Wisconsin employers can mandate workers get vaccines

MILWAUKEE (CBS 58) -- As the number of weekly vaccinations falls across Wisconsin, a debate is heating up over mandating the vaccine.

One county-owned nursing home took the plunge earlier this year.

Rock County began requiring the employees at its nursing home to get the COVID shot in January.

Of 198 people working there, 16 are still laid off for refusing to get the vaccine.

As we move away from mass vaccination sites, vaccine mandates at a job may be on the horizon.

"I'm just deathly scared, I'm just very, very scared," said Amber DeJaynes, who was laid off from her job at the Rock County-owned nursing home.

She was sent a letter around Christmas from her job saying the COVID vaccine would be mandatory. No vaccine, no job. DeJaynes refused to take the shot and was laid off in February.

"I always get sick, I was (born) premature, I always react to everything," said DeJaynes.

The nursing home's decision surprised its AFSCME Union President Tony Ray.

"We were unprepared for it because it was December 23, two days before Christmas, and most of the upper management was on vacation at that time," said Ray.

He said the mandate left employees with no answers and very few options.

"You're put in a predicament where you have to choose your job, your livelihood, or is this vaccine really safe," said Ray.

The Rock County board took up the mandate in January. Some members wanted to strike it down. Board Chairman Rich Bostwick supported the mandate.

"We had 13 residents out there at the nursing home coming down with the virus and as family weren't allowed in, there was only one way it was getting in and that was through staff," said Bostwick.

He said the final vote was one of the hardest he's ever cast. The board compromised, keeping the mandate, but allowing waivers for religious, medical or pregnancy reasons.

"The fact that we've had no cases since then with the residents, I think that speaks volumes," said Bostwick.

The nursing home has every right to mandate the shots for its employees, and employers across Wisconsin can do the same.

"As long as they are granting an accommodation for the vaccine because of a religious reason or because of a bona fide medical reason," said Labor and Employment Attorney Erik Eisenmann.

He said he's been getting lots of questions lately from employers about vaccine mandates. But he says those clients have focused on encouraging employees to get the shot rather than requiring it. Still, he believes companies in fields like health care, restaurants and airlines may start requiring the shots later this year.

"I think we will see some industries where it is required and I think the courts will uphold that," said Eisenmann.

Wisconsin Republicans have tried to pass legislation preventing employers or the state from being able to do just that.

"It's not appropriate for a private business or a government to demand a health record from someone," said State Rep. Tyler August (R-Lake Geneva).

But Governor Tony Evers vetoed those measures. The U.S. Supreme Court upheld a state's ability to enforce vaccine mandates in a 1905 case about a smallpox vaccine.

"The people who were resisting, who didn't want vaccines, who were afraid of it and weren't sure it was safe -- the court upheld that the good of the many outweighs, in this case, the individuals' ability to refuse the vaccine," said Marquette Law Professor Ed Fallone.

He said the case is a landmark one in public health law. But he said the current Supreme Court may not rely on that 1905 precedent if it were challenged.

“I think the court would not be quite as deferential to the government today in 2021 as the court was in 1905,” said Fallone.

That's little comfort to DeJaynes. She's hoping the Rock County mandate will be overturned so she can go back to work at a job she loves.

"When I got my job at Rock County, that was my career, that was my, you know, where I wanted to retire from," said DeJaynes.

State law allows the Department of Health Services to mandate vaccines during a public health emergency.

However, the Wisconsin Supreme Court struck down Evers' COVID emergency, saying he couldn't keep extending it.