State labor department to evaluate claims on case-by-case basis
TOPEKA — Registered nurse Evon Smith’s career in medical management ended abruptly Oct. 8 after refusing to comply with a mandated pharmaceutical treatment amid the COVID-19 pandemic.
“My employment was terminated because I declined a medical procedure after an otherwise stellar performance in my role for nearly two years,” she said. “Because I have chosen to forego an experimental pharmaceutical, I am no longer valuable to my previous organization, my community or the state of Kansas.”
While working at a federally qualified health center in Topeka, Smith contracted COVID-19 in November 2020. She continued to work four hours a day from home despite being ill.
In March, as the availability of vaccines improved, she set aside her personal beliefs about vaccines and administered about 8,000 shots to people who volunteered for the shot. She later found it ethically challenging to encourage patients to get vaccinated because she couldn’t honestly provide safety assurances due to lack of data on efficacy of the shots.
“As a nurse,” Smith said, “administering these vaccines through coercion is the equivalent of battery, which impacted me ethically on a daily basis, driving me to tears.”
President Joe Biden imposed executive orders requiring vaccination of federal employees by Nov. 22. The directive applied to federal contractors, including people working for aviation manufacturing companies and individuals involved in university research. Their deadline is Dec. 8.
These federal mandates also must be applied to health-care workers at facilities receiving Medicare and Medicaid reimbursements.
Holdouts who resist the vaccine for COVID-19, and don’t receive a religious or medical exception from their employer, should expect to be fired. There is no guarantee these people would qualify for unemployment compensation in Kansas.
Peter Brady, deputy secretary of the Kansas Department of Labor, said the 50 states and federal government were engaged in legal analysis of unemployment security law to determine how the mandate fit. In Kansas statute books, he said, there wasn’t much guidance.
“There’s nothing specific in our statute that speaks to a vaccine mandate,” Brady said. “We’ll go through the adjudication process. Each of these will be adjudicated on an individual basis.”
If a person left a job because of a vaccination mandate, he said, the question to be resolved was whether that departure constituted good cause to voluntarily leave employment or represented good cause for the employer to terminate a person. The issues include whether the vaccination policy was well known to workers, properly documented and applicable to all employees across an organization. Another consideration will be whether employees were given adequate time and resources to comply, he said.
“It seems like we’re going to be in a very broad gray area,” said Jeff Oswald, a member of the Unemployment, Compensation and Modernization and Improvement Council established by the Kansas Legislature.
During testimony before a joint House and Senate committee focused on government overreach during the pandemic, members of the public offering testimony Saturday and Friday requested the Legislature convene as quickly as possible to pass a law forbidding people from being forced to take the shot and blocking the firing of people taking a principled stand against the vaccinations.
Senate Minority Leader Dinah Sykes, a Democrat from Lenexa, said Kansas had a tradition of imposing extremely restrictive laws about who qualified for unemployment benefits. If the issue is addressed during a special session of the Legislature, she said, the policy debate ought to be broadened.
“If we want to discuss changing that, let’s have a real conversation,” Sykes said. “Let’s talk about gig workers. Let’s talk about school bus drivers. Let’s talk about a variety of Kansas workers that are currently excluded, not just these individuals that employers are concerned threaten their workforce’s health.”
Derek Schmidt, the state’s attorney general and a candidate for governor in 2022, said he supported a lawsuit designed to halt implementation of Biden’s mandate that federal contractors require their employees to be vaccinated for the coronavirus. Schmidt was among 20 state attorneys general who requested the Biden administration shelve that part of his order.
“The Biden Administration’s attempt to muscle into federal contracts an unprecedented provision requiring contractors to employ only vaccinated people is a cynical attempt to outpace judicial review,” Schmidt said. “The Biden administration wants to coerce companies and state agencies, including universities, into complying before the judicial system has time to act.”
The federal contractor vaccination mandate is distinct from a separate federal vaccination mandate proposed for private businesses employing at least 100 people. This provision is under development by the Occupational Safety and Health Administration. When OSHA finalizes the order, the group of Republican attorneys general intent to challenge that piece of federal mandate.
Schmidt said Kansans should be vaccinated against COVID-19. He also said health care decisions ought to be made by each individual and not mandated by the federal government.
“No Americans should be threatened by their government with losing their jobs because their health care decisions differ from those preferred by the president of the United States,” Schmidt said.
U.S. Sen. Roger Marshall, a Republican from Kansas, said he’d heard stories of Kansans who had to choose between a job and a vaccine. He said a COVID-19 vaccination mandate was a slap in the face of people who fulfilled jobs as nurses, first responders and doctors that put them at the epicenter of the pandemic.
“The issue at hand should be immune versus non-immune, but this White House and the Centers for Disease Control and Prevention refuse to acknowledge natural immunity and only care about vaccinated versus not vaccinated,” Marshall said.
Kansas Reflector is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Kansas Reflector maintains editorial independence. Contact Editor Sherman Smith for questions: email@example.com. Follow Kansas Reflector on Facebook and Twitter.
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Expect the Legislature to grapple with an assortment of coronavirus bills, including one taking away authority of private businesses to mandate employees get a COVID-19 vaccination. Another proposal would add COVID-19 vaccination status to the list of prohibited forms of employment discrimination along with race, religion, color, sex, disability, ancestry, national origin and age.