Special Report: Vaccination Examination
Let’s go right to the PBA sources to get more information about getting the shot
by Mitchell Krugel
Vaccine news and developments have fired up the detective genes in the NJSPBA leaders. They have been combing news media, social media and the vast array of experts in the PBA network, including attorneys, medical professionals and healthcare administrators, to give members the tools and information to decide whether to take the COVID-19 vaccine.
Kevin Lyons, the PBA’s health benefits coordinator, has been particularly investigative, alongside President Pat Colligan. He has spoken to some of the union’s most knowledgeable sources, attempting to solve the case of whether members should take it and have to worry about an adverse reaction, or not
take it, risk getting the virus and it not being a covered event.
“I don’t see a clear path,” Lyons submits. “One of our major health insurance contacts is advocating for everybody to take the vaccine, but they don’t know what the long-term effects are.”
So, the mission at hand as commissioned by President Colligan is fundamental.
“Our main goal is to allow our members to be the lions they are, not sheep,” Lyons continues. “From my standpoint, we want our members to have the tools to make a decision based on the knowledge we can make available to educate their families.”
By now you have read a substantive download of information that PBA attorneys Robert Fagella and Paul Kleinbaum provided on pages 10-11 of this issue and a medical synopsis from Dr. Stavros Christoudias, the chair of the NJ Doctor-Patient Alliance, beginning on page 27. If you have, not please
make sure to do so.
Still, updates about the vaccine seem to come out every hour. By the time you reach the end of this story, in fact, there might be more information available.
But here’s some of what we know:
According to Fagella and Kleinbaum, nobody categorically knows the answer to the question of whether taking or not taking the vaccine can cause any legal issues. “The definition of the law is whatever the last judge says it is,” Fagella reasons.
As noted in their report on page 10, Kleinbaum emphasizes that employers are not going to be able to mandate members take the vaccine without negotiating it. And in this landscape, it is imperative that Locals look out for the health, safety and welfare of their members more than ever.
Given the nature of the virus, it’s entirely feasible that to go to Yankee Stadium, you would need to prove you got the vaccine. State Corrections Local 105 State Delegate Ray Heck, who overcame getting COVID-19 in October and has been part of a detail conducting testing statewide since April, expounds on this being the way of the world.
“The vaccine is to make sure you do not give it to everybody else,” Heck asserts.
It’s coming soon, at least on an optional basis. The state put out its list of which employees will be offered the vaccine when. NJ State Police is on the A list. State Correctional Police Officers are on the B list.
So many more questions continue to churn through members’ minds. To further this mission, some of the PBA’s resources provide more information to achieve peace of mind.
“As we put everything out there, you should sit down with your significant other and decide what’s best for you and your family,” Lyons reinforces. “Nobody should ever be in a position where this choice becomes a career choice. Any employer that puts somebody in that position is no better than the people who implemented child labor back in the 1920s.”
A policy discussion
As Colligan reported in his President’s Message on page 4 of this issue, his Local (Franklin Township Local 154) negotiated a policy with management that illustrates how to navigate implementing pandemic-necessitated policies. This one addressed employees returning to work after traveling to certain “hot” states included on New Jersey’s travel advisory list.
Local 154 and the SOA filed respective unfair practices charges with PERC asserting that the travel policy was mandatorily negotiable. So they negotiated with the town, and an ensuing policy established that any member ordered to quarantine shall be placed on paid administrative leave upon return from a “hot” state in any of the following circumstances:
• The member was already en route to a state when it was designated as “hot.”
• The member made the travel plans before the state was designated as “hot” and cannot secure a refund of all travel and lodging costs.
• The member traveled to a “hot” state due to a medical or other emergency involving an immediate family member.
• The member traveled to a “hot” state due to the death of an immediate family member.
• The member traveled to a “hot” state to fulfill a military obligation or as part of official duties (including approved training).
• All members who had previously been compelled to use their own accrued sick leave were reimbursed.
