It may be a matter of when, not whether, the state legislature will address the issue of requiring COVID-19 vaccinations in the workplace.
What side of the issue legislators fall on could be among the more intriguing developments of the 2021 session.
So far, no bill has been introduced that specifically addresses COVID-19 vaccinations and employment, although there have been three related to return to school.
Yet, Gov. Roy Cooper said in March he planned to talk with legislative leaders about whether vaccines should be required for certain jobs.
“Suffice to say we’re going to be pushing for people to get this vaccine,” Cooper said. “We’re going to continue to work with businesses and others about the best way to do that.”
There have been calls to require vaccinations for certain essential frontline workers, such as at meat-processing plants, which dealt with significant COVID-19 outbreaks among production workers in the first three months of the pandemic.
“We know there is going to be a lot of jobs where it’s going to be important to be vaccinated because they deal with the public,” Cooper said.
Senate leader Phil Berger, R-Rockingham, said he does not support legislation to require vaccinations.
A statement from Berger’s office said he “believes that private employers should be free to make their own decisions on what policies are best for their companies.”
Mitch Kokai, senior policy analyst with Libertarian think tank John Locke Foundation, said that “I doubt a majority within the General Assembly wants to insert state government this directly into decisions about workplace operations.”
“We’ve seen the problems associated with one-size-fits-all COVID-19 mandates from Gov. Roy Cooper.
“My guess is that legislative leaders would rather leave these important decisions to businesses and individuals across the state,” Kokai said.
Michael Walden, an economics professor at N.C. State University, said a workplace vaccination bill “will be strongly debated, likely along partisan lines.”
“Those in favor will invoke public health safety, while those opposed will argue such a requirement steps on individual freedom.”
Right to know
The vaccination employment issue stirred a lengthy response from typically reserved Republican Rep. Lee Zachary, who represents Forsyth and Yadkin counties.
“The public, whether you like the vaccine or don’t like the vaccine, has a right to know whether the people they are coming in contact with in a business have been vaccinated or not, and whether precautions are followed or not,” Zachary said.
“Then the customer can decide if they want to come in your store/business or not.
“Everyone has a right to say ‘I don’t want the vaccine,’ but the employer and business owners have the same right and can say ‘it’s my business,’” Zachary said.
Zachary said he believes that while the federal and state governments can offer the vaccine, “the market should control who has to be vaccinated.”
“My experience is that most people want the vaccine badly, and only want to go to businesses that observe social distancing and other precautions.”
Zachary said vaccine requirements eventually could be considered in the same line as health and safety regulations by the state and federal Occupational Safety and Health Administration.
“Employees may not like it, but for their own safety they have to wear safety helmets, safety shoes and other stuff,” Zachary said.
“Employers also have an interest in protecting their employees from hazardous materials and fumes and keeping their employees well so they can come to work.”
Zachary said that if an employer mandates the vaccine, he would support allowing for some exceptions.
Mandate or no mandate
Other Triad legislators said they believe there is a distinction between encouraging individuals to be vaccinated and allowing employers to require or mandate it.
“While I am concerned about keeping people safe and fighting this virus, I am opposed to government mandates that require persons to take the vaccine,” said Rep. Donny Lambeth, R-Forsyth.
“Even though I have taken both vaccinations, just like I take the annual flu shot, I stop short of a mandate that requires anyone to take it.
“I know many people, including some family members, who did get COVID early and they had mild cases and recovered fine,” Lambeth said. “There are still risks to shots, and individuals need to weigh the risk against the benefit.”
Sen. Joyce Krawiec, R-Forsyth, said she is in the category of encouraging vaccinations at the individual level and following the 3 Ws safety guidelines.
“However, I would never support a mandate,” Krawiec said. “Citizens should be free to decide.
“I certainly hope that most people will be vaccinated through their own volition.”
Rep. Pricey Harrison, D-Guilford, said “whether or not to get the COVID vaccine should be a personal choice, and not a government mandate.”
“That said, if a private business wants to mandate that its employees be vaccinated before returning to work, I am not sure I would oppose that.
“I do think any business that would require a vaccine prior to returning to work should make accommodations for individuals who cannot get a vaccine for whatever reason, and employers should provide vaccines to employees if they want it.”
The left-leaning N.C. Justice Center said that “protecting essential workers from getting sick because of exposure to coronavirus at work should be a top priority of the state,” according to Clermont Fraser Ripley, co-director of its Workers’ Rights Project.
“To the extent that employers are involved in workers getting vaccinated, their role should be to encourage and facilitate access to the vaccine, and they should be prohibited from putting up barriers.”
Fraser Ripley said that “vaccines are just one tool to achieve this.”
“Mandatory worker protections are another and, we believe, are more appropriate for the legislature and the governor to be considering as a needed response to the pandemic.
“To date, there is nothing enforceable requiring North Carolina employers to comply with guidance from the CDC, N.C. Labor Department and OSHA regarding how to control the spread of the virus at work.”
There currently is a federal regulatory limitation of what employers can require of employees, said John Quinterno, a principal with South by North Strategies Ltd., a Chapel Hill research company specializing in economic and social policy.
“Employers can only require vaccinations that have received full approval or licensure from the Food and Drug Administration,” Quinterno said.
“All three of the COVID-19 vaccines currently in use have not received full approval, and instead have received emergency use authorizations.
“It likely will be a few years until full approval is granted, assuming it ultimately is granted.”
There also are potential discriminatory issues to resolve before a vaccination mandate could be put in place, Quinterno said.
“The U.S. Equal Employment Opportunity Commission has weighed in about the conditions in which an employer might be able to mandate a COVID-19 inoculation, taking care not to discriminate against an employee based on disability status or religious objection,” Quinterno said.
“Even then, an employee who refuses can’t necessarily be fired, though they could be excluded from the workplace.”
Quinterno said a potential outcome is states passing their own laws.
“It looks like we are on a path for a set of conflicting state and federal laws, as well as differing interpretations by different agencies,” Quinterno said.
“I imagine this will be a complicated legal issue to sort out and it will wind up in the courts.
“In the meantime, voluntary encouragement on the part of employers is probably the safest way to go, as well as the way that will encourage uptake instead of prompting opposition from employees.”