Open letter: PSU’s response to vaccine mandate

To: Mr. Jaundy Martin

      The Honourable Attorney General of St. Vincent and the Grenadines

From: The Executive & Membership

            The St. Vincent & the Grenadines Public Service Union (PSU)

The St. Vincent and the Grenadines Public Service Union opposes mandatory vaccination for Frontline Workers as defined under the draft Statutory Rules and Order No    of 2021 Public Health (Public Bodies Special Measures) Rules.

Having reviewed the draft Statutory Rules and Order No   of 2021 Public Health (Public Bodies Special Measures) Rules 2021 (hereinafter referred to as SR&O), the PSU respectfully presents it position below:

The balancing of human and constitutional rights and freedoms against Public Health Mandates

The bedrock principles of medical treatment and care are:

1. Do no harm, and
2. Informed consent & bodily autonomy

These protections are absolute. We say that these principles are absolute as there ought not to be any time in history where any medical treatment regardless of its potential to prevent, treat or cure illnesses and causes harm should be mandated to any citizen.

The harm: the data captured and recorded on VAERS of the USA and Yellow Card of The United Kingdom shows that the Covid-19 vaccines cause mild, moderate and serious adverse effects. And while the data shows that a large majority suffer mild to moderate side effects, the data also shows that thousands of people suffer severe effects including death. These facts cannot be ignored. Any argument that the severe side effects are rare or that the moderate side effects will eventually disappear amounts to bargaining the wellbeing and lives of humans, and this is unacceptable.  Particularly where:

1. More than 99% of persons who do contract SAR-CoV2 recover
2. Less than 0.2% of persons who develop the disease die.
3. Those who become seriously ill and die suffer from multiple comorbidities, and according to CDC older adults are more likely to get severely ill from COVID-19. More than 80% of COVID-19 deaths occur in people over age 65 and more than 95% of COVID-19 deaths occur in people over age 45.
4. The efficacy of the vaccine to prevent serious illness wanes significantly to just about 50% over a short 5 months period. Data from Israel and elsewhere suggest that a reduction in efficacy against infection may be followed by reduced effectiveness against severe disease, especially among vulnerable elderly people.
5. The vaccine does not prevent the transmission or contracting of the Corona-virus.
6. More recent data shows that the vaccine is not efficacious against delta and any other variant. In fact, the variants of concern are vaccine resistant.
7. Recent studies indicate that natural immunity is equal to or better than the vaccines, yet no provision is made for this scientific fact.

 No harm simply means do not harm absolutely. Any qualifier applied regardless of the circumstances defeats the true intention and purpose of medicine. We understand and accept that medical treatments come with risks, but any risk must be openly and truthfully communicated to and understood by the recipient of the treatment. The recipient makes a decision whether to take or refuse the treatment. 

We take the position that the employer knows all of the risks of the medical treatments under the mandate. As such under these mandates it is clear that the employer is intentionally engaging in actions which it knows is likely to cause some degree of harm to its employees. What responsible employer desirous of creating a safe workplace knowingly and intentionally provides a personal protective equipment or a medical treatment that causes harm to its employees? 

The employer robs the employee of informed consent & bodily autonomy: It is indisputable that the list of adverse events of COVID-19 vaccines is not closed. In fact, the FDA’s captions its tracking of adverse events as “FDA safety surveillance of Covid-19 vaccines: draft working list of possible adverse event outcomes. The title alone suggests that there are unknowns about the likely adverse effects of the Covid vaccines. The FDA lists 22 possible adverse events. Further, to date VAERS and Yellow Card records not only numerous physiological but also numerous psychiatric disorders. It is also a fact that long term effects are unknown.

