It’s Time for a Mandatory State Ordered Covid Vaccine Mandate

It’s Time for a Mandatory State Ordered Covid Vaccine Mandate Jay H Bernstein, Esq. Co-Founder; NJ Bar Association Mass Disaster Response Program 7/20/21 We are in the bottom of the ninth and we are about to lose the game. Delta and possibly even future variants are overwhelming most American states and overwhelming countries even with a higher percentage of vaccinations, like with the United Kingdom. With nearly 50% of the American population fully vaccinated; we must -- as a matter of public policy equity and community public health --finish the race, before we slide back into a catastrophe of endemic proportions. We must have the state, local and federal government issue mandatory Covid 19 Vaccination mandates. We face a never-ending pandemic that is now turning into an unending epidemic. The lives lost, compounded by future exposure of our most cherished group, our children; let alone the slide back to permanent economic failure; demand a course of action of unequaled vision and purpose; mandatory vaccines for all. (with allowable exemptions for medical reasons only; not religious or personal preference exemptions). As called for by eminent groups like the New York State Bar Association (health law section), there must be a mandatory vaccination policy in the United States. The law is crystal clear. The nonpartisan, neutral, Congressional Research Service has completed a recent study, called for by the US Congress; and concretely concluded that every state and municipality have full police powers under the law, to immediately order mandatory vaccinations, --just as it is done for schoolchildren for a myriad of diseases. Statute and case law, and more than 100 years of Supreme Court case law, unalterably support this policy. (See Jacobson v Massachusetts, 197 U.S. 11, 39 (1905). “The states’ general police power to promote public health and safety encompasses authority to mandate vaccinations.” (See “State and Federal Authority to Mandate Covid-19 Vaccinations,” p.2, April 2, 2021, Congressional Research Service, Report R46745). There are variations and questions as to the police power of each level of government to issue a mandate. The 50 states, and each locality, in the interest of protecting the public health, have unequivocal police power to immediately mandate mandatory vaccination policies. This power is fully recognized and unquestioned under state law and federal constitutional law (i.e. child school mandatory vaccinations) (health care workers mandated to receive certain vaccinations as a condition of employment). (Congressional Research Service, Report R46745, p. 2). Unfortunately, the executive branch of the federal government has less of a mandate and legal basis to issue mandatory vaccination orders. Under our federal system the health policy mainly lies with the states. But the US Congress does have the power to mandate vaccinations indirectly based on its enumerated powers in the constitutions Spending and Commerce Clause, in the context of public health. Congress may influence states by making certain federal funds dependent on meeting federal requirements in the public health arena, i.e. vaccinations. Finally, the executive branch power can be expanded. Public health rules empower the Center for Disease Control to set pandemic quarantine rules, which may be expanded in a public emergency. This power, under Section 361 may be expanded to mandatory vaccinations, although the Supreme Court recently derided any agency expansion of powers in areas of grave political and economic consequences, unless directed by Congress. As explained by the Congressional Research Service Report: Certain existing authorities, however, could potentially form the basis of executive action in the context of the COVID-19 pandemic. One such law could be Section 361 of the PHSA. Subsection (a) of this provision, which one court has characterized as “broad [and] flexible,” grants the Secretary of HHS the authority—delegated in part to the Centers for Disease Control and Prevention (CDC)—to make and enforce regulations necessary “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” A broad construction of this authority may permit CDC to issue regulations requiring vaccination in circumstances that would prevent the foreign or interstate transmission of COVID-19.49 ((Congressional Research Service, Report R46745, p. 6). But State Action, Municipal action, and Congressional action are clearly open to allow for immediate mandatory Vaccination policy. Federal action is but a step away. The TIME IS NOW. Each day escalates a limited Pandemic to a permanent life crunching, economically disastrous worldwide, never ending; endemic. America must set the example; mandatory vaccinations for each citizen once the FDA approves the vaccines under non- emergent rules. We are close, it’s the bottom of the ninth; lets not loose; for this is no game. The lives of our Families are at stake, --- and the Future of our Nation… and the World. Jay H Bernstein is an attorney at Kirsch Gelband Stone in NJ. Jay co-founded the NJ Bar Mass Disaster Relief Program in 1996; and serves as a volunteer EMT and Vice President for his local ambulance service. All opinions above are of Jay Bernstein, and do not reflect any organization or group.

Towards a New World-- reaffirming the equal value of every human being to guaranteed job security, healthcare, home, free time and recreation, and healthcare; (as President Roosevelt proposed in a Second Bill of Rights).

Towards a New World

JH Bernstein memorial day May 25th 2020


A new shared humanity, a new way of looking at the world,
should grow from the experience of the worldwide pandemic of
the Covid- 19 virus.

