☕️ Coffee & Covid ☙ Monday, December 6, 2021 ☙ PRIMER ON FILING VAX MANDATE COMPLAINTS 🦠
How Florida's new system for complaining about vax-pushing employers works; the OSHA Mandate has a setback, as does Chris Cuomo; CNN admits natural immunity is a thing; and more...
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Happy Monday, C&Cers! We’re out of town today, which is why the update is a little late. But it’ll be worth it. Today we look at: how the new rules work in Florida for employees who are fired or harassed over injection mandates; the rebellious tale of the Alachua County School Board ends tomorrow; the Biden OSHA Mandate suffers another setback; Chris Cuomo suffers another setback, or two; I re-review HR 550 and still don’t like it much; CNN takes a surprising position on natural immunity; Rochelle Walensky stays the dumbest thing ever, in a long line of dumb things; and Florida continues to lead the country.
🚨 *VACCINE MANDATE COMPLAINT PRIMER* 🚨
Terrific news this morning! Florida’s Attorney General released the new rules over the weekend for reporting violations of the state’s mandate exemption laws. Not only does it give the new laws teeth, but it also provides some legit tools for uninjected employees facing discriminatory working conditions. Let’s break it down.
The new emergency rule, number 2ER21-1 (https://tinyurl.com/4mfah8hc), was put out by Florida’s Department of Legal Affairs (DLA).
UPDATE Additional link: https://www.flrules.org/Gateway/View_notice.asp?id=25325747
The rule protects both wage employees (W2s) and independent contractors (1099s). An employee can file a complaint against an employer after getting fired for not taking a vaccine, if the employer refused to recognize one of the state’s new forms and grant an exemption. The state considers an employee “fired” even if they quit — as long as the employer made their working conditions difficult or intolerable.
Employees can file an initial complaint online. Here’s the link: http://myfloridalegal.com/vaxmandate/webform. It’s pretty self-explanatory. (My office is coming up with a low-cost way to get legal advice about how to fill out the form. Depending on volume, we may handle it with group zoom formats like we did with exemption-drafting advice.)
The DLA will then serve a copy of the complaint on the employer, who has 20 days to submit a written response, if they want. After that, the DLA will evaluate the complaint and the response. If the DLA finds that it’s likely the employer violated the exemption law, it will then file a lawsuit against the employer in the state’s Division of Administrative Hearings (DOAH), which is used for other types of employment disputes, like unpaid wage cases.
Finally, the rule says the DLA will keep employees updated about the status of their complaint as the case progresses.
DIFFICULT OR INTOLERABLE CONDITIONS
One of the best things about the rule is that it says that overbearing policies against uninjected workers is the same thing as termination. It defines the “functional equivalent of termination” as when “the employer, through its actions, made working conditions so difficult or intolerable that a reasonable person in the employee’s position would feel compelled to resign.”
In my view, this applies to any employee dealing with horrible, demeaning, discriminatory policies like outdoor bathrooms, segregation, N95 mask requirements, and so forth. In these cases, the employee should notify their employer that, if the odious policies aren’t changed, the employee plans to quit and file a complaint with the DLA.
That’s a threat with some teeth to it, and employers will have to seriously think about how much they really want to punish employees for not getting jabbed versus risking heavy fines from the DLA.
Finally, we’ll have to see what the DLA thinks, but in my legal opinion, being placed on indefinite unpaid leave is the “functional equivalent of termination.”
🗞*COVID NEWS AND COMMENTARY* 🗞
🔥 The Alachua County School Board noticed the agenda for its regular meeting tomorrow, adding one item: repeal of its defiant mask policy. The summary of the notice announcing the repeal says “Proposed repeal of this policy is a result of the recently entered Writ of Mandamus and HB 1B.”
Alachua County was the first of the eight counties to rebel against the state’s emergency mask rule, with its superintendent swanking around CNN and writing op-eds for The Washington Post. But finally, at long last, the reign of mask terror will be all over tomorrow evening after the vote.
I think my petition for writ of mandamus is the only successful one in the country (apart from Duval county’s jointly-filed petition, managed by attorney Nick Whitney of Jacksonville). We have to keep being creative like this.
👨⚖️ The Biden Mandates had another legal setback Saturday. You may recall a few weeks ago that the Fifth Circuit enjoined the OSHA Mandate. Then, the case was consolidated with other pending OSHA Mandate cases around the country into the Sixth Circuit in Ohio (picked at random).
After that, Biden appealed and asked the Sixth Circuit to transfer the case to the D.C. Circuit, which is what we call in the business a “favorable jurisdiction.” Biden also asked the Sixth to overturn the injunction.
So, on Saturday, the Sixth Circuit said no on both counts. The injunction stands.
It’s hard to predict the new steps for the case. This is a pretty unusual situation, with all the various other cases combined with the decision from the Fifth. For example, does the Sixth have to hear all the other cases and then enter its own decision before Biden can appeal to the Supreme Court? Or can Biden appeal now, based just on the original decision from the Fifth Circuit? Nobody seems to know for sure yet.
