Current Status of Exemption Requests for Employer Mandates

We’re getting a huge volume of calls and emails on exemptions to employer mandates. This is the current general information we’ve been providing, which again, is general information. This is all based on federal law. State laws around the country may provide for different, possibly better, protections. We are currently on taking cases in West Virginia. If you’re in Kentucky, you should contact Attorney Chris Wiest, from whom I hijacked some of the below Q&As.

1. Exemption requests: Yes, you need to submit the requests to trigger legal protections.  The only legal exemptions are for medical or religious exemptions.  Yes, you need to make the request even if your employer says they are not taking or accepting them.  Yes you should do so even if your employer is requiring a pastor note and you cannot get one.  The buzz word is that you have a “sincerely held religious belief.”  You should document the what and why of that belief.  The employer can require you to answer questions about the request to determine if it is sincere.  Including asking questions about prior vaccines (if your request is based on aborted fetal cells, be prepared to answer the question on your having received prior vaccines — and answering it that you didn’t know when you received them but now do is an acceptable answer).

You can learn more about the basis for a religious exception, based on the Thomas More Society litigation in New York, here: https://thecivilrightslawyer.com/2021/09/25/religious-exemptions-for-vaccines-under-title-7-and-private-employers-in-the-health-care-field/

You can learn more about the issue of whether an employer gets to question your religious beliefs here: https://thecivilrightslawyer.com/2021/10/07/employers-do-not-get-to-define-religion-in-exemption-applications/


You should also document prior exposure, infection, and any antibody tests.  And send that to the employer to document the fact that giving you an exemption cannot possibly burden the employer.For medical exemptions, you need a doctors note.  It should document your particular medical condition and indicate the threat the vaccine poses to you.  These are going to be the rare exception.


2. They denied my exemption: Ask them to explain what burdens, if any, they expect to suffer from the grant of exemption.


3. What next?: As a practical matter: you are left with two choices after a denial: (a) get fired and pursue a wrongful discharge lawsuit; or (b) get the vaccine. Injunctive relief actions prior to firing may be available if your employer is a governmental entity but these are tricky unless there are blanket denials. We may be able to help in these situations.


If you are FIRED from either a private and government employer and (I) you requested a religious exemption; (II) you documented prior infection and antibodies; and (III) the employer denied the exemption, we may be able to help.


If you’re in West Virginia, the State Legislature just tentatively passed legislation created three state-law based exceptions to both public and private employer mandates. It provides for medical, religious and natural immunity exceptions. It hasn’t yet been signed by the Governor. However, since he proposed the legislation, he is expected to sign it. Unfortunately, it doesn’t become effective law until 90 days after it’s signed (because there wasn’t 2/3 majority vote).

The new law provides that:

(a) A covered employer, as defined in this section, that requires as a condition of continued employment or as a condition of hiring an individual for employment that such person receive a COVID-19 immunization or present documentation of immunization from COVID-19, shall exempt current or prospective employees from such immunization requirements upon the presentation of one of the following certifications:

(1) A certification presented to the covered employer, signed by a physician licensed pursuant to the provisions of §30-3-1 et seq. or §30-14-1 et seq. of this code or an advanced practice registered nurse licensed pursuant to the provisions of §30-7-1 et seq. of this code who has conducted an in person examination of the employee or prospective employee, stating that the physical condition of the current or prospective employee is such that a COVID-19 immunization is contraindicated, there exists a specific precaution to the mandated vaccine, or the current or prospective employee has developed COVID-19 antibodies from being exposed to the COVID-19 virus or suffered from and has recovered from the COVID-19 virus; or

(2) A notarized certification executed by the employee or prospective employee that is presented to the covered employer by the current or prospective employee that he or she has religious beliefs that prevent the current or prospective employee from taking the COVID-19 immunization.

So, in other words, the employer will not have discretion to question the religious sincerity of the employee, which is currently occurring on a wide basis. Therefore, any current religious applications being asserted might as well include a notarized certificate tracking this statutory language. E.g., “I, John Doe hereby certify that I have religious beliefs that prevent me from taking the COVID-19 immunization.” Additionally, any medical exemptions being asserted might as well include a physician’s certification that the employee has antibodies and/or has already suffered from and recovered from the virus.

Many have asked whether this will be applicable to federal employees. This new law applies to “covered employers,” who are defined as follows:

(A) The State of West Virginia, including any department, division, agency, bureau, board, commission, office or authority thereof, any political subdivision of the State of West Virginia including, but not limited to, any county, municipality or school district; or

(B) A business entity, including without limitation any individual, firm, partnership, joint venture, association, corporation, company, estate, trust, business trust, receiver, syndicate, club, society, or other group or combination acting as a unit, engaged in any business activity in this state, including for-profit or not-for-profit activity, that has employees.

So, no it doesn’t appear to apply to federal employees, which would probably be unconstitutional for a couple of reasons. I see no reason why employees of business entities who are federal contractors wouldn’t be covered, to the extent said employees are based in West Virginia and the business activity is based in West Virginia. As for independent federal contractors who are being subjected to the federal mandate, there would be no applicability if they don’t have a business entity as an employer who is engaging in business activity in West Virginia.

