It may be premature for a lot of employers to think about whether to mandate the COVID-19 vaccine for employees, considering most in Connecticut aren’t eligible to get the vaccine yet.
Employer mandates aren’t common, but at least two independent/assisted living companies in the state have mandated the coronavirus vaccine for employees at their facilities. And employment attorneys have begun to have conversations — and offer guidance — about the topic.
Diane Mokriski joined the Connecticut Business & Industry Association as human resources counsel in December but has been working in employment law for about 25 years.
“People are definitely talking about it,” she said. “A lot of business owners are wondering if they can mandate the vaccine. I don’t know that they’re considering actually pulling the trigger and doing it, but they’re wondering if they can.”
Mokriski said the business owners she hears from that are typically most interested are small practices, such as a dentists’ or medical office, and manufacturers, who have a lot of people working closely together in factories.
But she hadn’t heard of any companies that have actually made the decision to mandate.
Mokriski noted that the U.S. Equal Employment Opportunity Commission issued guidance in mid-December saying it’s legal for employers to mandate a vaccine, with a few exceptions. That includes a medical condition or disability that would prevent someone from being vaccinated, or a religious belief. But the guidelines allow employers to deny an accommodation if it “would pose an undue hardship, meaning significant difficulty or expense.”
Mokriski thinks that from a practical standpoint, most nonmedical employers won’t mandate it.
“What are you going to do in real life if 30% of your workforce says they don’t want it? You’re going to fire 30% of your workforce? That’s not going to happen,” she said. She noted a lot remains to be seen, but if an employer mandates the vaccine and terminates employment of those who refuse, there may be lawsuits.
Jeffrey Buebendorf, lead attorney in the Employment Practices Group at Brown Jacobson in Norwich, said most employers with whom he works “are considering a softer approach,” encouraging vaccination and assisting with registration.
“This is definitely a vexing issue for employers who, on the one hand, want to ensure their workplace is safe for employees and the people they serve, while on the other hand, have concerns with enforcement of a policy requirement that has the potential to lead to liability and morale issues,” he said in an email.
Katie Quackenbush, co-president of the Human Resource Leadership Association of Eastern CT, said most of the people with whom she’s spoken are encouraging vaccination and educating employees but not mandating it.
“There have to be consequences if people don’t do things that are mandatory, and that’s a challenge to deal with,” she said. As with other company policies, the employer would have to decide whether to discipline the worker or possibly terminate employment.
Her advice to employers is: “If you think you want to mandate it for your employees, get legal advice, to make sure you’re considering everything from every angle.”
How are long-term care facilities and medical providers handling a mandate?
Atria Senior Living is requiring employees to be fully vaccinated by May 1, while Masonicare’s employee mandate is effective in June. Both companies offer independent living, assisted living and memory care; in southeastern Connecticut, Atria has a facility in Waterford and Masonicare has one in Mystic.
“We believe our residents deserve to live in a vaccinated environment and our employees deserve to work in a vaccinated environment,” John Hartmayer, senior vice president at Atria, said in an email statement. He added, “The number one thing residents and family members want to know is how will you keep my family safe. A key piece of our answer is requiring all employees and private duty aides to be fully vaccinated by May 1.”
He said employees have been enthusiastic and excited to get vaccinated, but in the case of “objections as well as isolated situations where taking the vaccine is not possible or feasible,” Atria is “working with those employees on an individual basis.”
Masonicare CEO Jon-Paul Venoit said in an email statement, “We have made the vaccine mandatory for all Masonicare employees effective June 2021, because we believe that it is that important. No other industry has been hit as hard as the senior care and nursing home industry. It is our responsibility to do whatever it takes to protect those we care for.”
He said while Masonicare initially saw some hesitancy, more employees are stepping forward. The company also mandates the annual flu vaccine for employees.
Neither Atria nor Masonicare are members of the Connecticut Association of Health Care Facilities/Connecticut Center for Assisted Living, which represents nearly 150 facilities in the state. President and CEO Matthew Barrett said he doesn’t know of any members that are mandating the vaccine for employees.
“I’m hearing that my members are not going in that direction,” he said, “and that they’ve been reluctant to go that way, and that they’ve been much more favoring an approach that included a lot of education and dispelling the myths, and that we’ve seen a steady improvement because of those measures.”
Barrett pointed to a Jan. 29 article from the Associated Press saying that about 60% of nursing home staff have received their first shot, which he said isn’t good enough “but that’s really good progress, and we’re encouraged by that.”
Hartford HealthCare discussed mandating the vaccine for employees but opted against it, “and there are no immediate plans to change that,” Chief Clinical Integration Officer Dr. Jim Cardon said in a media briefing Thursday morning.
Rather, he said their approach is “to make it as easy as possible, continue to educate, and ensure we are allowing people to make very informed decisions.”
UCFS Healthcare Chief Operating Officer Cara Westcott said a mandate for employees was “definitely a discussion early on” but the company currently isn’t mandating the COVID-19 vaccine. She said the flu vaccine is required and, before the pandemic, those who chose not to get the flu vaccine had to wear masks from October to March.
“It is so new and some people have apprehension,” Westcott said. But she kept open the possibly of mandating the COVID-19 vaccine down the road, if it is one that must be given annually.
What about a government mandate?
Gov. Ned Lamont has repeatedly said he has no plans to mandate the vaccine. Asked in November — when Pfizer announced results from its Phase 3 trial — if there’s any thought of requiring vaccination, the governor said no and he thinks “the best way to do this is on a voluntary basis.”
In December, he said Connecticut residents are “smart and overwhelmingly will get the vaccine voluntarily,” The Hartford Courant reported.
Asked Jan. 28 if correctional facility staff might be required to be vaccinated, Lamont said, “Not at this point.” The next day, Chief Operating Officer Josh Geballe told The Associated Press there are no plans to require mandatory vaccinations for nursing home staff.
Sen. Heather Somers, R-Groton, said that while the governor has repeatedly said he has no plans to mandate the vaccine, the topic is still on people’s minds, and there is “clearly a fear in the community that the government is going to mandate a vaccine that is not fully authorized or fully approved” by the federal Food and Drug Administration.
This was part of the impetus for her to introduce S.B. 405, which would prohibit the state from mandating a vaccine that has only been given emergency use FDA authorization. She said different organizations asked for this bill.
Somers said the Public Health Committee, of which she is a ranking member, isn’t going to raise this bill, but she hopes that submitting the bill will allow the topic of emergency authorization and mandates to be part of a larger conversation on vaccines.
“I think we should push very hard on education on vaccines in general,” she said. She pointed to a recent forum with long-term care facility workers who didn’t take the vaccine and were given a chance to ask questions, saying that afterward, more started accepting the shots.