November 11, 2020 Volume 19, Issue 45

This Week’s Feature

And The Defense Wins

DRI News

DRI Cares

Upcoming Seminars

Upcoming Webinars

Quote of the Week

An effective vaccine could protect our populations from the devastating social and economic effects of COVID-19 and allow employers to operate at full capacity. However, experts agree that the efficacy of any vaccine likely will require the majority of us to be inoculated before we see the rates of infection diminish. This condition will apply equally to an employer’s work-force. For this reason, employers have started asking counsel whether they can require their employees to be inoculated once a safe and effective vaccine becomes available.

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This Week’s Feature

Private Employers Have Flexibility in Implementing Compulsory COVID-19 Vaccination Policies, but Should Exercise CautionBy Kerri A. Wright and Melanie D. Lipomanis

The Voice | November 11, 2020 2 Volume 19, Issue 45

This Week’s Feature

• Private Employers Have Flexibility in Implementing Compulsory COVID-19 Vaccination Policies, but Should Exercise Caution By Kerri A. Wright and Melanie D. Lipomanis

And The Defense Wins

• Byron Miller, Angela Beranek Brandt, Nancy M. Erfle, and Mike Brooks

• Keep The Defense Wins Coming!

MOREMORE

DRI News

• New to the Defense Library Series: Science Basics for the Drug and Medical Device Lawyer

DRI Cares

• RSHC Teams Up with H4H

MOREMORE

The Voice | November 11, 2020 3 Volume 19, Issue 45

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Quote of the Week

“ What plays the mischief with the truth is that men will insist upon the universal application of a temporary feeling or opinion.”

– Daisy Bates, (November 11, 1914 – November 4, 1999)

The Voice | November 11, 2020 4 Volume 19, Issue 45

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This Week’s Feature

Private Employers Have Flexibility in Implementing Compulsory COVID-19 Vaccination Policies, but Should Exercise CautionBy Kerri A. Wright and Melanie D. Lipomanis

An effective vaccine could protect our populations from the devas-tating social and economic effects of COVID-19 and allow employers to operate at full capacity. How-

ever, experts agree that the efficacy of any vaccine likely will require the majority of us to be inoculated before we see the rates of infection diminish. This condition will apply equally to an employer’s workforce. For this reason, employers have started asking counsel whether they can require their employees to be inoculated once a safe and effective vaccine becomes available.

According to a survey conducted in August 2020, thir-ty-five percent of Americans surveyed said they decidedly would not get a vaccine when one becomes available. That rate climbs to forty-one percent among parents with chil-dren under eighteen. A more recent survey conducted in September 2020 indicates that number is now at forty-nine percent. So, how do we move toward a fully functioning society, including restoring robust business operations, when such a large number of individuals are unwilling to be inoculated? That is the question many public and private employers, school districts, and colleges and universities are beginning to contemplate as we inch closer to an effective means of disease prevention.

While COVID-19 may be novel, mandatory inoculations are not. In a case dating back to 1905, the Supreme Court addressed mandatory vaccinations in regard to a smallpox outbreak in Massachusetts. In Jacobson v. Massachusetts, 197 US 11, 88 (1905), Jacobson objected to a regulation requiring compulsory vaccinations, arguing it was in “derogation of the rights secured to the defendant by the 14th Amendment of the Constitution of the United States… providing that no state shall make or enforce any law abridging the privileges or immunities of citizens of the United States, nor deprive any person of life, liberty, or property without due process of law….” Rejecting this argument, the Court ruled that a state law requiring compulsory vaccination of citizens to eradicate disease was a proper exercise of the legislative prerogative to protect the public health, finding “the police power of a state must

be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” Drawing on the logic from then-existing school immunization mandates, the Court held that such regulations do not violate the 14th Amendment right to liberty because they fall within the type of restraints to which every person necessarily is subjected for the common good, and that real liberty for all could not exist if each individual is allowed to act without regard to the injury that his or her actions might cause others. The holding in Jacobson has been a staple of public health law and compulsory vaccinations remain a valid exercise of state power.

State-mandated vaccination laws have been on the books for the past century and although we generally think of them as applying to children attending day care facilities and schools, many states have enacted laws requiring immunization of certain groups of people, such

The Voice | November 11, 2020 5 Volume 19, Issue 45

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as healthcare workers, patients, and residents of long-term care facilities.

