Working With Vaccines

By Christina Haley O'Neal, posted Apr 2, 2021
Andrew McVey, a labor and employment attorney with Murchison, Taylor & Gibson PLLC, said clients are asking about whether they can require employees to get the COVID-19 vaccine. (Photo by Michael Cline Spencer)
As COVID-19 vaccines are becoming more widely available across the nation, employers in the region are starting to ask questions about having a vaccination requirement at the workplace.
Local lawyers say employers can require their employees to get the COVID-19 vaccine and are now giving out legal advice to clients on the topic.
“As you could imagine, the question that we would get is: ‘Can we require that our employees submit to a vaccination?’ And oftentimes, we get the inquiry, ‘Should we require employees to submit to it?’ And those perhaps really are two different inquiries,” said Andrew McVey, a labor and employment attorney with Murchison, Taylor & Gibson PLLC.
Still, McVey said many area employers he is working with had not made it a requirement to remain on the job.
More than 4.3 million doses of the COVID-19 vaccine were administered between Dec. 14 and March 24 in North Carolina, according to data released by the N.C. Department of Health and Human Services. And vaccination appointments will open to all adults come April 7, according to an announcement by Gov. Roy Cooper in late March.
On Dec. 16, the U.S. Equal Employment Opportunity Commission (EEOC) updated its national guidance concerning handling vaccinations. With vaccines now available, the EEOC has acknowledged some questions many employers are now raising about the laws.
Previous to the vaccines rolling out, legal issues around COVID-19 were mainly about whether or not employers could make employees submit to testing and temperature checks and other screenings at the door, with the EEOC offering guidance.
Only in recent months have some clients approached legal experts about the COVID-19 vaccine issue.
Will Oden, a labor and employment attorney with Ward and Smith PA, said his firm has a COVID-19 task force, established at the beginning of the pandemic last year, that is now working more on the law surrounding COVID-19 vaccines. The firm also has a website for some COVID-19 legal information. The firm is putting together its Annual Employment Law Symposium, which will be held virtually May 7, with a topic on COVID-related issues.
“Really, the best thing to do is, if [employers] have any questions, is to speak directly with your employment-law counsel. Because so much of this is fact-specific in terms of what route to take,” Oden said.
McVey said he expects more questions to come in as the COVID-19 vaccines become more available.
“As a general matter, the EEOC tends to be really protective of folks when it comes to their medical conditions, their privacy, and the like,” McVey said. “As a result of COVID-19, I wouldn’t go so far as to say the agency has pivoted in the other direction, but I think the agency is quite mindful that we are in the midst of a pandemic and there are health-related concerns in the workplace that we have never had before and hopefully will never have again.”
Much of the requirements around this guidance from the EEOC are consistent with job necessity, he said. It is also within reasonable accommodation under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act, he said.
Some groups employment lawyers face on this issue, include those not medically able to receive the vaccination. Another group, McVey said, are the people who invoke a deeply held religious belief that is opposed to vaccinations in general.
“Bottom line is: yes, employers can require vaccinations of their employees, as long as the companies provide reasonable accommodations to employees with disabilities and sincerely held religious beliefs,” Oden said.
“Secular beliefs and beliefs about the medical efficacy of the vaccine itself is not going to be enough to exclude the requirement if the employer places the requirement on the employee to get the vaccine.”
The issue is somewhat similar to getting the flu vaccination; however, the difference is that with the COVID-19 vaccine, what is known about the vaccines is much more limited with the global rush to push out the vaccines as quickly as possible.
If a disability exists, Oden advised that with the ADA laws, there needs to be interactive discussions between the employer and the employee about whether there is a reasonable accommodation that can be provided to an employee.
“Sometimes the accommodation can’t be made, but the conversation still needs to happen,” Oden said.
Most employers, however, are going to great lengths to ensure that employees understand what is expected of them, and some are getting creative, going as far as offering incentives, paid time off, and other benefits to get the vaccine, he said.
Wilmington Health officials said that the medical group has no policy in place for requiring COVID-19 vaccinations. The vaccine is encouraged but not required among its employees. It does, however, offer a financial incentive to its employees after getting the vaccine, paid to the employees following the second dose.
Paul Kamitsuka, infectious disease physician at Wilmington Health and chief epidemiologist at NHRMC, said, however, that the COVID vaccination of the vast majority of the population “is the only means by which we will end the pandemic, save lives, and return to normal life. Nothing is currently more important to protect the public health. We urge everyone to be vaccinated as soon as possible.”
On declination forms for the COVID-19 vaccine, Oden said, “I think it’s fair to say we’re taking each situation on a case-by-case basis, depending on the particular employer’s culture and how they want to handle things, while trying to make sure they’re following the law.”
Aside from any issues with a disability or sincerely held religious beliefs, employers do have the right to fire individuals should they refuse to get the vaccine, Oden said.
North Carolina’s “at-will” employment is generally the rule, which means an employee can be terminated for any reason or no reason at all, as long as the reason doesn’t violate public policy, such as the protected categories under Title VII of the Civil Rights Act and the disability requirements under ADA, Oden said. Although, there are other exceptions to the at-will doctrine, he said.
“I have not seen adverse action taken yet against anyone who has not been vaccinated because some folks have been able to get the vaccine and others have not. And so, there is certainly a sense that we are taking things day by day,” Oden said.
The landscape on the topic is fluid at this point, the lawyers said, and can change on a client basis.
“If employers want their employees to get vaccinated, then the employers need to be very careful about how they handle the information, and it needs to be available on a need-to-know basis,” McVey said.
Once the vaccines become more readily available, both Oden and McVey said they believe that actions an employer will take will likely depend on job necessity and include an overall business decision.
An example of that necessity may be in situations such as the restaurant industry, where there’s closeness with the employees and the general public.
Local restaurateur Ash Aziz said the vaccinations are giving many in the industry peace of mind.
While vaccinations are not required, they are encouraged among his employees, and some employees are getting their vaccines, Aziz said. There are about 70 employees at his restaurants.
“It’s a dialogue between us. But it does not matter, vaccine or not, we still have protocols. We have masks, sanitization stations, and we’re being extra careful as a group,” Aziz said. “In our point of view, we cannot force it on our guests, we cannot force it on our employees. And that’s basically our philosophy. But we encourage them, and we connect our employees where to go [to get vaccinated].”
For the restaurant business, he said, vaccines are another tool to get the industry back to normal.
“I think it’s the right thing to do because we are in the service industry. It’s hard to do social distancing in the restaurant industry,” Aziz said. “You can try. But a restaurant kitchen is not really designed that way. Even in a dining room … people have to get up; they have to eat, and they have to use the restroom.”
Sometime this spring Murchison, Taylor & Gibson PLLC plans to pull together a seminar on these issues, of which the vaccination topic will be brought up across the firm to discuss the legal concerns.
“This is, like everything else, it is a really unusual time, and we’re having to react to unprecedented inquiries that are being driven by this pandemic,” McVey said. “The sorts of questions that we have been drawing are like nothing we have seen before.”
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