying to be reinstated into their former jobs. This case was supported in part by the non-profit organization Children’s Health Defense.

“The Defender” (Children’s Health Defense) covered the story throughout the history of the case, which has largely been ignored by corporate media to the surprise of no-one.

<COI disclosure, our book “Lies my Gov’t Told Me” has been published in English under the CHD label. Separate versions under other labels will soon be available in French, Dutch, and Norwegian.>.

‘Victory!’ New York State Supreme Court Upholds Ruling That Struck Down COVID Vaccine Mandate for Health Workers

The ruling late last week by the Appellate Division of the New York State Supreme Court means that even though the state rescinded its COVID-19 vaccine mandate for healthcare workers, an earlier Supreme Court ruling that struck down the mandate will stand — meaning the state’s health department, governor and health commissioner “lack the legal authority” to institute vaccine mandates in the future.

Unfortunately in many states, due to the enormous wall of disinformation, propaganda, gaslighting and defamation that the Federal Government, vaccine manufacturers and corporate media have erected, courts have yet to hear the news that the COVID-19 gene therapy-based vaccines do not prevent infection or spread of the SARS-CoV-2 virus, and judges are blocking cases seeking compensation for arbitrary and capricious termination consequent to employee failure to comply with hospital, school, university and corporate COVID-19 vaccine requirements.

But were these termination actions truly arbitrary and capricious?

Were there viable alternatives which could have provided substantially superior protection of employees, customers, patients, volunteers and other workers from infection by SARS-CoV-2 when an unvaccinated employee might become infected?

This was the question recently posed to me by an attorney litigating many such cases.

Below please find a redacted version of my expert analysis. Removed were identifying information concerning the plaintiff, the defendants, the attorney, and the court in question. I have been generously authorized to release this version so that others seeking to advance legal cases may benefit from the information.

Note that, in this analysis, I have principally relied on NIH and CDC study data and official publications to establish the key points, and have not relied on unpublished “opinions” of either myself or others.

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Question: Was there an alternative to vaccination of the Employee that would have provided equivalent health and safety to the Employers community?

As documented by the Washington Post on July 29, 2021 in the following two public disclosures relating to an internal CDC slide deck, it became public knowledge that the vaccines available for an employee to potentially use were leaky, and did not prevent infection, replication, and spread of SARS-CoV-2 virus in vaccinated persons.  “Leaky” is a common technical term in vaccinology meaning that a vaccine recipient is prone to “breakthrough infections”. 

Therefore, based on these data, knowledge and documentation were available to the general public including Employers on or before July 29, 2021 that the available vaccines would not and could not prevent infection or spread of SARS-CoV-2 and COVID disease.  Furthermore, based on this publicly disclosed CDC slide deck, even if 100% of an Employers’ employees were so vaccinated and all employed CDC best practices in use of particle masks, “herd immunity” or collective protection from SARS-CoV-2 infection, replication, transmission and associated COVID-19 disease could not be prevented by use of these vaccine products.

For further corroborating details, please see the following external resources:

Washington Post- July 29, 2021 at 8:58 p.m. EDT

 ‘The war has changed’: Internal CDC document urges new messaging, warns delta infections likely more severe.  The internal presentation shows that the agency thinks it is struggling to communicate on vaccine efficacy amid increased breakthrough infections

By Yasmeen Abutaleb, Carolyn Y. Johnson and Joel Achenbach

https://www.washingtonpost.com/health/2021/07/29/cdc-mask-guidance/

Washington Post

Read: Internal CDC document on breakthrough infections

Updated Jul 30, 2021 at 10:15 AM

An internal CDC document urges officials to “acknowledge the war has changed” and improve the public’s understanding of breakthrough infections.

(Provides copy of official CDC slide deck)

https://www.washingtonpost.com/context/cdc-breakthrough-infections/94390e3a-5e45-44a5-ac40-2744e4e25f2e/

On August 27, 2021, the CDC journal Morbidity and Mortality Weekly Report (MMWR) published the results of a large study assessing “Effectiveness of COVID-19 Vaccines in Preventing SARS-CoV-2 Infection Among Frontline Workers Before and During B.1.617.2 (Delta) Variant Predominance — Eight U.S. Locations, December 2020–August 2021” which provides an estimate of the effectiveness (through August 14, 2021) of all COVID-19 vaccines available in USA to employees. 

The CDC study also examined whether vaccine effectiveness differs for adults with increasing time since completion of all recommended vaccine doses. In the abstract summarizing this study, the CDC noted that SARS-CoV-2 B.1.617.2 (Delta) variant predominance coincided with an increase in reported COVID-19 vaccine breakthrough infections.