Generally Recognized ExemptionsAccording to the National Conference of State Legislators (NCSL), all states allow exemptions for medical reasons, forty-five states and the District of Columbia have a reli-gious exemption law, and seventeen of those states have philosophical exemption laws allowing individuals and/or parents to claim an exemption based on their personal, moral, or other beliefs.

Perhaps the most controversial exemptions to compul-sory vaccination laws are those for religious and philosophical reasons. Title VII of the 1964 Civil Rights Act prohibits religious discrimination in the workplace. Employers, however, are not required to accommodate the religious beliefs and practices held by employees if doing so involves more than a de minimis cost. This de minimis standard, when analyzed amid the greatest public health and financial crisis in our lifetimes, seems to set a fairly low bar for employers to demonstrate that allowing their workforce to go unimmunized would pose a far greater than de minimis cost to the business. Add to that rubric the fact that Congress has yet to pass any legislation limiting legal liability for employers over COVID-19 infections that occur in the workplace. Perhaps this lack of action provides further justification for employers to take every conceivable precaution to keep potential COVID-19 carriers out of their workforce and facilities.

Notably, there has seen a sea change in public attitude toward vaccination exemptions following the catastrophic effects of COVID-19, which may result in the federal or state governments preemptively taking up the gauntlet for employers. By way of example, on May 13, 2020, the New York State Bar Association’s Health Law Section Task Force on COVID-19 issued an eighty-three-page report and recommendations on dealing with various aspects

of the pandemic. The report states that although “some Americans may push back on the COVID-19 vaccination for religious, philosophical or personal reasons,” “for the sake of public health, mandatory vaccinations for COVID-19 should be required in the United States as soon as it is available.” In support of its position, the bar notes, “Con-stitutional challenges … have failed, when the individual interests are not strong enough to outweigh the public benefit,” and concludes that the “gravity of COVID-19 presents compelling justification for State legislatures and Congress to mandate a COVID-19 vaccination.”

With this backdrop, it is conceivable that compulsory vaccinations may be on the horizon at the state or even

federal level. At a minimum, we would expect to see legislation regarding certain sectors with high risk populations, such as healthcare workers, employees, and residents of elder-care facilities, school districts, universities, and perhaps even employees in the retail and food service sectors.

Navigating Potential Accommodations in the Employment ContextWhile a fully inoculated workforce is ideal, absent federal or state laws mandating inoculation, whether for all citizens or specific sectors and employee groups, employers only can go so far in implementing compul-sory vaccination policies. Employers need to be mindful of existing federal and state laws that may be implicated when implementing mandatory employment policies.

The Equal Employment Opportunity Commission (EEOC) issued guidance regarding the flu vaccine on March 21, 2020, in which the agency stated that employers covered by the Americans with Disabilities Act (ADA) and Title VII may require employees to be inoculated for the influenza virus. The EEOC cautioned, however, that employees may be entitled to an exemption from the employer’s mandatory vaccination policy under the ADA, based on a

This Week’s Feature

While a fully inoculated workforce is ideal, absent

federal or state laws mandating inoculation,

whether for all citizens or specific sectors and employee

groups, employers only can go so far in implementing compulsory vaccination policies. Employers need to be mindful of existing

federal and state laws that may be implicated when implementing mandatory

employment policies.

The Voice | November 11, 2020 6 Volume 19, Issue 45

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This Week’s Feature

disability, or under Title VII, for the employee’s sincerely held religious beliefs.

In 2009, the U.S. Occupational Safety and Health Admin-istration (OSHA) took a position during the H1N1 pandemic that employers may require employees to submit to influenza vaccines, providing that employees are informed properly of the benefits of vaccinations. OSHA cautioned, however, that “an employee who refuses vaccination because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death (such as a serious reaction to the vaccine) may be protected under Section 11(c) of the Occupational Safety and Health Act of 1970 pertaining to whistleblower rights.”

Bottom LineWhile it is important to check your state laws on the issue, generally an employer may implement a policy mandating its workforce be inoculated once a safe and effective vaccine becomes available. Although the policy should be applied uniformly, the employer will need to consider exceptions to the mandate, on a case-by-case basis, for an employee’s medical condition pursuant to the ADA or his or her sincerely held religious beliefs pursuant to Title VII.

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Kerri Wright is a principal of Porzio Bromberg & Newman PC in Morristown, New Jersey, and co-chairs the firm’s education and employment team. Ms. Wright defends the firm’s public and private sector clients in state and federal courts, as well as before administrative agencies, including the EEOC and the New Jersey Department of Labor. She has significant experience representing and counseling school boards, charter schools, private schools, and colleges in a variety of areas. Ms. Wright is one of only a few experts in the state in the area of reconfiguring school districts, includ-ing the creation and dissolution of regional school districts and the creation and termination of sending–receiving relationships.

