Can employers require, ask about COVID-19 vaccination status? Experts say ‘yes.’

Published 12:10 am Sunday, June 6, 2021

By Natalie Anderson
natalie.anderson@salisburypost.com

SALISBURY — Amid a gradual return to pre-pandemic life, frequent arguments for why people can’t ask about another’s vaccination status aren’t what they seem.

While the federal Health Insurance Portability and Accountability Act, or HIPAA, is often cited as a reason to oppose vaccine mandates due to privacy reasons, experts say it does not apply outside of health care providers, insurers and health-related businesses.

HIPAA was enacted in 1996 and requires health care providers and health insurers to keep patients’ information private and secure. Several additions have been made to the law since 1996, including national standards for security to protect electronic health information and increased penalties for HIPAA violations.

Jill Moore, associate professor of public law and government at the UNC School of Government, said HIPAA extends to “covered entities,” which includes health care providers and health insurers along with “business associates,” which perform specific services for covered entities. Moore said she believes many people cite it as a short-hand way of expressing certain medical information should be confidential.

“I would expect that many people share and respect that view, but as a legal matter, HIPAA is a specific law that applies only to covered entities and their business associates,” she said.

When it comes to whether businesses and employers can inquire about or require COVID-19 vaccinations, those questions are answered by employment laws. In short, Diane Juffras, a professor of public law and government at the UNC School of Government, says, “Yes, they can for the most part.”

Last month, the U.S. Equal Employment Opportunity Commission updated its guidance to reflect that employers can require a vaccination before returning to the office. The EEOC enforces federal laws that make illegal any discrimination based on race, religion, age and other factors.

However, vaccine mandates have to abide by the Americans with Disabilities Act and Civil Rights Act, which requires accommodations for those who refuse a vaccination due to a disability or religious belief, for example. Accommodations, Juffras says, can include requiring unvaccinated employees to wear a face mask or socially distance from others.

“Nothing prohibits a North Carolina public employer from requiring some or all of its employees to be vaccinated against particular illnesses, including COVID-19,” Juffras said. “So long as a vaccine has been authorized for use by the FDA, an employer may require all of its employees to be vaccinated as a condition of employment, subject only to medical exceptions required by the ADA and religious exceptions required by Title VII of the Civil Rights Act of 1964.”

Locally, Livingstone College is the only school to date to require vaccinations for the fall semester. Novant Health is not requiring vaccinations for its employees at this time, though it has a goal of vaccinating 80% of staff members. In April, that rate hovered around 64% and remains the same as of now, spokesperson Robin Baltimore told the Post.

Of nearly two dozen responses to a survey published by the Post on Friday, approximately half expressed they were in OK with employers requiring or asking about vaccination status.

Granite Quarry resident Judith Fowler said barring a medical exemption hospitals schools and companies should be allowed to require them.

“With all of the variants still rising and the inability to achieve a suitable vaccination rate, places with large numbers of participants such as these places will endanger the health of those who cannot medically be vaccinated and those who may be vulnerable for whatever reason,” Fowler said. “It violates no HIPAA laws, and in order to keep others safe and to plan events, it is vital to know who will protect others from the virus.”

Salisbury resident Howard Douglas said he opposed a requirement for COVID-19 vaccinations in hospitals and schools because all approved COVID-19 vaccines are only allowed via emergency use authorization.

Asked about that, Juffras said its status as an emergency use authorization with the Federal Food and Drug Administration doesn’t prevent an employer from requiring it as a condition of employment. She cites 21 U.S.C. § 360bbb–3(e)(A)(ii)(III), which relates to the FDA’s emergency use authorization.

“Perhaps the employee simply does not wish to be vaccinated or thinks vaccinations bring on other illnesses, or does not trust the federal government or the CDC,” Juffras said. “In these circumstances, the employee does not have a legal basis for refusing. Refusal to be vaccinated is a form of failure to abide by the terms and conditions of employment and of insubordination.”

Salisbury resident Cecelia Hughes said the question should be whether vaccinated people should “be forced to work next to people who put them at risk because they are unwilling to be vaccinated.”