In medicine, the relationship between medical practitioner and patient gives rise to a duty of the medical practitioner to disclose material risks associated with a treatment or procedure, without having to be questioned by the patient. Proper and true informed consent means that each employee expected to be injected with any COVID-19 vaccine must know all that is to be known about the particular COVID-19 vaccine. Having said that, it is therefore an obligation of the employer to provide every information about the COVID-19 vaccines to employees and not to force/coerce any employee to take such a treatment. The SR&O does not address this duty of the employer.

Further, the mandate essentially obliterates the principle of informed consent and right to bodily autonomy. It is obliterated because 1) the SR&O does not address it, and 2) the mandate does not contemplate nor does it make room for informed consent and right to bodily autonomy.

The PSU takes the position that each person must be satisfied in his or her mind that the decision to receive or decline an invasive bodily treatment is done based on all available facts about the treatment – its safety and efficacy. Further, the general statement that the vaccines are safe is an inaccurate and absolutist statement; the vaccines do cause deliberating illness and death. A more accurate message is that the vaccines are relatively safe. The safety threshold is unknown to the employee. When the employer says that the vaccines are safe by what measure are they deemed safe? Why should the conscious employee simply accept the employer’s statement without question? The standard of disclosure is what a reasonable patient would want to know.

The PSU takes the position that the employer cannot trivialise its obligation to provide all truthful and accurate information regarding the safety and effectiveness of the vaccine. This obligation is non-negotiable, especially since the vaccines manufacturers are immune from liability. In these circumstances, the employer who insists upon mandates cannot be shielded from any liability in the event that an employee suffers any degree of injury.

At present, employees do not have any knowledge about the employer’s liability in relation to COVID-19 vaccines and the SR&O does not provide for this eventuality and critical care. However, the PSU understands that the public bodies cannot escape employer’s liability as such the SR&O ought to expressly address liability. The PSU asks that the issue of liability is explicitly provided for in the SR&O. Fairness and justice requires it.

The mandate fails to create a balance in favour of public health interests. We say this based on the emerging and established facts:

1. That none of the vaccines has sterilizing capability and therefore do not prevent any person from contracting nor transmitting the virus.
2. The science shows that the vaccines are likely to reduce the severity of illness and death in persons who develop COVID-19 disease, but mindful that the data from the CDC establishes that the people who are more likely to develop serious illness and die are those with comorbidities – the vulnerable. All employees do not carry the same risk yet all employees must subject themselves to the same medical treatment.
3. That the vaccinated also develop serious illness and die. This challenging fact is particularly established in Israel, a country that is considered to be a most highly vaccinated country.
4. The current formula of the vaccines are practically ineffective against the Delta variant, presently the most prevalent variant.
5. The Israel experience indicates that vaccine efficacy wanes and no less than 3 doses is required to give some protection against severe illness and death from the Delta.
6. The science consistently tells us that the current vaccines do not provide protection against the Delta and emerging variants. It is therefore more than passing strange the FDA would nonetheless licence a vaccine that does not provide the protection that it is expected to provide. It is even more baffling that the State would create a mandate based on this treatment.

The public interest for the vaccination mandate is provided in the purpose of the SR&0:

1.  To prevent, control, contain, and suppress the risk of the spread of the coronavirus-disease 2019 in public bodies, and
2.   To protect the health and safety of employees

Given the facts as outlined above, it is seriously questionable that the current vaccines can achieve the desired public health interest. The PSU believes that the low vaccine uptake does not put our country and citizens in a backward position when compared with countries in the region and the world. Rather, we take the view that St. Vincent and the Grenadines is an envious position, in the sense that we have a grand opportunity to tailor public sector employment policy in response to the emerging data and evidence. We ought not to create rules and laws based on “old” knowledge and circumstances and apply them to new and different contexts.

The draft mandate does not provide flexibility. It provides that the rules expire on the day when the Minister declares that the public health emergency has ended.”  This is an open ended state, albeit, section 147 provided the Minister with the power to make regulation or amend regulation. The point that remains, nonetheless, is that mandatory vaccination is not the most effective approach when the evidence clearly shows that the vaccines are relatively safe with waning efficacy within five ( 5) months of  having received the 2^nd dose and that the vaccines do not provide protection against the prevalent variant and possible new variants. The circumstance is akin to taking an aspirin to treat a migraine: it is relatively safe but not effective for preventing or treating the illness.