We, all of humanity, every nation, every ethnic and religious
group, every color and every race, shared and suffered under this
common enemy; reaffirming the equal value of every human
being on every point of this earth.

This basic truth, known for millennia, has now, I believe,
entered the conscience of every single human, in every corner of
the planet… we all arise as one Family, are we all fall as one
Family.

The virus knows no social-economic Barrier or National border,
the virus does not differentiate between rich and poor, Black or
white, first world or third world, but attacks each human being
relentlessly; even more so the poor and sick and old… who have
not the benefit of good healthcare, nor the fortitude and fortune
to have proper nutrition, proper exercise, or a living viable
sufficient livelihood.

Exposure of any one group on this planet, threatens all, thus
driving home the simple truth, and shared principle, that all
humanity is one family on one shared planet Earth.


I. A necessary reordering of economic rights

In the human family, a child is not fired nor furloughed, nor
thrown out into the streets, nor ever denied the basic human
rights of shelter, substance and food, Health care and love.
Likewise, no worker shall ever be fired, terminated, furloughed;
or left without an income to support and feed and shelter and
provide healthcare to one’s family. Every human being is
entitled to a living wage, so as to provide a decent and good life
to one’s family.



II. A Full and complete renunciation of all forms of warfare,
violence, and intimidation.

Warfare is incongruous with the basic human right to life and
freedom, and freedom from fear and violence; it is a complete
waste of resources, and is a breeding ground for disease and
plague and pandemic. Warfare has no place in the modern
world, period. The complete renunciation of all forms of
warfare, civil War, violence and terror must be immediate,
unanimous and world encompassing; inclusive of all weapons of
mass distraction, nuclear, chemical and most of all biological
(disease pathogens). (robust police enforcement and legal and
criminal enforcement must remain, without the unnecessary evil
of standing armies and weapons of Mass warfare. Nations like
Japan and Costa Rica have already abandoned warfare, as
justified under any circumstances; as expressed in their national
constitutions.



III. A shared and robust international and national public
health authority based on the model of the CDC

A shared and robust international and national public
health authority based on the model of the CDC and
World Health Organization, with a vastly increased
abilities to monitor and prevent pandemics and disease.

Is NJ Workers’ Compensation Law Etched in Stone? An argument for updating the 1911 schedule of disabilities with a modern wage-loss system. By Jay H. Bernstein | November 06, 2017 New Jersey Law Journal

Wandering the basement of the Louvre in Paris, I was awed by a polished stone, an eight-foot-high, shining large basalt stele, edged with tiny cuneiform markings, surrounded by a small velvet rope. One of the oldest legal codes stood before me, I had to understand it, touch it. I sat on the floor for an hour, reading the museum-provided translation, of one of the first workers’ compensation codes ever written.

Etched in stone, immovable and unchanging, the Babylonian code of Hammurabi (1780 B.C.E.) lasted nearly a millennium.

Must New Jersey’s workers’ compensation (circa 1911) code remain etched in stone, stagnant after 100-plus years? Is it time to modernize New Jersey’s workers’ compensation law? To replace the cold insurance corporate talk of “stakeholders” with human beings? To replace the schedules or list of injured body parts with a modern system of wage loss?

Hammurabi listed body parts and their relative worth (lines 198 and 199 of the code: one eye equals one gold MINA; one tooth equals one-third of a gold MINA; etc.). The New Jersey workers’ compensation statute does no better, even listing the value of one tooth at “four weeks (of pay) for each tooth lost.” The New Jersey statute echoes Hammurabi, stating: “For the loss of vision of an eye, 200 weeks” (of payments). (N.J.S.A. 34:15–12 schedule of payments; line 16, line 18).

Somewhere in the bowels of Trenton sits our present statute from 1911, surrounded by a velvet rope. It is time to cut the velvet rope, and modernize the arcane dependence on a completely arbitrary valuation system, a schedule of macabre body parts, unchanged since the time of Hammurabi, 3797 years ago! How do you value the loss of an eye, the loss of a tooth, the loss of a leg? Merely by X-number of weeks of payouts! It was advanced thinking in ancient Babylon, revived by the Kaiser in 1870’s Germany, and imported to America in 1911. But what other laws from ancient Babylon or 19th century Germany do we still depend on?

In 1979, many states in America introduced a simple wage-loss system of workers’ compensation; if a worker loses permanent income due to a major injury, the worker is made whole by a payment of a lost-wage differential, covering all the years of his or her reduction in wages due to the disability. Can it work in New Jersey? It already does!

