Helpful COVID Vaccine Guidance for Hoosiers
The Indiana Court Times is a publication for members of the Indiana judiciary. The editorial board is comprised of State employees working under the supervision of the Supreme Court of Indiana.
Recently, the publication released an article on the impact of the COVID vaccine on court operations. The article is written by the Indiana Supreme Court’s Employment Attorney and ADA Coordinator. While the article is aimed primarily at advising trial courts on how to handle employee issues regarding COVID and the vaccine, much of the article provides helpful guidance to all Hoosiers.
First, the article explains that, as of the time of publication, the vaccines have only been issued emergency use authorization, which means anyone agreeing to receive a vaccine must indicate the person is doing so voluntarily. What does this mean for employers and employees? According to the Indiana Supreme Court’s Employment Attorney, “[v]accines with this kind of authorization cannot be mandated by employers, which includes courts.”
The author further explains that while incentives can be offered by employers to employees who choose to get vaccinated, employers must offer those same incentives to employees who are unable to get a vaccine due to a disability or sincerely held religious belief. Otherwise, the employer may be engaging in disability and religious discrimination.
The author, the ADA Coordinator for the Supreme Court of Indiana, next provides a helpful discussion of the Americans with Disabilities Act and its applicability to the COVID vaccine.
Other helpful information for courts is provided, but the last section is somewhat surprising. The author notes that vaccinated employees “pose a significant threat to unvaccinated employees" because vaccinated individuals can still carry and transmit the virus. Consequently, employers have a duty to protect unvaccinated individuals through mitigation measures, including masking and social distancing.
What surprised me about the last section of the article was that it takes the position that vaccinated individuals still pose a risk to others. This position is contrary to much of what we are being told by experts. But this seems to be a more cautious approach that is probably prudent, given what we still do not know.
What concerned me from a criminal defense practitioner’s perspective, however, is the discussion near the end of the article about court proceedings. The advice is not concerning; it is the reminder that, unfortunately, our clients may still find themselves waiting before they receive their day in court depending on where their county falls on the COVID transmission spectrum. Higher community transmission that is being predicted in the fall and winter may bring the return of a moratorium on jury trials and in-person court proceedings until the perceived threat recedes.