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Attorneys explain challenge to state, county employee vaccine mandates

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The issue of mandatory vaccinations for state and county employees is at the heart of a lawsuit filed by Hawaii attorneys Shawn Luiz, Kristin Coccaro and Michael J. Green.

On the Aug. 16, 2021, episode of “Hawaii Together,” Luiz and Coccaro talked with host Joe Kent, Grassroot Institute of Hawaii executive vice president, about why they took on the case, which was filed on behalf of more than 2,000 public employees, including many first-responders — “courageous heroes” — such as police, firefighters, emergency medical personnel and others.

“It is not an anti-vaccine lawsuit,” Coccaro emphasized. “It is a right-to-choose lawsuit, … a personal healthcare decision-type lawsuit. [By] no means are we advocating or saying negative things about the vaccine.”

Luiz said the plaintiffs contend that their medical right to make an autonomous decision for their personal health care is being interfered with by government action. He said the whole basis for the emergency authorization of the COVID-19 vaccine is that the program would be be voluntary, since it involves a vaccine that has not been officially approved.

“It is just shocking to see the state and county government, acting under the color of law, … taking state action against the community and saying that the vaccine is now going to be mandated. So the state and county government is doing indirectly what the federal government is forbidden to do, and what the federal government represented in order to get the emergency-use approval of the product.”

Watch the entire interview below. A complete transcript follows.

8-16-21 Kristin Cocarro and Shawn Luiz with Joe Kent on “Hawaii Together”

Joe Kent: Aloha and welcome to “Hawaii Together” on the ThinkTech Hawaii broadcasting network. I’m Joe Kent, executive vice president of the Grassroot Institute of Hawaii. I’m filling in today for Keli’i Akina, our president and CEO.

At the Grassroot Institute of Hawaii, we know there are many sides to current issues that we’re facing today. We would just like to invite one side of this very important conversation about COVID-19 restrictions and the balance between safety and liberty. A class-action lawsuit was filed in the U.S. District Court on Friday for City and County workers who believe they’re being forced to take COVID-19 vaccine or face termination. Private attorneys Shawn Luiz and Kristin Cocarro join me to discuss the case.

Welcome, Shawn and Kristin.

Kristin Cocarro: Thank you.

Shawn Luiz: Thank you for having us.

Kent: Thanks so much. We really are interested in learning more about this case. You represent union workers who are suing over the governor’s order that state and county workers must receive the COVID vaccine or submit to regular COVID testing. Can you tell me why the workers are bringing this law — first of all, did I explain that correctly?

Luiz: Yes, you did.

Kent: Why are the workers bringing this lawsuit?

Luiz: The first issue that we have is, there’s a lot of inconsistency between the different mayors of the different counties. Some of the mayors have basically made it a testing mandate. Unfortunately, in Honolulu, the mayor made it more of, either choose between taking the vaccine or finding other work. That was unacceptable to my clients who — some of them have 20 years of experience, 30 years experience, and long careers.

Like Kaimi Pelekai, he’s the captain that is our first-named class representative on the lawsuit. His father was a firefighter for 37 years. He grew up in the fire station, basically, as a child visiting his father at work, and things like that. That was his family’s career. He followed in his father’s footsteps. He’s been a firefighter for a long time. He just wants the freedom to choose. There’s no reason why anyone should not have the right and the freedom to choose.

Kent: Can you explain a bit more about the testing requirements? That’s different between neighbor islands and Oahu?

Luiz: Yes. I’ll let Kristin explain the difference between the neighbor islands, and especially the difference and the different costs that’s allocated to the workers, depending on which island they’re on. Please go ahead with that, Kristin.

Cocarro: Sure. As Shawn said, it’s different on the islands in Maui, Kauai, Big Island. They are allowed to opt out of the vaccines and opt for testing weekly. Originally, it was going to be on their own time and at their own expense, if they could not get into the free testing. At this time, it has been decided for most of the first responders that it would be allowed to test during work hours. They would be given a couple of hours to go do that testing, and it would be compensated. That has been done on Big Island, on Kauai and on Maui. The mayor’s are giving that allocation, which is different than what’s going on in Honolulu.

Kent: Does your case specifically involve Honolulu, or is it statewide?

Luiz: Right now, it involves — we have class representatives from County of Maui and City and County of Honolulu. Tangentially, it involves the other islands as well. However, the class representatives right now that have come forward and are part of the case, we have 12 altogether. We have 10 from Honolulu, made up of the fire department, the police department, the Ocean Safety, and the Emergency Medical Service technicians. Then on Maui, we actually have the Assistant Chief of Police, and then we also have a firefighter that’s been there with a long career.