A working model of the wage-loss system functions today in New Jersey, in our great ports of Elizabeth and Newark. Federal longshoremen, covered under the Longshore and Harbors Worker’ Compensation Act (LHWCA), receive a qualitatively higher and more dependable coverage for injuries than most New Jersey workers. The Longshore act employs a mixed system; a schedule of body parts (arms, hands, fingers, leg, foot, ears) (Section 8C) and a wage-loss component. Under the wage-loss component, an injured worker is entitled topermanent compensation, for accident, injury or occupational illness resulting in a permanent loss of wage/earning capacity; payable up to two-thirds of the employee’s loss of earning capacity. For as long as the worker’s wages are reduced due to the disability, the worker receives worker’s compensation payments. There is no arbitrary cut off as in today’s schedule system, i.e., 200 weeks of payments or 30 weeks of payments and your compensation is completed. For real wage loss there is real compensation; if you return to a job with the same wages or greater wages there is no additional compensation.

For example, if the worker had an average wage of $600 per week, and now a severe back injury reduces him to a new job, earning only $300 a week; the Workers’ Compensation insurance must pay two-thirds of the differential or lost wage. The petitioner lost $300 per week, in lower wages, due to the back injury. The workers’ compensation payout would be two-thirds of $300, or $200, added to the petitioner’s wage of $300 a week. In total, the petitioner would take home $500 per week, for as long as his wages were diminished. In legal parlance, this payout would be termed an “unscheduled” “permanent partial disability” after “MMI” (maximum medical improvement).

The key is that permanent partial disability benefits are payable for as long as the disability continues to affect the worker’s salary and earning capacity.

Plus, the federal Longshore statute, provides immediate access to a doctor of the injured worker’s choice, and immediately commences temporary pay while the worker remains under treatment and out of work. The greater cost, due to the freedom to choose a competent doctor, is more than offset by the reduction in permanent payouts. The elimination of the arbitrary schedule of impairments reduces payouts to relatively minor injuries, measured by the impact on one’s earning ability. Since only the most seriously injured workers return to a lower salary job, the macro-economic cost of the federal Longshore system is less of a burden on employers than the New Jersey current workers’ compensation system. The “wage loss” formula makes sense for all parties, insurance companies and injured workers.

Reform makes sense, a wage replacement formula far exceeds the illogical arbitrary — almost magical — schedule of disabilities, present in the current New Jersey Workers’ Compensation system. It is time to rise out of the Stone Age, to embrace modernity and reform the New Jersey Workers’ Compensation system. Fairness and humanity should be the benchmark of New Jersey law. Proper, fair compensation with competent, efficient medical treatment are the hallmarks of the wage-loss formula enjoyed under federal law, by New Jersey dock and longshore workers. All New Jersey workers are entitled to the benefits of a modern, fair compensation act. Three millennia of Babylonian law is enough. The Hammurabi Code belongs in a museum, not in our modern law.

Bernstein is a Certified Workers’ Compensation Law Attorney with Kirsch, Gelband & Stone in Newark. He is a founding member of the NJSBA Mass Disaster Relief Program, providing pro bono legal aid to disaster, terrorist and hurricane victims, and a licensed EMT.

MOTIONS FOR MEDICAL AND TEMPORARY BENEFITS

VIEW FROM THE BAR

1/6/15         JAY BERNSTEIN

     Over the past decade the Division of Workers Compensation, under the leadership of the current Chief Judge, has increased the focus and raised the importance given to the quick resolution of Motions for Medical and Temporary Benefits (MMT). From the top down, all the Judges of the Compensation court now seriously and fastidiously deal with pending Motions for medical care; a vast change from the past.

     This is not to say the statutory scheme, involving two to sixth month trials for emergency medical care,  is in any way greatly  improved; but the Judicial  attitude and the courts concern and attention to the Motions for Med/temp is across the board excellent. The legal framework is still antiquated, arcane, and mired in delay; but the court does the best it can within a statutory framework as old as the ‘Model T’ (1911 original Workers Comp. N.J. statute).The Motion’s for Medical and Temporary Benefits are no longer regulated to the back burner, but dealt with expeditiously and with utmost concern, by the Division, and the Judges.The change was slow in coming, but has played out over the last 20 years.

     Recently I have been in involved in a MMT trial where the insurance appointed treating physician has testified, reversed his position on the stand, and the Court ordered immediate Medical treatment. Usually the authorized treating doctor “cut off” of treatment is sacrosanct, as the case law holds that the authorized M.D. must be given greater weight than any other doctor.

