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Under 42 U.S.C. § 12112(d)(2); 29 C.F.R. §§ 1630.13(a), 1630.14(a),(b), an employer may not ask disability-related questions and may not conduct medical examinations until after it makes a conditional job offer to the applicant.

4. 42 U.S.C. § 12112(b); 29 C.F.R. §§ 1630.10, 1630.14(b)(3).

5. 42 U.S.C. § 12113(b); See 29 C.F.R. pt. 1630 app. § 1630.2(r).


  • Pub.L. 81–774
  • Immigration and Nationality Act gives POTUS authority to temporarily bar entry to non-U.S. citizens who have recently visited countries experiencing an outbreak
  • Declaration of PHE also brings into play a cascade of provisions from other statutes, primarily waiving things like specified limitations on receiving Medicaid funds.
  • Mazares v. Department of Navy, 302 F.3d 1382 (Fed. Cir. 2002)
  • Watkins-El ex rel. R.W.-El v. Dep't of Educ. (E.D. N.Y. 2016)
  • Castro v. Sanofi Pasteur Inc. (D. N.J. 2017)
  • Policy elements; Scope; Declination form should indicate right to change mind, understanding that declining does not prevent future vaccination; Indemnification; Would prefer to work with a lawyer; Hold harmless; Note that state law may vary


[A] [d]efendant does not convincingly establish that his conditions are exceptional and demand immediate release when he intentionally prevents prison officials from mitigating dangers to his health and safety. 18 U.S.C. § 3582(c)(1)(A). A prisoner will not be heard to complain of the risk of severe illness while he simultaneously avoids basic, sensible precautionary measures such as vaccination. Allowing a prisoner to qualify for compassionate release in the face of his refusal to receive a COVID-19 vaccine would serve to discourage prisoners from becoming vaccinated. This court is exceedingly hesitant to provide prisoners an incentive to increase their risk of contracting COVID-19 and developing severe symptoms. Such a result would be plainly counter-productive and dilute the ameliorative purposes of compassionate release.


United States v. Csiki, No. 19-20256, 2021 WL 1884702, at *2 (E.D. Mich. May 11, 2021); see also United States v. MacGregor, No. 15-cr-20093, 2021 WL 1378786, at *1 (E.D. Mich. Apr. 12, 2021) (holding that a prisoner “failed to show that there were extraordinary and compelling reasons justifying his release because a COVID-19 vaccine had been offered to him, and he declined to take the vaccine”); United States v. Toney, No. 17-20184, 2021 WL 1175410, at *1 (E.D. Mich. Mar. 29, 2021) (“Courts in this circuit have consistently refused to find extraordinary and compelling medical circumstances when a defendant declines the COVID-19 vaccine.”).

United States v. Jackson, "No. 11-20493..." United States v. Jackson (E.D. Mich. 2021) (E.D. Mich. 2021)




A.7. CDC said in its Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace.” In light of this CDC guidance, under the ADA may an employer require antibody testing before permitting employees to re-enter the workplace? (6/17/20)

No. An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA. Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test). The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.


Unvaccinated persons who have tested antibody positive within 3 months before or immediately following an exposure to someone with suspected or confirmed COVID-19 and who have remained asymptomatic since the current COVID-19 exposure do not need to quarantine, provided there is limited or no contact with persons at high risk for severe COVID-19 illness, including older adults and persons with certain medical conditions.


Cytokines, their receptors and iNOS would be suitable targets. Interventions targeting more broadly inflammatory signaling


Why wasn't the Nuremberg Code immediately adopted by United States courts as setting the minimum standard of care for human experimentation? One reason, perhaps, is that there was little opportunity. As remains true today, almost no experiments resulted in lawsuits in the 1940's, 50's, and 60's. A second reason may be that the Nazi experiments were considered so extreme as to be seen as irrelevant to the United States. This may explain why our own use of prisoners, the institutionalized retarded, and the mentally ill to test malaria treatments during World War II was generally hailed as positive, making the war 'everyone's war.' Likewise, in the late 1940's and early 1950's, the testing of new polio vaccines on institutionalized mentally retarded children was considered appropriate. Utilitarianism was the ethic of the day.

  • George J. Annas, Mengele's Birthmark: The Nuremberg Code in United States Courts, 7 Journal of Contemporary Health Law & Policy 17, 19-21 (Spring, 1991), quoted in Grimes v. Kennedy Krieger Institute, Inc., 366 Md. 29, 782 A.2d 807 (Md. 2001)


The Oregon Health Authority (OHA) instituted a rule, effective September 30, 2021, require that all all "Healthcare Providers" and "Healthcare Staff" working in any "Healthcare Setting" provide either proof of vaccination or weekly COVID-19 testing results.

