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September 6, 2021 FOCUS: Law

Here’s why one CT employer mandated vaccines. Will others follow?

PHOTO | CONTRIBUTED Yale School of Medicine professor Onyema Ogbuagu gets a COVID-19 vaccination at Yale New Haven Hospital.

For Central Wire Industries, the Canadian parent company of Pomfret cable and wire rope manufacturer Loos & Co., a decisive moment in its handling of the COVID-19 pandemic came when multiple quality assurance workers were recently exposed to the virus.

The affected employees perform their roles in person at worksites, according to Central Wire President and CEO Paul From, and are indispensable to operations; having them sidelined foreshadowed the possibility of even worse disruptions, and conceivably dire health consequences, in the near future.

“I just said, this is not going to end, this is crazy, and we have to take very aggressive action and treat this as a public health threat to everyone,” From said.

In response to the incident, Central Wire instituted a vaccine mandate. All employees, including those at Loos & Co. and other subsidiaries, will have to be immunized by Oct. 29.

When From first made the announcement, on Aug. 17, few private employers of note had embraced vaccine mandates, with many expressing uncertainty over possible legal barriers. A lot has changed in the less than three weeks since, however, with companies such as Cigna, CVS Health, Delta Air Lines and Walt Disney World, among others, now requiring some or all of their workers to be vaccinated.

From said those developments validate Central Wire’s decision and show that many private sector executives had been contemplating such a move for weeks or possibly months.

“Within two days [of announcing the company’s vaccine mandate], I had around 30 messages from CEOs, CFOs and human resources executives saying they were thinking of doing the same thing but weren’t sure,” he said. “They were nervous about pushback. But the thinking has begun to change. Now, I think you’ll see less hesitancy on this.”

Good business sense

Hartford-area legal experts have noted a similar shift among the firms they work with. While once unpopular, blanket vaccine requirements — with carve-outs for certain cases — seem to be one of the few tools left to employers to insulate themselves from an increasingly unpredictable pandemic.

Daniel Schwartz

Meantime, President Joe Biden and Gov. Ned Lamont have publicly urged private-sector companies to adopt a vaccine mandate to help boost the country’s overall vaccination rate and stunt the delta variant’s spread.

“There’s no doubt companies are more willing to explore and implement vaccine mandates now,” said Daniel Schwartz, an employment lawyer at Hartford law firm Shipman & Goodwin. “I think from a business perspective, the calculation of what’s palatable has changed, and that’s certainly going to move the needle.”

Schwartz — who said Shipman & Goodwin is now dealing with vaccine mandate-related issues daily — believes many companies have come to see the requirement as simply good business sense.

“I think this is something employers have been using to reduce uncertainty, reduce costs and keep employees safe,” he said.

Abby Warren, a labor and employment attorney at Hartford law firm Robinson+Cole, said interest in mandates seems to have spread from the education and healthcare sectors, where they were first implemented. Since most of those early adopters faced few serious challenges, Warren said, other industries may feel more emboldened to take the same route.

For the most part, courts and government agencies charged with arbitrating employment matters have largely sided with employers when it comes to mandates.

In June, a federal judge in Texas dismissed a lawsuit from a group of employees challenging the Houston Methodist Hospital system’s requirement that all staff be vaccinated.

The employees had claimed that COVID-19 vaccines were experimental and possibly dangerous, but the judge ruled that Houston Methodist was within its rights and working to protect patients.

Warren said the first-of-its-kind case has set an example.

“There’s a lot of support from agencies and courts, at least right now,” she said.

Warren also pointed to the U.S. Food and Drug Administration’s recent decision to officially approve the Pfizer vaccine, a blow to claims that the shots have not been studied or scrutinized as thoroughly as they might have been in pre-pandemic times.

“The argument against employer mandates because the vaccines may be unsafe has definitely weakened,” she said.

Handling exemptions

As recently as May and June, most major employers said they were not actively considering vaccine mandates. Many in the corporate sector and public health circles believed the adult vaccination rate would reach 70% — considered the threshold for national herd immunity — within months, providing a protective shield to Americans who can’t or won’t get immunized by lowering overall transmission.

The actual number of fully-vaccinated adults has stalled well short of that, however, at around 60%, and the delta variant is boosting infection rates to their highest levels since last winter, at the height of the pandemic before vaccines were widely available to the public.

With many corporations now willing to push forward despite possible legal blowback, employment lawyers say discussions concerning the feasibility of mandates have somewhat gone by the wayside as a new legal frontier — exemptions — comes to the fore.

“The conversation has turned from, ‘Do we mandate vaccines or not?’ to ‘How do we manage requests for exemptions?’” Schwartz said.

Schwartz said the exemption requests he’s seeing fall into three major categories: disability, religious beliefs and pregnancy, usually in conjunction with other health issues.

In those cases, he said, exempt employees will probably be required to wear high-grade face masks and submit to weekly COVID-19 testing to ensure they are not infected.

Warren said employers have a large body of case law to fall back on when formulating exemption policies, most of it based on cases involving the flu vaccine. Still, there could be nuances to work out, she said, because the courts have to balance legal protections with safety concerns.

“A religious exemption, for instance, might look different in a nursing home — where it could create an undue hardship — versus in an office setting,” she said.

It remains to be seen how many Connecticut-based companies will ultimately embrace vaccine mandates. With the state’s comparatively high vaccination rate, employers may see less of a need to implement one than their counterparts in the South or West, and some businesses may opt to rely on other tactics to encourage immunization, such as bonuses or other incentives.

So far, only one large-scale private employer headquartered in Connecticut — Bloomfield health insurer Cigna — has moved to make vaccines mandatory.

Eric Gjede, vice president of public policy at the Connecticut Business & Industry Association, said the organization has not seen an “overwhelming amount” of companies contemplating mandates. It remains to be seen, Gjede said, if the FDA’s Pfizer vaccine approval increases interest.

CBIA, which represents thousands of member companies in the state, has said the vaccine mandate issue should be left up to individual businesses, as they have the best insight into their own needs.

“We have taken the position that it should be an individual employer decision,” Gjede said.

Warren offered a similar assessment, noting that companies will arrive at different conclusions based on their line of work, brand and customers.

A healthcare firm, for instance, might consider a vaccine mandate to be consistent with their overall mission in a way that’s fundamentally different from businesses in other sectors.

“This is not a one-size-fits-all situation,” she said. “It’s employer-specific, as it should be.”

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