Lawsuit Filed Against Wood County Board of Education Challenging their School Mask Mandate

As I announced on the Tom Roton Show this morning, yesterday afternoon we filed a lawsuit in Wood County Circuit Court (Parkersburg, WV) against the Wood County Board of Education challenging their blanket school mask mandate, which is currently forcibly masking children for prolonged periods of time. The suit was filed on behalf of my clients, John Davis and Felsie Pierce, who have three children currently enrolled in Wood County Schools, who have suffered, and are continuing to suffer, due to the illegal mandate.

In a nutshell, our legal theory is this: Wood County BOE claims that the local health board, the Mid-Ohio Valley Board of Health, has issued the mandate, and they are merely following that requirement. However, the MOVBOH has denied that they issued the mandate. If the MOVBOH had indeed issued the mandate, they would be required to follow due process, which requires notice, a hearing, and so on, as well as oversight by the Wood County Commission, the local elected representatives of these schoolchildren and their parents. That’s the process in place – even before we get to the issue of science or constitutional rights. They didn’t follow the process, and therefore the mandate needs to be struck down immediately. Secondly, even if and when they follow that process, such a mandate still violates the WV Constitution because it violates the bodily autonomy of these children, just like a mandate requiring a medical procedure without the consent of the recipient.

It’s my understanding that other county boards of education in West Virginia have issued school mandates that are likewise illegal. We’ll see what the Wood County Circuit Court does with this case first before proceeding in other counties. We have requested the issuance of an immediate temporary restraining order, until such time as an expedited hearing can take place. Here is the complaint:

Update: it looks like a hearing is being scheduled for the afternoon of Monday, October 18…..

NY Federal Court Grants Thomas More Society Preliminary Injunction Blocking NYS Mandate

Breaking: I just checked the docket of the lawsuit filed in the Northern District of New York by the Thomas More Society, challenging NY State’s mandate of healthcare workers, which DID NOT allow for a religious exemption. The Court had previously issued a temporary restraining order, and today was the hearing on whether a preliminary injunction would be granted, continuing the Court’s injunction blocking the mandate. The Court ruled in favor of the healthcare workers, blocking the mandate. Here’s the ruling, just issued:

Defendants also argue that § 2.61’s elimination of the religious exemption language found in the August 18 Order brings it more in line with healthcare workplace immunization requirements for measles and rubella. Although fetal cell lines were used in the development of the rubella vaccine, there is no religious exemption in the State regulations that require workers to be immunized against this pathogen. Rausch-Phung Decl. ¶¶ 44, 47–48.

However, this argument conflates the merits of plaintiffs’ present constitutional claims with a hypothetical Title VII anti-discrimination claim for a religious accommodation. What matters here is not whether a religious practitioner would win or lose a future Title VII lawsuit. What matters is that plaintiffs’ current showing establishes that § 2.61 has effectively foreclosed the pathway to seeking a religious accommodation that is guaranteed under Title VII.

However, there is no adequate explanation from defendants about why the “reasonable accommodation” that must be extended to a medically exempt healthcare worker under § 2.61 could not similarly be extended to a healthcare worker with a sincere religious objection. Fulton, 141 S. Ct. at 1881 (cautioning courts to “scrutinize[ ] the asserted harm of granting specific exemptions to particular religious claimants”).

As plaintiffs point out, defendants have not shown that granting the same benefit to religious practitioners that was originally included in the August 18 Order “would impose any more harm—especially when Plaintiffs have been on the front lines of stopping COVID for the past 18 months while donning PPE and exercising other proper protocols in effectively slowing the spread of the disease.”

Zoom Discussion: Legal Options for Healthcare Personnel Against Mandates

Former State Delegate and gubernatorial candidate S. Marshall Wilson set up a Zoom discussion for Wednesday, October 13 at 9:00 p.m. with myself and another attorney to discuss the legal options for healthcare personnel in response to the pending mandates across West Virginia. Here’s the log-in information:

Topic: Legal Options for Healthcare Personnel Against Mandates
Time: Oct 13, 2021 09:00 PM Eastern Time (US and Canada)

Join Zoom Meeting
https://us02web.zoom.us/j/3526468683?pwd=ZUhFUGhjU3VXb29Ja243NVNmT2tVdz09

Meeting ID: 352 646 8683
Passcode: M5LWvP
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Find your local number: https://us02web.zoom.us/u/koAVbkdRV

Employers Do Not Get to Define Religion in Exemption Applications

Lately I’ve been helping quite a few people with their religious exemption applications, particularly in regards to one particular hospital in West Virginia. Since I’ve talked with numerous employees, I’ve seen the identical boilerplate form email denials from the hospital – whether the employee is a physician, nurse or remote IT worker. From what I’ve been told the only religious exemptions they’ve granted have been to Jehovah’s Witnesses. Otherwise, they’ve been arguing with employees that mainstream Christianity doesn’t oppose the COVID vaccines.