• Any member who had previously been compelled to use sick leave had the option of substituting any other accrued leave.
• In the event a member elects to utilize vacation, personal, and/or comp time leave, it must not impact the strength of the scheduled shift to prevent another officer not in quarantine from utilizing vacation, personal and/or comp time on said day.
Attorney Lou Rainone, whose firm Rainone Coughlin Minchello represents more than 60 municipalities in New Jersey, negotiated the travel policy for Franklin Township. He has guided towns as they have reacted from one executive order
from the governor to the next addressing the evolving issues from the pandemic. Rainone has realized the important distinction of law enforcement officers being essential employees, which fueled this policy and may do so with any policies related to the vaccine.
While some have created strange situations – like members having traveled to a state for vacation that suddenly was added to the “hot” list while there – the experience has indicated that management and labor have to work together to figure out the issues.
“It has become this interaction between operation of the executive order and our responsibility to protect the workplace and collective bargaining agreements,” Rainone clarifies. “The one thing we have learned during this pandemic is that our policies are only as good as the next announcement by the CDC or executive order. But the inevitable issue is how you deal with it from a collective bargaining standpoint.”
Discovery of evidence about the pros and cons, virtues and views of the vaccine leads back to expertise flowing through the PBA. File these observations in a place where you can easily access them as the pandemic persists and the decision about getting the vaccine nears:
• Few members have been exposed like Heck. Being part of the statewide testing detail, he has studied the virus transmission and knows how it has become savvy
enough to last longer in the air and even penetrate some of the PPE. He’s also one of the most well-read members and has studied it enough to observe, “It looks like the vaccine is effective for a good part of the population, but for how long?”
• While he says there is still a lot to learn, Heck declares, “If I’m able to get it, if I’m healthy enough, I will get it immediately. I’m on the front lines, and if I go down, it puts a strain on the rest of my teammates.”
• There appears to be a growing responsibility among members to set an example by taking the vaccine. Not just for the public, but for each other. State Corrections
Local 105 President Bill Sullivan shares that he, too, will get it as soon as possible because “I wouldn’t ask any of my members to do something I wouldn’t. Especially if it can help make sure everybody is safe. A lot of our board members feel the same way that if it’s something they can do to prevent the spread and make a difference, they are more than willing to do so.”
• Fagella and Kleinbaum recognize that there is some precedent to reference regarding implementation policy that can be applied to getting the vaccine. They evoked the drug-testing comparison, noting that employers are obligated to negotiate over procedures used, as well as particulars like having a split sample, notice that needs to be given and labels that are used.
• Attorney Frank Crivelli of the firm Crivelli & Barbati, L.L.C., which represents many Locals, researched the question of whether the vaccine can be mandated. He presented a report that the U.S. Department of Justice published titled, “The Role of Law Enforcement in Public Health Emergencies,” which discusses mass immunization programs for sworn law enforcement officers. Although the publication addressed whether there should be special sick leave policies, whether there should be a special leave category for officers who have been exposed but do not have symptoms and how isolation or quarantine should be handled for infected persons, it stopped short of issuing guidance on the legality of a mandatory immunization program and whether an affirmative order to be immunized would have to be followed.
• Crivelli further noted that the military has been presented with similar issues and had to get immunized. The anthrax vaccine is one of the more prominent examples. What is the connection here? “Although law enforcement can be considered paramilitary, statutorily created organizations, they are not mandated to waive many of their constitutionally protected rights the way that our soldiers,
sailors, airman and Marines do when they enlist,” he reasons.
• In the document the state sent to its employees, including correctional police officers, there is a reminder that the vaccine won’t do the job of containment by itself. According to the document, “In some cases, COVID-19 vaccines may protect against severe infection, but not necessarily prevent mild or asymptomatic infection. If this is the case, an infected person could still spread the virus. This is why it is expected that even after a vaccine becomes available, people will need to use masks and practice social distancing measures for some time.”