     But in some cases, the Judge can use case law, logic and common sense to overcome a treating authorized insurance doctor’s arbitrary and capricious cut off of all treatment. The Judge was incensed that we had to drag the authorized surgeon into court, to reveal the paucity of his written report, and have him reverse his position in open court, with untold delay in treatment. The Judge commented that this paradigm is surfacing all too often in the Workers’ Compensation arena.

     A second MMT, which our office filed in December 2014, under the new (2008) statute dealing with Emergent Motions for treatment (N.J.S.A. 34:15-15.3), was assiduously dealt with by two seasoned Judges, hours before the Christmas vacation, and the day after New Year’s, ensuring immediate action, and possibly saving the life of my client. The new law mandates a respondent answer within 5 five days and an emergency hearing be held within 10 days of motion filing.

 The new emergent motion statute specifies the critical nature of the motion, to be filed only if a physician states:

a.              the injured worker is in need of emergent medical care.

b.              the specific nature of the irreparable harm or damage.

c.              that any delay of treatment will result in irreparable harm or damage.

(N.J.S.A. 34:15-15.3)

   Although seldom used, the new statute can be truly a lifesaver in emergent situations. The immediate tackling of my case by the Judge, via tel. conference, immediate judicial action, --effectively cutting thru the red tape of a mega insurance company, and allowing a lifesaving resolution in 12 hours, (well before the statutory 10 days), is a testimony to the creative and effective action of the Judge and the new serious attitude towards Medical Motions, encapsulated by the NJ Division of Workers Compensation.

         Last October, 2013,  I encountered another first: a Judge of Workers Compensation was so incensed at the delay of authorized treatment, that she entered an order Sua Sponte per N.J.A.C. 12:235-3.16(f), to "compel medical treatment within 15 days" of the order. No motion had been filed on this emergent request for humanitarian intervention. The court on its own volition entered the Order for treatment! [“Sua Sponte:  (sooh-uh spahn-tay) adj. Latin for "of one's own will," meaning on one's own volition, usually referring to a judge's order made without a request by any party to the case.”] 

     But of course problems do remain. Recently I have had a client who worked approximately 30 years with the same employer, grievously injured at work, with major surgery and treatment. But the company ran afoul of the law, owed millions for fraud, folded up, and after 27 years of paying Workers Comp. Insurance; failed to even apply for a policy in its last few years of existence. The owner had disappeared, under threat of numerous lawsuits.

     I requested the UEF (uninsured employer’s fund) step in and pay for treatment and temporary pay to keep the petitioner from becoming homeless. Hospital charity care stepped in for the major operation and treatment, but my client suffered with no possible income. The case is still floundering, within the statutory hoops of the UEF, calling for every possible due process protection of the fraudulent owner, before any hope for redress. As the UEF attorney explained to me, no Motion for Med/Temp may be filed against the State of N.J. UEF fund, and furthermore, if such an order was entered, the UEF cannot recognize the order!  Any order for Medical treatment or temporary pay is null and void against this state agency, and cannot be enforced.  (Subchapter 7. Uninsured Employer’s Fund. 12:235-7.1(c); in part states...“no judgment or order for the payment of benefits shall be entered against the UEF.”).

     Only after personal or substituted service is effected against the Corp. officers and owner, ...only after a trial or motion is entered, ...only after same is docketed in the NJ Civil Court, ...only then is possible redress offered. The cost may well be prohibitive, starting at $79 to $179 for a skip trace for corp. officers who have flown the coup, living out of state, plus the cost of publication of substituted service, etc… The cost in time is the real harm to the injured worker and his family who faces sub-par care, limited to hospital ER or clinic, with no income for his family. What does this do to my client? This arcane UEF statutory scheme and policy directly contravenes the legislative policy regarding the provision of treatment to injured workers. This gaping hole in the Workers Compensation statutory scheme should be redressed immediately.

     A first step may be a relaxation of the strict UEF requirements, but in practice I have never seen this done, although the statute directly allows for same: (Subchapter 7. Uninsured Employer’s Fund. 12:235-7.1(d). “The UEF may relax or dispense with requirements under the subchapter where appropriate and with the consent of the judge hearing the case.”). The State Legislature should tackle and reform the UEF process in the case of Motions for Medical and Temporary benefits and acute medical need.

Jay H. Bernstein is an associate with Kirsch, Gelband, and Stone, PC in Newark N.J.  Mr. Bernstein is a Certified Workers’ Compensation Law Attorney, with 24 years of practice in the Division of Workers’ Compensation.  He is a founding member of the NJSBA Mass Disaster Relief Program and organized pro bono representation of Hurricane Sandy Victims, and 9/11 families.

In France and Europe, workers are offered vast protections from being FIRED, and the law in France lists efforts a company must make to find another position or keep on workers....unless serious economic failure is imminent...