Hartford Business Journal

6 Hartford Business Journal • November 30, 2020 • www.HartfordBusiness.com By Sean Teehan steehan@hartfordbusiness.com M any Connecticut employers still have work-from- home, mask- wearing and other coronavirus-induced policies in place, but with recent news of vac- cines produced by Pfizer and Mod- erna potentially becoming available as early as December, companies are now looking at how to go about resuming normal operations. Legal experts say businesses should start planning now for what a vaccine rollout could mean for their company. For example, should your busi- ness mandate employees to get a vaccine before they return to the workplace? And might a vaccine change personal protective equip- ment (PPE) and other requirements that allow employees to safely enter the workplace? The short answer to those ques- tions is that there's a lot of uncer- tainty. In some circumstances, employers may be able to mandate worker vaccinations, lawyers say. However, it's a decision that shouldn't be taken lightly, especially as Americans have mixed feelings about vaccines. For example, a September Pew Research survey found that only 51% of Americans were willing to get a COVID-19 vaccine, down from 72% in May. "It goes without saying, we are in a bit of uncharted waters," said Sarah Skubas, a principal and em- ployment lawyer in the Hartford office of law firm Jackson Lewis. Lawyers like Skubas say there are existing guideposts and best prac- tices that employers should keep in mind as COVID-19 vaccines become widely available. "The good news for employers is we have a lot of experience with dealing with vaccines and employees in other contexts," Skubas said. Skubas pointed out that there are pro- fessions — like health care and child care — the government has permitted to mandate flu vaccines, and that precedent could be used for other industries. But employers who mandate a vaccine risk fallout and litigation from workers who refuse to get it, citing health or religious exemp- tions. Employers should review and consider their organizational needs to determine whether it's appropri- ate to mandate vaccination, or just strongly recommend it. "I really think it's going to be a case-by-case analysis" with employ- ees who refuse vaccination, Skubas said. Updike, Kelly & Spellacy employ- ment lawyer and shareholder Chris Brigham said he's been getting lots of questions from employers about whether they can, or should, imple- ment a vaccine mandate. He said his answer is "a resound- ing maybe." Neither the U.S. Equal Employ- ment Opportunity Commission (EEOC) nor the Occupational Safety and Health Administration (OSHA) has issued specific guidance regard- ing a COVID-19 vaccine, accord- ing to global law firm Morgan Lewis. However, EEOC guidance in 2009 explic- itly said that employers could require work- ers to get the flu vaccine as long as reasonable accommodations are provided to people with disabilities or religious objections. "There's more and more flexibility provided to employers to basically assure and protect their employ- ees," Brigham said. "They're allowed to require COVID testing, they're allowed to inquire with employees if they're feeling symptoms." However, as Day Pitney Partner Eric Sussman points out, vaccines can be a flashpoint for people, and setting a policy that requires work- ers to get one could create new problems. "What are you going to do when an em- ployee comes in and says, 'I have this or that exemption?' " Sussman said. "What happens if the employee at the employer's behest gets the vaccine, and then has an adverse reaction? Employers also need to consider the legal risks of requiring vaccines from a liability perspec- tive." Other considerations Even before the pandemic, Con- necticut state legislators had vac- cine mandates on their minds, but their focus has been on schools. Earlier this year, some lawmak- ers were pushing a bill that would have ended Connecticut's religious exemption for mandatory school vaccines, but the measure didn't get a vote during a legislative session cut short by COVID-19. Even when vaccines become available, it won't immediately stop COVID-19's spread, and employers should maintain current require- ments for PPE and social distanc- ing, said Brigham. It's important for employers to begin asking themselves the rele- vant vaccine questions and making plans right now, Sussman added. Employers should also pay attention to and watch for new developments from government agencies and regulatory bodies, he said. To mandate or not mandate? Employers face tough choices as COVID-19 vaccine rollout nears Americans could be getting Food & Drug Administration- approved COVID-19 vaccines starting in December. PHOTO | CNN Chris Brigham, Updike, Kelly & Spellacy Eric Sussman, Day Pitney Sarah Skubas, Jackson Lewis Americans skeptical about COVID-19 vaccine A September survey by Pew Research Center found that only 51% of Americans would get a vaccine once it becomes available, compared to 72% in May. Political views are playing a role in shaping public opinion. Source: Survey conducted Sept. 8-13, 2020.

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