• Lyons reminds that it’s not all on the members. “I hope chiefs are reading this because we have chiefs out there who cannot go into this blind. They are leaders in their departments, and if there is a problem with mandating the vaccine, they are going to be held accountable. The chiefs need to come to the table with the union.”
With questions addressed and information presented, many members may still be left with what they might think is an insurmountable feeling of trepidation. If you are feeling that way, it’s not a bad thing.
“I tell everybody, I think fear is good,” Heck admits. “Fear can achieve focus. Fear of the vaccine can compel you to ask your medical experts the pertinent questions.”
But fear of the vaccine is no reason to back down now.
“I tell everybody that we’re near the finish line,” Heck adds. “We’re a high-performance occupation, so let’s run through the finish line. We don’t want to go back and have another wave now when we’re so close.”
Can COVID-19 vaccines be mandated?
NJ State PBA Legal Corner
by Robert A. Fagella, Esq. and Paul L. Kleinbaum, Esq.
It would be an understatement to say that the past nine months have been challenging and unprecedented. Everyone has been affected in one way or another by the COVID-19 pandemic, but first responders are undoubtedly bearing its full brunt. There is no remote work option in law enforcement.
But while the next few months appear bleak, there is some light at the end of this dark tunnel. The Food and Drug Administration (FDA) has just decided to authorize emergency use of the Pfizer COVID-19 vaccine. Other manufacturers will also follow suit shortly. Hospital personnel and first responders will undoubtedly be among the first in line to receive a vaccination.
Not surprisingly, many are suspicious that the vaccine has been rushed. Questions have understandably
arisen about whether an employer can require its employees to receive the vaccination, and the consequences of a refusal. The pandemic, which has intruded into all of our lives, provides a whole new set of considerations for this issue, and the novelty of this situation makes legal predictions very difficult. For a number of reasons, however, we seriously doubt there will be immediate and mandatory COVID-19 vaccinations.
As noted, the FDA has now authorized emergency use of the COVID-19 vaccine. It is important to note that Pfizer requested Emergency Use Authorization (EUA) for the vaccine. This is a process by which the FDA may authorize use of a new product on an emergency basis before it is available for commercial use.
The FDA also has the authority to place conditions on the administration of the vaccine. The law giving the FDA this authority states that individuals to whom the vaccine will be given must be informed “…of the option to accept or refuse administration of the [vaccine]….”
The FDA has adopted this condition. With its authorization, the FDA has issued a “Fact Sheet
for Recipients and Caregivers” which states, “It is your choice to receive the Pfizer-BioNTech COVID-19 Vaccine.” We have provided a copy of this fact sheet to the NJ State PBA. As a result of this authorization, we do not believe that employers will attempt, let alone succeed in, a requirement for
employees to be vaccinated. This appears to supersede an employer’s ability to do so. This condition will be in effect for as long as the EUA is in effect, and there is no specific time period.
In short, the FDA’s emergency authorization should put to rest any concern about an employer’s ability to require the COVID-19 vaccination. It is highly unlikely that any employer, including law enforcement agencies, would attempt to compel COVID-19 vaccinations in light of the FDA mandate. And if that did occur, there are obviously very good legal challenges which could be filed.
For those who do accept vaccinations, there are protections under state law if you become ill. Under the “Thomas P. Canzanella 21st Century First Responders Protection Act,” enacted in 2019, a “public safety worker,” which includes law enforcement officers, who become ill after receiving a vaccination as part of an employer’s vaccination program during an epidemic is entitled to workers’ compensation benefits. This includes a vaccination which is provided in connection with the officer’s employment
or in connection with any governmental program or recommendation. This law would apply to the COVID-19 vaccination now authorized by the FDA. The law also creates a presumption that the officer’s illness arises out of, and in the course of, employment entitling the employee to benefits under worker’s compensation laws.
