Category: Blog

Returning to Work: Do I have to get vaccinated?

As employees start to head back to the office there is one question on their mind – do I have to get vaccinated to go back to the office?  While many employees voluntarily chose to get the Covid-19 vaccine, others are concerned about losing their job if they choose not to get vaccinated.

Whether an employer can require an employee to get vaccinated depends on state law.  With the ever evolving circumstances surrounding the COVID-19 pandemic, states are still in the process of passing legislation surrounding employer’s requirement or discrimination based on receiving the Covid-19 vaccine.  Several states have pending legislation that would not allow employers to require employees to receive the Covid-19 vaccine as part of their employment.  Other states have pending legislation to protect employers who require employees to be vaccinated.

Federal law may still offer some protections to employees who choose not to get vaccinated.  Employees may be exempt for religious beliefs or medical issues.  Employees that are covered by the Title VII of the Civil Rights Act of 1964 who have made employers aware of their religious beliefs may have the foundation to receive a religious exemption.  Additionally, the Americans with Disabilities Act may protect individuals that have a protected disability that would be medically averse to receiving a vaccination.  Employers will need to make appropriate accommodations for employees with disabilities.

For employers that do require employees to be vaccinated, there are limitations on what they can ask employees.  Employees who receive their vaccination aside from employer sponsored vaccination, are not required to show medical proof of vaccination.  Employers may ask employees whether they are vaccinated against COVID, but that is the extent of proof employers can require from employees.  As the world enters a new phase, many questions are still left unanswered surrounding the COVID-19 vaccine. Alternatively, will employers be held liable if they do not require vaccinations?  Some legal professionals would be surprised if employers were but it is not outside the realm of possibility.  

Requiring vaccinations may largely depend on the employer’s industry.  For example, hospitals and other medical entities may require employees to be vaccinated.  Employers in the medical industry already require employees to receive other routine vaccinations and tests as part of their continued employment.  There are, however, employees who work from home or have limited contact with the public. In these instances, an employer may decide not to require employees to get vaccinated since they do not regularly enter the workplace.

The U.S. Center for Disease Control regularly encourages everyone to receive a COVID-19 vaccine in the interest of public health. Nonetheless, whether employees are vaccinated or not, employers are still encouraged to maintain safety protocols to protect their employees and the public from being exposed to the COVID-19 virus.  

Overhauling The U.S.’s Crumbling Infrastructure: Access to Clean Drinking Water is a Human Right

Seven years ago, the U.S. media began reporting on the water crisis in Flint, Michigan. While the City of Flint has finally replaced its pipes and the 95,000 residents of Flint have become eligible to receive a portion of a $650 million dollar settlement, many residents of Flint still do not trust their water. This lack of trust stems from years of community neglect and environmental racism. The water crisis experienced by Flint, Michigan isn’t a rare incident, many communities around the U.S. lack access to clean drinking water. As the Biden Administration engages in partisan negotiations over the proposed infrastructure bill, the American Jobs Plan, repairing U.S. water infrastructure must remain a priority. 

It is estimated, that every year, nine to forty-five million Americans obtain their drinking water from a source with contaminants that violate the Safe Drinking Water Act. These contaminants have a wide variety of health effects, from acute effects like stomach disturbances, to chronic effects like certain cancers and neurological disorders. Under the Environmental Protection Agency’s (EPA) Lead and Copper Rule,  lead concentrations must not exceed 15ppb and copper concentrations must not exceed 1.3ppb in more than 10% of the sampled taps of residents. The regulation provides that if levels exceed this, the public must be informed, and service lines may need to be replaced in order to protect public health. However, many of the small, rural communities struggling with unsafe drinking water can’t even afford to hire a full-time water treatment operator, so the idea of these communities being able to afford the costs associated with replacing their drinking water infrastructure without adequate federal funding and oversight, is not realistic. 

