Recently, under this state of emergency, President Biden announced a new unprecedented vaccine-related mandate that has the potential to impact up to 80 million workers in the United States. The first part of the mandate requires all federal employees to receive a Covid-19 vaccine. The second part requires all employers with more than 100 employees to ensure their organizations are fully vaccinated (or, any employee that remains unvaccinated, must produce a weekly negative test result before reporting to work). With each new Covid-19-related mandate, the overreach of government and ensuing impact on US citizens grows in intensity and implication. And, as each mandate from the President, a Governor, or a government institution is introduced, more and more people are asking if mandates are legally enforceable. Afterall, mandates aren’t laws, are they?

While it’s true that mandates are not laws in the sense that they have been introduced, debated, and passed by the legislative branch of the US Government; they are still legally enforceable, provided they meet a few specific criteria:

• They are instituted during a declared state of emergency
• The agency (or individual) instituting the mandate has jurisdiction to do so (for example, the CDC was able to issue the recent eviction moratorium because it was argued that displacing people during a pandemic would lead to more wide-spread exposure of Covid-19…they would likely not have similar authority to issue a mandate in response to a terror attack)
• The mandate is over when the state of emergency is over
• The mandate does not violate the Constitution of the United States of America

While the citizenry may not like a mandate, we must keep in mind that, once issued, compliance is expected and enforceable by law enforcement or the agency granted the power. When one of these measures appears to violate our civil rights, or the Constitution, the way to fight them is through legal channels. And, while it may seem appropriate to sue an employer for carrying out the order, the best way to challenge the order is to make your voice heard to your State Representative.

(A note about Executive Orders may be necessary as well, since much ado has been made about them since the beginning of the Trump Administration. An Executive Order is a directive from a President (or Governor) that manages the operation of governmental agencies. Like a mandate, it is not a law in the sense that it is not passed by a vote from Congress. Unlike a mandate, they can be written by the President at any time and will last until they are countermanded by another President).

Traditionally, the issuance of states of emergency have been largely regional (a hurricane in Florida does not necessitate a state of emergency in California), and short lived. Most often, state Governors will declare a state of emergency in light of a natural disaster, which helps release funds to help rebuild critical infrastructure, mobilizes FEMA, and makes it easier for various emergency agencies to quickly cut through red-tape in order to help. And, when the flood waters have dispersed, or the fire is under control, the state of emergency (and any related mandate) is brought to an end. In these cases, the constitutionality of mandates issued under states of emergency rarely come under scrutiny. But when a state of emergency lingers, and mandates become more prolific, the potential of governmental overreach increases at an alarming rate.

In the 1920s, a researcher named Theodore Erismann tested the brain’s ability to rewire visual input by strapping a pair of goggles to his colleagues head. In essence, these goggles turned his colleague’s vision upside down. At first, his colleague stumbled and fell as he struggled to position himself in a foreign world. But after ten days of slowly acclimatizing to the change of input, the subject no longer struggled to navigate his way through the day. His brain had gone through the process of reorienting how it processed the upside down information from his eyes. But, the fact still remained that he was seeing the world wrong because of the artificial lenses he was using. The world had not changed, his perception of it had.

As the current national state of emergency keeps getting extended, we must stand vigilant to ensure we don’t find ourselves as frogs in a pot as the water inches toward boiling as more and more mandates are imposed. Afterall, the laws of our nation were never intended to be issued by any single person (President or not) and were certainly not meant to be enacted by bureaucratic agencies. The exercise for laws to be debated, studied, voted on, and passed by a majority of both the House and the Senate is one of the processes that has kept America from slipping back into the type of monarchy from which our forefathers fought so hard to escape.

The system of Legislative, Executive, and Judicial checks and balances instituted by our Founding Fathers is still the system under which our nation operates. There is no “Except for Covid-19” provision in the Constitution. We must ensure we do not let this seemingly endless state of emergency flip our understanding of the constitution, or our acceptance of mandates which have not been fully vetted. If we don’t, we will inevitably see a day when a steady stream of crises serve to give unfettered power to those who may seek to exploit it. Afterall, isn’t it common knowledge that a leader, especially in politics, should never let a good crisis go to waste?

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Perhaps the most pressing question in the pantheon of recent vaccine discussions is whether employers have the legal right to require employees to get vaccinated. The short answer to this question is:

Yes. Employers do have the legal right to require an employee to be vaccinated. The slightly longer answer is that while employers have the right to require a vaccination, there are a few reasons why an employee may refuse, and in those instances, the employer is required to find ways to accommodate the employee, provided those accommodations don’t present “undue hardship” for the employer to meet.

