Food and Drug Administration Commissioner Marty Makary got his political appointment, which may be ending soon, in large part by publicly criticizing COVID-19 policies by the Biden administration, blue states and employers, especially vaccine mandates and refusal to recognize natural immunity.

Plaintiffs still in litigation against COVID mandates and policies are finally seeing limited results five years after Makary made his name beyond diagnosing the systemic ills of American healthcare, albeit without compensation for the harm they suffered.

A federal judge greenlit the Equal Employment Opportunity Commission's lawsuit against an Illinois hospital last week for firing an administrative employee who sought a medical exemption from its COVID vaccine mandate after she got a "severe allergic reaction" to the first mRNA dose, saying it plausibly violated the Americans With Disabilities Act.

Silver Cross Hospital tried to turn back the clock on the ADA, amended in 2008 to broaden the definition of "disability" to include "transitory and minor" impairments such as the hives, itching and "swollen tongue" that sent insurance verifier Debra Phillips to the emergency room and cost her two weeks of work after her jab, U.S. District Judge Mary Rowland ruled.

Rowland was not impressed by Silver Cross's argument that Phillips, whose doctor backed her request, didn't seek medical attention until the day after the jab, only missed two weeks of work and returned to work with no "medical restrictions," so she didn't suffer enough to qualify as disabled and her "major life activities" were not "substantially limited."

"Here, the EEOC pleads that Phillips’ condition was 'constant for months, and then episodic for several months,'" wrote Rowland, nominated by first-term President Trump under a deal with her Democratic senators, while emphasizing EEOC still must substantiate the allegations with "evidence developed through discovery" at a later stage.

It's not even the first time a federal judge has ruled against Silver Cross on the issue, Rowland said, noting a 2024 ruling against the hospital for conditionally hiring, then firing traveling nurse Kristen Petrus because she asked for an exemption to its COVID vaccine mandate based on a prior allergic reaction to a flu vaccine. Petrus also cited her doctor's recommendation.

Rowland's denial of the hospital's motion to dismiss was spotted by vaccine injury lawyer Aaron Siri and drew wider attention from conservative actor Rob Schneider and onetime Democratic presidential candidate funder Steve Kirsch, founder of the Vaccine Safety Research Foundation. 

EEOC brought two cases against Silver Cross last summer, the other for denying a lab employee's religious accommodation request for a COVID vaccine exemption, saying the hospital could have accommodated both employees "without undue hardship." 

The Supreme Court raised the bar for denying workplace religious accommodations in 2023.

The Title VII religious discrimination lawsuit may be nearing an end, with EEOC and Silver Cross last week asking U.S. District Judge Matthew Kennelly to schedule a settlement conference and "stay all discovery and discovery deadlines" pending its completion. The President Clinton nominee had yet to issue any substantive rulings on the matter. 

EEOC sued the hospital yet again in March for a certified surgical technician fired by Silver Cross for seeking a COVID vaccine exemption on religious grounds. The hospital didn't answer Just the News queries.

Delete data from 'spyware,' don't do it again for 5 years

A public interest law firm finally dismissed its class-action lawsuit against President Biden's COVID vaccine mandate for federal workers, citing the Trump administration's ban on COVID vaccination status bias, and settled with Massachusetts for its COVID tracking "spyware," enabled by Google, that's alleged to have covertly infected a million Android phones in the Bay State.

The New Civil Liberties Alliance says it received a "tacit government apology" for the federal workers in its lawsuit, which kept going after Biden withdrew his executive order mandating a jab that was rushed into full approval over the objections of his own FDA's top vaccine officials, but received no attorney's fees or damages for plaintiffs.

The full 5th U.S. Circuit Court of Appeals blocked the executive order three years ago in a different case, by Feds for Medical Freedom. But U.S. District Judge Jeffrey Brown refused to lift the pause he imposed on NCLA's case, citing the government's petition for review by the Supreme Court, mocked by NCLA as "inchoate and as yet unrealized."

The docket shows no movement in the case between Brown's order and NCLA's voluntary dismissal more than two-and-a-half years later.

The class representatives argued that their natural immunity from infection stopped the spread "as well or better" than COVID vaccines and that the mandate violated the emergency use authorization statute since the vaccines hadn't received full FDA approval.

"To prevent the rights violations in this case from recurring, Congress must revisit the Emergency Use Authorization law and clarify that there is a private cause of action for any person who is being compelled to submit to an EUA vaccination," NCLA President Mark Chenoweth said.

NCLA told Just the News the class-action settlement over MassNotify, which allegedly reinstalled itself on Android phones if users found and deleted it, is a deterrent against similar Fourth and Fifth amendment violations by governments, despite also providing no compensation or even a permanent ban on Massachusetts installing spyware.

The settlement took more than two years after a federal judge declined to fully dismiss the suit, NCLA senior litigation counsel Peggy Little wrote in an email, "due to the complexity of ensuring complete deletion of the data throughout the Massachusetts system." 

She emphasized it comes with "post settlement verification," enforceable in state court.

Massachusetts committed to expunge tracking data "everywhere it was stored […] a costly and arduous process[,] and that alone should deter other government actors from such arbitrary and unconstitutional data seizure," she said. 

Then-Gov. Charlie Baker, a liberal Republican, repeatedly emphasized the app was "voluntary" and "anonymous" when the state rolled it out in June 2021 after piloting it with localities for two months, developed "in conjunction" with Apple and Google. A spokesperson for the state "COVID-19 Command Center" told the Boston Globe that 7% of its residents downloaded the app in its first two days.

The phones of MassNotify users "exchange random codes using Bluetooth" when near each other, "with no location tracking or exchange of personal information," the state said. Users who test positive for COVID get a text offering to share their result with other users who were near them, without identifying the sickie.

NCLA alleged the app actually started tracking and recording Android users' movements and personal contacts without notice or consent three months earlier, in March 2021, and kept going for 26 months.

Four days after Baker announced the app's availability, Google-focused tech site 9to5Google reported Android users were flooding comment boards with complaints about automatic installations. The state used the "Exposure Notifications Express" system developed by Apple and Google to trigger notifications, with no visible app, the site reported.

Google denied the system was active by default, saying exposure notifications "are enabled only if a user proactively turns it on," but acknowledged it was automatically installed from the Google Play Store "so users don’t have to download a separate app."

Massachusetts Department of Public Health Commissioner Robert Goldstein, the defendant who inherited the case from predecessor Margret Cooke, denied the agency worked with Google around June 2021 to forcibly and secretly install the app, according to the settlement agreement.

"The Parties agree and acknowledge that, as of May 2023, the COVID Exposure Notification Setting is no longer operational," but Goldstein denies its distribution and operation "was unlawful in any way," says the agreement.

It requires Massachusetts to delete all known data from the exposure notification setting within 90 days and bans "any Prohibited Data-Collecting Application without the device owner’s permission, except in accordance with the law," for five years. The state must notify NCLA 30 days ahead of installation if it wants to break those conditions. 

A spokesperson for the U.S. Department of Justice told Just the News it was "running this down" when asked whether it was investigating Massachusetts over MassNotify, but did not ultimately answer the question.