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As coronavirus case rates continue to climb in North Carolina, some employees of six major hospital groups in the state are pushing back against the employers requiring the COVID-19 vaccine for all employees.
“I am against the mandate because I believe everyone has a right to choose what goes into their bodies,” said Bridget Stophel Smith, a respiratory therapist with Cone Health.
Though she has received the COVID-19 vaccine and is in favor of wearing personal protective equipment in a health care setting, Smith said she has concerns over employers mandating vaccines that don’t yet have approval from the U.S. Food and Drug Administration.
The N.C. Healthcare Association, the state’s hospital association, announced support for COVID-19 vaccine requirements for health care employees in late July.
Cone Health, Novant Health, Wake Forest Baptist Health, Atrium Health, Duke Health and UNC Health groups announced the plans at the end of last month, though deadlines for when employees must be fully vaccinated vary among employers.
Some employees are pushing back against the mandate by organizing protests and gathering on social media platforms like Facebook and MeWe, a platform with a light approach to content moderation that has made it popular among conservative groups as an alternative to Facebook.
One private Facebook group with nearly 3,500 members — many of whom self-identify as health care workers, from registered nurses to EMTs — created more than 1,000 posts in the last month alone. Some group members are organizing a series of protests across the state, urging fellow protesters to contact elected representatives or expressing concerns around topics such as getting medical or religious exemptions.
Following the announcements, employees who oppose the mandate began protesting, citing reasons that include the right to choose and religious freedom.
At a protest Tuesday morning outside Wake Forest Baptist Hospital in Winston-Salem, James Agee of Winston-Salem said he was there to “protest medical tyranny” that requires “gene modification therapy.” He said he thinks the shots being administered are “not a vaccine.”
Another protester, who identified as a nurse but declined to give her name for fear of retribution, said she worried about the adverse reactions to the shot. She said she’d only feel safe to take the vaccine if there was a trial period of “five to six years.”
Like many of her colleagues, Smith felt the vaccine requirement came out of nowhere. “It made me feel unappreciated and caught me off guard,” she said.
Currently, 62% of employees at Cone Health are vaccinated, said Patrick Wright, marketing and communications specialist with Cone Health. The employer has hosted town halls and is offering 25 employee vaccine clinics.
Cone Employees have until Oct. 8 to prove vaccination status. Religious and medical exemptions are still being reviewed and finalized on an individual basis.
“We value our team members’ rights to voice their concerns,” Wright said in a statement. “At the same time, we remain steadfast in our decision to require the COVID-19 vaccine because keeping our patients and communities safe at all times is at the core of our values and our commitments.”
Duke Health requires all team members, regardless of work location, to prove that they are fully vaccinated by Sept. 21 and to apply for religious and medical exemptions by Sept. 7, an internal message to employees from hospital executives said. Currently, staff members are more than 75% vaccinated, said Sarah Avery, director of Duke Health News Office.
“Our highest objective is the health of our patients, their loved ones, our employees and our community, and this is what motivated the decision to require staff to receive COVID vaccinations,” said a statement from Dr. Thomas Owens, senior vice president of Duke University Health System.
“Most of our staff members have already been vaccinated, and we are confident that the remainder will comply with the new requirement.”
Employees of Duke Health who aren’t fully vaccinated by the deadline will receive a final written warning and face progressive administrative action, potentially leading to termination of employment, the message said.
The announcements from health care employers came amid a series of vaccine mandates from other private and public sector employers, among which the state of North Carolina is requiring vaccine verification of state employees, Gov. Roy Cooper announced July 29.
State employees who are not vaccinated are required to wear a mask and get tested at least once a week, a press release said, citing the state’s upswing in COVID-19 cases and hospitalizations driven by unvaccinated populations.
The U.S. has a long history of employer-mandated vaccines.
Jacobson v. Massachusetts, a U.S. Supreme Court case from 1905, established vaccine mandates as constitutional. Though no one can be physically forced to receive a vaccination, individuals can incur a penalty for not getting one.
Today, health care employers can and do require that employees receive a number of vaccines, including those for influenza and chickenpox.
However, current mandates represent the first time that vaccines authorized through an emergency use authorization by the U.S. Food and Drug Administration have been required for employees. The FDA has said the emergency use authorization process, established in 2004, is as rigorous as that of the traditional biologics license applications other vaccines have received.
As a result, the U.S. Supreme Court has not yet interpreted the legality of a vaccine mandated through an emergency use authorization.
In June, a federal judge in Texas dismissed a court case brought by the employees of the Houston Methodist Hospital who challenged their employer’s vaccine mandate.
The judge said the claim from lead plaintiff and nurse Jennifer Bridges that the vaccines are experimental and dangerous is false and irrelevant, according to the order of dismissal.
Though they are not obligated to, more often than not, judges will often follow the rulings of other jurisdictions, said Jeffrey Hirsch, a professor specializing in labor and employment law at UNC Chapel Hill.
Until these cases are litigated in court, the legality of the mandates remains unclear.
The ambiguity centers on an emergency use authorization provision to the federal Food, Drug and Cosmetic Act in 2004, which states that each 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, and of the alternatives to the product that are available and of their benefits and risks.”
In part, the ambiguity is due to “consequences” possibly being interpreted widely, to mean simply the health consequences of refusing a vaccine or ramifications related to work and access to education.
The idea that this indirect language could limit an employer is a stretch, Hirsch said.
One exception could involve what’s called a “public policy exception,” which essentially means that employees can sue if their employers fire them for refusing to break a law. In this case, Hirsch said, this exception raises questions around whether terminating an employee for refusing an emergency use authorization vaccination undermines that provision.
According to Ifeoma Ajunwa, professor of law at UNC Chapel Hill and a faculty member at UNC Kenan-Flagler Business School, lawsuits brought by employees on the basis of discrimination could be successful.
An employer must accommodate an employee with a disability or medical condition under the American with Disabilities Act, as well as a sincerely held religious belief in accordance with Title VII of the Civil Rights Act, unless accommodating either of those poses an undue burden to the employer.
Some have raised the question as to what role hospitals requiring other vaccines could play in religious exemptions. If an employee has previously been vaccinated but is now balking at getting the COVID-19 vaccine, that could be a factor in the court determining whether the employee’s belief is sincere, Ajunwa said.
The situations must be contextualized for each workplace, she said. For instance, because the COVID-19 pandemic is a public health crisis, if someone works in a public-facing role, accommodating a medical or religious exemption could put an undue burden on the employer.
“If it’s not a burden for the employee to continue working from home exclusively, then there could be a good argument that they shouldn’t need to be vaccinated,” Ajunwa said.
Ultimately, she said, employers have a very compelling reason to mandate vaccines — it’s not just an arbitrary request. “Because we do have a pandemic, I think it tends to be pretty difficult for individual employees to prevail.”
Editor’s note: Tony Crider contributed to this report.