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Establishment Clause

Health Care Workers, Flu Vaccines, and Work Place Discrimination

dorit-reissGuest blog by Dorit Rubinstein Reiss. Dr. Reiss is a Professor of Law at the University of California Hastings College of  the Law in San Francisco, CA. Dorit writes extensively in law journals about the social and legal policies of vaccination. This article discusses employer and employee rights regarding vaccination requirements in healthcare institutions.

In a previous post, I described a New Jersey Court of Appeals case in which Ms. Valent was denied unemployment benefits because she refused to be vaccinated against the flu without claiming the religious exemption. I explained that the hospital was not constitutionally required to provide a religious exemption, and that doing so was a losing proposition from a hospital’s point of view.

In the comments following that post, it was correctly pointed out to me that there is another claim I should have addressed: a claim that the hospital was required to provide a religious exemption under the Civil Rights Act of 1964. This did not come up in the case itself: the court reinstated the nurse’s unemployment benefits on constitutional grounds, though problematic constitutional grounds. But since I argue that hospitals should not offer a religious exemption, I need to address whether the hospital is required, under Title VII, to offer an accommodation. 
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No faith–vaccines, religion, and healthcare workers

dorit-reissGuest blog by Dorit Rubinstein Reiss. Dr. Reiss is a Professor of Law at the University of California Hastings College of  the Law in San Francisco, CA. Dorit writes extensively in law journals about the social and legal policies of vaccination. This article focuses on a recent court decision regarding mandatory vaccination–but it ends up being more about religion than vaccines.

June Valent started working for Hackettstown Community Hospital, New Jersey, in 2009. In 2010, the hospital adopted a policy requiring workers to be vaccinated against influenza, unless “there [was] a documented medical or religious exemption. For those with an exemption, a declination form must be signed and accompanied with an appropriate note each year.” An employee claiming a religious exemption just has to sign a form and bring a note from a religious leader. Employees using an exemption were required to wear a mask.

To her credit, Ms. Valent was unwilling to pretend her reasons for refusing the vaccine were religious. Less to her credit, she refused to be vaccinated, even though she had no medical reason, and vaccinating would reduce her chances of contracting influenza and transmitting it to her vulnerable patients. She did agree to wear a facemask, as any vaccine exempt worker would.

The hospital fired Ms. Valent for violating the policy. The issue under consideration was whether she was entitled to unemployment benefits. Under New Jersey law, an employer may deny unemployment benefits if the employee engaged in misconduct, which includes violating a reasonable rule of the employer. After somewhat complex proceedings, the Appeal Tribunal of the Board Of Review of the Department Of Labor decided to deny her the benefits because the employer’s requirements were “not unreasonable.”

The New Jersey Appellate Division reversed (pdf), reinstating the benefits. There is often a lot in a court decision, but for our purposes, the main points were:

  1. Because the employer offered a non-medical exemption, a religious exemption, the employer’s policy was clearly not just driven by health concerns.
  2. Firing Ms. Valent “unconstitutionally violated [her] freedom of expression by endorsing the employer’s religion-based exemption to its flu vaccination policy.” The policy “discriminates against an employee’s right to refuse to be vaccinated based only on purely secular reasons.”

Note that the question was not whether it is permissible to fire Ms. Valent for refusing a flu vaccination–reinstating her was never at issue. The question was does she deserve unemployment benefits. On this issue, this post makes three points:

  1. The Court’s decision is problematic – it’s not analytically strong and ignores existing exemption jurisprudence.
  2. The result – extending this specific exemption – does fit current jurisprudence, though not for the reasons provided.
  3. Hospitals should not offer a religious exemption from vaccination. That’s a losing proposition.

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Father sues New York to obtain religious vaccination exemption for son

vax-jesus-doctorAccording to the New York Daily News, a Staten Island father has sued the City and State of New York to block his four year old son from being tossed out of school because their parents refuse to vaccinate him:

A Staten Island father is suing the city and the state after his 4-year-old son was booted from pre-K class because of the parents’ objection to vaccines.

The father, identified only as P.R. in the lawsuit over the contentious issue, is a Catholic who had sought a religious exemption to the state law requiring that every child attending a public, private or parochial school must be immunized from 11 communicable diseases.

His son was removed from his public school classroom on Dec. 23 after city Department of Education officials rejected the father’s appeal of an earlier decision. The city concluded the paperwork he submitted “does not substantiate … that you hold genuine and sincere religious beliefs which are contrary to immunization,” according to the suit.

Last month, the city added a requirement that children under 5 who attend preschool or day care must get flu shots.