Since these employers are private employers, rather than agencies of the government, the Bill of Rights doesn’t apply to them. Generally they can just fire employees at-will in West Virginia. However, there are state and federal statutes which provide they can’t do so pursuant to religious discrimination. This hospital appears to be discriminating between Jehovah’s Witnesses and other belief systems. In fact, it’s really not the employer’s right to tell the employee what they believe, but rather only to determine whether the belief is sincerely-held, and to accommodate it, if doing so wouldn’t be an undue hardship to the company.

Title VII of the Civil Rights Act of 1964 (“Title VII”) “makes it an unlawful employment practice ‘to discharge any individual because of such individual’s religion.’” EEOC v. Consol Energy, Inc., 860 F.3d 131, 141 (4th Cir. 2017). In other words, the law provides potentially significant protections to West Virginians who might seek a religious exemption from an employer-imposed vaccine requirement. To make out a prima facie case of that type of discrimination, an employee must show that “(1) he or she has a bona fide religious belief that conflicts with an employment requirement; (2) he or she informed the employer of this belief, and, (3) he or she was not hired or promoted, fired, or otherwise discriminated against for failure to comply with the conflicting employment requirement.” Henegar v. Sears, Roebuck & Co., 965 F. Supp. 833, 836 (N.D.W. Va. 1997). “[A]n employer must make reasonable accommodation for the religious observances of its employees, short of incurring an undue hardship.” Consol Energy, 860 F.3d at 141. An accommodation becomes an “undue hardship” when it imposes “more than a de minimis cost” on the employer. Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84, 97 S. Ct. 2264 2277, 53 L. Ed. 2d 113 (1977).

West Virginia lies within the jurisdiction of the U.S. Fourth Circuit Court of Appeals. The Fourth Circuit specifically has warned employers that it’s not their place to question the correctness or plausibility of an employee’s religious understandings:

It is not Consol’s place as an employer, nor ours as a court, to question the correctness or even the plausibility of Butcher’s religious understandings. See Emp’t Div., Dep’t of Human Res. of Or. v. Smith, 494 U.S. 872, 887, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990) (“Repeatedly and in many different contexts, we have warned that courts must not presume to determine … the plausibility of a religious claim.”). Butcher’s religious beliefs are protected whether or not his pastor agrees with them, cf. Thomas v. Review Bd. of Ind. Emp’t Sec. Div. , 450 U.S. 707, 715–16, 101 S.Ct. 1425, 67 L.Ed.2d 624 (1981) (protection of religious beliefs not limited to beliefs shared by religious sect), and whether or not Butcher’s pastor—or Consol, or the manufacturer of Consol’s scanning system—thinks that Butcher, in seeking to protect his religious conscience, has drawn the line in the right place, see id. at 715, 101 S.Ct. 1425 (“[I]t is not for us to say that the line [the religious objector] drew was an unreasonable one.”). So long as there is sufficient evidence that Butcher’s beliefs are sincerely held—which the jury specifically found, and Consol does not dispute—and conflict with Consol’s employment requirement, that is the end of the matter.


U.S. Equal Emp’t Opportunity Comm’n v. Consol Energy, Inc., 860 F.3d 131 (4th Cir. 2017) (emphasis added). 

Certainly, for employees who are now working remotely, it would be difficult for the employer to claim that further accommodation during a pandemic is an undue hardship. The Fourth Circuit addressed this in the Consol Energy case:

Indeed, once we take out of this case any suggestion that Butcher may have misunderstood the Book of Revelation or the significance of the Mark of the Beast, there is very little left. This case does not present, for instance, the complicated questions that sometimes arise when an employer asserts as a defense to a religious accommodation claim that the requested accommodation would not be feasible, and would instead impose an “undue hardship” on its operations. See Firestone Fibers , 515 F.3d at 311–12 ; TransWorld Airlines , 432 U.S. at 79–85, 97 S.Ct. 2264 (considering whether requested religious accommodation was feasible). Quite the contrary: Consol expressly conceded that allowing Butcher to bypass the scan by entering his identification number into a keypad would impose no additional burdens or costs on the company. And Consol knew this, of course, because it had provided precisely that accommodation to two other employees who needed it for non-religious reasons—and then, in the very same email, refused to give equal regard to Butcher’s request for a religious accommodation. In light of all of this evidence, we have no reason to question the jury’s determination that Consol should be held liable for its response to a conflict between Butcher’s sincere religious beliefs and its scanner-system requirements.

U.S. Equal Emp’t Opportunity Comm’n v. Consol Energy, Inc., 860 F.3d 131 (4th Cir. 2017) (emphasis added). 

Another thing this hospital has been doing is informing employees that they aren’t being disciplined or terminated, but instead are choosing to “voluntarily” resign. The Fourth Circuit rejected that claim already in the same case I’ve already cited:

“According to Consol, Butcher was not disciplined or terminated but instead voluntarily retired, and the jury’s contrary finding of constructive discharge cannot be sustained on the evidence introduced at trial.”…. 