But whichever way it goes next, it will end up at the Supreme Court one way or another.
🔥 That was fast. Chris Cuomo — who was placed on “indefinite leave” by CNN late last week — is now fired. Finished. Washed up. Kaput. Canned. Pink-slipped. Buh-bye. Adios, muchachos. Dasvidanya, Maria. And so forth, words to that effect, et cetera.
According to CNN, they didn’t make the decision themselves. Chickens. They outsourced it to a “neutral” law firm, who looked the situation with Cuomo over and said, in technical terms, “holy cow, you need to get rid of this guy like, immediately!”
Everybody thought it was about the fact that he lied about secretly feeding inside information to his brother, the disgraced ex-governor of New York. And then… yesterday NPR ran a story headlined, “Chris Cuomo, newly fired from CNN, faces an allegation of sexual misconduct.”
Ruh-roh.
It’s the “Cuomo Playbook.” You know, that Me-Too stuff has been a lot more effective against liberals than conservatives. So, that backfired.
🔥 So, Saturday I reported about how 80 republicans joined democrats to pass HR 550 through the house, which gives the CDC half a billion dollars and, I said, creates a national vaccine database. Later that day, normally-reliable Texas Rep. Dan Crenshaw — who was one of the 80 republicans supporting HR 550 — made a selfie video in which he angrily insisted that the bill does NOT create a vaccine database, and that the CDC only has access to “population-level” data — not individual vaccination data.
I thought, I hope I didn’t unfairly criticize those 80 republicans. So I read the bill for myself.
Yeah, it stinks. There is some language in there about “population-level” data but nothing whatsoever that limits the feds to that. But the worst thing is what it is REALLY intended to do. The bill gives container-loads of money and directs the unreliable CDC to oversee standardizing the state-level vaccine tracking systems into a single common standard. So that the data will then be “interoperable.”
See, the feds have run into a problem: every state has a different, home-grown vaccine-tracking system. So there’s currently no realistic way to link them all together. They’ve probably been trying and failing. And some states are probably resisting. So this bill is designed to push through all that resistance and force the states to standardize on one “platform” that the CDC can access whenever it wants.
Yeah, no thanks. It’s a terrible bill. The feds need to keep out of state vaccine databases. It’s none of their business. We don’t need a 50-state standard. Public health is a state-level function, not a federal function. The Senate needs to kill this horrifying mutant, or the Republicans in the House need to retroactively disinfect it somehow, if they can, in committee or something.
🔥 Wow! CNN interviewed Covid TV expert Dr. Monica Gandhi over the weekend. The anchor pointed out that in most of Europe — including lockdown-loving Germany — uninjected people who’ve recovered from Covid are treated the same as injected people for all legal purposes. He then asked Gandhi, does Europe have the right idea? Or does the U.S., were we ignore natural immunity?
Dr. Gandhi said that EUROPE has the right idea. On CNN. She said, “You can’t discount natural immunity.”
It’s slow. But it’s progress.
💉 They’re testing out another new Narrative candidate, still trying to replace the old, dead one. Nerve-wracked CDC director Rochelle Walensky told ABC ThisWeek yesterday that “We know from a vaccine standpoint that the more mutations a single variant has, the more immunity you really need to have in order to combat that variant.”
Um. What?
She just made that up. There is no epidemiological principle tying quantitative measurements of “immunity” to “numbers of mutations.” That’s the dumbest thing I’ve ever heard, and I’ve heard a lot of dumb stuff over the last two years. Since viruses keep mutating, forever, Walensky’s comment implies that natural immunity is impossible.
It’s rank nonsense, of course. She knows perfectly well that statement is balderdash but said it because she feels virtuously enabled by “promoting vaccines.” So dumb. This narrative candidate isn’t going anywhere.
And, public health “experts” really haven’t learned anything, have they?
📊 *COVID IN FLORIDA AND ALACHUA COUNTY* 📊
According to one of the State’s data analysts, Florida has:
— the lowest infection estimate in the last week (per Nowcasting)
— the lowest case rate over the last week (per CDC)
— the second-lowest positivity rate
— the second-lowest hospital census per-capita (per HHS)
— the lowest ICU census per capita
— the lowest 7-day hospital deaths per capita.
So!
And last but not least, a special thanks this morning to Jimmy Nelson, who delivered my laptop after a very long day yesterday, without whom today’s roundup would have been impossible. Thanks, Jimmy!
Have a magnificent Monday! Unlike Chris Cuomo, I will see you all back here tomorrow for more.
Join the C&C Army! https://www.coffeeandcovid.com/p/-learn-how-to-get-involved-
You can also find me on MeWe, mewe.com/i/coffee_and_covid.
Jeff , thank you for being succinct as always ! It's still a darn shame seeing all of these employees still force masked at all the box stores, and even some mom and pops.