Explorer

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https://sgp.fas.org/crs/misc/R46288.pdf Congressional Research Service report: Occupational Safety and Health Administration (OSHA): Emergency Temporary Standards (ETS) and COVID-19 Updated September 13, 2021


https://www.gao.gov/assets/gao-12-330.pdf United States Government Accountability Office WORKPLACE SAFETY AND HEALTH Multiple Challenges Lengthen OSHA’s Standard Setting Report to Congressional Requesters April 2012 GAO-12-330


https://www.msn.com/en-us/news/politics/osha-likely-to-struggle-to-enforce-biden-vaccine-mandate/ar-AAOvjhY Washington Examiner OSHA likely to struggle to enforce Biden vaccine mandate David Hogberg 9/16/2021


https://news.bloomberglaw.com/bloomberg-law-analysis/oshas-planned-covid-vaccine-rule-has-firms-asking-whats-next Bloomberg Law OSHA’s Planned Covid Vaccine Rule Has Firms Asking, What’s Next? Sept. 10, 2021

https://www.msn.com/en-us/money/markets/for-employers-the-devil-will-be-in-the-details-of-biden-s-new-vaccine-mandate-an-employment-law-expert-explains/ar-AAOjr3V For employers, the devil will be in the details of Biden's new vaccine mandate, an employment law expert explains aharoun@businessinsider.com (Azmi Haroun) 9/10/2021



https://www.historyofvaccines.org/content/blog/pets-animals-vaccines History of Vaccines Farm Animals and Pets Also Need Vaccines June 30, 2019 Rene F. Najera


https://www.foporegonlodge7.com/wp-content/uploads/2021/09/Complaint-Declaratory-Judgment-CM.pdf?fbclid=IwAR3_kVGBkdzprCgKFrDVUDz1NmdEhdsMRG4gmk21-OPpSVTVltuQASbGBt8 OREGON FRATERNAL ORDER OF POLICE v. BROWN

https://www.msn.com/en-us/news/us/oregon-governor-sued-by-police-firefighters-over-vaccine-mandate/ar-AAO6jjf The Hill Oregon governor sued by police, firefighters over vaccine mandate Jordan Williams 9/4/2021


https://www.talksonlaw.com/speakers/dorit-reiss Prof. Dorit Reiss Talks On Law


https://www.globalcompliancenews.com/2021/07/23/peru-law-promoting-the-acquisition-of-vaccines-by-the-private-sector-and-other-sectors08072021/ Peru: Law promoting the acquisition of vaccines by the private sector and other sectors, 21 June 2021


https://journals.um.si/index.php/medicine/login Medicine, Law & Society (Slovenia} login


https://www.vorys.com/publications-2972.html Vorys 7/29/21FDA Approves First Interchangeable Biosimilar Product


https://www.theemployerreport.com/2021/07/mandating-covid-19-vaccination-before-you-act-consider-these-key-issues-for-us-and-multinational-employers/ Mandating COVID-19 Vaccination? Before You Act, Consider These Key Issues For US and Multinational Employers


https://www.littler.com/publication-press/publication/montana-releases-faqs-vaccine-discrimination-law Littler Montana Releases FAQs on Vaccine Discrimination Law By Jacqueline Mrachek, Carly Zuba, and Josh Kirkpatrick on August 4, 2021


https://www.gtlaw.com.au/knowledge/why-we-should-be-concerned-about-rapid-roll-out-vaccination-certificates Why we should be concerned about the rapid roll-out of vaccination certificates 10/August/2021 - AU


https://www.huntonlaborblog.com/2021/08/articles/california-developments/new-covid-19-vaccination-requirements-for-california-state-employees-and-health-care-workers/ Hunton New COVID-19 Vaccination Requirements for California State Employees and Health Care Workers By Julia Y. Trankiem & Blake E. Guerrero on August 12, 2021


https://www.seyfarth.com/news-insights/vaccine-mandates-for-condominium-and-cooperative-building-employees-union-vs-non-union.html Seyfarth LEGAL UPDATEAug 12, 2021 Vaccine Mandates for Condominium and Cooperative Building Employees: Union vs. Non-Union By Dennis H. Greenstein, Ingrid C. Manevitz, and Jeremy A. Cohen