We agree with the district court that there exists substantial evidence that Butcher was put in an intolerable position when Consol refused to accommodate his religious objection, requiring him to use a scanner system that Butcher sincerely believed would render him a follower of the Antichrist, “tormented with fire and brimstone.” J.A. 683–84. This goes well beyond the kind of run-of-the-mill “dissatisfaction with work assignments, [ ] feeling of being unfairly criticized, or difficult or unpleasant working conditions” that we have viewed as falling short of objective intolerability. Cf. Carter v. Ball , 33 F.3d 450, 459 (4th Cir. 1994) (internal quotation marks omitted). And like the district court, we do not think that the future prospect of a successful grievance under a collective bargaining agreement—even assuming, contrary to the union’s determination, that the collective bargaining agreement at issue here allowed for a grievance based on a right to religious accommodation—would do anything to alleviate the immediate intolerability of Butcher’s circumstances.

U.S. Equal Emp’t Opportunity Comm’n v. Consol Energy, Inc., 860 F.3d 131 (4th Cir. 2017) (emphasis added). 

Thus, despite this hospital’s attempts at mislabeling the termination of their employees as “voluntary” resignations, they will still remain potentially liable because their intention is to force the employee out – to give them no choice of staying. That’s either a termination, or a constructive termination. The remedy here is to file a charge with the EEOC, after which the charge will run its course with the EEOC and then litigation for religious discrimination can ensue – hopefully to a jury for a large award of damages.

Here’s a link to the EEOC website where you go through their online portal in order to file an EEOC charge for religious discrimination against an employer:

https://www.eeoc.gov/how-file-charge-employment-discrimination

Religious Exemptions for Vaccines under Title 7 and Private Employers in the Health Care Field

It’s heartbreaking what’s currently happening to health care workers across the country. I’ve talked to dozens here in West Virginia who are currently facing losing their careers due to their health care employer – usually hospitals – mandating the current vaccines. Ironically, one can’t just choose to refrain from taking these vaccines because they’ve undertaken a common sense rational risk vs. reward analysis based on their own circumstances and health care situation, but rather only for religious reasons, which may, nor may not have any basis in rationality. But as with much of civil rights law, the only realistic way of stopping government tyranny is to somehow connect their actions to religious restrictions, because doing so triggers statutory and constitutional protections.

Almost all of the religious exemption applications I’ve seen thus-far have been denied by the large healthcare employers. Outrageously, what I’ve mostly seen is that these HR departments have been essentially arguing theology with these employees. They no doubt assume that the employees are lying, or being un-sincere about their beliefs. They’ve been arguing to the employees that they actually DON’T have a religious exception. They cite the fact that the pope is encouraging people to be vaccinate, etc.

Fortunately, however, the law generally provides that employees aren’t required to follow any particular religion or theology. The requirements are subjective to the employee. The only requirement is that the beliefs, which could just be strongly held moral beliefs, must be sincerely held by the employee. Thus, it doesn’t matter what the Pope said, or even what the pastor of an employee’s church said. What matters is subjective sincerity.

I’ve posted about the New York lawsuit which has currently obtained a temporary restraining order protecting New York health care employees from being fired pursuant to the NY state mandate currently in place. Whenever the ultimate ruling comes in that case, employees will have some legal guidance on what their legal rights may be in the current situation. Until that happens, it makes sense to pay attention to the claims being made by the physicians and other health care workers who are plaintiffs in the case.

The religious exemptions in the NY case surround the fact that the vaccines at issue either utilize, or did utilize in their development stages, fetal cell lines derived from abortions. Here are the details on the three separate vaccines:

  • Johnson & Johnson/Janssen: Fetal cell cultures are used to produce and manufacture the J&J COVID-19 vaccine and the final formulation of this vaccine includes residual amounts of the fetal host cell proteins (≤0.15 mcg) and/or host cell DNA (≤3 ng).
  • Pfizer/BioNTech: The HEK-293 abortion-related cell line was used in research related to the development of the Pfizer COVID-19 vaccine.
  • Moderna/NIAID: Aborted fetal cell lines were used in both the development and testing of Moderna’s COVID-19 vaccine.

Based on those indisputable facts, these are the grounds upon which the physicians in the New York lawsuit filed by the Thomas More Society base their religious exemptions. I highly suggest that health care workers who are pursuing religious exemptions utilize these points in countering the theological exemptions currently being presented by tyrannical health care employers:

