Durham County sheriff makes COVID vaccine mandatory for employees

The Durham County sheriff, who has had two employees die from COVID-19-related causes, is making the coronavirus vaccine mandatory for his department.

In a memo Monday, Sheriff Clarence Birkhead told employees that was the last day for department members to get the Pfizer vaccine without an appointment. He said he was “disappointed with the low compliance rate of employees taking advantage of this opportunity.”

The News & Observer received a copy of the memo Thursday morning and asked the Sheriff’s Office how many employees had not been vaccinated.

In a press release Thursday afternoon, Birkhead said that since his memo, “numbers thus far show that more than half of the agency has received the first dose and are scheduled to receive the second dose throughout the month of February. We do not have the final numbers or exact percentages right now.”

There Durham County Sheriff’s Office had 277 employees in 2018-2019, according to the department’s annual report, spokesperson AnnMarie Breen said in a text message.

The sheriff’s memo had stated that failure to get vaccinated could result in disciplinary action.

“I feel I must remind you this is Not an Option – taking the vaccine is Mandatory for all DCSO employees,” Birkhead wrote in the memo.

The sheriff said he would discuss accommodating employees who have requested exemptions. The accommodations could include changing work schedules, work environments or being placed on leave, he wrote.

Many people who show up in court and the jail have the virus but are asymptomatic, Birkhead wrote in the memo.

“Daily we interact and engage the public; and, we have no way of knowing who is COVID-positive,” he wrote. “And, sadly we have lost loved ones and co-workers.”

Durham County jail COVID outbreaks

The Durham County Detention Center has had several outbreaks.

At least 34 detainees have tested positive.

In October, The N&O reported the death of former inmate Darrell Wayne Kersey, 59, who became infected in the jail, according to his family, but who died in the hospital while being transferred to prison. His death was attributed to the prison system because the state had custody of him by then.

In an early outbreak, eight jail staff members tested positive in April, the state reported. They included Alexander Reginald Pettiway, 55, who died due to COVID-19 and acute hypoxic respiratory failure, his death certificate stated.

Another Sheriff’s Office employee, Lt. Terry Sampson, 60, who retired in 2018, but returned to work part-time on background checks for recruits died from COVID-19 in November, WRAL reported.

No vaccine mandate in Wake, Orange

Neither the Wake nor Orange County sheriff’s offices are requiring their employees to get vaccinated, spokespeople said Thursday.

The Wake County Sheriff’s Office has 949 employees, spokesperson Eric Curry wrote in an email.

The cities of Raleigh and Durham are also not making vaccines mandatory for their municipal workers, The &O has reported

Experts say mandates constitutional

Experts and lawyers say governments and government agencies can make vaccines mandatory for their employees, The N&O has reported.

“Nothing prohibits a North Carolina public employer from requiring some or all of its employees to be vaccinated against particular illnesses, including COVID-19,” according to a blog post written by UNC School of Government professor Diane Juffras, who specializes in employer-employee relations and employment law.

Mandatory vaccinations do not violate the U.S. Constitution either, Juffras wrote.

A 1905 U.S. Supreme Court decision ruled mandatory vaccinations during a public health emergency do not violate the Constitution, Juffras wrote. The court upheld a Massachusetts law that permitted municipalities to order vaccination of not just public employees, but all residents, according to the blog post.

Vaccine mandates in workplaces are not new. Some businesses require flu vaccines, for example.

People have tried to sue businesses for mandating vaccines. But Dorit Reiss, a law professor who specializes in vaccine policies at the University of California Hastings College of the Law, said few succeed, especially when employers try to make accommodations such as allowing people to work from home, if the job allows it.

This story was originally published January 28, 2021 at 4:47 PM.