Covid vaccination mandates: Good for business, but easily challenged by employees

As appeared in the Fairfield County Business Journal

By Kevin Zimmerman
September 13, 2021

Note: Since the reporting of this story, President Biden has announced a national vaccine mandate for companies with at least 100 employees, which will require their workforce to get vaccinated or submit to weekly COVID testing. Given this new information, the issues discussed in this article may be more relevant to small and mid-sized companies.

There may be a number of reasons for a business to require — or at least “strongly recommend” — that its employees get vaccinated against Covid-19.

But nearly all of them involve a slippery legal slope, according to attorney Stephen Fogerty.

The “F” in Westport’s FLB Law, Fogerty said there are “layers” of state and federal law that could come into play should a company implement such a policy.

“When clients come to me wondering about doing it, I ask them, ‘Why do you want to do it?’” Fogerty said. “Then we work from that.”

Responses to the question have ranged from “Because other people are doing it” to “I think it would be good for our business” to “I want to provide a safe environment for everyone,” the FLB partner said.

The “everybody’s doing it,” which may seem risible at first, is actually part of a long tradition, he said.

“A lot of time someone will hear something from their peers or employees or the media, whether it’s establishing a cyber policy, a diversity policy or what-have-you. They’re usually just trying to do the right thing.”

Beyond that, Fogerty said, federal and state anti-discrimination laws may come into play when a business issues a vaccination mandate. Even though the Equal Employment Opportunity Commission issued mandate guidance on May 28, Fogerty said, there is still plenty of wriggle room.

Top of mind are the Americans with Disability Act and religious exemptions. ADA-related issues “are not difficult to understand,” Fogerty said — noting that such exemptions are not valid in a workplace with fewer than 15 employees — while the religious exemption is trickier.

“The standard there is that it must be a ‘sincerely held’ religious belief, which of course is hard to measure,” he said. “And most of the predominant religious denominations in the United States have not come out with the position that getting vaccinated is counter to their religious tenets.

“But (the employee) could say that, according to their own interpretation of their religion and its beliefs, they should not be vaccinated,” Fogerty continued. “That’s where the ‘sincerely held belief’ argument comes in. Then you can argue whether the person’s religious belief is against the Covid vaccine or all vaccines or all medicine?”

Companies should also decide upon their position on a mandate and stick with it, he said. “What do you do when you promulgate a policy and your two top salespeople say, ‘We’re leaving,’” he asked. “Backtracking on a policy doesn’t demonstrate leadership and the sense of control that is expected by most employees. Can you afford to lose two or three good employees — and are you willing to take that risk?”

Fogerty said a number of solutions should be considered, including remote working schedules, establishing “zones” or even specific floors in an office where the unvaccinated work exclusively, or splitting the workforce into vaccinated and unvaccinated teams that only come in on designated days.

Health care organizations have generally demanded all their employees get vaccinated, including Nuvance Health and Hartford HealthCare (the latter’s announcement resulted in a roughly 50-employee rally outside Hartford Hospital in late August objecting to the decision).

They too could be subject to legal action, Fogerty said, though he noted that in those cases, the mandate announcements were made far enough in advance to allow employees the time to get vaccinated. He noted that it is generally recommended that a person not get their second shot fewer than four weeks have passed since the first one.

In any case, he said, “Everyone who mandates it will encounter some exemption or an issue arising that they did not see coming up.”

That includes his law firm, he said, which has a mandate in place that proved to be “challenging” with some of its roughly 20 employees. The Westport firm responded by combining several of the aforementioned methods to accommodate such objections.