Advice on Vaccines for Employees or Potential Employees against Mandates by Government or Employers

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via Austrian Peter

This is a letter, drafted by employment lawyers in Australia may be used as a template for general use by employees suffering vaccine mandates from their employers.

Dear……….

It is an established principle in Law that an individual with the capacity to consent cannot and should not be compelled to have any medical or experimental treatment against their wishes, with the exception of detention under various mental health acts. This is further explained below in the section dealing with Informed Consent.

This principle would make it inequitable and potentially unlawful for any Government or employer to seek to mandate the experimental injection which may cause injury or death.

It may be unlawful to discriminate against someone e.g. vaccinated or unvaccinated.

There is written evidence that both the Prime Minister of Australia and the Minister of Health have both said that the Covid injections will not be mandatory.

The Australian Government has misled the Australian people into believing this is a vaccine when Dr Robert Malone, the inventor of the mRNA technology, has described the Covid injections as experimental genetic vaccines.

CONTRACT OF EMPLOYMENT

This contains the terms and conditions regulating the working relationship between the employer and the employee. Any material changes to this Contract can normally only be made with the agreement of both parties.

Consequently, if the Contract does not contain a specific clause to require a vaccine for Covid-19, then the employer is, in most cases, unable to unilaterally change the Contract and insist on a vaccine being a condition of the employment. Likewise, any attempt by an employer to circumvent this by dismissing and then re-hiring an employee on new contractual terms may also be considered unlawful.

If the employer nevertheless continues to unilaterally change the Contract, such a change is likely to be a breach of the Contract. The employer would have to demonstrate that the mandating of the experimental vaccine was a “reasonable instruction” in all the circumstances, to avoid it being in breach of contract would have to be considered in light of the contents of this letter and each case would have to be decided upon its own facts. If the employer is unable to demonstrate the change was a “reasonable instruction” and provided the employee has the requisite length of service, the employee may be able to resign and pursue a damages claim for constructive unfair dismissal against the employer. This damages claim (including all associated costs) could be substantial and may not be covered by any insurance policy.

ADDITIONAL CONSIDERATIONS FOR EMPLOYERS 

Some employers are now reported as stating that they will make the experimental vaccine a condition of employment being granted to new employees. There are grave concerns over mandating vaccinations for the following reasons, which would apply equally to existing employees and job seekers (including apprentices, work experience and similar classes of workers):

*    The questionable efficacy of the vaccine;

*    The potential for psychological and physical harm caused by the vaccine and/or the vaccine mandate to the employee;

*    The potential that such a mandate may be considered indirect discrimination, as many people may be unable to have the vaccine

*    The issue of informed consent, which applies to all medical interventions.

Whilst there may not be an existing Contract governing the employment, this does not mean an employer is free to mandate a vaccine as a condition of an offer of employment.

Claims of up to 95% effectiveness of the vaccines were based on evidence of effectiveness in preventing symptoms. The concerns caused by this pandemic and the justification for all imposed measures and restrictions have never been about symptoms.

Outcomes of concern, such as severe disease, hospitalization and death were not assessed in the clinical trials performed by Pfizer, AstraZeneca and Moderna in late 2020. Therefore, we are unaware of any clinical trial evidence that any vaccine against Covid- 19 will benefit public or individual health in terms of reducing serious illness or deaths.

Published claims of effectiveness were based on interim analyses of trial data, assessing an extremely small number of trial participants. This numbered only 94 out of 40,000 participants in the Pfizer trial (0.2% of the total cohort) who were the first participants to develop symptoms and who tested PCR positive for SARS-CoV-2.

The efficacy claim is based on the fact that 95% of this small group was in the placebo arm. Due to the small numbers, we consider that this has limited statistical significance and, in any case, is only a measure of Relative Risk Reduction.  Closer scrutiny of the figures reveals that the Absolute Risk Reduction to an individual inferred by the vaccine is only in the range 0.7% to 1.0%.  In addition, the full raw trial data is yet to be published and multiple cases of clinical disease, including two cases of serious disease in the vaccine group, were not included in the analysis, as they were not confirmed with a positive test.

There is no evidence of the long-term safety of Covid-19 vaccines as the existing Phase 3 trials have only been running for about 6 months. Indeed, only about 2 months of short-term safety data is available. It is therefore unknown whether there will be serious late-onset side effects resulting from the vaccines e.g., cancers, autoimmune diseases, infertility, neurological disease etc. These conditions can take months or years to become apparent.