The boys’ parents filed an affidavit Monday stating they believe that “immunization demonstrates a great lack of faith in the gift of health and the promise of protection that we are given at birth and through baptism we put our child in the hands of the Lord … God wants us to put our faith for disease prevention in him exclusively.
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Vaccine exemptions contribute to outbreaks of preventable diseases

vaccines-religious-exemptionOnce again, a new study is published in a peer reviewed journal that shows that exemptions to proper and recommended levels of vaccination for children before entering public school are harming the general population. I’ve talked about the issue of exemptions causing outbreaks or epidemics previously in New York, Washington, and other places

Over the past few years, there have been several outbreaks of whooping cough (Bordetella pertussis), including one that reached over 9000 individuals in California in 2010, considered one of the worst pertussis outbreaks in the USA during the past several decades

The original DTP vaccine (diphtheriatetanus and pertussis) became available in the USA in 1948 and was critical to dropping the number of cases of whooping cough from 260,000  in 1934 to less than a few thousand per year in the 1990′s. The Advisory Committee on Immunization Practices (ACIP) recommends (pdf) that children should get 5 doses of DTaP (the replacement for the original DTP vaccine), one dose at each of the following ages: 2, 4, 6, and 15-18 months and 4-6 years. Those children who are not completely vaccinated according to these ACIP recommendations for pertussis are considered to be “undervaccinated.” 

Whooping cough is a serious disease that has significant complications for children:

  • 1 in 4 (23%) get pneumonia (lung infection)
  • 1 or 2 in 100 (1.6%) will have convulsions (violent, uncontrolled shaking)
  • Two thirds (67%) will have apnea (slowed or stopped breathing)
  • 1 in 300 (0.4%) will have encephalopathy (disease of the brain)
  • 1 or 2 in 100 (1.6%) will die. In 2012, pertussis killed 18 infants in the USA.

Even in adults, there are substantial complications from whooping cough, such as broken ribs from coughing, that can have a significant impact on the overall health.
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West Virginia occasionally gets it right

constitution-us

West Virginia isn’t frequently lumped together with the more progressive states in the country. But sometimes, there are surprises.

I admit that I keep up with all kinds of news articles dealing with vaccines and vaccinations. I read about new vaccines in development. I read about new vaccine technologies that might prevent autoimmune diseases, like Type 1 diabetes. And I read articles about vaccinations from community newspapers, like this story in a local West Virginia newspaper, where I’m reminded of how advanced West Virginia is, at least with respect to vaccines: 

Beginning last year, and continuing every year after, older students entering the seventh and twelfth grade will have shot requirements that must be met before the start of the school year.

Seventh and twelfth grade students will not be allowed to attend school this fall without proof of these immunizations. It is important that once you receive the vaccines and the providers update your immunization record, that the school nurse is sent a copy of the vaccines for their records.

The Mason County Health Department recently sent out a reminder that seventh grade students must show proof of a booster dose of Tdap (tetanus, diphtheria, pertussis) vaccine and one dose of meningococcal/meningitis vaccine. Twelfth grade students also must show proof of a dose of Tdap (ususally obtained at age 11-12 years) plus at least one dose of meningococcal/meningitis vaccine after the age of 16 years. If the student received a meningococcal vaccine prior to the age of 16, a second meningococcal vaccine will be required for the twelfth grade.
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New Mexico removes fake religious objections from vaccine exemptions

As I discussed previously, the pendulum is swinging against the so-called “philosophical exemption” against vaccination, which allows parents to not vaccinate their children based on the “just because I don’t want to” principle. They don’t even have to support their exemption with a discussion with a healthcare worker who might explain the risks of their decision.

According to an article in the Las Cruces Sun-News, New Mexico state law says that residents can exempt their children from immunization for two reasons: 1) medical issues that might make the vaccination unsafe (often called medical exemptions) or 2) vaccinations conflict with the family’s religious beliefs (religious exemptions). Apparently, according to the article, “the New Mexico Department of Health wants to keep it that way.”
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Court says that fake religious vaccine exemptions are not protected by the First Amendment

In April, 2010, a Federal District Court in New York denied a mother’s bid for a religious exemption to New York state’s mandatory vaccination rules. According to the article in the New York Law Journal, “Martina Caviezel, a self-proclaimed pantheist, sought a preliminary injunction allowing her to enroll her 4-year-old daughter in a Great Neck, N.Y., pre-kindergarten without getting the shots the state says the child needs. Caviezel relied on Public Health Law §2164(9), which exempts children from the requirement whose parents or guardians “hold genuine and sincere religious beliefs which are contrary” to vaccination.”

Around September 2009, Caviezel submitted the New York exemption form to the school  requesting that her youngest child be exempt from the requirement that children be vaccinated against measles, mumps, rubella and other diseases. The school principal told her that her request would likely be denied. Caviezel  declined to meet with school superintendent to further discuss the exemption. She then sued after her request was denied, alleging civil rights violations.
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Updated: make religious vaccine exemptions more difficult to obtain

flu church vaccineA recent report indicated that US state legislatures are beginning to pass laws that make it more difficult for parents to obtain so-called personal exemptions to vaccinations before children attend public schools. According to the author, Tara Haelle, “Each US state sets its own vaccination policies, and most will not generally allow children to attend public school unless they have been vaccinated against diphtheria, tetanus and pertussis (whooping cough)hepatitis B; the Haemophilus influenzae bacteriummeasles, mumps and rubellapolio; and varicella (chicken pox).” In general, most states require that students meet the Centers for Disease Control and Prevention schedule (pdf) for children between 0 and 6 years old, which is set by the Advisory Committee on Immunization Practices.