While this may seem to be an over-reach by employers, the highly transmissive nature of Covid-19 and its variants are being used as justification for employers to provide a safe environment for all employees. It is important to remember that, while the Covid-19 vaccine is new, there are multiple instances in our everyday life where vaccine requirements are commonplace. For decades, most public schools require students to receive (or show proof of) certain vaccinations. And it is common for healthcare workers, depending on their role, to be vaccinated against certain highly transmissible and dangerous diseases as grounds for their employment. Of course, it is also important to note that these same vaccines have undergone rigorous medical and scientific testing before being widely distributed to the public – something the current Covid-19 vaccines have not been subject to, regardless of the recent FDA approval of the Pfizer vaccine.

Now that we’ve got all of the background out of the way, let’s talk about your rights as an employee if your employer mandates that you must get vaccinated. There are a few commonly asked questions I’d like to cover in order to help you be as educated and able to respond with appropriate options:

Q – Is it a violation of HIPAA for an employer to require proof of a Covid-19 vaccine?
A – No. HIPAA only applies to HIPAA-covered entities like healthcare providers, health plan providers, and healthcare clearinghouses. However, if you have a legitimate medical reason for not getting a vaccine, an employer may be in danger of violating the Americans With Disabilities Act of 1990 (ADA) if they force you to disclose a medical reason for not getting the vaccine. The ADA puts limits on how much an employer can make mandatory and that could ultimately force employees to reveal private information about mental or physical conditions.

Q – If my employer does require a Covid-19 vaccine, are there any circumstances where an employee can opt-out?
A – Yes. There are two key instances where an employee can refuse to be vaccinated. The first is when an employee has a pre-existing medical condition that would cause the vaccine to be harmful, the ADA stipulates that the employer must provide reasonable accommodations (more on that in a bit). The second is a religious exemption under Title VII, in which protections are in place to ensure no employee is discriminated against due to sincerely held religious, ethical, or moral beliefs.

Q – If I have an exemption under the ADA or Title VII, what does that mean for my employment?
A – Both the ADA and Title VII stipulate that employers are required to provide reasonable accommodations to employees with valid exceptions, provided the accommodation does not require undue hardship on the employer. In the case of Covid-19, some valid accommodations could be:

• Allow an unvaccinated employee to work from home, provided the entirety of their tasks could be accomplished within that set up
• Offer modifications to the employee workstation in order to reduce the potential of transmission of the virus
• Provide the employee with flexible hours to limit the amount of face to face interactions with colleagues
• Provide appropriate personal protective equipment (PPE) such as masks and hand sanitizer

The key to these arrangements is the term “undue hardship” for the employer. If an employer deems the accommodations to be detrimental to the working environment, or too limiting for the employee to be productive, they are able to pursue termination based on the original medical requirement for the vaccination.

It is also important to note that the U.S. Occupational Safety and Health Administration (OSHA) recently released new guidance in April that any adverse reactions to a Covid-19 vaccination is considered work-related and therefore must be recorded by the employer.

For those struggling with what to do when faced with an employer’s mandate to get vaccinated, it’s important to know what options they have. However, regardless of what the law states, a troubling division is being created between those who willingly rushed to receive one of the vaccines and those who aren’t convinced of the safety or effectiveness of the newly developed treatments. Even more worrisome is the rhetoric being used by political leaders who see the vaccine as a moral obligation to society. In fact, the discussion around vaccine mandates is straying further and further from data, and inching dangerously close to the desire to implement laws meant to enforce actions – by restricting the unvaccinated from engaging in fundamental parts of society. This week alone, we have seen influential pundits question whether those refusing the vaccine should have access to medical care. They’ve suggested that insurance companies either raise the rates for the unvaccinated or deny them outright. In France, grocery stores have begun hiring security to ensure unvaccinated patrons are not allowed to enter the store – in essence denying an entire subset of the population a basic human need.

Time will tell regarding the effectiveness of the Covid-19 vaccines. An FDA approval for one is indeed a positive sign. However, let us not allow our nation to get to the point where the ideologies of the few can be used to control the many. Today it may be to help people get a vaccine to help fight a pandemic. But the precedent set by these actions could easily usher in the foundations that enable an overreaching government to restrict the freedoms of a populace from questioning or limiting their power. May we never find ourselves driving down a road, the pavement of which was laid by “good intentions”.

