TAHLEQUAH, Oklahoma – With COVID-19 vaccinations more readily available, employers are considering policies that would mandate workers get the shot, and state legislatures are enacting laws to ban requirements. That's prompted many to question whether businesses can legally require employees to receive the vaccine, and for others – like Cherokee Nation – to offer incentives.
“In states that do not have a law that says you cannot mandate employees to have the vaccine, it’s a maybe,” said Denise Deason-Toyne, local attorney and business law professor at Northeastern State University.
A bill was introduced in the Oklahoma Legislature this year that would prevent employers from requiring current or prospective workers to receive a vaccine, but it never passed. And workers still have the right to opt out of any vaccine if they have a religious reason or medical condition.
“So if any employee doesn’t get vaccinated, the employer should not just terminate them,” said Deason-Toyne. “The better approach would be to see if some sort of an accommodation can be made that will protect the employee, as well as others.”
A common misconception is that HIPPA – Health Insurance Portability and Accountability Act – prevents employers from inquiring whether their workers received the vaccine. However, HIPPA applies primarily to health care members and insurance companies, not to businesses. Unless they ask for proof, Deason-Toyne said employees might operate under the honor system.
She does foresee impending lawsuits for some businesses that require the vaccine, suggesting some people may claim to experience negative side effects – whether true or false – if they’re forced to get one.
“We’re going to see some fallout for this,” Deason-Toyne said. “With the Spanish Influenza – and that was such a horrible pandemic – many states were saying you can require this for health purposes. Now in 2021, I don’t know what the Supremes would do with something like that when it comes up, and it probably will. The process to get a case up before the Supreme Court is going to take years, but it can go either way.”
Cherokee Nation Principal Chief Chuck Hoskin Jr. recently issued an executive order to implement vaccinations as a term and condition of employment for new government employees and job training program participants. According to the order, all new employees and job training participants have 45 days from time they start to receive the COVID vaccine, and “the failure of which shall result in immediate termination…” Existing employees had 45 days from the time the order was issued to receive the vaccine, which was May 25, or it would result in the suspension of non-essential job functions until full vaccination is achieved.
The executive order applies only CN government employees, excluding those supervised by the CN judicial and legislative branches. Cherokee Nation Businesses employees are not included.
Hoskin said it is a measured response to a pandemic that has resulted in more than 590,000 deaths in the U.S. He said no CN employee will lose a job, benefits, or any core terms and condition of employment as a result of choosing not to take the vaccine.
“I think there’s been sort of an immediate misunderstanding, some of that cultivated simply by people not having information,” Hoskin said. “Some of it, frankly, is that we live in a world in which there is some political exploitation of public health measures, which is too bad. That results in claims that you’ll be fired if you don’t take the vaccine, which is completely false.”
The order actually creates an incentive program for employees. Those who receive their vaccine can collect $300. It also includes exemptions for those with medical conditions or religious beliefs that prevent them from taking the vaccine. Hoskin said his administration has found other pathways for those with exemptions to receive the incentives via public health education.
The goal is to reach a minimum threshold of 70 percent of vaccinated employees to achieve herd immunity in the workforce, and eventually the whole reservation.
“We’re at about 40 percent in the workforce, and unfortunately, 30 percent across the reservation,” Hoskin said. “That’s way too low. That means there will be more people who become sick over the coming months. It means we could have deaths that are avoidable, and I believe part of the job of the principal chief is to help put a blanket of protection over the reservation and certainly our workforce.”
The chief’s order doesn’t apply to any individuals under age 18, and it provides an extension of 45 additional days to receive the vaccine if the person could, for a temporary period of time, experience an adverse reaction to the vaccine. It’s set to expire at the end of 2021, at which time Hoskin hopes the tribe will have reached herd immunity. He also thinks other employers should consider such vaccine policies, with incentives to those who participate.
“Mandates are something I think employers should consider,” he said. “For us, tenured employees have constitutional protections, and I was concerned about bumping too hard up against their constitutional protections in terms of the stretch of a mandate. So that’s why it’s very measured for our workforce.”