Under the current American Jobs Plan proposal, $111 billion in total will be allocated to improving U.S. drinking water. Within that total, the Administration proposes that $45 billion dollars in grants will be enough to replace 100% of U.S. lead pipes and service lines. Also, within that total, the Administration proposes providing $56 billion in grants and federal loans to help modernize rural water infrastructure and $10 billion to be allocated to water surveillance programs. While media coverage and the GOP make these costs seem way over budget, are these proposals even enough to fully address the issue at hand? According to a Drinking Water Infrastructure Needs Survey and Assessment released to Congress by the EPA in 2018, the costs associated with repairing U.S. drinking water utilities is estimated to be $472.6 billion. The costs associated with replacing pipes, service lines and mains alone are estimated to cost $312.6 billion, according to the EPA’s survey, drastically above the proposed $45 billion. 

As Congress and the Biden Administration are actively engaged in negotiating the terms of the American Jobs Plan, the allocation of funds to repair our nation’s drinking water needs to increase rather than decrease. Access to cleaning drinking water is a human right that has been established under the United Nation’s Sustainable Development Goals, a right that should be guaranteed in both developing and developed nations like the United States.

Where Do the Vaccines Go From Here? Issues With Vaccine Quality and Supply During COVID.

As the US begins to turn a new page since the Pandemic first devastated our country in 2020, many Americans plan to be vaccinated in efforts to return to life as they once imagined. The Biden Administration has placed tremendous support and funding behind vaccines produced by Pfizer, Moderna, and the Johnson & Johnson (J&J). While public health experts, including the CDC, deem all three vaccines safe with varying efficacy levels there is concern about the implications about the recent pause to the production of the Johnson & Johnson vaccine.

According to the CDC, the “pause” was recommended after some people developed “a rare and severe type of blood clot” two weeks after being vaccinated. Although alarm is expected, the occurrence of these type of blood clots is small (approx. 6 cases) compared to the 6.8 million doses issued. Health experts recommend for those originally signed up to receive the J&J vaccine simply attempt to reschedule to receive either the Pfizer or Moderna vaccine. Although the J&J vaccine which has passed vigorous testing and oversight from the CDC and FDA, the Janessen (Johnson & Johnson) company is expected to meet with regulators this month to ensure that vaccines continue to be safe for distribution. That meeting is open to the public. The meeting will be held by the CDC’s Advisory Committee on Immunization Practices the whose job it is to determine how the J&J vaccine will be used and changes in vaccine supply.

In terms of new production, the producers of the J&J vaccine are dealing with potential quality issues. The FDA further requested that J&J vaccines undergo additional testing and identify any potential sources of contamination. After an inspection of one production facility in Baltimore, the FDA noted several issues that would have to be addressed in order to continue to a supplier of vaccine products during COVID. In a statement released by J & J the roll out of the vaccine has been delayed in both the US and Europe. The statement also included information for those who are concerned about recognition and treatment of the related to that type of rare blood clot.

So where do we go from here? According to a report from CNN, the impact of the J &J pause should be minimal. Nonetheless, for Americans that are already skeptical about being vaccinated under emergency procedures this adds to the list of reasons not to be vaccinated. Health experts continue to stress the importance of putting this incident into context. Specifically, the CNN report points to the fact that the other vaccines by Pfizer and Moderna are designed differently from Johnson and Johnson and are completely safe. As Americans continue to decide whether to vaccinated, health experts hope that vaccine safety concerns won’t thwart the efforts of health experts, the Administration, and the public to move toward a coronavirus-free nation.

Numbers Can Lie: Gaming the Medicare Rating System in Nursing Homes and Long-Term Care Facilities

As of March 2021, over 174,000 people living and working in nursing homes and long-term care facilities in the United States have died as a result of COVID-19; these deaths account for approximately forty percent of the COVID-19 deaths that have occurred in the United States. Many government officials, on both sides of the aisle, are working to understand why so many federally certified nursing homes and long-term care facilities failed to protect our most vulnerable citizens from COVID-19. Evidence shows manipulation of the Centers for Medicare & Medicaid Services (CMS) Nursing Home Compare Five-Star Quality Rating System may be contributing to the problem. This emerging evidence has prompted State Attorneys General (AGs) to hold facilities manipulating the System accountable for deceptive practices.