However, there may be concerns about other types of vaccinations, such as the flu vaccination, which is recommended by the CDC. Because the flu vaccination is well established and is not subject to the FDA’s emergency authority, the issue then becomes a matter of local concern. The question of whether employers have the authority to adopt policies which require employees to be receive the flu vaccination is not limited by the FDA’s EUA conditions.
More than 100 years ago, in 1905, in Jacobson v. Massachusetts, the U.S. Supreme Court rejected an employee’s challenge to a compulsory smallpox vaccination program because the program constituted an invasion of his liberty. The court concluded that the vaccination program was constitutional and that the state had the authority to safeguard the public health and the public safety. Jacobson is still good law.
The New Jersey Supreme Court issued a similar decision in 1948. More recently, in Phillips v. City of New York, a federal appeals court relied upon Jacobson in rejecting a challenge to New York’s public health law, which required that all children be vaccinated in order to attend public school. In the context of the current COVID-19 pandemic, courts have also rejected constitutional challenges to orders implementing various restrictions, such as requiring individuals to wear masks in public.
Even if employers adopt mandatory flu vaccination programs, they must include provisions for certain exemptions. There must be exceptions for legitimate medical reasons and for sincerely held religious beliefs. The EEOC, for example, has issued guidance suggesting that an employer cannot adopt such policies without these two exemptions. But these policies do not have to include exemptions for personal or moral objections. Courts have rejected challenges to mandatory policies based on strong personal
or moral objections, regardless of how sincerely held.
Finally, even if an employer’s mandatory flu vaccination policy includes the two exemptions, there may be ways to challenge at least part of the policy. Employers will undoubtedly argue that they have the managerial right to adopt a mandatory vaccination policy, particularly for certain classes of critical employees such as first responders.
Even if, for the sake of argument, an employer has that authority, there will be issues over which the PBA may demand negotiations. For example, issues such as who pays for the vaccination, the conditions under which the vaccinations will be given to ensure officers’ health and safety and what consequences may follow a refusal are examples of policy repercussions which may be negotiated.
If your employer issues a mandatory vaccination policy, we strongly suggest PBA Locals should immediately notify the NJ State PBA and speak with their attorneys about demanding negotiations
over the implementation of the policy and the impact of the policy, as well as any other issues which may be appropriate depending on the policy which is implemented.
The COVID vaccine: What’s the deal?
by Dr. Stavros Christoudias, Board Chair at NJ Doctor-Patient Alliance
The NJ State PBA has asked me to share any and all information about the COVID-19 vaccine. As with all medical decisions, I feel it’s best to educate as thoroughly as possible and to make a decision together with your healthcare provider. There is a lot to unpack about the vaccine, as it is a new technology.
So, let’s get started.
Details on the vaccine itself and clinical trials
The COVID vaccine is “the first of its kind” (for better or worse), insofar that it uses a new delivery system never deployed before to fight an infection. This form of vaccine has been in existence since 2010; however, it has primarily been researched to treat cancers. It is an mRNA vaccine, meaning that it isn’t actual parts of the virus, like most traditional vaccines. Instead, it uses mRNA to teach your own cell’s machinery to temporarily create those parts of the virus (for about a week), thus teaching your body to attack the virus without an actual infection. In essence, it uses the “manufacturing plant” your cells have and temporarily gives the blueprint (mRNA) for creation of parts of the virus.
It is crucial to note that this does not alter your DNA or imprint itself to your DNA permanently.
Doing so would require an electric shock, so unless someone’s hooking you up to acar battery prior to your vaccine — there’s zero chance of that. The mRNA rapidly degrades within a week of injection, which
is completely innocuous.
There are one or two principal vaccines which are or will be available to us, depending on when you’re reading this. These are the Pfizer and Moderna vaccines. They both are identical in mechanism; however, the difference is in the delivery system. Moderna’s is more
advanced, which translates to a colder storage requirement for Pfizer (-70 degrees Fahrenheit) vs. Moderna (-10 degrees F), and more injection site soreness with the Pfizer version.
