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As soon as COVID-19 vaccines became available, Christina Skiouris, who qualified as a member of Group 2, began researching how she could get one.
“For once, it was good to be older,” Skiouris, co-owner and manager of the Charlotte restaurant Open Kitchen, said.
As some members of her staff began to get vaccinated, she learned that others were hesitant to receive a shot.
Employers like Skiouris face difficult questions about whether to require vaccination of employees, and the legalities of these tough choices are not yet clear, according to several legal scholars in the state.
Legal ambiguity creates confusion
Mandatory vaccination by public and private employers has a long legal history in the United States. Many school systems require students to be vaccinated for infectious diseases such as measles and mumps, and health care employers routinely require annual flu vaccines.
The 1905 U.S. Supreme Court case Jacobson v. Massachusetts established the constitutionality of vaccine mandates but held that no individual could be physically forced to receive a vaccination. However, an individual who refused vaccination was subject to consequences of such a decision — a $5 fine in that case.
But the new COVID-19 vaccines in the U.S. differ from traditional vaccines, both in science and law.
The three COVID-19 vaccines currently in use in the United States are authorized by the Food and Drug Administration (FDA) through an emergency use authorization (EUA), a special process established in 2004 to allow expedited approval of therapeutics in response to an emergency.
An EUA differs from a traditional biologics license application (BLA), because it allows developers to use an interim analysis of clinical trial data rather than wait for the clinical trial to complete.
The emergency use authorization process for COVID-19 vaccines is just as rigorous as a BLA, according to the FDA, and the clinical trial data must show that the vaccine is effective and that the benefits of approval outweigh any known or unknown potential risks.
No vaccine authorized through an EUA has been mandated before, and no court has ever interpreted the legality of mandating a vaccine that has not yet received full BLA approval. Without any rulings on the law, the language of the federal law that created the EUA is open to interpretation, said Jeffery Hirsch, professor of labor and employment law at UNC Chapel Hill.
“The extent I’m clear about any of this is that anybody who says this guidance is clear is wrong,” Hirsch said. “I’ve gotten, I think, more calls on this than just about anything since I’ve ever been a professor, which shows that it’s new and confusing and a real struggle.”
Some legal experts interpret the Equal Employment Opportunity Commission’s guidelines on vaccinations and guidance from the Department of Justice to support the legality of vaccine mandates. Like other vaccines, EUA vaccine guidance includes exceptions for those who are medically disabled or who claim exemption due to sincerely held religious beliefs.
Other attorneys interpret the ambiguity to mean that the EUA prohibits vaccine mandates by employers.
The ambiguity hinges on a section of the federal statute that created the EUA, which states that an individual must be informed “of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product.”
That line says that no one can be forced to take a vaccine that is approved under EUA, but according to Hirsch, there is a lot of ambiguity about its application to employer mandates.
“It isn’t clear exactly who it’s talking to here or what exact ‘consequences’ it refers to,” said Hirsch.
For example, the consequences could be narrowly interpreted to be only the health consequences of refusing vaccination, or it could be broadly interpreted to mean potential loss of employment, according to an analysis by Harvard law professor Dorit Reiss.
“The statute certainly doesn’t explicitly say anything about third-party employers … so the impact and scope of the statute itself is kind of an open question,” Hirsh said.
North Carolina courts have traditionally favored at-will employment laws and sided with employers over employees in lawsuits, Hirsh said, though public employees generally have more protections than employees of private businesses.
Diane Juffras, professor at the School of Government at UNC Chapel Hill, wrote that these vaccines, even as authorized by the EUA, can be mandated by public and private employers.
The statute, Juffras wrote, means that no one can physically force someone to take a vaccine. “But that doesn’t prohibit an employer from requiring vaccination against COVID-19 as a condition of employment. It doesn’t prevent discipline or even discharge as a consequence of refusing to be vaccinated against COVID-19.”
State agencies differ on interpretations
Despite the ambiguity, some North Carolina agencies interpret the law to mean they cannot require public employees to get the vaccine.