https://www.druganddevicelawblog.com/2021/08/yes-the-government-can-still-require-vaccination.html Yes, the Government Can Still Require Vaccination By Steven Boranian on August 13, 2021


https://www.dwt.com/blogs/employment-labor-and-benefits/2021/08/oregon-health-authority-covid-vaccine-rule Oregon Health Authority's COVID-19 Vaccine Rule for Healthcare Providers and Staff Sarah Ames Benedict and Carol J. Bernick 08.13.21


https://carbertwaite.com/news-legal-commentary/navigating-vaccine-injury-support-program/ Author: Fiona Balaton 403.705.3631 balaton@carbertwaite.com NAVIGATING THE FEDERAL VACCINE INJURY SUPPORT PROGRAM (Canada) AUGUST 18, 2021

https://www.vaccineinjurysupport.ca/en Vaccine Injury Support Program (VISP) (Canada)


https://nnphi.org/about-nnphi/nnphi-team/montrece-ransom/ Montrece Ransom Director of the National Coordinating Center for Public Health Training Miami, F.L. mransom@nnphi.org


https://www.docketalarm.com/cases/Tennessee_Eastern_District_Court/1--21-cv-00200/Children%27s_Health_Defense_et_al_v._Food_%26_Drug_Administration_et_al/docs/1.pdf CHILDREN’S HEALTH DEFENSE v. FOOD & DRUG ADMINISTRATION (lawsuit against licensure of Pfizer vaccine)


https://news.bloomberglaw.com/ip-law/moderna-wants-fed-cir-help-to-avoid-covid-vaccine-patent-suits Moderna Wants Fed. Cir. Help to Avoid Covid Vaccine Patent Suits


https://educate.americanhealthlaw.org/local/catalog/view/product.php?productid=537 Navigating Vaccine Mandates: Leadership, Legal, and Policy Insights Date: 10/26/21 Time: 2:00-3:30 PM ET


https://www.druganddevicelawblog.com/2021/09/pa-court-boots-vax-case.html PA Court Boots Vax Case Stephen McConnell on September 29, 2021


https://www.latimes.com/california/story/2021-09-27/california-prison-employees-covid-19-vaccine-judge LA Times All California prison guards, staff must get COVID-19 vaccine, federal judge rules


https://public.fastcase.com/9SKwsfNqTc6OieYDhNMyMyN2Wy3CjENpcKAugXzPiFB3FVktxHPbqie8gaPoyxIUkqDM4g76qFqd5m8w3t2FlA%3D%3D What’s Next with Cal/OSHA and COVID-19 Standards? Author: Cecilie E. Read


https://www.dlapiper.com/en/us/insights/publications/2021/09/president-biden-announces-new-vaccination-requirements/ DLA Piper President Biden announces new vaccination requirements – what private employers and federal contractors need to know

https://www.mintz.com/insights-center/viewpoints/2226/2021-09-10-biden-administration-unveils-sweeping-workplace Mintz Biden Administration Unveils Sweeping Workplace Vaccination Plan Michael S. Arnold, Corbin Carter, David Barmak


https://graydon.law/president-bidens-proposed-covid-19-plan-may-push-employers-to-mandatory-vaccination-policies-or-is-it-much-ado-about-nothing/ Graydon President Biden’s Proposed COVID-19 Plan May Push Employers to Mandatory Vaccination Policies – Or is it Much Ado About Nothing? September 10, 2021 by Theresa Nelson


https://www.spreaker.com/user/11313090/spreaker-2-09-13-21 What Impact Will Biden's Vaccine Mandate Have?: With Guest Brian Dean Abramson The Rick Ungar Show Daily Podcast


https://lawstreetmedia.com/news/health/hospitals-receive-lawsuits-after-requiring-covid-19-vaccines/ Hospitals Receive Lawsuits After Requiring COVID-19 Vaccines DAVID NAYER SEPTEMBER 7, 2021


https://www.gmlaw.com/news/greenspoon-marder-immigration-alert-new-developments-september-3-2021/ GREENSPOON MARDER IMMIGRATION ALERT: NEW DEVELOPMENTS SEPTEMBER 3, 2021 

Immigration Blog  Sep 3, 2021

GREEN CARD APPLICANTS AND COVID VACCINATIONS


https://www.cdc.gov/immigrantrefugeehealth/panel-physicians/covid-19-technical-instructions.html CDC Requirements for Immigrant Medical Examinations: COVID-19 Technical Instructions for Panel Physicians