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It is criminal, scandalous and reprehensible for adult men to have sexual relations with minor females.  I have represented a number of sexual abuse victims over the years.  The effects are devastating and long-lasting. Because we all intuitively understand this, the public enters the Epstein debate knowing that anyone identified by Epstein as involved in sex with minors would be destroyed.  As well, Epstein’s known personal and professional contacts are extraordinarily powerful men, who if implicated, would be susceptible to public contempt, civil lawsuits, and criminal indictments. These powerful men have a lot to lose.  Now, the key figure, a man who could implicate many powerful men in this reprehensible conduct, is dead.  These powerful men have collectively released a huge sigh of relief. Did one or more of them kill Epstein? Let’s consider the facts.

At the time of his death, Jeffrey Epstein was detained in the Metropolitan Correctional Center, New York (MCC New York).  Located in Manhattan, this facility is operated by the Federal Bureau of Prisons, a division of the United States Department of Justice.[1]  The MCC New York is an Administrative facility designed to detain pretrial offenders at all security levels.[2]

On July 23, 2019, eighteen days prior to his death, Epstein appeared to have attempted suicide when he was found semi-conscious, in a fetal position with marks on his neck.[3]  Various media sources speculated about the causes, but generally agreed that he may have attempted suicide.  There are no indications officials with the Department of Justice, the Federal Bureau of Prisons, or MCC New York believed otherwise.  As a result, he was placed on suicide watch.

The Code of Federal Regulations governs how the Federal Bureau of Prisons maintains custody of its inmates.[4]  In particular, 28 C.F.R. § 552.42, titled “Suicide watch conditions,” addresses how a facility such as MCC New York was supposed to treat Epstein.  The regulation states:

• (a) Housing. Each institution must have one or more rooms designated specifically for housing an inmate on suicide watch. The designated room must allow staff to maintain adequate control of the inmate without compromising the ability to observe and protect the inmate.
• (b) Observation.
  • (1) Staff or trained inmate observers operating in scheduled shifts are responsible for keeping the inmate under constant observation.
  • (2) Only the Warden may authorize the use of inmate observers.
  • (3) Inmate observers are considered to be on an institution work assignment when they are on their scheduled shift.
• (c) Suicide watch log. Observers are to document significant observed behavior in a log book.
• (d) Termination. Based upon clinical findings, the Program Coordinator or designee will:
  • (1) Remove the inmate from suicide watch when the inmate is no longer at imminent risk for suicide, or
  • (2) Arrange for the inmate’s transfer to a medical referral center or health care facility.

It has been reported that six days after his suspected suicide attempt, he was moved into a Special Housing Unit; 12 days later, he was found dead.[5]

To have been removed from the watch, the “Program Coordinator” must have determined that Epstein was not an imminent risk for suicide.  The Wall Street Journal reported on August 12 that he was taken off the watch after a psychological evaluation(s) and at the request of his attorneys.[6]  After Mr. Epstein was removed from suicide watch, he was downgraded to “special observation status” . . .[7]

Each suicide watch program has a Program Coordinator responsible for all aspects of prisoner observation, evaluation and treatment, including psychological evaluations.[8]  The Program Coordinator is generally a doctoral level psychologist.[9]  “Upon completion of the clinical assessment, the Program Coordinator or designee will determine the appropriate intervention that best meets the needs of the inmate.”[10] Thus, the Program Coordinator must have downgraded Epstein’s status to “special observation status,” also known as “Mental Health Special Observation Status” (MHSOS).  MHSOS is:

A level of increased monitoring, special housing, mental health and other interventions used as step-down from suicide watch status when an inmate is assessed as no longer presenting an imminent risk of suicide and/or crisis care for inmates experiencing mental health crisis or other mental health condition requiring a temporary increase in level of mental health care. Inmates placed on MHSOS require physical checks and documentation of the watch at irregular intervals not to exceed thirty (30) minutes by security staff, and daily contact by mental health staff, excluding weekends and holidays.[11] 

MHSOS can only be implemented “after a face-to-face mental health assessment of an inmate patient.”[12]

The question becomes whether the psychologist who performed the mental health assessment was properly qualified, whether the assessment was appropriate for the situation, and whether the assessment was properly administered? Put another way, did a real psychologist assess the situation in an appropriate manner? Was it proper to place Epstein in MHSOS?  

Another significant issue with the step-down from the suicide watch is whether his attorneys attempted to influence the process.  Such improper influence should have been rejected.  The implication of improper influence also gives support to those who believe Epstein was murdered.  Until these critical questions are answered, speculation as to the cause of Epstein’s death will continue.

