More than half of Connecticut residents have received at least one dose of the coronavirus vaccine, and as the state aims for herd immunity, employers are wondering where they stand when it comes to their workers and vaccination.
The Community Renewal Team announced earlier this month that all of its workers would be required to get fully vaccinated. The Hartford-based community action agency serves clients ranging from the elderly to preschool kids.
“It’s interesting because the parents of the children at the preschools have been asking prior to this being publicly announced, ‘What is your plan to make sure your staff is vaccinated?’ They want to know,” Jason Black, CRT’s communications director said.
Right now, some social service providers and senior living centers like CRT and Jewish Senior Services in Bridgeport are requiring that their workers get vaccinated for COVID-19. Black said CRT is confident in this decision and hopes more businesses and organizations do the same.
“We’re proud of the fact that we’re taking a leading role here,” Black said. “We really think it’s important not only for our staff, but for the people we serve every single day.”
But can employers legally do so? The short answer: yes.
Employers, It’s Up To You
With the backdrop of the pandemic that has killed over 500,000 Americans, employers will want their employees back in the workplace safely, and can therefore establish the vaccine as a legitimate job requirement.
“It’s simply a condition of employment,” said attorney Daniel Schwartz of Shipman & Goodwin LLP, who practices employment and labor law. “No one’s going to be strapping anyone down and injecting people.”
Employers only need to be able to justify that vaccination will keep the workplace safe, in this case, by preventing employees from being a threat to themselves and others. Schwartz said this is especially clear in health care and educational fields.
And since neither Connecticut nor the federal government has a vaccination mandate, it is up to each employer to decide whether they want to require the vaccine.
“There may certainly be circumstances in which requiring vaccination may be appropriate based on job-specific factors, such as whether an employee’s job requires work with vulnerable people,” said David McGuire, the executive director of the American Civil Liberties Union of Connecticut.
It is not only a matter of safety, but of employers needing to run a business, make money and serve clients, according to Mark Carey of Carey & Associates, P.C.
“You have this approach of what’s good for the masses versus the individual, which is very unique,” Carey said. “I think the employer has the ability to control it and mandate it without any repercussion.”
The fast federal approval of the vaccines through Emergency Use Authorization doesn’t come into play.
“There’s no connection there. Each employer can decide what they want to do. That’s always been the case,” Carey said.
There Are Exceptions
CRT has given five individuals exemptions to its vaccination policy since it was publicly announced, Black said. These exceptions were made because of medical or religious reasons.
Under the EEOC guidance, employers need to provide vaccination exemptions in two cases: 1) for people with medical disabilities that would prevent them from getting the vaccine and 2) for people with legitimate religious beliefs for not wanting to be vaccinated.
“In order to comply with the rules, you at least need to consider someone’s disability or religious beliefs,” Schwartz said.
Employers also need to provide reasonable accommodation for those who require an exemption. That can include letting an employee work remotely or supplying additional personal protective equipment. Black said that he is aware of one case where an exempted CRT employee was given extra PPE.
If no accommodation can be provided, employers have options like keeping a worker out of the workplace or, under rare circumstances, firing them.
“Under both of those things, an employer is entitled to say that an unvaccinated person could pose a direct threat to the workplace,” Schwartz said.
Carey said that medical exemptions can be difficult to obtain, as we still don’t know all of the after-effects of COVID-19 and the three vaccines in use in the U.S.
And McGuire of the ALCU said that it’s still too early to know whether a private employer’s vaccine policy is equitable and consistent with civil liberties, as that requires looking at the policy, its implementation and whether the exemptions are applied consistently and fairly.
“The agencies responsible for making the ultimate determination regarding private employers’ approaches to vaccine requirements would likely be a combination of the Connecticut Department of Health, Connecticut Department of Labor and, regarding equity, the Commission on Human Rights and Opportunities,” McGuire said.
Want The Job? Tell Us If You’re Vaccinated
Under guidance from the U.S. Equal Employment Opportunity Commission released last year, employers can ask employees to provide proof of vaccination. As of now, they can also look for it on resumes and pose the question on job applications, though doing so may constitute probing into medical records.
“I think that’s where some employers are going to go. If they’re reluctant to do mandates for their current employees, they may make it a condition for new employees that they be vaccinated,” Schwartz said.
Joe Budd, the vice president of communications for the Connecticut Business & Industry Association, said that promoting the vaccine amongst employees is better than requiring it.
“We advise member companies that the best approach is education and promotion, with incentives such as gift cards, etc., also seen as a more productive approach,” Budd said.
Carey said it doesn’t seem like there will be a rush for Connecticut employers to require employee vaccination because residents are still coming out to get their first shots. That could change if the pandemic drags on.
“I think we’ll be pushed to the point where when we can’t get people to get vaccinated, the government will start to push employers to push that. But we’re not there yet,” Carey said. “If it’s not rid out and we’re still here in five years in the future, they’ll start to mandate this on the federal level.”