“We cannot do this as it is prohibited under federal law. Until the federal vaccine is fully approved by FDA, states cannot require a vaccination,” said Blair Rhoades, N.C. Department of Public Instruction communications director. “The emergency approval that states have been given up to this point doesn’t qualify as ‘full approval.’”
Under N.C. Department of Labor guidelines, the statute “do[es] not prohibit an employer from requiring an employee to be vaccinated against COVID-19 as a condition of employment. In addition, it does not prevent discipline or even discharge by an employer as a consequence of refusing to be vaccinated against COVID-19.”
While the state has no plan to require vaccination, “it is possible that some employers or schools will require vaccines for their employees or students,” said Catie Armstrong, N.C. Department of Health and Human Services press assistant.
Laura Brewer, N.C. Department of Justice communications director, declined to comment on the question “as it may be part of future litigation that our office will be involved with.”
A carrot or a stick?
Given the ambiguity of the language in the EUA, employers may choose incentivization over punitive measures.
“If I were a really risk-averse employer, I might try to use a carrot rather than a stick,” Hirsch said. “Because there is a potential claim there if somebody wanted to push it. … And if it did go to court, I wouldn’t bet a dime either way on what a court would do with it.”
For employers who do not want to enact a vaccine mandate, incentive strategies can help convince employees who remain undecided.
Some restaurants and hotels are offering incentives like a $100 stipend or paid time off for employees who show they have been vaccinated, Lynn Minges, president of the N.C. Restaurant and Lodging Association, said. Many are looking forward to advertising a highly vaccinated work staff to entice customers, she said.
Though an incentive structure may provide protection from legal fears, Peter Ubel, a physician and behavioral scientist at Duke University, said any incentives need to be well thought out before implementation.
“Aside from any question of legal fairness, there are also psychological perceptions of ethical fairness. That perception is going to be very important for any strategy to be accepted by people,” he said.
For example, if an incentive program only rewards employees who initially decline vaccination, that might cause more people to delay in order to receive the incentive.
In other cases, the incentive might not be strong enough to sway those who are very hesitant against vaccination, meaning the employer could lose a significant amount of money for little benefit.
“An incentive structure could get very expensive or even backfire in some cases,” Ubel said. “Context really matters. Different people are hesitant for different reasons. A system that works here might not work there. It’s all very difficult to predict.”
A national incentive program by Krispy Kreme offering a doughnut daily to anyone who shows proof of vaccination created controversy last week, prompting some medical professionals to question the sweet reward. The company’s CEO, Mike Tattersfield, defended the move in an interview with Yahoo Finance. “We’re a sweet treat company, [and] if folks don’t want to visit a doughnut shop, they don’t have to,” he said in the interview.
For some populations, hearing from other vaccinated individuals may be the most powerful motivation. Ryan Fehrman, executive director of Families Moving Forward, a Durham shelter for families experiencing homelessness, said that a mixture of incentives and testimonials from shelter residents who have already been vaccinated may convince those who are hesitant.
A personal positive experience is the best way to encourage hesitant people to get vaccinated, Ferhman said. “I think those conversations will be more impactful than any testimonial that we can provide from an outside expert or resource.”
Respecting individual perspectives is critical for Fehrman.“I think that all freedoms have some limits, but I also respect folks’ freedom to make a personal choice about whether they see this vaccine as being in their best interest or not,” he said.
Skiouris of Open Kitchen said that after she and several other employees were vaccinated and showed others that it was safe, some initially hesitant employees decided to receive vaccines.
“People in workplaces talk, and as more people got it, others got on board,” she said.
Skiouris said she chose not to implement any incentives or mandates at Open Kitchen. Even for those who she believes may never trust the vaccine, she said as long as they will wear masks and follow safety protocols, she wants to respect what they believe.
Can employees ask for voluntary submission of a vaccine card, then place a sticker on the door or cubicle of am employee do show who is or is not vaccinated? I feel this is a violation of privacy but may be legal.
As an employer of a small business, this information was very helpful. I worked at the school (institute) of government many years ago. Lots of awesome folks there. Thank you!