Alarmingly, there are other very bad facts. News reports claim (1) one of his two guards was not a qualified corrections officer, (2) the guards had not checked on Epstein for hours before they found him dead, and (3) union officials claim the jail was understaffed with over-worked guards.  These revelations have stoked conspiracy theories.[13]

I reject the excuse that one of the guards was not a qualified corrections officer.  This assertion implies that the guards required special training to peek in a window every 30 minutes to check on Epstein.  Each of us is immediately qualified to peek into a window, and the so-called special training required is not that extensive.[14]  Most importantly, trained or not, the MCC New York freely admits that no one was checking on Epstein.  So, it is complete nonsense to suggest lack of training was an issue.  The issue was that no one was checking on Epstein.

The next excuse offered is that the jail was understaffed and the guards over-worked.  The reporting suggested the five days of overtime worked by one of the guards explains the jail’s failures. Tens of millions of Americans work this much overtime every week.  Personally, I routinely log 60-hour weeks. We all know this is complete balderdash.  There is nothing short of malfeasance or gross negligence that would explain how an inmate as high-profile as Epstein could be left alone.  How was this allowed to happen?  Who “dropped” the ball?  Until the mysterious absence of guards is explained, those who believe there was foul play have every right to question what happened.

Another inexcusable oversight was to remove Epstein’s cellmate without finding a replacement. I strongly suspect the Program Coordinator required that Epstein have a roommate simply to have someone to sound the alarm should he attempt suicide.  No matter the decision process, the Program Coordinator should have written findings that explain Epstein’s treatment at the time of his death.  Those findings will enlighten us.  

Finally, how was it that a man, who only 18 days prior, was suspected to have attempted suicide was left alone in a prison cell with a bedsheet?  My research did not uncover specific guidelines about what a person on special observation status should be permitted in the way of bedding.  But statistics indicate that hanging oneself with a bedsheet is the most common way to commit suicide in jail.[15]  Knowing this, why did the Program Coordinator not take precautions short of a suicide watch?  Many commercial options to prevent suicide by bedding are available.[16]

Based upon my research and the analysis above, it is easy to suspect Epstein was murdered.  Here are three possible scenarios:

Scenario 1.

• On July 23^rd, Epstein did not attempt suicide. Instead, he was attacked by someone. 
• The Program Coordinator examined Epstein and concluded he was not suicidal, but to err on the side of caution placed him in the Special Housing Unit where prison personnel would check on him every 30 minutes and where he could be with a roommate.
• Undeterred by the heightened security, the murderer arranged for Epstein’s cellmate to be released early, distracted the guards and murdered Epstein.

Scenario 2.

• On July 23^rd, Epstein did attempt suicide.
• After six days, he appeared to have improved and was moved to the Special Housing Unit.
• A person on the inside (friend of foe) slipped Epstein a sheet hoping he would use it to kill himself. 
• Epstein did.

Scenario 3.

• This is the same as Scenario 2, but instead of a friend on the inside, everyone involved dropped the ball such that Epstein was suicidal, was inadequately evaluated, inadvertently given a sheet and used it to kill himself.

My conclusion is that Scenarios 1 and 2 are implausible.  So, even if someone on the outside wanted to kill Epstein, it would be practically impossible to bribe and threaten enough people to achieve either scenario.  MCC New York is not a movie set. Instead, the simplest explanation is incompetence.  Whoever gave Epstein a sheet and put him in a cell where he could kill himself completely screwed up.  It is a sad commentary about our government.  Epstein most likely killed himself.

[1] https://www.bop.gov/locations/list.jsp?security=Administrative&sort=&addAlphabet=false&sortDescending=false   

[2] Id.   

[3] https://www.nbcnews.com/news/us-news/jeffrey-epstein-shows-no-sign-injury-following-possible-suicide-attempt-n1037226

[4] 28 C.F.R. § 552 (2007)

[5] https://www.nytimes.com/2019/08/10/nyregion/jeffrey-epstein-suicide.html?searchResultPosition=7

[6] https://www.wsj.com/articles/there-were-serious-irregularities-at-federal-jail-where-jeffrey-epstein-died-barr-says-11565622895 (Emphasis added).

[7] Id.

[8] 28 C.F.R. § 552 (2007). Note, the Program Coordinator need not be a psychologist, but a psychologist must perform the evaluation.

[9] U.S. Department of Justice Program Statement No. P5324.08, p. 3.

[10] Id.

[11] 67-MNH-32 Ohio Department of Rehabilitation and Correction.

[12] Id.

[13] https://www.nytimes.com/2019/08/12/nyregion/epstein-barr.html

[14] Suicide prevention training is to occur annually and includes education in identifying suicide risks, recognition of suicidal behavior, how to respond to suicide emergencies and how to contact the program coordinator.  U.S. Department of Justice Program Statement No. P5324.08.