Further, the draft mandate does not leave room for alternative treatments. Again, the evidence is clear that effective alternative treatments do exist and can be taken independently or complimentary to vaccination. To lock out alternative treatments under public health emergencies is not indicative of employment health policy that is responsive and truly caters to the treatment and care of employees. A responsible employer truly committed would not close its eyes and ears to alternative protection for its employees especially in a fast changing environment.

INTERPRETATION:

Rule 2: – The meaning of PCR test is vague: the meaning stated on the WHO’s website is “PCR means polymerase chain reaction. It’s a test to detect genetic material from a specific organism, such as a virus. The test detects the presence of a virus if you have the virus at the time of the test. The test could also detect fragments of the virus even after you are no longer infected.”

THE COST: 

Rule 4 (4) (b) is onerous. The PSU believes that where an employer is imposing a requirement for a safe environment such a cost ought to be borne by the employer, especially the Public Service where remuneration is low and benefits are limited or non-existent for the ordinary employee. A person finds employment to improve his/ her quality of life and not to limit it.

THE EXEMPTIONS:

Rule 6: – From Corona-virus testing: Although, increasingly, the international practice is to exempt vaccinated persons from PCR testing it does not make scientific sense and is illogical. We say this for the following reasons:

1. The vaccines does not stop a vaccinated person from becoming infected with the virus and spreading it;
2. Studies show that the vaccinated person, if infected, can carry higher than or equal viral load as an unvaccinated person.
3. The efficacy of the vaccines wanes significantly over time. The vaccinated therefore is no greater protective position than the unvaccinated. The waning in efficacy is the reason boosters are becoming a requirement.

Therefore, if the employer is truly committed to provide a safe environment then vaccinated or not each employer ought to be tested for the Corona-virus.

Further, the phrase “extreme exceptional circumstances” as a condition for exemption is vague and arbitrary. What is an extreme exceptional circumstance? How does the CMO determine an extreme exceptional circumstance?  The context of the application of the SR&O is individual health. What affects one person may not affect another.

Rule 7: – From vaccination: it is noted that while the amendment to the Public Health Act deleted the Right to Conscience and Beliefs, a religious exemption is provided for under the Draft SR&O. The PSU objects to this provision:

1. The religious exemption is conditional on the employer’s ability to make alternative arrangements and accommodate the employee. This has the potential to create unequal treatment in the workplace as department size differs and some positions are specialised nature and may mean immediate termination of an employee who wishes to invoke their constitutional and human rights and freedoms.

1. There is a glaring unequal treatment between an employee who may raise a medical exemption and an employee who may raise a right to conscience exemption. The latter is conditional on the employer making alternative arrangements to accommodate the employee, the former has no condition.

1. Both exemptions may be applicable to an employee, but the SR&O creates an option between medical and religious exemption.

MISCONDUCT

Rule 8 (2) (b): The PSU objects to the reliance on “customs” to discipline an employee. Disciplinary procedure ought not to be vague and arbitrary. Further, ‘customs’ does not mean that a practice is fair and just.

Undoubtedly, the global pandemic is a major concern for each and every human, but we must not fall into a place of desperation and abandon reason and the ability to consciously care for fellow citizens.  The PSU believes that in making any decision that affects workers well-being, ethical considerations must be made, and the respect, protection and promotion of fundamental rights and freedoms must be at the core of such decision. These rights are not absolute, but any infringement must be necessary, reasonable and proportionate. Vaccination may be a necessary approach but mandating it in the current context as outlined above fails on proportionality.

Dated: on the        day of September, 2021

Mr. ELROY BOUCHER

President of PSU

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