Both vaccines require two separate identical shots, spaced two to three weeks apart. Both vaccines have been tested in massive clinical trials, with 40,000 test subjects for Pfizer and 30,000 for Moderna. Both of these trials failed to show any significant vaccine injuries and show an astounding 90 to 97 percent efficacy rate, which is the ability to produce a desired or intended result. As of today, only the Pfizer vaccine has received emergency use authorization (EUA) by the FDA.
Both of these trials are considered to be truly adequately sized to pick up most known vaccine injuries, and no injuries were found. The trials, however, did have two major shortcomings: the length of monitoring and the variety of test subjects.
The length of monitoring for vaccine injury was two months, and the efficacy was measured at one week after the second vaccine. Typically, fully approved vaccines are studied for both efficacy and safety for two years before formal approval. This isn’t practical, though, when 300,000 Americans have already died of the coronavirus this year. Also, the 90 to 97 percent efficacy was only one week after the vaccine. It is expected that this number will drop over time, and the best guess from the experts is that it should last anywhere from nine months to five years.
The reason this efficacy rate is so important is that the “herd” immunity that is often discussed in news reports is based in part on the vaccine’s efficacy. With an efficacy rate that high, COVID’s herd immunity would occur at 55 percent vaccination rate, not the 70 percent rate often quoted by the news media.
Both studies excluded children under 16 and pregnant women, so there is no safety or efficacy data on those two populations. The last criticism of the test population was that African Americans and Asian populations were underrepresented, so there is a lingering question if it will be as effective in those populations.
Notably, as with all new technologies, these vaccines are not considered the best vaccines, but were developed as the fastest vaccines that could be reasonably created and distributed. As with all new technologies — think of cell phones — it is expected that new-generation technology will be developed, which will be superior to the first ones to market. However, it is not expected that these new technologies will be available for at least a year.
What does this mean to me?
What this typically boils down to is whether I recommend taking the vaccine, if you are lucky enough to have it offered to you. If you are over the age of 18, and not a woman who plans to be pregnant, I do recommend you take it. If you are over 40 and have any comorbidities that make COVID particularly dangerous to you, I unreservedly, and without any hesitation, very strongly recommend you take it. If you would allow me to, I’d like to give you some perspective on this recommendation for the following reasons:
The COVID infection is not pleasant. I have seen young patients suffer, not just when sick, but long afterward. Do you remember from your history books when Christopher Columbus came to America and the native people died from simple colds because they had no prior exposure to those viruses? Well, we’re all those people now, and COVID is absolutely ravaging our bodies because we, as a population, have had no exposure or immunity to it. The damage can be wide-ranging and debilitating. One in five who get it will have serious psychiatric, cardiac or pulmonary effects that may be permanent. It is justified to be fearful of this infection, and I believe it’s sad that some may see that as a political statement. It’s not. It’s simple scientific fact. This disease can be dangerous to us all.
Assuming the worst-case scenario plays out and that there are vaccine injuries possible that just haven’t been picked up — if so, the ratio of vaccine injury is not nearly as high as morbidity and mortality due to COVID. Even with that assumption, it’s the lesser of two evils. Arguing that you don’t want the vaccine
because it might not be safe (which doesn’t appear to be true) is like arguing you don’t want to put a fire sprinkler system in your house because you’re afraid it may make the carpets wet or don’t want to wear body armor because it may chafe your chest.
Positions on vaccines are not binary. It’s a spectrum. On one end, you have people who think vaccines are a conspiracy filled with microchips. On the other end, there are those who pledge blind fealty to them 100 percent of the time and believe that they can’t ever do any harm. I would say I am closer to the believer end of the spectrum, but with a healthy dose of skepticism, acknowledging that there are things that I do not and cannot know yet. I pledge my loyalty to my patients first, and feel that you, the patient, deserve the respect of discussing that possibility, even if it can be a little bit scary.