In 2008, CMS implemented the Five-Star Quality Rating System to help families identify safe and reliable facilities for their loved ones. The ratings are based on independent, third-party health inspections; self-reported staffing levels based on the number of hours of care provided on average to each resident per day; and self-reported quality measures that include how well residents’ physical and clinical needs are met.

Families relying on this tool may assume that placing their loved one in a five-star-rated facility means they are in a safe facility, but families should be aware of long-standing concerns with the Rating System. In 2014, the New York Times published a report on the System’s shortcomings. The report found that, although the Rating System encouraged some nursing homes and long-term care facilities to improve, some facilities’ ratings improved even when care did not.

Unfortunately, allegations of the manipulation of self-reported data continue today. Thus, some top-rated facilities remain ill-prepared to handle the day-to-day needs of patients and lack capacity to manage the current public health crisis. As death tolls have climbed in these facilities, the New York Times published another investigatory report highlighting the Rating System’s shortcomings on March 13, 2021. The report reviewed the reliability of self-reported data by analyzing nursing home payroll records, records of state inspections of facilities, and financial records.

The report found that much of the information provided to CMS by nursing homes was wrong. Reported staffing levels included employees on vacation. Resident accidents and health problems went unreported. Facilities with five stars for quality of care were almost as likely to fail in-person inspections as to pass them. Facilities received advanced notice of surprise inspections—defeating the purpose of the only independent evaluative factor. More than two-thirds of five-star facilities were also cited for infection control or patient abuse problems. Despite incidences of rape, homicide, and rampant COVID-19 spread, many homes maintained a five-star rating. These issues are difficult for government officials to ignore.

State AGs are pursuing litigation against facilities that have manipulated the Rating System to secure higher ratings and further investigating the allegations contained within the New York Times report. Former California State AG Xavier Becerra sued Brookdale Senior Living, Inc., the largest senior living facility in the United States, based in part on manipulated self-reported data. The complaint alleges that Brookdale engaged in false and misleading statements and unlawful, unfair, and fraudulent business practices by, among other things, providing CMS false information and falsely advertising about the quality of its facilities. California is not the only state pursuing these issues. New York AG Letitia James issued a report in January 2021 on the response of New York nursing homes to the pandemic. Her report revealed that more nursing home residents died than reflected in New York’s data; nursing homes with low CMS ratings had higher COVID-19 deaths; and among other things, the failure of nursing homes to comply with infection control protocols increased COVID-19 risks.

Lawsuits like the one against Brookdale Senior Living, Inc., will hopefully begin to accelerate reform in nursing homes and long-term care facilities. CMS should consider not only restructuring its Rating System, but also working to improve federal oversight of the nursing home and long-term care facility industry and patient mistreatment. Placing a loved one in these facilities is a difficult decision for many families. The unreliable Rating System, particularly during the pandemic when families cannot physically check in on their loved ones in these facilities, creates an unacceptable situation that CMS must address. Our loved ones deserve better.

Please contact Managing Editor for Sources.

Weakening Roe v. Wade: Conservative States Have a Plan

In 1965, illegal abortions performed in unsafe settings made up one-sixth of all pregnancy-related deaths. In 1973, the Supreme Court addressed this issue in the landmark decision from Roe v. Wade by holding that access to safe and legal abortion is a constitutional right. States that do not agree with this decision have consistently attempted to attack access to abortion, most often by imposing targeted regulations of abortion providers, or “TRAP” laws. These restrictions, which impose costly, severe, and medically unnecessarily requirements on abortion providers, are designed to make access more difficult by effectively putting providers out of business. In 2016, the Supreme Court struck down Texas restrictions that created an undue burden for women seeking abortion services in Whole Woman’s Health v. Hellerstedt. Although this decision did not invalidate all TRAP requirements, it opened the door for challenges to other state TRAP laws.