Those are two of the clients that actually contacted Kristin and offered to be a representative for the police and the fire, and just represent the face of those two departments on Maui. We’re very glad that we had 12 courageous heroes not only in the community fighting fires, protecting us from crime, taking care of our loved ones with medical emergencies, saving our swimmers, tourists and local alike, we’re not only having them there to do their job, but they’ve also come forth to be courageous and help us with this case because we do need plaintiffs, of course, to be able to challenge the vaccine mandate.

Kent: I’m sorry. Is this vaccine mandate, by the way, about whether people should take the vaccine, or is it about the right of choice?

Luiz: It’s about the freedom to choose. It is so important that each individual has that right to choose. 

Kristin, would you like to just explain a little bit about why people might just misperceive what the lawsuit is about?

Cocarro: Absolutely, thank you. I think it comes down to, when you file a lawsuit regarding a mandate on vaccines, everybody decides that, or a lot of people want to decide that it’s then an anti-vaccine versus a pro-vaccine type of lawsuit. That is absolutely not the case. That’s not the case of the members that we have in the class, and that’s not the positions of the attorney.

This is by no means an anti-vaccination or an anti-vaccine case. It is purely a right-to-choose case. As our statement said, we have members of the class, and attorneys, and people involved with this lawsuit that are vaccinated, that families are vaccinated, or relatives are vaccinated, and they don’t have a problem necessarily with anybody else taking the vaccine, and they’re not advocating that people not take the vaccine.

All they are advocating for is that they have the decision themselves personally without being forced, or mandates to make that decision for themselves only. We really wanted to get that point out that it is not an anti-vaccine lawsuit. It is a right-to-choose lawsuit, and it’s a personal-healthcare-decision type lawsuit. But in no means are we advocating or saying negative things about the vaccine.

Kent: I see. What are the plaintiffs and clients that are involved in the case — what are they saying?

Cocarro: In terms of the vaccine?

Kent: Yes, just basically what are they saying is the problem?

Luiz: You want me to explain that, Kristin?

Cocarro: Sure. Go ahead.

Luiz: Basically, what they’re saying is their medical right to make the autonomous decisions for their own personal healthcare is being interfered by the government through government action. It is kind of shocking. The whole basis for the emergency authorization was it’s required to be, at both time of the approval of the vaccine, experimental drug, it’s required to be a wholly and complete voluntary program, as well as at all points following that. It has to remain voluntary.

So it is just shocking to see the state and local government acting under color of law as a state or a county and taking state action against the community and saying that the vaccine is now going to be mandated. The state and local government is doing indirectly what the federal government is forbidden to do, and what the federal government represented in order to get the emergency-use approval of the products, not only the vaccine but the testing as well.

For the PCR test, they had to get emergency-authorization approval for that, which is set to expire Dec. 31 because it can’t really differentiate the difference between influenza, the common cold and the COVID-19. Because of that, the test is going to come to an end, and there’s going to be other tests. They’re going to have to be put forth in order to differentiate between those three categories of disease.

Dr. Fauci himself has pointed out that, depending on the level of the machines are set at, that it has a big difference in whether or not the machine is accurate for detection of COVID-19, or for other illnesses such as influenza or the common cold. It’s very important that that is pursued. The state government needs to just comply. This is so clear that this is federal preemption. The federal government, through the Emergency Authorization Act, has displaced any action to the contrary. It’s just Congress made this Emergency Authorization Act: In times of an emergency, or in times of any kind of just natural disaster or man-made disaster that it would be allowed that it could have emergency-use products available. Since the federal government is bound by that, our position and our client’s position is that state and local governments are bound as well.

Kent: Can you explain again how it works in Honolulu? If I’m a Honolulu county worker, and let’s say it’s my choice not to take the vaccine, then can I still test and keep my job, or how does that work in Honolulu?

Luiz: Kristin, do you want to take that one too?

Cocarro: Sure, Honolulu is different than the rest of the islands, as I was explaining. Honolulu right now, and I think that’s a major point of the lawsuit, is they’re not being reasonable in their accommodations to the people that do not want to take the test. Right now, there’s medical exemptions and religious exemptions. In Honolulu, those are the only two exemptions that are allowed in order to let somebody test. It’s a little bit unclear and we’re a little bit unsure how they’re even going to vet those medical and those religious exemptions.

Kent: Oh, you’re saying — I’m sorry, if someone doesn’t want to take the vaccine, then they can only test if they have a certain kind of exemption. That’s what you’re saying? [crosstalk]

Cocarro: That’s correct.

Kent: Go ahead.

Cocarro: That’s why we’re labeling it. In Honolulu, it’s more of a vaccine mandate rather than a testing mandate. They’re not given the opportunity in Honolulu to just say, “You know what, I just want to wait and get more information on this vaccine,” or, “I don’t think this vaccine is right for me.” They’re not being given that option in Honolulu. You have to have a medical or a religious — that is going to be vetted  — exemption in order to test. Otherwise, you do not have a testing right, you basically would have to get the vaccine. That’s a major difference between the other islands.