“If an employee refuses to get the vaccination, allow that employee to work from home or segregate him/her/them from those who have had the vaccination,” said Salisbury resident Chris Sharpe. “There has to be a universal standard with which we all work from.”

Kelly Hain of Salisbury said vaccination remains a personal decision, adding that she and her family are not receiving the shot because they have autoimmune issues and a rare disease.

“This is a person’s medical issue and employers should not have a say in a person taking a shot,” said Katie Beasley of Salisbury. “The flu shot is a person’s decision and the virus shot should be no different to your job.”

Readers also commented on whether legislators should be involved in any legislation that promotes or prohibits companies from requiring vaccinations.

Debbye Krueger of Salisbury says she’s in favor of employers, schools and hospitals having the option to require vaccinations. But when it comes to legislators’ involvement, she said it should be left to the employer. Salisbury resident Ingrid Clayton concurred.

While China Grove resident Mia Diaz is against such requirements due to insufficient confidence in the long-term, she’s not in favor of governmental overreach either.

“Government overreach is running rampant. Unfortunately, this issue has been weaponized politically and as with all things political, further divides and guarantees we stay divided,” Diaz said. “Nothing ever goes well when folks feel like something is being shoved down their throats.”

Melissa Graham of Salisbury said legislators should pass laws to protect companies who enforce the requirement. Salisbury resident Mark Lajoie said legislators should pass laws that stop any employers from mandating vaccines or the use of face masks. Several others concurred on laws that prevent the mandate.

Unlike businesses, Juffras said governmental employees often face additional restrictions since they’re directly subject to the U.S. Constitution. But mandatory vaccinations during a public health emergency do not violate the Constitution.

Juffras cited a decision reached in the case of Jacobson v. Massachusetts in 1905. In that case, a Massachusetts law was passed to allow cities to require vaccinations against smallpox. Jacobson was fined after refusing to comply, which led to a legal question of whether the law violated his Fourteenth Amendment right to liberty.

Ultimately, the Supreme Court ruled the law was a legitimate and valid exercise of the state’s police power to protect the public health and safety of its citizens, particularly since local boards of health were left to determine when mandatory vaccinations were needed.

A number of states, such as Texas and Florida, have gone as far as enacting executive orders banning vaccination mandates in their states. Here in North Carolina, lawmakers have moved legislation preventing such a mandate, but no measure has received a gubernatorial signature.

In April, Rowan’s Rep. Harry Warren, a Republican, signed onto House Bill 558, which is one of several measures aimed at preventing vaccine mandates. H.B. 558 would make it unlawful for the state and its agencies to mandate vaccinations against COVID-19, require proof of vaccination to travel or use public property or mandate forced participation in a vaccination tracking system.

The bill would also grant civil and criminal immunity to anyone who refuses to receive the shot, and allows citizens the private right to determine whether they or their children will receive a vaccine. Further, colleges, K-12 schools and childcare facilities — all agencies that typically require a number of vaccinations for admission — would be prohibited from questioning a person on their vaccination status as a condition of attendance. Similarly, occupational licensing boards, hospitals and nursing homes would be prohibited to refuse licenses, treatment or admittance based on a vaccination status.

Warren told the Post requiring the vaccination is “inherently wrong and likely unconstitutional,” and added such a program would create a segregation of citizens.

H.B. 558 advanced to the House Committee on Health on April 15, but has not moved since. At least three other similar bills have been filed, with Warren serving as a primary sponsor for H.B. 876.

Rep. Wayne Sasser, a pharmacist and Republican representing Rowan and Stanly counties, voted in support of H.B. 572, which prevents the enactment of a vaccine mandate by executive order, rule or agency. The bill passed the House 75-38 on May 10, with 10 Democrats joining Republicans in support of the measure.

Contact reporter Natalie Anderson at 704-797-4246.

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About Natalie Anderson

Natalie Anderson covers the city of Salisbury, politics and more for the Salisbury Post. She joined the staff in January 2020 after graduating from Louisiana State University, where she was editor of The Reveille newspaper. Email her at natalie.anderson@salisburypost.com or call her at 704-797-4246.

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