Before disciplining nearly 1,600 Mass. state workers over noncompliance of COVID vaccination mandate, Baker wants to know why

Massachusetts Gov. Charlie Baker on Monday defended his COVID-19 vaccination mandate for state employees, arguing the “vast, vast majority” of the executive branch’s 40,000-plus workers are on board with the state’s public health message and are protected against the virus.

Nearly 1,600 workers could face discipline after missing the Sunday mandate deadline set in place by Baker in August. But the governor said Monday that agency and Human Resources officials would connect with noncompliant workers to find out why they haven’t shown proof of vaccination or filed paperwork seeking an exemption for medical or sincerely-held religious beliefs.

“We’ll work through them all,” Baker told reporters in a news conference at the State House. “Our goal is to make sure we connect with everybody.”

Baker said some of the workers may have been on leave or vacation as the deadline approached, and officials will let the engagement process play out before issuing any “progressive discipline,” up to termination, for employees who don’t comply.

More than 40,400 state employees and contractors, including teachers, prison guards, state troopers, public transit workers and others have already shown proof that they received the vaccine or asked for an exemption. More than 4,000 filed paperwork over the last week alone.

Baker called the mandate “perfectly appropriate” given that so many of the state’s employees work directly with the public. And he argued that the fact so many workers had rolled up their sleeves — going from a 60%-70% vaccination rate to nearly 90% — showed that most of the “state workforce agreed with us.”

The Massachusetts mandate is stronger than some other states because it requires vaccination or an exemption — as opposed to providing testing as an option. Multiple unions unsuccessfully sought to halt the mandate through court, and Baker shot down critics

Baker called the mandate “perfectly appropriate” given that so many of the state’s employees work directly with the public.

The mandates are illegal. They violate the employee's right to opt out under the Emergency Use Authorization. The consent required in the EUA is consent under duress. The employee is being coerced to take the vaccine or lose their job, their benefits, and the ability to provide for their families. That is consent under duress, which is not consent under the law.

Here is the relevant section of US Code 21 U.S. Code § 360bbb–3 - Authorization for medical products for use in emergencies:

(e) Conditions of authorization
- (1) Unapproved product
  - (A) Required conditions
    - With respect to the emergency use of an unapproved product, the Secretary, to the extent practicable given the applicable circumstances described in subsection (b)(1), shall, for a person who carries out any activity for which the authorization is issued, establish such conditions on an authorization under this section as the Secretary finds necessary or appropriate to protect the public health, including the following:
      - (i)Appropriate conditions designed to ensure that health care professionals administering the product are informed—
        (I) that the Secretary has authorized the emergency use of the product;
        (II) of the significant known and potential benefits and risks of the emergency use of the product, and of the extent to which such benefits and risks are unknown; and
        (III) of the alternatives to the product that are available, and of their benefits and risks.
      - (ii)Appropriate conditions designed to ensure that individuals to whom the product is administered are informed—
        (I) that the Secretary has authorized the emergency use of the product;
        (II) of the significant known and potential benefits and risks of such use, and of the extent to which such benefits and risks are unknown; and
        (III) of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks.
      - (iii) Appropriate conditions for the monitoring and reporting of adverse events associated with the emergency use of the product.
      - (iv)cFor manufacturers of the product, appropriate conditions concerning recordkeeping and reporting, including records access by the Secretary, with respect to the emergency use of the product.

Note that this section is for Emergency Use Authorization (for the currently available vaccines) and includes informed consent and the option to refuse.

I underlined the part about "consequences, if any, of refusing administration of the product" because I believe this pertains to the medical "consequences" of not taking the drug. It does NOT give permission to government or businesses to place "consequences" on employees who don't take the drug. The former gives the recipient the choice, the latter is coercive consent under duress.

Nobody can give a legally binding consent under these conditions, and for that reason these mandates to take the EUA vaccines should be challenged in court.

-PJ

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