All states allow legitimate medical exemptions from the immunization schedule before a child enters school, because of certain medical conditions that might make vaccinations problematic for young children. Some of these medical issues are: allergies to some of the components in the vaccines, immunocompromised conditions, family history of seizures, and other issues outlined in the General Recommendations on Immunization of the Advisory Committee on Immunization Practices. These medical exemptions are extremely rare, but are very important. A licensed medical doctor is the only one that should provide this exemption.
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New Orleans School Board bans creationism

new_orleans2008Louisiana is at the frontline of the religious war on science and evolution. With its ironically named Louisiana Science Education Act, which allows the teaching of creationism and evolution in public schools, the state is attempting to circumvent the Establishment Clause of the First Amendment to the US Constitution, which prohibits state and federal governments from “establishing.”

Teaching creationism, which is solely based on religious beliefs that lack any scientific evidence, in public schools is definitely an attempt to establish a religion by the government. Court cases, such as Kitzmiller v. Dover Area School District and Edwards v. Aguillard are critical court decisions which have rejected teaching of creationism because it is a religious belief.

Well, one part of Louisiana understands the constitution and science. According to the National Center for Science Education, The Orleans Parish School Board, which controls the curriculum and teaching policies for schools in New Orleans, voted to ban the teaching of creationism as science. The new policy specifically bans teachers from including “any aspect of religious faith” in science courses and from using history textbooks adjusted to include Christianity (in reference to Texas textbook guidelines which use  historical revisionism).

The actual wording of the the new policy is what all school boards should support:

No history textbook shall be approved which has been adjusted in accordance with the State of Texas revisionist guidelines nor shall any science textbook be approved which presents creationism or intelligent design as science or scientific theories.

Yes. Yes. And yes. Simple and to the point, and clearly stating what should be taught to children. If they want to learn about some false history based on religions, or anti-science beliefs, learn it at home. The public school should not enable it.

But there’s more:

No teacher of any discipline of science shall teach any aspect of religious faith as science or in a science class. No teacher of any discipline of science shall teach creationism or intelligent design in classes designated as science classes.

The outgoing President of the Orleans School Board, Thomas Robichaux, stated that “when this was done in Texas, all this talk was what massive influence would do in other states. We want to make sure kids are taught history that has been properly vetted by academics and prepared for their consumption…. I have no problem teaching [religion] in a religion or philosophy class, but the science class is not the appropriate place for it.”

Yes!

New Orleans is just one part (a big part) of Louisiana, so it’s a good step in the right direction. And the students in that district will benefit from this policy, because they can be researchers, scientists, doctors, or just educated with proper critical thinking skills. 

Thanks New Orleans.

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Antievolution legislation updates–Indiana and Montana

With respect to evolution denying legislative activities, 2012 was a fairly good year for science. Of course, Tennessee passed the anti-science Monkey Bill, which encourage teachers to present the “scientific strengths and scientific weaknesses” of global warming and evolution. Of course, there is no “scientific weakness,” just political debates that have no scientific relevance. But states like Indiana (through a shrewd maneuver of a Democratic legislator), Oklahoma, Alabama, New Hampshire and Missouri failed to pass proposed antievolution legislation, mostly through parliamentary issues, but also in an up and down vote in New Hampshire.

With the conclusion of the recent Presidential election, newly formed state legislatures are planning their 2013 legislative programs. So that means right wing, anti-science legislators in more conservative states are going to once again push evolution-denying legislation.

In Montana, state Representative Clayton Fiscus (Republican) is going to introduce a bill that will require the teaching of “intelligent design“, a form of creationism. This requirement would be in conflict with the 2005 Kitzmiller v. Dover Area School District, where plaintiffs successfully argued that intelligent design is a form of creationism, and that the Dover school board policy violated the Establishment Clause of the First Amendment to the United States Constitution. The losing lawsuit against the Dover school district cost them over $1 million, money which could have been used for purposes such as teaching children real science. I can only conjecture whether the bill will include funding for school districts that implement this potential requirement to defend against the inevitable constitutional lawsuits.

Similarly, in Indiana, state senator Dennis Kruse (Republican) has told a newspaper that he plans to introduce a bill essentially written by the Discovery Institute (a non-profit religious “think tank” famous for its attempts at getting intelligent design taught in American schools). His bill will be similar to the aforementioned Monkey Bill in Tennessee and another one that was passed in Louisiana in 2008, the misleadingly named Louisiana Science Education Act.

I can only hope that as happened last year, either the state legislatures decide that the view of the American electorate has moved on from this anti-science viewpoint, or they just decide there are more important issues on the docket.

 

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