  • They oppose abortion under any circumstances, as they believe that abortion is the intrinsically evil killing of an innocent, and thus they also oppose the use of abortion-derived fetal cell lines for medical purposes and abortion- derived fetal stem cell research.
  • It would be a violation of their deeply held religious beliefs and moral consciences to take any of the available COVID-19 vaccines given their use of abortion-derived fetal cell lines in testing, development, or production.
  • By receiving one of the COVID vaccines currently available, all of which are abortion-connected, they believe they would be cooperating with the evil of abortion in a manner that violates their consciences and that they would sin gravely if they acted against their consciences by taking any of these vaccines.
  • They agree with the teaching of spiritual leaders, including certain Catholic bishops, who urge Christians to refuse said vaccines to avoid cooperation in abortion and to bear witness against it without compromise, and who defend the right to a religious exemption from vaccination with such vaccines.
  • They do not accept the opinion—expressed by certain other Catholic bishops, the Pope included—that there is a therapeutically proportional reason to resort to abortion-connected vaccines which can justify “remote” cooperation in abortion. They reject as a matter of religious conviction any medical cooperation in abortion, no matter how “remote.”
  • They believe in the primacy of conscience in this matter. While one may personally conclude that recourse to abortion-connected vaccines can be justified in his or her case, vaccination is not morally obligatory and must be voluntary, and those who in conscience refuse vaccination need only take other protective measures to avoid spreading the virus.
  • Although they are not “anti-vaxxers” who oppose all vaccines, they believe as a matter of religious conviction that the ensouled human person, made in the image and likeness of God, is inviolable as a temple of the Holy Ghost and that civil authorities have no right to force anyone to be medicated or vaccinated against his or her will, whether or not the medication or vaccine is abortion-connected.
  • A risk-benefit analysis factors into each person’s formulation of a conscientious religious position on the morality of vaccinations. Plaintiffs are all aware of the vaccines’ side effects, which can be quite serious, their fading efficacy, requiring “booster shots,” their evident inability to prevent transmission or infection, and the fact that natural immunity is likely more protective than injections with the available COVID-19 vaccines. These medical facts inform Plaintiffs’ religious conviction against involuntary or coerced vaccination as an invasion of bodily autonomy contrary to their religious beliefs. Given that the Vaccine Mandate requires that employers insure that employees are “continuously” “fully vaccinated”— as many times as the government advises—Plaintiffs now reasonably fear that “booster shots” of the same vaccines they consider immoral will soon be demanded by the government as a condition of employment and even normal life in society, as is already the case with the original vaccines.

You can review these arguments in more detail and access their exhibits in my original post, which included their complaint in its entirety. I’ve been encouraging people to use as much specificity as possible in their applications for a religious exemption.

But also remember, that even if the employer accepts your religious exemption – which it legally must so long as its sincerely-held, that doesn’t automatically exempt the employee from the vaccine, while also ensuring they can keep their job. That only entitles the employee to an accommodation, if an accommodation can be made by the employer. The employer isn’t required to provide an accommodation if they would incur more than a de minimis expense in doing so. What does this mean? Well, that could mean wearing masks, getting tested frequently, working remotely, plexiglass, etc., etc. These sorts of accommodations may, or may not be possible for any particular employee.

So it’s not a perfect option, even if an exemption is granted. But right now it’s the only option available to a ton of employees who are in jeopardy – many of whom were forced to work through the pandemic in direct contact with covid patients, at times when there were no vaccines invented yet. But now that they’ve survived that, they’re expendable. Because, politics and virtue-signaling.

Federal Judge in NY Blocks State Mandate

A federal judge today temporarily blocked New York state from enforcing a vaccine mandate on health care workers who seek or obtain a religious exemption. Here’s the Complaint, filed by the Thomas More Society on behalf of numerous physicians and other health care professionals who are acting under pseudonyms. The Court issued a Temporary Restraining Order pending the response of the defendants and a hearing on the matter. The basis of the Complaint is failure to provide a religious exception. There are tons of exhibits attached to the Complaint detailing the basis for the religious exception under Christianity.

WV Attorney General Opinion Arguing Mandates are Unconstitutional

On September 10, the West Virginia Attorney General issued an Opinion letter ultimately concluding that vaccine mandates in West Virginia would be unconstitutional in any blanket form – whether public or private employees.

In the end, a law requiring all state employees to be vaccinated or requiring all businesses to demand vaccine passports from all patrons would violate our State’s constitution (as it should be properly understood) and violate both state and federal law. The same finding would follow no matter what aspect of “state” government is implicated; mandates and passport requirements imposed by counties, municipalities, and other public actors would give rise to the same legal concerns as a mandate or passport requirement imposed at the statewide level. We therefore urge any public entities to comply with such guidance and come into accordance with this opinion.

Likewise, a private employer’s mandate or vaccine-passport requirement may violate federal and state anti-discrimination laws if it does not, at a minimum, provide for appropriate exceptions for those with religious- or disability-based objections.

He urges the Legislature to take action.

For reasons discussed further, the Legislature can undeniably act. In fact, “[t]he Constitution of West Virginia being a restriction of power rather than a grant thereof, the legislature has the authority to enact any measure not inhibited thereby.” Syl. pt. 5, State ex rel. Cooper v. Tennant, 229 W. Va. 585, 730 S.E.2d 368 (2012). Ultimately, “[i]t is the duty of the Legislature to consider facts, establish policy, and embody that policy in legislation.” Syl. pt. 3 (in part), State v. Dubuque, 239 W. Va. 660, 805 S.E.2d 421 (2017).