CHROME

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https://www.technologyreview.com/2021/07/01/1027768/us-vaccine-passport-guide/ Pandemic Technology Project Your guide to what’s happening with vaccine passports in the US The world is debating vaccine passports. We're keeping track of what you really need to know. Bobbie Johnson archive pageAdriana Fraser archive pageMia Satoarchive page July 1, 2021


https://www.reuters.com/world/countries-make-covid-19-vaccines-mandatory-2021-07-13/ Factbox: Countries making COVID-19 vaccines mandatory Reuters


https://www.washingtonpost.com/world/2021/07/13/coronavirus-latest-updates/ France and Greece mandate vaccinations for health workers amid delta variant surge


https://www.cdc.gov/vaccines/programs/iis/training.html


https://www.fisherphillips.com/services/emerging-issues/vaccine-resource-center/index.html?tab=overview https://www.fisherphillips.com/a/web/hGaiGhPPxFjCRmz3SA4Fcz/2jtwdt/VACCINE%2520-%2520Model%2520Non-Mandatory%2520Vaccine%2520Policy.pdf

https://www.employmentlawworldview.com/covid-19-vaccination-will-become-mandatory-for-most-green-card-applicants-us/


https://www.seattletimes.com/nation-world/religious-exemptions-from-coronavirus-vaccines-are-expected-to-become-a-legal-battleground/ Religious exemptions from coronavirus vaccines are expected to become a legal battleground Sep. 1, 2021 at 12:08 pm Updated Sep. 1, 2021 at 1:22 pm By Sarah Pulliam Bailey The Washington Post


https://repository.uchastings.edu/hastings_law_journal/vol65/iss6/5/


https://thehill.com/policy/healthcare/569315-covid-19-vaccinations-plummet-in-afghanistan-after-taliban-takeover-unicef The Hill COVID-19 vaccinations plummet in Afghanistan following Taliban takeover: UNICEF BY LEXI LONAS - 08/25/21 09:44 AM EDT


https://crsreports.congress.gov/product/pdf/R/R46745 Congressional Research Service State and Federal Authority to Mandate COVID-19 Vaccination (April 2, 2021)


https://www.venable.com/insights/publications/2021/06/employers-guide-to-the-religious-exemption


https://www.foley.com/en/insights/publications/2021/08/mandated-vaccines-denying-religious-accommodation


https://www.eeoc.gov/laws/guidance/section-12-religious-discrimination https://www.eeoc.gov/statutes/title-vii-civil-rights-act-1964


https://www.gavi.org/news/media-room/92-low-middle-income-economies-eligible-access-covid-19-vaccines-gavi-covax-amc GAVI 92 low- and middle-income economies eligible to get access to COVID-19 vaccines through Gavi COVAX AMC


https://www.eventbrite.com/e/sustainability-in-community-and-public-health-systems-vaccines-and-the-law-tickets-173642538507 Belmont Event


https://www.sciencedirect.com/science/article/pii/S0264410X20312342 Global assessment of national mandatory vaccination policies and consequences of non-compliance


https://news.bloomberglaw.com/daily-labor-report/how-osha-can-conjure-bidens-soft-vaccine-mandate-explained https://news.bloomberglaw.com/daily-labor-report/biden-workplace-vaccine-mandate-plan-primed-for-court-challenges


https://www.osha.gov/laws-regs/oshact/section_6


https://open.mitchellhamline.edu/cgi/viewcontent.cgi?article=1256&context=mhlr 2021 Navigating the Legal Challenges of COVID-19 Vaccine Policies in Private Emplo ate Employment: School V yment: School Vaccination Laws Pr accination Laws Provide a Roadmap Pamela Abbate-Dattilo


https://public.fastcase.com/9SKwsfNqTc6OieYDhNMyM8f%2Bthh%2BThwYCErG%2B4cakQBw2Jas7f%2B%2F%2FTDZAcmcdM%2BwFj1SdJlD9tSntzEJYX%2FhTQ%3D%3D Dr. T. v. Alexander-Scott (D. R.I. 2021) Asks the court to enjoin the RIDOH from enforcing any requirement that employers deny religious exemptions from COVID-19 vaccination. " Because the Plaintiffs have failed to establish a likelihood of success on the merits as to any of their claims, the Court does not need to address the remaining factors for injunctive relief."


Labarbera v. NYU Winthrop Hosp., 2:18-cv-6737 (DRH) (SIL) (E.D. N.Y. 2021) Pregnant woman sues to avoid flu vaccination mandate, loses


Mallon v. Frostburg State Univ., CIVIL No. BPG-19-795 (D. Md. 2021) Student suing school over 2017 MMR mandate.


