Former deputy sues Durham sheriff over COVID-19 vaccine mandate for employees
A former deputy has sued Durham County Sheriff Clarence Birkhead for requiring employees to receive a COVID-19 vaccine.
The lawsuit, filed in April in federal court, argues that mandating a vaccine that only has emergency authorization from the Food and Drug Administration and not formal approval violates federal law, though some legal experts dispute this.
Christopher Neve, the former deputy, is asking the court to force Birkhead to reinstate him with back pay, and to rule that vaccine mandates are unconstitutional.
Spokespeople for the Wake County Sheriff’s Office and the Orange County Sheriff’s Office told The News & Observer that they are encouraging employees to get a COVID-19 vaccine but are not requiring it.
Raleigh and Durham are not mandating vaccination for city employees, The N&O reported in January.
The Durham County Sheriff’s Office declined to comment, citing the ongoing litigation.
Two of Neve’s legal representatives are Aaron Siri and Elizabeth Brehm, attorneys with Siri & Glimstad.
The firm, based in New York, has done extensive legal work for the prominent Texas-based anti-vaccine group Informed Consent Action Network, according to reporting from The Washington Post.
Timeline of Neve’s firing
In January, Birkhead sent a notice to employees that the COVID-19 vaccine would be mandatory except for medical or religious objections, according to court documents.
After Neve and other deputies failed to schedule a vaccine appointment, Birkhead sent an email on Jan. 25 reminding deputies to schedule their appointments.
“I am disappointed with the low compliance rate of employees taking advantage of this opportunity. I feel I must remind you that this is not an option,” Birkhead wrote. “While I understand your concerns and questions, the goal is to protect the men and women of this agency, all those in the care and custody of our detention facility and the residents of Durham County.”
Neve continued to refuse the vaccine, according to the lawsuit, and after meeting with Birkhead in March, his badge and other equipment were confiscated.
Neve was first put on unpaid administrative leave, then formally terminated on March 26, according to the lawsuit.
Can public employers require COVID-19 vaccination?
Public employers, even though many outside of the Durham County Sheriff’s Office have not, can mandate that employees receive the COVID-19 vaccine, according to the N.C. Department of Labor and a legal expert at the University of North Carolina-Chapel Hill.
Diane Juffras, a professor of public law and government, wrote in a blog post in March that mandatory vaccinations are not unconstitutional.
“Nothing prohibits a North Carolina public employer from requiring some or all of its employees to be vaccinated against particular illnesses, including COVID-19. So long as a vaccine has been authorized for use by the FDA,” Juffras wrote.
The N.C. Department of Labor said the same in an FAQ regarding COVID-19.
The FDA authorized emergency use of the vaccines from Pfizer and Moderna in December. The vaccine from Johnson & Johnson was authorized in February.
“No employer, health care provider or pharmacist can take another person by physical force and vaccinate them. The person must be willing to receive the vaccine,” Juffras wrote. “But that doesn’t prohibit an employer from requiring vaccination against COVID-19 as a condition of employment. It doesn’t prevent discipline or even discharge as a consequence of refusing to be vaccinated against COVID-19.”
The lawsuit quotes a portion of an FDA web conference from Dr. Amanda Cohn, executive secretary of the Advisory Committee on Immunization Practices at the Centers for Disease Control and Prevention.
At the web conference, Cohn said the federal government cannot mandate vaccines, according to a transcript included in the lawsuit.
But according to vaccine information published online by the CDC, state and local mandates are subject to state and local laws.
“The federal government does not mandate (require) vaccination for people,” the CDC says on its website. “Whether a state or local government or employer, for example, can require or mandate COVID-19 vaccination is a matter of state or other applicable law.”
This story was originally published May 28, 2021 at 4:07 PM.