Kent: I see. Now, is this about the COVID vaccine in particular, or about the collective bargaining agreement with the state?

Luiz: As far as the collective bargaining agreement, that’s another thing that is very shocking to us, and distasteful as well — that the governor and the mayors would circumvent the collective-bargaining agreement. These vaccines alter significantly that there’s a change to the terms and conditions of their employment.

Under Hawaii Revised Statutes Chapter 89, that has to be negotiated before that can be implemented. What the governor did through his emergency use powers — and there’s still a question about whether those emergency use powers can remain in effect greater than 60 days without legislative action. It can only be used at one time for 60 days and then it needs legislative approval, so that’s an issue — he suspended Chapter 89, thereby tying the hands of the unions, the respective unions, all six that deal with the first responders. 

By doing so, he could have just — you know, this came out with eight days’ notice. We started all of our offices, Kristin, my office and Michael Green’s office, started getting flooded nonstop with calls starting on Aug. 5 when the announcement came out, and the calls have been nonstop and are still flooding our office. We grew from a class of 1,200 class members, first responders at the time we filed, until now we have 2,000 including other city employees, and also now we have nurses that are contacting our offices as well as other state and county workers, government schools, nongovernment schools are contacting as well — all three of our offices — and they’re just asking for help. They’re just asking for the right to choose, and that’s where they want.

Kent: I see. So there’s many other public workers who are interested in this case, you’re saying.

Cocarro: Absolutely.

Luiz: Yes.

Kent: What would you say to a critic who asks, “Why aren’t the workers just willing to protect others by getting vaccinated?” This is a common argument.

Luiz: I would say this: If you take the captain, for example, he has actually treated COVID patients and he has not caught COVID for a year and a half. Myself, I have not caught COVID, I have taken all the procedures and precautions that I need.

A year and a half, and I haven’t been hiding in my house, I’ve been coming to work every day in my building and I’ve been going out to dinners; meeting with family, friends, relatives; having visitors come from the mainland and visit. I have not caught COVID, and I think there is just a hysteria that’s been created in a knee-jerk reaction to this pandemic. But when people take the adequate precautions, you don’t see fire stations getting shut down, you don’t see the police stations or substations getting shut down. You don’t see the rigs being shut down.

We had EMS employees who came forward and said that they don’t see that happening because they take so much precautions. They wear their protective gowns, their goggles, their gloves and their masks. They have everything: They have these special decontamination units with ultraviolet light as well as a chemical they spray within the rigs. They decontaminate everything. Same thing with the fire, same thing with the police, same thing with the Ocean Safety. They have the lowest infection rate.

Even for the community, there’s a lot of people that are not getting sick, so I don’t know why anyone, for the critics, would not allow. This is America, we should have the right to choose. America is all about freedom, and that freedom is enshrined in our Constitution, in the Bill of Rights, and all of the whole country, they really should have the right to choose. There’s no reason, with testing and precautions and safety, there’s no reason why — just because some people get sick, it’s not right to punish the people who are not getting sick and taking care of themselves and doing everything they can to stay healthy.

Kent: Yes, but at the same time, there are a lot of people in the community who are afraid and feel much safer if everyone, or as many people, can be vaccinated as possible. Playing devil’s advocate, what do you say to someone who says we need to mandate vaccines in order to keep the public safe?

Luiz: Well, it’s undisputed that you can take the vaccine and you can still catch COVID-19, and that’s quite clear. In Massachusetts, in a small town of about 360 people who contracted COVID, 74% of those individuals were vaccinated. To say that the vaccine — so it’s undisputed, and the CDC has already admitted, that you can still catch COVID even if you’re vaccinated.

I think at times, for me personally, just as a matter of simple logic, I think if you take the vaccine and you don’t take all the other precautions, you can actually catch it more easily and be more at risk. It’s because, if you are unvaccinated, you’re going to take a lot of precautions and protect yourself. If you’re vaccinated, you might let your guard down and not protect yourself. Just look at the number in Massachusetts. That really says something.

Kent: At the same time though, my understanding of the vaccine is that if you take it, yes, you could get COVID, but it’s much less likely, though. Then, doesn’t that play into this factor, or is this really a debate about vaccines or just about our free choice?

Cocarro: If I could just address that, because that point that you just made, that’s individual. The point that you made is that the vaccine, I agree with that point, that the vaccines have shown that if you do catch COVID when you’ve been vaccinated, the ramifications, or the symptoms, are less. That’s personal then, that’s a risk that everybody is either willing to take to get. If you don’t have the vaccination and your symptoms are worse, that’s personal. If you take it to lessen the possible symptoms, that’s also personal.