MMWR Morbidity and Mortality Weekly. 2021 Aug 27;70(34):1167-1169. doi: 10.15585/mmwr.mm7034e4.

Effectiveness of COVID-19 Vaccines in Preventing SARS-CoV-2 Infection Among Frontline Workers Before and During B.1.617.2 (Delta) Variant Predominance - Eight U.S. Locations, December 2020-August 2021

Ashley Fowlkes, Manjusha Gaglani, Kimberly Groover et al.  HEROES-RECOVER Cohorts

In this MMWR publication, with CDC staff as lead authors, the study reports that:

“During Delta variant–predominant weeks at study sites, 488 unvaccinated participants contributed a median of 43 days (IQR = 37–69 days; total = 24,871 days) with 19 SARS-CoV-2 infections (94.7% symptomatic); 2,352 fully vaccinated participants contributed a median of 49 days (IQR = 35–56 days; total = 119,218 days) with 24 SARS-CoV-2 infections (75.0% symptomatic). Adjusted VE during this Delta predominant period was 66% (95% CI = 26%–84%) compared with 91% (95% CI = 81%–96%) during the months preceding Delta predominance.”

Delta was the dominant SARS-CoV-2 variant at the time many employees were terminated, but at that time, the Delta variant was beginning to be displaced by the Omicron variant. 

In a preprint originally posted on the MedRxIV server on January 01, 2022, and subsequently published in JAMA Network on September 22, 2022, it was reported that receipt of 2 doses of COVID-19 vaccines was not protective against Omicron. In that study, vaccine effectiveness against Omicron was measured at 37% (95%CI, 19-50%) ≥7 days after receiving an mRNA vaccine for the third dose. 

Effectiveness of COVID-19 vaccines against Omicron or Delta infection

Sarah A. Buchan, Hannah Chung, Kevin A. Brown et al.

medRxiv 2021.12.30.21268565; doi: https://doi.org/10.1101/2021.12.30.21268565

Therefore, depending on whether a hypothetical employee were to be infected with either the Delta or Omicron variants of SARS-CoV-2, these data from that time period indicate the vaccine effectiveness of the mRNA vaccines then available for COVID would be in the range of 66% (44% failure to protect) to “not effective” (complete failure to protect) for prevention of infection after two doses. 

In contrast, if an employee and their employer were to have utilized PCR or rapid antigen testing every three days in accordance with the NIH-published study entitled “Longitudinal Assessment of Diagnostic Test Performance Over the Course of Acute SARS-CoV-2 Infection”, then the employer would have benefitted from an approximately 98% sensitivity for detecting infection in staff or employees.

Quoting from the study conclusions:

“RT-qPCR tests are more effective than antigen tests at identifying infected individuals prior to or early during the infectious period and thus for minimizing forward transmission (given timely results reporting). All tests showed >98% sensitivity for identifying infected individuals if used at least every 3 days. Daily screening using antigen tests can achieve approximately 90% sensitivity for identifying infected individuals while they are viral culture positive.”

Therefore, if an employee was to have been provided the opportunity to laboratory test and certify infection status thrice weekly, in accordance with the NIH protocol published 15 September 2021, thereby demonstrating evidence of the absence or presence of SARS-CoV-2-derived nucleic acids or clinical COVID symptoms, coupled to compliance with appropriate quarantine procedures including working from home and/or avoidance of workplace(s) in the event of evidence of SARS-CoV-2 nucleic acid or COVID symptoms, this would have provided clearly superior protection of other members of the employer’s community from any infection which the employee might have contracted.  Based on these NIH data, such testing would have provided at least 98% sensitivity in detection of an infection, in contrast to vaccination providing somewhere in the range of 66% to 37% (after three doses) to virtually no protection against SARS-CoV-2 infection.

Longitudinal Assessment of Diagnostic Test Performance Over the Course of Acute SARS-CoV-2 Infection

Rebecca L Smith, Laura L Gibson, Pamela P Martinez et al.

 The Journal of Infectious Diseases, Volume 224, Issue 6, 15 September 2021, Pages 976–982, https://doi.org/10.1093/infdis/jiab337

Finally, based on the information known to both CDC and the public as of July 30, 2021, the cited literature, and subsequent additional peer reviewed literature including that noted above concerning the leakiness of the available vaccines, it is highly likely that rigorous examination of employee health records will reveal multiple examples of vaccinated employees who contracted SARS-CoV-2 infection with or without COVID disease despite being fully compliant with an employers’ mandatory vaccination policy.

Such information would clearly demonstrate the failure of the proposed mandatory vaccination public health measures to achieve the objective of eliminating the risk of SARS-CoV-2 infection or COVID disease in employees and other persons associated with the employer via a vaccination requirement.

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