For a disease that has an infection fatality rate of <0.1% for most of the population (aged <70 years), the usefulness of mass vaccination programs is currently questionable, especially in the absence of robust safety data. Even in the elderly, aged >70 years, the recovery rate from Covid-19 is in the range of the claimed effectiveness of the currently approved vaccines

There is currently no evidence that the vaccine prevents transmission of the virus, so the recipient is likely to still be able to spread the virus to others. This means that there is no wider public health benefit of having or indeed mandating a Covid-19 vaccine. The current guidance from the government is that vaccinated individuals will still need to socially distance and wear masks. In these circumstances there is simply no rationale or justification to mandate a vaccine for the safety of others.

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POTENTIAL HARM FROM VACCINES

Employees may find the requirement to have a vaccine, as a condition of either their continuing employment or their potential employment, an extremely distressing situation. There are very real questions over the safety of Covid-19 vaccines Furthermore, many employees will be worried about their financial position if they refuse the vaccine and lose their job or chance of employment as a result. Employees faced with this situation may suffer from stress and anxiety, which will adversely affect their mental health.

Furthermore, it is particularly important to emphasize that there are multiple causes for concern regarding vaccine safety for Covid-19. Concerns over the vaccine safety are set out below.

Some vaccines against SARS-CoV-2 are based on a completely new form of vaccine technology in particular viral mRNA and DNA-vector vaccines have never previously received full regulatory approval for mass public use and are more akin to genetic manipulation/modification than traditional vaccination.

Current trials have only been in progress for a few months and therefore do not allow any conclusions regarding possible medium and long-term effects of this novel approach. Multiple concerns have been raised by scientists regarding possible adverse effects, which at this stage remain unrefuted owing to lack of data.

It is important to be aware that all the Covid-19 vaccine trials are ongoing and not due to finish until 2023. The vaccines remain experimental, and anyone “vaccinated” is effectively taking part in the trials looking at long-term effects, despite the emergency approval.

The mRNA and DNA vaccines are designed to induce an immune response against a protein that the body has been prompted to produce itself, by incorporation of synthetic viral genetic material present in the vaccine (in the form of mRNA or DNA) into the cell’s internal machinery.

It is currently hypothesized that this immune response will be limited to the target protein and not be directed to any innate human proteins, but there is no current data that can rule out the possibility that this technology may trigger autoimmune disease, which could take several months or years to manifest.

Attempts at developing a vaccine against coronavirus have been in progress for almost 20 years at least since the emergence of the original SARS-CoV-2 in 2002. These have been unsuccessful, mainly due to serious safety concerns in the animal trials. Specifically, an effect of immune enhancement or antibody-dependent enhancement (ADE) was observed, which caused animals to develop more severe disease when exposed to the wild virus after immunization.

Instead of being protected, the animals got very sick, and some died. It is completely unknown at this stage, whether the currently administered vaccines will trigger this devastating effect, as animal trials were limited or skipped and the reaction to subsequent exposure to SARS-CoV-2 virus in humans has not been specifically tested. The possibility of triggering ADE remains a significant concern.

The Pfizer and Moderna vaccines contain polyethylene glycol (PEG). PEG is a known allergen which carries a risk of serious, potentially fatal allergic reactions. Even within the short space of time of the vaccine being rolled out, there have been reports of serious allergic reactions and anaphylaxis, which appear to be occurring at a higher rate than normally expected for vaccines. In response to these reports, the US Centre for Disease Control (CDC) issued advice that anyone allergic to PEG or its close relative, Polysorbate, should not receive either of the currently available mRNA vaccines.

A leaked CDC PowerPoint presentation showed a high level (1 in 36 doses) of reported significant adverse events (leaving people unable to perform normal daily activities or to work and requiring medical attention) over the first 5 days of the US Pfizer vaccine rollout. As of June 2021, close to 30,000 serious adverse events and 6,000 deaths relating to Covid- 19 vaccines had been reported to the US Government Vaccine Adverse Events Reporting System (VAERS).

Neurological damage and complications have previously been reported following vaccinations. Worryingly, in the Covid-19 vaccine trials, cases of transverse myelitis, which affects the spinal cord, have been reported as well as other neurological adverse events such as Bells Palsy (paralysis of the facial nerve) reported in the Pfizer trial data and Moderna trial There have also been reports of encephalomyelitis following Covid-19 vaccination and a high risk of blood clots following administration of the Astra Zeneca vaccine.

Potential concerns have also been raised regarding the effects of the vaccines on fertility. Concerns about fertility are based on homology between the SARS-CoV-2 spike protein and Syncytin-1, which is essential for placental development. Due to this homology, it is plausible that antibodies produced by the Covid-19 vaccine could cross react with the placental proteins, which could negatively impact fertility. It is possible that such concerns will be refuted by evidence in due course, but currently there is no data to rule out this side-effect.