[15] Ninety-three percent of the victims used hanging as the method. Sixty-six percent of the victims used bedding as the instrument.  National Study of Jail Suicide, U.S. Department of Justice, National Institute of Corrections (2010). https://s3.amazonaws.com/static.nicic.gov/Library/024308.pdf.

[16] https://www.bobbarker.com/blanket-suicide-prevention.html

The post Jeffrey Epstein: Was it suicide or murder? appeared first on Todd McMurtry.

There they can find out more about you, your business, and why you’re better than your competitor. While the preceding example claims are attention-grabbing, they can also mean extra trouble if an unhappy client decides to take you to court. How? In her article “Avoiding website claims that increase malpractice risk,” CPA Deborah K. Rood outlined many of these risks as they applied to accountants. For lawyers, the American Bar Association’s Model Rules of Professional Conduct provide general guidance. Rule 7.1 prohibits a lawyer from making “a false or misleading communication about the lawyer or the lawyer’s services.” Ohio and Kentucky’s rules closely mirror the model rule. Violation of this rule could lead to a malpractice lawsuit. Listed below are the five most common claims plaintiffs’ attorneys cite in these cases. Could you be at risk?

1. Misrepresenting your education and/or honors and awards

Did a few semesters at Harvard magically turn into a degree? A passing mention in a trade magazine suddenly become a nationally-recognized award? Skewing the facts a bit never hurt, right? Wrong. Doing so puts your livelihood and reputation at serious risk. There are three types of misrepresentation professionals can be sued for: fraudulent (deceitful), negligent (careless), and innocent (thoughtless). Although clients may not necessarily double-check a professional’s credentials, plaintiffs’ attorneys in malpractice suits certainly do. Protect yourself and your career. Only post provable, accurate information.

2. Misrepresenting your experience and/or abilities

According to Michael Downey’s ABA article, “12 Tips for Reducing Online Dangers and Liabilities,”misrepresenting your experience or abilities is even more dangerous than false education or award claims. He goes on to state, “[i]ndividuals making claims against lawyers often use online boasting as exhibits in depositions and cases to suggest the lawyer was dishonest or misled a client…” This holds true for any profession, not just legal. A single experience with a particular type of client or area of practice does not an expert make. (In fact, even the use of the term “expert” can be called into question in a malpractice suit.) Stick with what you know and what you do well. Expand your knowledge base with practice and research before adding it to your professional repertoire.

3. Using absolute/overly broad terms in statements

Many busy professionals use freelancers or marketing firms to create and manage their online presence. Advertisers love to try to set their clients apart from the competition with difficult-to-prove statements known as “puffery.” While it might be overlooked when it comes to laundry detergent, professional services are held to a higher code of ethics. Carefully review any “marketing” copy created for your professional website or page. Look out for any word that immediately sets up unrealistic client expectations such as:

• all
• every
• always
• constant
• never

Also, be careful to avoid overly-broad statements or announcing competency criterions within your field. Overly broad claims run the risk of overpromising and underdelivering, the typical spark for a malpractice claim. Some situations may warrant a different approach or the usual standard may not be appropriate. As suggested by Rood, stick to phrases such as “may,” “often should,” “endeavor to,” or “generally” in your web copy instead.

4. Implying influence over a client’s success

Is your client seeing positive results since working with you? Great, just don’t take all the credit. Client success is the result of many variables, of which your services may be only one. While part of growing a business means sharing your victories, professionals must be careful when claiming their services lead to client profitability. The easiest way to avoid this is to ask for client testimonials that can be posted directly on your website or page. According to Entrepreneur magazine, 85 percent of small businesses rely on word-of-mouth referrals. Third-party accolades are a powerful display of your credibility (not to mention free advertising) while keeping expectancies realistic.

5. Not monitoring what others say on your site

Finally, just because you personally did not post a claim made on your site doesn’t mean you wouldn’t be held liable for it in a malpractice suit. Allowing fraudulent claims on your website or page is akin to you as a professional endorsing it. All businesses should perform a “content audit” of its web presence. While this is usually suggested as part of a marketing exercise, it can also act as a guard against the pitfalls listed above. Taking a bit of time to review your online content now may protect you against malpractice claims in the future.

In conclusion, as lawyers, we face many challenges. We have to attract clients, do excellent work, manage a business, stay abreast of changes in the law, etc., etc. I hope this article has provided you some useful guidance and eases your day-to-day burdens a bit. Cheers!

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