Chesterfield County Commissioner of the Revenue requiring employees to be vaccinated or face ‘disciplinary action’

Coronavirus

CHESTERFIELD COUNTY, Va. (WRIC) — The Chesterfield County Commissioner of the Revenue is requiring her staff to receive the COVID-19 vaccine or face “disciplinary action up to and including termination.”

8News spoke with Commissioner Jenefer Hughes, an elected official, on Thursday after receiving a copy of a letter circulating among her staff detailing corrective action for those who fail to get vaccinated or apply for an exemption.

“I took the COVID pandemic very, very seriously because one of my greatest responsibilities is the health and safety of the taxpayers who come into the office and my staff,” Hughes said. “It would break my heart to have someone come in here and catch the virus and take it home to their families, and that applies to my staff as well. And so expecting and then requiring all staff who can be vaccinated, to me, is just an extension of that focus on health and safety.”

According to a memorandum, Hughes emailed her staff on April 22 announcing a return to work plan in the office for all staff and indicating her expectation that they receive the COVID-19 vaccine.

Subsequent communications were sent to staff on May 10 and 19 clarifying that Hughes would require her employees to be vaccinated or apply for an exemption.

On June 7, employees who have not been vaccinated or applied for an exemption received a memorandum regarding corrective action.

A copy of the memorandum Hughes sent to her staff was provided to 8News. Hughes verified the authenticity of the letter.

Hughes said that there are exemptions to this requirement for medical, religious and Americans with Disabilities Act (ADA) reasons.

“We discussed ADA compliance, medical exemptions, any other medical exemptions, the religious exemption, which, I think that’s very important,” Hughes said. “The accommodation we’ve agreed on is that they’ll remain masked and I’ll be reviewing that toward the end of July because, given my policy, by that time all staff in the office who can be vaccinated will be vaccinated.”

As of Thursday, Hughes said that 82% of her staff have been vaccinated, are going through the process or have been approved for an exemption. That leaves 18% of her staff who are now facing corrective action.

“I have a small proportion of my staff with whom we’re working,” Hughes said. “Anyone who goes on corrective action, whether it’s for this or any other issue, is supported through that process. The conditions for satisfying that are clearly laid out and I’ve stressed to every person that this is not a reflection on their performance at all.”

Hughes said that throughout the pandemic, the conditions of employment through the Commissioner of the Revenue’s office have changed, whether that be in the form of mask requirements or social distancing.

“Conditions of employment can change as environmental and business conditions change,” she said. “I had made it very clear to my staff the process that they needed to go through to meet the new conditions of employment and the consequences for their personal decision related to that.”

Hughes said that she consulted the office of the Chesterfield County Commonwealth’s Attorney in making her decision to require COVID-19 vaccination for her employees.

“The county can provide a recommendation, but they have no authority over how I run this office and they respect that,” Hughes said. “I consulted with one of their staff who specializes in employment law and I’ve been following that guidance.”

8News reached out to the Chesterfield County Commonwealth’s Attorney and has yet to hear back. However, Chesterfield County Communications & Media issued the following response:

Ms. Hughes is a constitutional officer who was elected to her position and does not report to the Chesterfield County Board of Supervisors or County Administrator.  While Chesterfield has not mandated its employees be vaccinated, the county is not in a position of authority over the Commissioner of the Revenue.  Therefore, we cannot require her to change her vaccination policy.   Anyone who believes a constitutional officer is discriminating against them or violating their civil rights may report their concern to the Office of the Attorney General to have it investigated.

8News reached out to the Office of the Attorney General Thursday morning and has not received a response.

“It’s about health and safety,” Hughes said. “I told my staff that if they hadn’t got vaccinated yet or weren’t in the process or hadn’t applied for an exemption and been approved, that they would be on corrective action, and it’s a three-week period. I’m happy to discuss their thoughts and to work with them because I don’t want to lose anyone.”

The memorandum that Hughes sent out on June 7 said that staff members who do not provide proof of a first vaccination and a scheduled date for a second, if necessary, before June 30 “will be subject to disciplinary action up to and including termination.” If proof is provided before then, corrective action will reportedly be canceled.

“My staff is super talented. They’re experienced, and we’re a community,” Hughes said. “I respect my staff’s personal decision, but not getting vaccinated if you can is inconsistent with our conditions of employment.”

According to Jennifer Rose with the Virginia Department of Labor and Industry (DOLI), the department “is not aware of any Virginia law, standard, or regulation that prohibits employers from implementing a COVID-19 vaccine mandate. Private employers should seek legal counsel for additional details.”

The U.S. Equal Employment Opportunity Commission (EEOC) indicates that employers may require employees to be vaccinated, but notes certain issues associated with such a mandate. Section K.1. reads as follow:

The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations discussed below.  These principles apply if an employee gets the vaccine in the community or from the employer.   

In some circumstances, Title VII and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer’s business.  The analysis for undue hardship depends on whether the accommodation is for a disability (including pregnancy-related conditions that constitute a disability) (see K.6) or for religion (see K.12). 

As with any employment policy, employers that have a vaccine requirement may need to respond to allegations that the requirement has a disparate impact on—or disproportionately excludes—employees based on their race, color, religion, sex, or national origin under Title VII (or age under the Age Discrimination in Employment Act (40+)).  Employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.

It would also be unlawful to apply a vaccination requirement to employees in a way that treats employees differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation and gender identity), national origin, age, or genetic information, unless there is a legitimate non-discriminatory reason.

But according to the Federal Food, Drug, and Cosmetic Act, as detailed in the United States Code, products that have only received Emergency Use Authorization from the U.S. Food and Drug Administration (FDA) and not full approval have certain conditions, including the requirement that individuals be informed “of the option to accept or refuse administration of the product, of the consequences, if any, of refusing administration of the product, and the alternatives to the product that are available and of their benefits and risks.”

For employees in the Chesterfield County Commissioner of the Revenue’s office, such consequences include disciplinary action and potentially termination.

“I’m not a scientist or an epidemiologist. I take guidance from people who are,” Hughes said. “I care about my staff here. We’re a community, we’re a family, and so, to me, based on the information that’s come out from the federal, state, and local government, I am confident in these vaccines as safe and healthy. They’re FDA approved and they are the absolute best way we can get to ending this pandemic.”

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