There’s a difference between the critics coming out and saying, “Why aren’t they willing to protect others?” If that’s the true argument, that’s not an argument about protecting others. That’s an argument about protecting yourself. A lot of times, you see people saying, “Well, the people that aren’t vaccinated are willing to take that risk to have the symptoms exacerbated if they do get it.”

The police, the first responders, it’s been shown they have a low rate of catching COVID, and therefore, they’re not spreading COVID. I think we would get that message out, if that’s a concern for you, especially high-risk populations that COVID could affect you very negatively. If you have certain diseases, that’s something we would absolutely advocate, that if it’s right for you and you get the advice of a doctor, that you get that vaccine. But in terms of trying to protect the public from people that really aren’t catching it and are less worried about the symptoms affecting them, it doesn’t hold straight, and it still goes to the option to choose for yourself.

Kent: I see. Now, throughout this pandemic, we’ve heard that the Supreme Court has upheld mandatory vaccines, via Jacobson versus Massachusetts. Now, is it your goal to overturn that decision, or is this about something different?

Luiz: Yes, so Jacobson is a 1905 case, and it doesn’t even really establish the different levels of review. As far as our clients, it’s a fundamental right for the religious liberty aspect, to decide whether or not you want to take the vaccine and participate in that program, which is voluntary. It occupies the whole — the federal government did it in the statute, the emergency use. When Congress established that statute, it didn’t involve the county and the state governments around the country. It did not do so. It completely occupied that area of law through the statute and the plain language. There’s a thing about, in canons of construction, if the plain language is clear — and it’s not vague and ambiguous, it’s very clear — it applies that the federal government, that’s their job to regulate that entire area. That’s the basic thing of federal preemption.

So the case that is closest to this is not Jacobson. It’s actually the cases — there’s two federal cases that involve, it would be Rumsfeld I and Rumsfeld II, and involve the anthrax vaccination program. There was a point where the military was actually ordered — not that long ago, a little over a decade ago — they were ordered to take the anthrax vaccine, and some who actually did not want to participate in the program and objected, they were actually dishonorably discharged. Later, that was reversed and they were honorably discharged, because it was established through those two court cases that the vaccine program under emergency use cannot be mandated. It has to be voluntary at all times.

Jacobson is in opposite and not close to the facts of our cases. Actually, Rumsfeld I and II, that is on point for us because that also involves an experimental drug in approval under the Emergency Use Authorization Act. Also because it involves a fundamental right, it requires strict scrutiny to show that there’s no lesser restrictive means in order to accomplish the purposes of what the government wants to do.

Because our clients are not the ones getting sick and they have the lowest infection rates, the government cannot say there’s no least restrictive way to maintain safety for the community, because it’s been already accomplished for the last year and a half. There was no vaccine. Our clients were going to work every day. They were essential workers. These 2,000 heroes were going to work and they were not getting sick, and they were protecting the community.

Kent: What should the government do, then, to restore liberty, but also restore safety?

Luiz: It’s very simple: Just allow the individual to choose. We don’t regulate how much food people will consume if they’re going to have diabetes or something like that. We don’t regulate for the heart patients. It’s like the government is just regulating personal, autonomous healthcare decisions. For the vaccine, this has always been just a choice that people would make, whether it was a flu vaccine, influenza vaccine, it’s supposed to be an optional program, and there’s no reason to change that because the people that we represent are not the ones that are getting sick, and not infecting the community, and they’re not a threat to the community.

They’re actually just doing their job, and they’ve been very successful in having the lowest infection rates. There’s no reason to just start regulating private healthcare decisions. Where does that lead? Does it lead to the government regulating other healthcare decisions for other types of illness?

Kent: That brings us to whether this lawsuit indicates some kind of growing dissatisfaction in the community about the governor’s emergency powers. Do you think so?

Luiz: Yes, I think there’s a lot of people that have issue with the governor of this state and other states just imposing their will on the people. Even the mayor of Honolulu, he represented, when he was running to be mayor, he said he thought that the COVID restrictions were too harsh and that it was really hurting our economy and that he was going to come in and advocate for change and really help move us forward. It’s like, we’re actually going backwards, and it’s getting a lot worse. It’s like those representations, it’s terrible.

That’s what he ran on, and that’s what he was elected to do, to bring change to Honolulu, a positive change to make our economy grow again. After all that everyone suffered for that year and a half, and it’s like now we’re just going — it’s like, it was one step forward, we started to open up, and now it’s two steps back.

Kent: I see. I wish we had more time to talk about this, but we’ll be following your case with interest. Thanks so much, Shawn and Kristin, for joining me and explaining this issue.

Cocarro: Thank you. Thank you for having us.

Luiz: Thank you very much.

Kent: Thanks so much everyone for watching. This is “Hawaii Together.” We’ll see you next week, or in two weeks.

 

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