Melanie Lipomanis is also an attorney with Porzio Bromberg & Newman PC and a member of the education and employment team. Ms. Lipomanis defends manage-ment-side employers in employment litigation and partners closely with human resource and labor relations profession-als on all aspects of workforce management. She routinely handles matters before the EEOC, NLRB and OSHA. Licensed by the New Jersey and New York State Bars, she serves on the New Jersey State Bar Committee on Higher Education, is a member of the DRI Employment and Labor Law Committee, and teaches employment law at Rutgers University, School of Management and Labor Relations.

The Voice | November 11, 2020 7 Volume 19, Issue 45

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And The Defense Wins

Byron Miller, Angela Beranek Brandt, Nancy M. Erfle, and Mike Brooks

The trial team of DRI members Byron Miller of Thompson Miller & Simpson PLLC, Angela Beranek Brandt of Larson King LLP, Nancy M. Erfle of Gordon Rees Scully Mansukhani LLP, and Mike Brooks of Wells Anderson & Race LLC obtained a defense verdict in a case involving the 3M 8710 respirator after a three-week, in-person trial.

The case involved a living mesothelioma plaintiff who had spent his working life as an insulation worker at Puget Sound Naval Shipyard. By the time of trial, all of the asbes-tos-containing product manufacturers, as well as another respirator defendant, had resolved the cases against them.

The plaintiffs alleged that the 8710 respirator was defec-tively designed and that the company had not provided adequate warnings when the plaintiff used the product from 1972–1980, thus causing his mesothelioma. The 3M team defended the case by teaching 3M’s decades-long history of innovation in respiratory products—innovation

that continues today, with 3M increasing global N95 respi-rator production to two billion per year by year’s end.

The jury found for 3M, concluding that there was no design or warning defect in the product. While the jury was selected remotely by Zoom, the trial was held in-person in a convention center in Bellevue, Washington, converted into a “courthouse” to handle civil trials. Although some witnesses were called via Zoom, 3M brought its witnesses live while following COVID-19 guidelines. All participants (court staff, attorneys, witnesses, and jurors) wore masks throughout and jurors were seated so as to socially distance while listening to the evidence.

Many supported this effort, including Dan Adams from Larson King, Bernadette Catalana from MG&M, Trisha Volpe from Barnes & Thornburg, and Litigation Insights.

Keep The Defense Wins Coming!

Please send 250–500 word summaries of your “wins,” including the case name, your firm name, your firm posi-tion, city of practice, and email address, in Word format, along with a recent color photo as an attachment (.jpg or .tiff), highest resolution file possible (minimum 300 ppi), to DefenseWins@dri.org. Please note that DRI membership is a prerequisite to be listed in “And the Defense Wins,” and it may take several weeks for The Voice to publish your win.

Byron Miller, Angela Beranek Brandt, Nancy M. Erfle, and Mike Brooks

The Voice | November 11, 2020 8 Volume 19, Issue 45

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DRI News

New to the Defense Library Series: Science Basics for the Drug and Medical Device Lawyer

Science Basics for the Drug and Medical Device Lawyer

Defense Library Series With each drug and medical device case, defense lawyers

must take a deep dive into the intricacies of specific, fre-quently very narrow, areas of science and medicine. Science Basics for the Drug and Medical Device Lawyer is meant to provide background knowledge, and act as a starting point, in several areas that defense practitioners commonly encounter. Before you meet an expert in a new field for the first time, review the relevant chapter and go into the meet-ing a little smarter and asking the right questions. Chapters cover navigating the strictures of reliability to challenge a differential etiology, avoiding the “causation conflation” trap in a pharmaceutical case, Bradford Hill criteria, epide-miology, immunology, genetics and molecular/cell biology, urogynecology, and bleeding and clotting.

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Contact DRI Customer Service at (312) 795-1101 or custservice@dri.org to place your order today!

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DRI Cares

RSHC Teams Up with H4H

Members of Riley Safer Holmes & Cancila putting in work with Habitat for Humanity International on Chicago’s South Side! #proudtobeRSHC

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Quote of the Week

“ What plays the mischief with the truth is that men will insist upon the universal application of a temporary feeling or opinion.”

– Daisy Bates, (November 11, 1914 – November 4, 1999)