If you are offered the vaccine, and decide to “wait and see,” consider that you may not be offered it again for a very long time. There is a very finite amount of vaccine to go around in the first shipment (roughly 20 million vaccines for 340 million Americans). If you were on the Titanic and were offered a seat on the first lifeboat, would you say you wanted to wait and see if something better came along, with spoilers and padded seats?
The reason my recommendation shifts on a case-by-case basis is that the COVID threat is very different based on your risk factors. We know without a doubt that your risk of getting very sick or dying from COVID increases substantially with age, obesity, gender (male), diabetes, high blood pressure and immunosuppression. Each one of these makes COVID more deadly. As an analogy, a perfectly young and healthy patient choosing to get the vaccine may be like standing downrange and choosing to be shot with a BB gun (the vaccine) or a 22-caliber bullet (catching COVID). However, to someone who has all the risk factors above, the choice is choosing to be shot with a BB gun versus a rocket-propelled grenade. Pretty easy choice, if you ask me.
If you are pregnant or are planning on becoming pregnant, definitely have a discussion with your OB/GYN about the vaccine. It has not been studied in pregnant women, but there are plans to have those studies. I do know for a fact that COVID presents a particularly dangerous risk to both mother and fetus
in pregnant women, who fare especially poorly if the infection occurs early in the pregnancy. However, since I am not an obstetrician, I would definitely defer to those who are on this matter.
If you had COVID already, yes, you should get the vaccine. The reason is that the virus itself forms an antibody to your immune system’s messenger system, essentially diminishing your body’s ability to create a natural immunity to the virus after infection. There are already numerous cases of reinfection shortly after getting over the virus the first time, and we only recently discovered this was why. It’d be like shutting down the security cameras when robbing a bank. The bank would be ill prepared for it to happen again. The virus is just this cunning.
What should I expect if I get the vaccine?
Based on the clinical studies, there is a bit of a post-vaccine condition that occurs mostly for the 24 hours after receiving the vaccine in roughly half of those who get the vaccine. This consists of mostly headaches, muscle aches, runny nose, fever, sore throat and similar symptoms. NSAIDs (Advil, Motrin, etc.) will substantially cut down on these symptoms. So I do recommend taking these immediately after getting the vaccine. Additionally, there was soreness and redness at the injection site (also roughly 50 percent), so not planning on using that arm for about 24 hours is also a good idea.
The side effects of the vaccine do appear to be stronger after the second vaccine. If possible, you should schedule the vaccine on a Friday or plan on taking the day off after receiving the vaccine. The last thing you need when you’re feeling achy is to be dealing with a suspect coming at you at full charge.
I planned to receive my vaccine on Dec. 21, and again three weeks later. I am 41 and overweight with high blood pressure. I probably come in direct contact with or operate on a COVID patient a couple of times a week. I have three children who need their dad. For me, it was the easiest decision I ever made.
Thank you to the NJSPBA leadership for inviting me to share my perspective on this topic. I know that this is stressful to you all, and I am and always will be indebted to every one of you for putting your health and lives at risk while serving our communities in these trying times. Your jobs were hard enough prior to this pandemic, and I know we could all use a vacation. However, if there is one thing I am certain of, it’s that this too shall pass. The world will go back to normal again, and this vaccine may be a huge stepping stone to getting there.
None of the above should be taken as direct medical advice. If you have any questions about the vaccine, I strongly recommend discussing it with your primary care physician with knowledge about your health status.
Dr. Stavros Christoudias is a board-certified general surgeon practicing in Bergen County. He specializes in minimally invasive surgery and has been nominated by his peers as an NJ Top Doc in 2016, 2018, 2019 and 2020 and Best of Bergen in 2017, 2018, 2019, 2020 and 2021. He serves as board chair of the NJ Doctor Patient Alliance, a social welfare organization which aims to preserve the sanctity of the doctor-patient relationship by keeping big business interests out of patient care decisions.