Mandate Litigation, Legislation and Political Posturing in West Virginia

While our telephones and email flood with messages from upset parents, angry about the forced masking of our children, an unlikely hero comes to the rescue. However, he completely messed up. He’s attempting to score for the opposing team. Democrat nominee for W. Va. Attorney General in the 2020 election, in the name of allegedly protecting civil rights for multiple children, filed a lawsuit against the Governor and various school entities to attempt to force a comprehensive statewide mask mandate for children. He is essentially suing to force the Governor to issue an emergency executive order.

Where do I begin? If the Supreme Court wouldn’t let me force the Governor to call the legislature into session last year, in lieu of just issuing incessant executive orders, I can’t imagine they would allow an anti-civil rights lawyer to force him to actually issuing an executive order. We can take issue with the scope of the Governor’s emergency powers, but the concept that the Governor gets to issue, or not issue, his own executive orders, seems pretty uncontroversial. Though I suppose it’s having the desired effect of convincing various county school boards to reverse their prior decisions on a local level, which several have apparently done in the past day or so.

At the same time, the Republican leadership in the W. Va. legislature sent a letter to the W. Va. Attorney General official asking him to give an opinion on whether employer vaccine mandates and vaccine passports are in violation of the West Virginia Constitution. First off, it’s the U.S. Constitution that stands any chance of going up against the mandates. Any analysis of the W. Va. Constitution is going to have to begin with the U.S. Supreme Court’s Jacobson case from 1905. Because that would be the first case cited by the W. Va. Supreme Court, should they hear the issue.

Proponents of governmental overreach in the COVID era have consistently pointed to Jacobson as justification for whatever measures the government is undertaking for the purported goals of protecting the health and safety of their citizens, which in turn is utilized by both public and private employers to attempt to mandate vaccines on their employees. Jacobson opined on the role of the U.S. Constitution in controlling state police powers, as understood in 1905, granting states and local governments an affirmative carte blanche to engage in state disease control efforts.

What that means, is that as it currently stands, SCOTUS has said that the U.S. Constitution allows vaccine mandates in the past. So if W. Va. has carte blanche to engage in disease control efforts, the ball is squarely in the State Legislature’s court. No federal court or caselaw is likely going to stop it. The only way to stop broad employer mandates right now, whether public or private, is through legislative action. That is a very real possibility right now in West Virginia, given the fact that numerous state legislators are currently calling for a special session to consider that very legislation.

Regarding Jacobson’s 1905 era values, let’s not forget that Jacobson’s legal rationale led to the case of Buck v. Bell, the infamous 1927 U.S. Supreme Court decision that found no restriction was placed on states’ police powers by the U.S. Constitution regarding a state’s public policy initiative to engage in involuntary sterilization of a woman who was purported to be of low intelligence. 274 U.S. 200 (1927). This decision by the SCOTUS gave the eugenics movement added legitimacy and considerable momentum. By 1931, 28 out of 48 states had adopted eugenic sterilization laws.

Jacobson left the door open for future refinement, conceding that state or local government could exercise police powers in an arbitrary or unreasonable manner. The ensuing future refinement came in the form of 20th century civil liberties which were recognized and developed by the courts. Since Jacobson, the Supreme Court has recognized numerous limits on health and safety regulations, including the right against involuntary restraint, decisions about marriage, contraception, procreation, family relationships, sexual relationships, child rearing and education, as well as the right to refuse life-saving treatment. Nobody is arguing that state police powers retain the ability to suppress any of these now-federally-recognized rights. But they want to leave the forced vaccine part in effect.

In addition to the rights itemized supra, the Supreme Court recognized, and continues to recognize, the right of bodily integrity, which was the category of freedom from government action, the higher order, under which the specific rights described in Roe, as well as Cruzan, fell. E.g., Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 915 (1992) (“One aspect of this liberty is a right to bodily integrity, a right to control one’s person.”). In Cruzan, Chief Justice Rehnquist reiterated in his majority opinion, “every human being of adult years and sound mind has a right to determine what shall e done with his own body….” Cruzan, 479 U.S. at 269.

West Virginia has also recognized the right to bodily integrity as a fundamental right. In the recent decision in Kruse v. Farid, 835 S.E.2d 163 (W. Va. 2019), the West Virginia Supreme Court noted that “all competent patients have the right to refuse medical care,” and that such right “has been recognized by both the United States Supreme Court and by the Legislature of this State.” Id. at 168. The W. Va. Court cited the SCOTUS, at length:

[a]t 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[, 11 S. Ct. 1000, 1001, 35 L. Ed. 734] (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[.]” Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 129-130, 105 N.E. 92, 93 (1914) [, superseded by statute on other grounds as stated in Retkwa v. Orentreich , 584 N.Y.S.2d 710, 154 Misc. 2d 164 (N.Y. Sup. Ct. 1992) ]. 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).…

[T]he common-law doctrine of informed consent is viewed as generally encompassing the right of a competent individual to refuse medical treatment. Cruzan by Cruzan v. Dir., Mo. Dep’t of Health , 497 U.S. 261, 269-70, 277, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990). Accord Collins , 517 S.W.3d at 92 (” ‘All competent adults have a fundamental right to bodily integrity. … Included in this right is the right of competent adult patients to accept or reject medical treatment.’ ” (quoting Church v. Perales , 39 S.W.3d 149, 158 (Tenn. Ct. App. 2000) ) (additional citations omitted)). Likewise, the West Virginia Legislature has recognized this personal right to make health care decisions: “Common law tradition and the medical profession in general have traditionally recognized the right of a capable adult to accept or reject medical or surgical intervention affecting one’s own medical condition[.]” W. Va. Code § 16-30-2(b)(1) (LexisNexis 2016).