Kheriaty v. USC Infection-mediated immunity case, also loses


OSHA reach

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Restland Memorial Park, Matter of, 540 F.2d 626 (3rd Cir. 1976):

During the consideration of the bills which ultimately became the Occupational Safety and Health Act of 1970 (OSHA), the intention to make the maximum use of the commerce power was repeatedly expressed by various Congressmen. 1 The Act is by its terms applicable to every "person engaged in business affecting commerce who has employees." 2...

Restland Memorial Park, Matter of, 540 F.2d 626 (3rd Cir. 1976)

1 See Brennan v. OSHRC, 492 F.2d 1027, 1030 (2d Cir. 1974).

2 29 U.S.C. § 652(5) (1970).


Dane Cnty. v. Sheila W., 2013 WI 63, 348 Wis.2d 674, 835 N.W.2d 148 (Wis. 2013) (Mature Minor case)

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Several states have recognized the “rights” of mature minors by statute. See, e.g., Arkansas (Ark.Code Ann. § 20–9–602(7) (2012)); New Mexico (N.M.Stat.Ann. § 24–7A–6.1.C.(1997)); South Carolina (S.C.Code Ann. § 63–5–340 (2010)); and Virginia (Va.Code Ann. § 63.2–100.2. (2012)). But care must be taken not to misread some of these statutes. For instance, the South Carolina statute provides:

Any minor who has reached the age of sixteen years may consent to any health services from a person authorized by law to render the particular health service for himself and the consent of no other person shall be necessary unless such involves an operation which shall be performed only if such is essential to the health or life of such child in the opinion of the performing physician and a consultant physician if one is available.

S.C.Code Ann. § 63–5–340 (2010) (emphasis added). It is not clear from this statute whether a minor who has reached the age of 16 years may refuse lifesaving services, especially if those services are authorized by a parent or by a court. A provision of South Carolina's Death with Dignity (or Right to Die) Act, S.C.Code Ann. § 44–77–30 (2002), permits a person to adopt a written declaration that life-sustaining procedures may [348 Wis.2d 683]be withheld, but only if the person is 18 years of age or older. Consequently, while South Carolina “recognizes” the rights of mature minors by statute, the statute is not as far-reaching as the doctrine that Sheila proposes here.

¶ 19 By contrast, New Mexico's statute appears to be very far-reaching and to cover Sheila's 2012 circumstances. The pertinent statute reads:

Subject to the provisions of Subsection B of this section, if an unemancipated minor has capacity sufficient to understand the nature of that unemancipated minor's medical condition, the risks and benefits of treatment and the contemplated decision to withhold or withdraw life-sustaining treatment, that unemancipated minor shall have the authority to withhold or withdraw life-sustaining treatment.

N.M. Stat. Ann. § 24–7A–6.1.C. (1997). If this statute had been in effect last year in Wisconsin, Sheila would now likely be dead.

¶ 20 There also are a number of court decisions that have adopted some form of the mature minor doctrine. See, e.g., Kozup v. Georgetown Univ., 851 F.2d 437, 439 (D.C.Cir.1988); People v. E.G., 133 Ill.2d 98, 139 Ill.Dec. 810, 549 N.E.2d 322, 325 (1989); Younts v. St. Francis Hosp. & Sch. of Nursing, 205 Kan. 292, 469 P.2d 330, 338 (1970); In re Swan, 569 A.2d 1202, 1205 (Me.1990); In re Rena, 46 Mass.App.Ct. 335, 705 N.E.2d 1155, 1157 (1999); Bakker v. Welsh, 144 Mich. 632, 108 N.W. 94, 96 (1906); Gulf & Ship Island R.R. Co. v. Sullivan, 155 Miss. 1, 119 So. 501, 502 (Miss.1928); Cardwell v. Bechtol, 724 S.W.2d 739, 748–49 (Tenn.1987); Belcher v. Charleston Area Med. Ctr., 188 W.Va. 105, 422 S.E.2d 827, 837–38 (1992). The substance of these decisions is not uniform. To illustrate, the Tennessee Supreme Court adopted the so-called Rule of Sevens, which provides [348 Wis.2d 684]that children under the age of 7 have no capacity to consent to medical treatment, children between the ages of 7 and 14 have a rebuttable presumption of no capacity, and children between the ages of 14 and the age of majority possess a rebuttable presumption of capacity. Cardwell, 724 S.W.2d at 745.

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