As it appeared in the Connecticut Law Tribune
Two Connecticut lawyers and one Texas employment attorney speak out on workplace vaccination policies and whether they see litigation from the issue.
By Robert Storace
The general consensus of several employment attorneys interviewed on the legal ramifications over whether or not employers can mandate their workers be vaccinated appears to be on the side of management.
Those same attorneys, though, believe that most employers will not try to mandate vaccinations and will, instead, try to work with their employees.
Those numbers are also borne out in a recent survey that the national law firm Blank Rome conducted.
According to Susan Bickley, a partner based in Houston in Blank Rome’s labor and employment group, the law firm sent out a spring 2021 survey on the attitudes of the leaders of 130 companies, including regional, state-based, national and international. That survey showed only 15% of management at those companies wanted to mandate that employees be vaccinated, while 85% of the respondents said either they wouldn’t have a mandate policy or haven’t decided the issue.
“It’s a tough process and one size does not fit all,” Bickley said with regard to what employers want to do.
Bickley says the results of her survey bear out what she’s seen: That most employers want to work with their employees to come up with a plan all can agree on, if possible.
“One larger international company based here in Texas decided they will encourage their employees to be vaccinated and will continue to have social distancing, but will use the honor system on who was vaccinated and who should still wear a mask,” Bickley said.
Connecticut employment attorney Robert Mitchell, a partner with Mitchell & Sheahan in Stratford, believes employers will have the upper hand, legally speaking, if push comes to shove and someone sues over a company policy on vaccinations.
“The employer has the advantage here,” said Mitchell, an attorney for 43 years. “I do think that employers can require vaccinations if they wish to with two limitations. Those being someone who has a legitimate religious objection and or a legitimate disability. Other than that, I think the employer wins.”
Mitchell says he believes most employers will try and work out any difference with their workers in a civil way.
“Most companies will work with their employees, as a matter of good personnel policy,” Mitchell said Thursday. “They will talk to their employees, and explain what they are doing. It doesn’t make sense to be hard on them.”
While Mitchell says he expects to see some litigation over workplace vaccination policies, he doesn’t believe there will be a floodgate of litigation.
“I just don’t see a lot of litigation on the issue,” he said. “I think many employers and employees will take the position that if someone does not want to get vaccinated, they should get another job. Most people do not sue when they are upset at work; they get another job.”
Bickley agreed.
“I don’t envision, right now, that there will be as much litigation as employers at one time had feared,” Bickley said. “Based on what I have seen, employers are being thoughtful when implementing policies.”
New Haven employment law attorney Nina Pirrotti of Garrison, Levin-Epstein, Fitzgerald & Pirrotti echoed Mitchell in her belief that “most employers will go down the route of encouraging their workforce to get vaccinated and incentivizing those that do. Incentives can include things like additional time off. For those not vaccinated, there can also be negative incentives such as withholding the possibility that a certain employee can travel until that employee is vaccinated. I have heard of that.”
Pirrotti said the employer would be within their legal rights to limit travel on the company’s expense to those that aren’t vaccinated.
“In terms of business travel, the employer has an absolute right to do that; it’s their company. It could, very well, tip the scales in that employee’s decision to get vaccinated because they want to bring value to the company and perform all aspects of the job,” Pirrotti said.
While many companies will work on the honor system that an employee has been vaccinated, others might want to see their vaccination card or proof of vaccination, Bickley said. Those companies would have the right to do so, if the information is kept confidential, she said.
“Understanding that these are extraordinary circumstances with a pandemic, I think you can ask employees to see their vaccination card and whether they have been vaccinated as long as you keep the medical inquiry confidential, that is just between the worker and the company,” Bickley said Thursday.