Kruse v. Farid, 835 S.E.2d 163, 168-69 (W. Va. 2019).

Thus, there is some basis in West Virginia state law in which to oppose mandates. However, it’s still grounded in federal constitutional law. You would expect the legislative leadership to know and understand this. Perhaps it’s just political posturing, sending a hardball to the Attorney General, in order to force him give the ultimate opinion that there’s nothing in the West Virginia Constitution which applies the mandate issues presented. What benefit does that confer to we the people, who are opposed to mandates? I can take the liberty of answering for the Attorney General that what the West Virginia Constitution does say, is that sole legislative power is vested in the legislature. Since SCOTUS believes state police powers control mandate law at the state level, the legislature should have the final say. At least unless our anti-civil rights hero gets his way. But do they have the political will?

Kentucky Judge Invalidates All of Governor Bashear’s State of Emergency Actions

Today my colleague from Kentucky, Chris Wiest, received an awesome ruling from the Circuit Court of Boone County declaring that all of Governor Andy Bashear’s emergency orders and actions are unconstitutional and void. The ruling was in the state-court challenge to the governor’s emergency powers executive orders, filed by Wiest on behalf of Beans Cafe’ & Bakery.

Dr. Stephen Petty, an actual expert in masks, testified at the trial about their uselessness under the circumstances in which they’re being idolized. Here’s an excerpt from the order pertaining to Dr. Petty. For those bureaucrats and social media tyrants who would censor this, this is from an actual court order issued today. Not that you care:

Stephen E. Petty, P.E., CIH, testified as an expert and was accepted as such without objection. Mr. Petty has served as an expert witness in approximately 400 cases relating to toxic or infectious exposure, personal protective equipment (“PPE”), and as a warning expert. He also served as an epidemiology expert for the plaintiffs in the Monsanto “Roundup” cases, and for those in the Dupont C8 litigation. In connection with his service as an expert, he was deposed nearly 100 times and has provided court testimony in approximately 20 trials. Mr. Petty holds nine U.S. patents, has written a book comprising nearly 1,000 pages on forensics engineering, is a certified industrial hygienist, and a recognized expert with the Occupational Safety and Health Agency. Mr. Petty helped write the rules on risk assessment for the State of Ohio and has trained Ohio’s risk assessors.

Mr. Petty explained that the field of his expertise is “to anticipate and recognize and control things that could hurt people, everything from making them sick to killing them.” He testified that, in this context, he has analyzed the use of masks and social distancing in connection with Covid-19. He testified that both the six-foot-distancing rule, and mask mandates, are wholly ineffective at reducing the spread of this virus. Masks are worthless, he explained, because they are not capable of filtering anything as small as Covid-19 aerosols. In addition, masks are not respirators and lack the limited protections that respirators can provide.

The N-95 respirator, which he states is in the bottom class of what may be classified as a respirator, is rated to filter 95% of all particles that are larger than .3 microns. However, a Covid-19 particle, which is only between .09 to .12 micron, is much smaller. Mr. Petty further explained that an N-95 will not even filter above .3 microns if it is not used in accordance with industry standards. Among the requirements, respirators must be properly fitted to seal along the face, and they also must be timely replaced. Mr. Petty stated that N-95 masks, which he said are often utilized as surgical masks, are “not intended to keep infectious disease from either the surgeon or from the patient infecting each other” but only to catch the “big droplets” from the surgeon’s mouth.”

According to Mr. Petty, masks have no standards, are not respirators, and do not even qualify as protective equipment. In contrast, respirators have standards, including rules that state respirators may not be worn by persons with facial hair, must be fitted to ensure a seal, and must be timely replaced—or, as in higher end respirators, the cartridges must be replaced to prevent saturation. In addition, standards for respirators also require users to obtain a medical clearance because the breathing restriction can impair lung function or cause other problems for persons having such limitations. Putting those persons in a respirator can harm their well-being.

Concerning the effectiveness of respirators, Mr. Petty explained that it comes down to “big stuff” versus “small stuff.” Big stuff can be taken out by the body’s defenses, such as its mucus tissue, where droplets can be caught and eliminated. The small stuff, however—like aerosols—are more dangerous. Masks cannot filter the small stuff. According to Petty, because Covid-19 particles are comprised of aerosols, it is really, really, small stuff. And, as he pointed out, an N-95 is designed to filter larger particles. Even for particles as large as .3 micron, Mr. Petty testified that an N-95’s effectiveness is in direct proportion to its seal. In fact, he stated it becomes completely ineffective if 3% or more of the contact area with the face is not sealed.

