Can employers require, ask about COVID-19 vaccination standing? Specialists say ‘sure.’ – Salisbury Submit

By Natalie Anderson
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SALISBURY – In the midst of a gradual return to pre-pandemic life, common arguments why people can’t ask about someone else’s vaccination status aren’t what they appear to be.

While federal Health Insurance Portability and Accountability Act (HIPAA) is often cited as a reason to oppose vaccine mandates for privacy reasons, experts say it doesn’t apply outside of healthcare providers, insurers, and healthcare companies.

HIPAA was enacted in 1996 and requires healthcare providers and health insurers to keep patient information confidential and secure. Several amendments have been added to the law since 1996, including national security standards 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 facilities,” which include healthcare providers and insurers, and “business partners” who provide specific services to insured facilities. Moore said she believes many people use it as a shorthand to express certain medical information that should be confidential.

“I would expect a lot of people to share and respect this view, but from a legal perspective, HIPAA is a specific law that only applies to covered companies and their business partners,” she said.

When it comes to whether companies and employers can request or require COVID-19 vaccinations, these questions are answered by labor law. In short, Diane Juffras, 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 Opportunities Commission for Employment updated its guidelines to take into account that employers can request a vaccination before returning to the office. The EEOC enforces federal laws that make all discrimination based on race, religion, age, and other factors illegal.

However, vaccination regulations must comply with the Americans with Disabilities Act and the Civil Rights Act, which provide shelter for those who refuse to be vaccinated because of a disability or religious belief, for example. Adjustments, says Juffras, can include unvaccinated employees wearing face masks or socially distancing themselves from others.

“Nothing prohibits a public employer in North Carolina from requiring that some or all of its employees be vaccinated against certain diseases, including COVID-19,” Juffras said. “As long as a vaccine has been approved for use by the FDA, an employer may require that all of its employees be vaccinated as a condition of employment, subject to medical exemptions under the ADA and religious exemptions under Title VII of the Civil Rights Act of 1964.”

Livingstone College is the only local school that requires vaccinations for the fall semester. Novant Health does not currently require vaccinations for its employees, although it does aim to vaccinate 80% of its employees. In April that rate was around 64% and remains the same to this day, spokesman Robin Baltimore told the Post.

Of nearly two dozen responses to a survey published by the Post on Friday, around half said they agree with employers who require or ask about vaccination status.

Judith Fowler, resident of the granite quarry, said hospitals, schools and businesses are allowed to request them subject to a medical exemption.

“Since all variants continue to increase and an adequate vaccination coverage cannot be achieved, such places with high numbers of participants endanger the health of those who cannot be medically vaccinated and for whatever reasons may be at risk,” said Fowler. “It doesn’t violate any HIPAA laws, and in order to protect others and plan events it is important to know who is protecting others from the virus.”

Howard Douglas, of Salisbury, said he was against a requirement for COVID-19 vaccinations in hospitals and schools as all approved COVID-19 vaccines are only allowed through an emergency permit.

When asked, Juffras said his status as an emergency permit with the Federal Food and Drug Administration did not prevent an employer from requiring it as a condition of employment. She cites 21 USC § 360bbb-3 (e) (A) (ii) (III), which refers to the FDA’s emergency approval.

“Maybe the employee just doesn’t want to be vaccinated, or thinks vaccinations cause other diseases, or doesn’t trust the federal government or the CDC,” said Juffras. “In these circumstances, the employee has no legal basis for refusal. Refusal to vaccinate is a form of non-compliance and disobedience. “

Salisbury-based Cecelia Hughes said the question should be whether vaccinated people “should be forced to work next to people who put them at risk for not wanting to be vaccinated”.

“If an employee refuses to be vaccinated, allow them to work from home or separate them from those who have been vaccinated,” said Chris Sharpe of Salisbury. “There has to be a universal standard by which we all work.”

Kelly Hain, of Salisbury, said the vaccination was a personal choice, adding that she and her family will not receive the vaccination because they have autoimmune problems and a rare disease.

“This is a medical problem for a person and employers shouldn’t have a say when a person is given an injection,” said Katie Beasley of Salisbury. “The flu shot is a person’s choice and the virus shot shouldn’t be any different from your job.”

Readers also commented on whether legislators should be involved in legislation that encourages or prohibits companies from mandating vaccinations.

Debbye Krueger from Salisbury wants employers, schools and hospitals to be able to require vaccinations. But as far as the involvement of the legislature is concerned, it should be left to the employer. Ingrid Clayton from Salisbury agreed.

China Grove-based Mia Diaz, while opposed to such demands due to a lack of long-term trust, is not in favor of government exaggeration either.

“Government abuses are widespread. Unfortunately, this issue has been turned into a weapon politically and, as with all political things, it divides and guarantees that we will remain divided, ”said Diaz. “Nothing goes well when people feel like something is being shoved down their throat.”

Melissa Graham of Salisbury said lawmakers should pass laws to protect companies that enforce the requirement. Salisbury-based Mark Lajoie said lawmakers should pass laws preventing employers from mandating vaccines or the use of face masks. Several others passed laws preventing the mandate.

Unlike corporations, Juffras said, government employees are often faced with additional restrictions because they are directly governed by the U.S. Constitution. But compulsory vaccinations during a health emergency are not against the Constitution.

Juffras cited a 1905 ruling in the Jacobson v. Massachusetts case. In this case, Massachusetts passed law allowing cities to require vaccinations against smallpox. Jacobson was fined after refusing to do so, which led to a legal question as to whether the law violated his right to liberty under Amendment 14.

Ultimately, the Supreme Court ruled that the law was a legitimate and valid exercise of state police force to protect the public health and safety of its citizens, especially as local health officials should decide when mandatory vaccinations are required.

A number of states, such as Texas and Florida, have gone so far as to issue executive orders banning vaccination requirements in their states. Here in North Carolina, lawmakers have passed laws preventing such a mandate, but none of the measures have received a gubernatorial signature.

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

The bill would also grant civil and criminal immunity to anyone who refuses to receive the vaccination, and give citizens the private right to determine whether they or their children receive a vaccine. In addition, colleges, K-12 schools, and childcare facilities – all agencies that typically require a series of vaccinations for admission – would be prohibited from questioning a person about their vaccination status as a requirement for participation. Likewise, professional licensing agencies, hospitals and nursing homes would be prohibited from refusing admissions, treatments or admissions based on vaccination status.

Warren told the Post that vaccination was “inherently wrong and likely unconstitutional,” adding that such a program would create segregation among citizens.

HB 558 joined the House of Representatives Health Committee on April 15 but has not moved since then. At least three other similar invoices have been submitted, with Warren serving as the main sponsor for HB 876.

Rep. Wayne Sasser, a pharmacist and Republican representing Counties Rowan and Stanly, voted for HB 572, which prevents executive ordinance, regulation or agency from passing a vaccine mandate. The House of Representatives passed the bill on May 10, 75-38, with 10 Democrats joining Republicans in support of the move.

Contact reporter Natalie Anderson at 704-797-4246.