The United States Supreme Court recently issued opinions on January 13, 2022, striking down OSHA’s vaccine mandate for large employers, but also permitting the Centers for Medicare and Medicaid Services (CMS) to mandate the COVID vaccine for all healthcare workers employed at facilities which accept Medicare funding, unless exempted for medical or religious reasons. Governor Murphy took Medicare’s vaccine mandate a step further, issuing Executive Order (EO) #283, requiring all New Jersey healthcare workers who are not exempted for medical or religious reasons to also obtain a booster shot.
I recently decided to represent a nurse who was threatened with termination because she chose not to receive the vaccine booster. This nurse, let’s call her Marie, has been employed by a New Jersey hospital system in Hunterdon County for over 20 years, with an unblemished record of service to the community. She volunteered to work with COVID-19 patients during the height of the pandemic, putting her own life at risk, when there was little known about the virus.
Marie willingly took both doses of the Pfizer vaccine as soon as it was available, to protect her own health and the health of others. More than a year later, she decided against receiving the booster shot, for both religious and health reasons. She explained that she blindly took the vaccine in 2020, because she accepted the representation of public health officials who advised that the vaccine would prevent both the contraction and transmission of the virus. Like many people, since she was in a state of panic about the virus, she never researched the vaccine ingredients before getting vaccinated.
After researching the technology of mRNA vaccines for the last year, Marie now believes that taking this medication conflicts with her religious beliefs on several grounds. She vehemently opposes the medication on the basis that they contain human embryonic stem cells. Maria also rejects the use of gene therapy (mRNA technology), as a blasphemous reprogramming of God’s “blueprint” for her as an individual. In light of Governor Murphy’s Executive Order, her employer is now mandating that she take the COVID booster, or face termination. Since I believe that Marie’s objections are heartfelt, I agreed to represent her on a pro bono basis.
In communicating its new policy to Marie, her employer incorrectly indicated that an exemption for the COVID-19 booster was only applicable to those who “previously received an approved exemption to the vaccine.” This position is patently incorrect. First, EO #283 contains no such limitation on religious exemptions. Second, circumscribing the exemption in such a way is illogical, given that unvaccinated employees would not even be medically qualified to receive the booster.
Religious beliefs change for many reasons over time, based upon increased knowledge, enlightenment, or experience. In Marie’s situation, her underlying religious beliefs have remained steadfast. What has changed since the date(s) she received her initial vaccination, is her knowledge of the vaccine ingredients and understanding of how they could negatively impact her body. She has very clearly laid out her religious reasons for objecting to taking the booster shot. I see no basis upon which her employer could possibly deny her request for an exemption, without running afoul of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, and Title VII of the Civil Rights Act of 1964.
The New Jersey Law Against Discrimination prohibits an employer from discharging or discriminating against an employee on religious grounds. It also provides that it would be unlawful for the hospital to impose upon my client, as a condition of retaining her employment, any requirements which would violate her sincerely held religious convictions, unless the employer demonstrated that it is unable to accommodate her exemption request without undue hardship on hospital operations.
It will take the FDA approximately two years to collect adequate data to determine whether the vaccines and boosters are safe and effective enough for the FDA to license them for non-emergency use. To date, no long-term longitudinal studies have been performed which rule out future negative side-effects of the vaccines and boosters. Moreover, federal law specifically requires the Secretary of Health and Human services to ensure that individuals are provided with the option of accepting or refusing administration of the emergency use product. See, 21 U.S. Code § 360bbb–3(e)(ii)(III). FDA guidance on the emergency use authorization also makes it clear that individuals may refuse to use the product.
The booster shots are far more controversial than the initial vaccines, in terms of their effectiveness and risk factors. The World Health Organization [WHO] recommends against boosting healthy individuals.
See, WHO Chief Warns Booster Programs May Prolong Pandemic, VOA News (12/24/21). Within the FDA itself, there has been disagreement on the policy of providing booster shots. By a vote of 16-2, an FDA committee of vaccine experts recommended limiting booster shots to those 65 and older and those with underlying medical conditions. See, FDA Advisory Panel Rejects Widespread Pfizer Vaccine Booster Shots, PBS News Hour (9/17/21). After the Biden Administration rejected the recommendation of its own experts to push boosters to a wider population, two scientists on the committee resigned their positions in protest. Note that it is not some obscure experts who resigned over the booster issue — it was Dr. Marion Gruber, the director of the FDA’s Office of Vaccines Research and Review, as well as her deputy, Dr. Philip Krause. See, 2 top FDA officials resigned over the Biden administration’s booster-shot plan, saying it insisted on the policy before the agency approved it, reports say, Business Insider (9/1/21).
As of February 7, 2022, according to CDC data, 78.2% of the population of Hunterdon County over the age of 18 years old have been fully vaccinated, with 84.7% of the population over 65 years of age being fully vaccinated. See, attached chart from CDC website of vaccination levels by county. Within Hunterdon County, 50.4% of all fully vaccinated individuals have received the booster shot, which means that nearly half of the population has not received the booster dose. Id. My client is thus clearly not the only individual who enters the hospital without the COVID-19 booster, or even the initial vaccinations. Yet, the hospital has been able to continue operations, with the help of staff members who are not fully vaccinated and/or boosted. Accordingly, it will clearly not pose an undue hardship for the hospital to grant Marie’s request for a religious exemption.
More importantly, the hospital may exempt my client from the booster requirement without putting other employees and patients at risk. It is undeniable that neither the initial doses of the vaccine, nor the booster, prevent or reduce the transmission of the virus. See, CDC Director: Covid Vaccines Can’t Prevent Transmission Anymore, MSN Health, by Erik Sykes (1/10/22); Statement from CDC Director Rochelle P. Walensky, MD (7/30/21); Dr. Marty Makary: ‘Those Who Are Unvaccinated Pose No Risk to the Vaccinated Beyond That of a Common Cold’, Melanie Arter (8/5/21). Accordingly, the decision of whether to take these medications only effects the individual employee, rather than the entire community. Patients who are exposed to an unvaccinated or unboosted staff member are thus under no greater risk than if they encounter fully vaccinated staff members. There is thus no reasonable basis upon which HHS could deny my client’s request for an accommodation of her religious beliefs.
The hospital system will suffer no undue hardship by granting my Marie’s religious exemption request. Quite the contrary – if the hospital refuses to accommodate her religious beliefs, it will suffer the hardship of losing a dedicated and hard-working medical professional. If medical facilities persist in pressuring their employees to obtain vaccinations and booster shots against their beliefs, that it will result in exacerbating the staffing shortages which are currently plaguing our hospitals. My client and all the front-line health care workers who courageously treated COVID-19 patients during the darkest days of the pandemic deserve to retain their basic constitutional rights.
If you are a healthcare provider in Central New Jersey who opposes receiving the COVID booster because of medical or religious reasons, please feel free to reach out to me for assistance.