Mr. Petty testified that masks leak, do not filter out the small stuff, cannot be sealed, are commonly worn by persons with facial hair, and may be contaminated due to repetitive use and the manner of use. He emphatically stated that mask wearing provides no benefit whatsoever, either to the wearer or others.

He explained that the big droplets fall to the ground right away, the smaller droplets will float longer, and aerosols will remain suspended for days or longer if the air is stirred. Mr. Petty testified that the duration of time that particles remain suspended can be determined using “Stoke’s Law.” Based on it, for particles the size of Covid-19 (.12 to .09 micron) to fall five feet would take between 5 and 58 days in still air. Thus, particles are suspended in the air even from previous days. And so, he asks, “If it takes days for the particles to fall, how in the world does a six-foot rule have any meaning?”

Mr. Petty acknowledged that both OSHA and CDC have recommended that people wear masks. However, he called this “at best dishonest.”61 As an example on this, he pointed to CDC guidance documents where, on page 1, it recommends wearing a mask; but then on page 6, admits that “masks, do not provide . . . a reliable level of protection from . . . smaller airborne particles.”62 According to Mr. Petty, those agencies have smart individuals who know better. Mr. Petty points out that, even before March 2020, it was known that Covid-19 particles are tiny aerosols. And on this, he states that he insisted that fact early on. He also points to a more recent letter by numerous medical researchers, physicians and experts with Ph.D.s, asking the CDC to address the implications of Covid-19 aerosols. During Dr. Stack’s subsequent testimony, he also acknowledged that Covid-19 is spread “by . . . airborne transmission that could be aerosols . . . .”

Finally, Mr. Petty pointed to another recent study by Ben Sheldon of Stanford University out of Palo Alto. According to that study, “both the medical and non-medical face masks are ineffective to block human-to-human transmission of viral and infectious diseases, such as SARS, CoV-2 and COVID-19.”64 The Court finds the opinions expressed by Mr. Petty firmly established in logic. The inescapable conclusion from his testimony is that ordering masks to stop Covid-19 is like putting up chain-link fencing to keep out mosquitos. The six-foot- distancing requirements fare no better.

The judge summarizes the situation nicely:

It is obvious from even a cursory review that the orders issued over the past fifteen months “attempt to control” and seek “to form and determine future rights and duties” of Kentucky citizens. These included ordering the closure of all businesses, except those the Governor deemed essential. He ordered churches closed, prohibited social gatherings, including at weddings and funerals, prohibited travel, and through CHFS, even prohibited citizens from receiving scheduled surgeries and access to medical care. And then there is the order that everyone wear a mask. These are, undeniably, attempts to control, set policy, and determine rights and duties of the citizenry. Except in those instances where the federal courts have stepped in, Defendants assert authority to modify or re-impose these orders at their sole discretion. Consider, for example, the recent modification of the mask mandate. It orders persons who did not get vaccinated for Covid-19 to wear masks but lifts that requirement for others. That is setting policy and determining future rights and duties.

 At the hearing, Defendants took exception to the Attorney General’s characterization of the Governor’s actions as a “lockdown,” and argued that prohibiting persons from entering those restaurants is not the same as ordering that they be closed. But that doesn’t minimize the impact on those who lost their businesses as a result, or those in nursing homes condemned to spend their final hours alone, deprived of the comfort from loved ones (or even any real contact with humanity), or those citizens who the Governor prohibited from celebrating their wedding day with more than ten persons, or those he forced to bury their dead alone, without the consoling presence of family and friends (and who likewise were deprived of paying their final respects), or those persons who were barred from entering church to worship Almighty God during Holy Week, and even Easter Sunday, or those persons who were denied access to health care, including cancer-screenings, or those denied entry into government buildings (which they pay for with their taxes) in order to obtain a necessary license, and who were forced to wait outside for hours in the sweltering heat, or rain, purportedly to keep them from getting sick.

 What the people have endured over the past fifteen months—to borrow a phrase from United States District Judge Justin R. Walker—“is something this Court never expected to see outside the pages of a dystopian novel.” Yet, Defendants contend that the Governor’s rule by mere emergency decree must continue indefinitely, and independent of legislative limits. In effect, Defendants seek declaratory judgment that the Constitution provides this broad power so long as he utters the word, “emergency.” It does not. For this Court to accept Defendant’s position would not be honoring its oath to support the Constitution; it would be tantamount to a coup d’état against it.

Here’s the order itself:

Yes, life is now a dystopian novel. Let’s hope this patriot judge’s order stands up on appeal in the state appellate courts in Kentucky. And thanks to Chris Wiest and the AG of Kentucky for fighting the good fight. The order notes that the permanent injunction against the governor goes into effect on June 10, 2021 at 5:00 p.m.