Now, less than 50 years after the Roe v. Wade decision, states are devising new plans. Conservative-leaning states are introducing anti-abortion bills in hope that lawsuits will come before a Supreme Court that is now packed with appointees of the previous administration. The states are attempting to chip away at abortion rights by using the courts to add more restrictions on access. As a result of the democrat-led Congress and the new Biden Administration, the only way that the anti-abortion groups can achieve their goals is by pushing legislation through at the state level. Over a dozen states have introduced bills that would prohibit access to abortion medication through the mail and require doctors to offer an ultrasound before terminating the pregnancy. The most shocking of these, a Montana bill that would create a ballot initiative asking Montanans to decide whether fetuses that live through abortion are people with legal rights. It is highly likely that these proposed bills will become law, and subsequently will be challenged in court. Nicole Smith, a fellow of the Society of Family Planning confirmed that the onslaught of bills is going to result in a legal battle, starting in the states and progressing to the Supreme Court, which is exactly what the conservative states intended.

If conservative states are successful at weakening or overturning Roe v. Wade, less than half of U.S. states will retain its abortion protections. The highest courts in ten states have recognized the right to abortion as a fundamental right, and 11 additional states have passed legislation protecting access to abortions. That leaves 29 states that are lacking legal protection for abortions. Of those 29, there are approximately 24 that are considered hostile toward abortions and would likely attempt to ban access altogether. The remaining five states have not considered the question in their highest courts, and have no legislation guaranteeing rights, so the effects of weakening Roe v. Wade would be uncertain. Nearly one in four women in American will have an abortion during her lifetime – but where will these women go, and what will they experience, if abortion is outlawed in their state? As of January 2021, at least 19 abortion related cases are close to reaching the Supreme Court – which means that conservative states are one step closer to  restricting abortion rights that the Court once ruled were constitutionally protected.

State Ban Puts Abortion Rights at Jeopardy Once Again

Before the U.S. Supreme Court ruled on Roe v. Wade, women went great lengths to end unwanted pregnancies. Those with money traveled to countries where abortion was legal or persuaded their family physician to illegally perform the procedure. Other women were limited to self-induced abortions, using household items like hangers, knives, chemicals, and stairs. These unconventional methods often led to gruesome injuries or death, and reports indicate women of color disproportionately faced such complications. The right to control one’s body became the central tenant of the Women’s Rights Movement, and many compared the government’s control over a woman’s body to an authoritarian government.

In 1973, the Supreme Court heard Roe v. Wade and decided that abortion is a fundamental right subject to the strictest scrutiny. The Supreme Court held that a state can impose its interest of preserving life only after viability, except when it’s necessary to preserve the life or health of the mother. After its legalization, abortion related deaths dramatically declined. In Planned Parenthood v. Casey, the Supreme Court invalidated restrictions that imposed undue burdens on the right to obtain an abortion prior to viability. This case is exceptionally critical as the Court emphasized stare decisis, commonly known as precedent, and indicated that to overrule the central tenant of Roe would undermine judicial legitimacy since the underpinnings of its decision had not changed. Notably, the Court stressed that the ability of women to participate equally in the economic and social life of the nation is dependent on the ability to control their reproductive lives.

Although Roe effectively legalized abortion, states continuously create barriers to abortion access by passing legislation regulating provider and patient conduct, even without benefit to the patient. These restrictions have led to detrimental impacts on access to abortion, for example leaving many states with only one abortion clinic.

On March 9, Arkansas passed a new restriction on abortion that is far more oppressive than other states’ restrictions. This legislation acts as a near-total abortion ban by only allowing it when needed to preserve the health of the mother or fetus. This statute is one of the nation’s most restrictive bans because there are no exceptions in instances of rape or incest and violators risk a $100,000 fine or time in prison. Within the last two years, courts have repeatedly blocked other states’ attempts to implement similar restrictions. Unfortunately, this Arkansas abortion ban is remarkably different. As the statute currently stands, it is unconstitutional for violating the framework laid out in Roe. However, Arkansas Governor Hutchinson’s goal with this restriction is to go before the Supreme Court and overturn Roe. This is especially concerning as it would be the first major opportunity for the Court to review Roe since gaining a conservative majority.

If the Arkansas statute is reviewed by the Supreme Court, Justices will be forced to decide whether or not to apply reinforced judicial precedent to a fundamental right, whose legal underpinnings remain unchanged. Women have been having abortions for decades and will not stop simply because it is illegal. The question is: will there be a safe abortion option for women in the United States or will we return to our inhumane past?