Sadly, there have already been reports of deaths following administration of a vaccine against SARS-Cov-2 to healthy recipients. Over 300 deaths have been reported in Australia, over 9,000 deaths have been reported in America and 1000 deaths have been reported in UK. Many serious adverse reactions have also been reported. There is currently widespread administration to the general population, and specifically to the frail and elderly, who commonly have multiple comorbidities – a group which was largely excluded from the vaccine trials. Due to the lack of safety data for this group, it needs to be emphasized that administering the vaccine specifically to this group of the elderly with comorbidities is entirely experimental at this stage.

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Following the deaths of 23 elderly people following Covid-19 vaccines, Norwegian regulators have updated their advice, urging doctors to proceed with caution in administering vaccines to the very frail. The HSE in Ireland has also recently issued advice cautioning giving the vaccines to the very frail.

There is awareness amongst policymakers and the pharmaceutical companies that potential harms will occur.  In the UK its Regulatory Body “The Medicines and HealthCare Products Regulatory Agency (MHRA)” recently updated their software to be able to capture adequately the “expected high number of adverse events” that their legacy system would otherwise have been unable to cope with. Covid-19 vaccine manufacturers demanded and have been granted exemption from any liability for adverse effects caused by their products as they could not “take the financial risk of liability”. There is therefore no recourse for compensation from the manufacturers.

This letter is providing evidence of the potential risk of harm from the Covid 19 novel vaccine technologies. If a Government or employer makes any recommendations or mandates in relation to the vaccines, those must be considered against the backdrop of Health and Safety legislation and must take account of any health risks associated with the experimental vaccines for certain groups and preferably (from a risk perspective) for individual employees.

Mandating an experimental vaccine could give rise to claims from employees who suffer an adverse reaction. In the event of an employee dying or suffering serious injury after receiving an experimental vaccine and a link being established (i.e. it being proven on a balance of probabilities that the vaccine caused the employee’s death or serious injury and but for the employer mandating the vaccine, the employee would not have taken it), a claim may be brought by the deceased employee’s family or the injured employee against the employer.

DISCRIMINATION

Many employees or job seekers may be unable to have the vaccine due their religion.

Mandating a vaccine may be considered discrimination, which may allow the employee or job seeker to bring a claim for damages. Discrimination can take the form of direct or indirect discrimination, harassment or victimization; all of which could be relevant in this situation and are matters which any employer should be alert to.

Furthermore, any differentiation in employment between those who have or haven’t been “vaccinated” may amount to indirect discrimination.

Damages would be uncapped and include loss of earnings (or potential earnings), as well as injury to feelings and interest. In some situations, there can be aggravated damages if the court finds that the employer behaved in a malicious or heavy-handed way.

Some insurers may refuse to cover claims where there are very real concerns over the vaccines and where the employer is clearly on notice, or should be on notice, of such concerns, but the employer proceeded to mandate the vaccine regardless.

Employers also need to be aware that even if the Contract allows for a vaccine, if they continue to mandate this requirement and fail to take into consideration the personal circumstances of the employee and any protected characteristics, they could face a claim for indirect discrimination

REQUIREMENT FOR FULLY INFORMED CONSENT

The administration of any vaccine may only occur with the fully informed consent of the individual.

The employee must be free to accept or refuse any treatments and be made fully aware of what they are consenting to.  Valid informed consent cannot be given if the person is not made aware that they are in an experiment or clinical trial.

The employee’s decision must be voluntary and must not be influenced by pressure from medical staff, friends or family.

If an employer still wishes to proceed with mandating the vaccine, despite what is stated above, they must ensure that the employee is given the opportunity to consent to or refuse the vaccine and that this consent must be free and voluntarily given. To threaten an employee with dismissal, or to refuse a job offer based on refusal to have the vaccine, or to apply any other restrictions or penalties, may be considered to amount to coercion on the part of the employer and may allow the employee or job seeker to bring potential legal action.

DATA PROTECTION AND PRIVACY

If an employer requests evidence of vaccination from its employees, this in itself gives rise to significant data protection issues and privacy law concerns, opening up an employer to even further legal risks. This issue should be considered by employers and Governments.

SUMMARY

There is a natural desire for many employers to protect their workforce and customers. However, in the context of Covid-19 vaccines, this desire should be weighed against the wider legal and ethical issues surrounding a policy of vaccine mandate as well as the state of the existing evidence on Covid-19 vaccine safety and efficacy. It is important to fully acknowledge the current available scientific evidence regarding the efficacy and safety of these vaccines. Employers should be aware of the pitfalls of a misguided or misjudged approach to these issues and should seek legal advice if in any doubt.

Employers must appreciate that the employee or job seeker have certain legal rights and that ultimately the employee’s decision must be respected and upheld without penalty.

Please sign a copy of this letter to say it has been received by you.  It will be used in Court as evidence that you have been made aware of all the information you need to take into account when making your decision in this matter and that you continued regardless.

Yours faithfully,

 

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