This seems to be the "gray area" in that the government can't tell what a private business can do, but it seems hard to prove that masking is harassment/punishment/discrimination if they are still making everyone do it, even if vaxxed.
That said, in my non-attorney interpretation, it seems that the case law dealing with bodily autonomy infringements, cited by Tannenbaum in the Green v. Alachua case, can actually apply to the private sector, so I'm wondering if we can make a legit claim that we are suffering a bodily autonomy violation in the private sector:
TANENBAUM, J. cites valid law that such right is to be free from violation by society at large, and not just by the government.
In re Guardianship of Browning, 568 So.2d 4, 10 (Fla. 1990)
https://www.leagle.com/decision/1990572568so2d41571
“…privacy has been defined as an individual's "control over or the autonomy of the intimacies of personal identity," Gerety, Redefining Privacy, 12 Harv.C.R.-C.L.L. Rev. 233, 281 (1977); or as a "physical and psychological zone within which an individual has the right to be free from intrusion or coercion, whether by government or by society at large." Cope, To Be Let Alone: Florida's Proposed Right of Privacy, 6 Fla.St.U.L.Rev. 671, 677 (1978).”
Another citation in his opinion states that this right to bodily autonomy and informed consent to accept or reject medical interventions is a common law right to be free from restraint or interference from others, in which such prohibitions are not limited to just government alone, hence the use of the term, “from others” - which would imply that such infringment is also prohibited in the private sector.
CRUZAN v. DIRECTOR, MISSOURI DEPT. OF HEALTH
497 U.S. 261 (1990)
https://www.leagle.com/decision/1990758497us2611750
“At common law, even the touching of one person by another without consent and without legal justification was a battery. See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 9, pp. 39-42 (5th ed. 1984). Before the turn of the century, this Court observed that "[n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." Union Pacific R. Co. v. Botsford, 141 U.S. 250, 251 (1891). This notion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment. Justice Cardozo, while on the Court of Appeals of New York, aptly described this doctrine: "Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages." Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 129-130, 105 N. E. 92, 93 (1914). The informed consent doctrine has become firmly entrenched in American tort law. See Keeton, Dobbs, Keeton, & Owen, supra, § 32, pp. 189-192; F. Rozovsky, Consent to Treatment, A Practical Guide 1-98 (2d ed. 1990).”
I DO RECALL our conversation at the conference regarding CRUZAN and how a judge who heard one of your cases said it wasn't applicable because it was a loss, BUT how would that square with this in the same opinion ?
"The Supreme Court of Missouri reversed by a divided vote. The court recognized a right to refuse treatment embodied in the common law doctrine of informed consent, but expressed skepticism about the application of that doctrine in the circumstances of this case. Cruzan v. Harmon, 760 S.W.2d 408, 416-417 (Mo.1988) (en banc). The court also declined to read a broad right of privacy into the State Constitution which would "support the right of a person to refuse medical treatment in every circumstance,"
IOW, the right was not recognized limited to just the "circumstances of the case", so the common law right to refuse would likely stand otherwise, as held by Tannenbaum, which is why I'm thinking he used that citation.
So this is why I think those two cases Tannenbaum cited can make the case for mask mandates in the private sector be a legitimate bodily autonomy infringement claim.
Again, as a non-attorney, I totally repsect your opinion on this more so than mine, and hope you may have a minute to respond
I hate to harp on this, but in the article, it's stated,
"So, for example, if the employer makes its PPE rule too onerous, an employee who chose the PPE option can then select one of the other options. Because there’s a PPE option, by exclusion an employee who chooses one of the other opt-outs should not be required to wear PPE as a result of opting out of the injection policy."
Regarding the "Exclusion" premise, Are there any Florida case cites or legal doctrines which one could include to let the HR or attorneys for the company know that exclusion applies should i choose not to wear a mask by choosing one of the other exemptions ?
It seems like a hard sell to a crabby boss for me to just say, without any legal foundation on my part, that because i claimed a NON-PPE exemption , then I don't have to wear a mask by exclusion principles.
-Jeff J In Tampa Bay
Dan Crenshaw “normally-reliable”. Nope 👎🏻 He’s a rino too, and worse. And, with some light digging you will find him (unless they removed his picture after he was exposed) as a poster boy for Klause Schwab on the Young Global Leaders in 2004 poster. He is full of traitorous behaviors including but not limited to, touting how the biden regime won and there was no fraud.
"2004 Young Global Leaders" - presented by Globalist Scumbag Klaus Schwab. You wont believe the names on this list: David de Rothschild, Alex Soros, Tulsi Gabbard, Mark Zuckerberg, Meagan Rapinoe and Daniel Crenshaw.
This comes complete with their smiling faces for their pictures.
Do not be deceived by who we thought was a patriot that has turned out to be a globalist un-American fraud.
Otherwise. Loved the read this morning including the instructions for employees to file complaints and put a stop to this discrimination. Win/win. Have a great day Jeff!