Over the last few months, I’ve noted here and elsewhere that employers can very likely mandate vaccines.

Now are starting to see the first court cases confirm this.

In a decision issued over the weekend, a federal court in Texas rejected claims by a class of workers at a Houston hospital that the hospital’s policy of requiring employees be vaccinated against COVID-19 at its expense was illegal.  The case, Bridges v. Houston Methodist Hospital, can be found here. 

The employee made several arguments. First, she argued that the vaccines are still “experimental and dangerous” and therefore she was illegally terminated.  The court rejected that saying the claim is “false, and it is also irrelevant”.  The court said that “vaccine safety and efficacy are not considered in adjudicating the issue.”

Indeed, the court noted that the employee was not being required to perform a illegal act — rather she is refusing to accept inoculation “that, in the hospital’s judgment, will make it safer for their workers and the patients”.

The court also rejected the argument that the “emergency use authorization” provision somehow limits what employers can do here. The court concluded that such a provision “neither expands nor restricts the responsibilities of private employers; in fact, it does not apply at all to private employers”.

But the court saved its best arguments for last. Among the anti-vaxxer’s arguments was one seen on message boards — that this requirement somehow violates “the Nuremberg Code” and that this was similar to the “forced medical experimentation during the Holocaust”.  The court easily dismisses such arguments finding that the Code does not apply because the hospital is a private employer.

As for the reference to the Holocaust: “Equating the injection requirement to medical experimentation n concentration camps is reprehensible. Nazi doctors conducted medical experiments on victims that caused pain, mutilation, permanent disability, and in many cases death”.

Finally, the court said that the employee is not being coerced.  Rather the hospital is “trying to do their business of saving lives without giving them the COVID-19 virus.  It is a choice made to keep staff, patients, and their families safer.” The employee can refuse the vaccine; if she does so, she will “simply need to work somewhere else…Every employment includes limits on the worker’s behavior in exchange for his remuneration. That is all part of the bargain”.

Although the decision arises out of Texas, it is hard to imagine a court in Connecticut or the Northeast would conclude differently.

Whether or not an employer should mandate a vaccine for its employees is a difficult decision that requires the employers to balance many competing factors. But ultimately, it is not illegal and getting court cases to say so should give employers more support for their decisions.

Yesterday, Governor Lamont signed House Bill 6380 (Public Act 21-30), which adds another layer of complexity for employers engaged in hiring and also amends the state’s equal pay laws.

Here’s what employers need to know for the new law that goes into effect October 1, 2021 for wage ranges:

  • First, the new law prohibits employers from failing or refusing to provide a job applicant with the “wage range” of the position for which the applicant is applying.
  • What’s a “wage range”?  “It means the range of wages an employer anticipates
    relying on when setting wages for a position, and may include reference  to any applicable pay scale, previously determined range of wages for the position, actual range of wages for those employees currently holding comparable positions or the employer’s budgeted amount for the position.”
  • Employers must provide the wage range before or when offering the applicant the job, or when the applicant requests it during the application process — whichever is earlier.
  • But it’s not just for applicants. The new law prohibits employers from failing or refusing to provide their employees with their wage ranges, when hired, when their position changes, or upon the employee’s first request for a wage range.
  • Job applicants and employees can bring a lawsuit for violations with a two year statute of limitations.  Notably, employers can be liable for compensatory and punitive damages, as well as attorneys fees.

These changes will no doubt make hiring more complex.   Employers will have to consider when to provide salary ranges and in what level of detail — even when it may not know exactly what it wants to do.

The new law also amends the state’s equal pay laws also on October 1, 2021.

Under current law, an employee alleging pay discrimination must prove that the employer pays employees of one sex a lower wage than employees of the opposite sex for equal work that requires equal skill, effort and responsibility under similar working conditions.

The new law now requires employees to prove the employer pays employees of one sex a lower wage for comparable work when viewed as a composite of skill, effort and responsibility under similar working conditions.

A subtle change to be sure but it lessens the burden to show something is “equal”.

Employers faced with such claims have had several defenses including that it is a differential system based upon a bona fide factor other than sex, such as education, training or experience.

The new law also specifies that these other factors may also include credentials, skill and geographic location.  That broadens the defenses for employers.

These claims must still be brought to the labor commissioner and it is only when the complaint is not investigated that the employee may bring an action in court.

It’s far too early to tell what the impact of these changes will actually be.  Predictions of changes after the Ledbetter Fair Pay Act were overblown — as I predicted in my post on “Why the Hype on the Ledbetter Fair Pay Act is Overblown”  in 2009.

I wouldn’t go so far as to use that same hyperbole here but the changes here — beyond the administrative hassles of providing “wage ranges — are modest.

Just a few more days until the General Assembly wraps up for the current year.  With the end upon us, employers need to stay up on the bills — some of which get lots of press, some of which don’t.

One of the bills that has been passed over the last few days — and signed by the Governor on Friday — updates the state’s laws on breastfeeding in the workplace.

Public Act 21-27 (formerly House Bill 5158) amends Conn. Gen. Stat. Sec. 31-40w to establish certain criteria for employer-provided areas used by employees to express breast milk.

I’ve previously discussed what the current law provides — “reasonable efforts” to provide a room or other location near an employee’s work area where the employee can express her milk in private.

The new law states that this area must — absent an undue hardship on the employer — :

  • be free from intrusion and shielded from the public;
  • include or be near a refrigerator an employee-provided portable cold storage device;
  • have access to an electrical outlet.

None of this, frankly, should be all that difficult for employers to provide in many instances. Employers should try to work with employees who make such requests; it’s not a one-size-fits-all solution. But the new law suggests some minimum requirements for employers to consider when receiving such requests.

The law becomes effective October 1, 2021.

On Friday, the EEOC released new guidance to address issues that had been popping up in the workplace related to vaccinations. They represent the first substantive updates on the pandemic from the EEOC since the start of the Biden administration.

My firm will be posting a full recap on our sister site, Employment Law Letter, early this week as will most lawfirms.

But for me, the key takeaway confirms what we’ve thought these last few months:  Employers may require all employees physically entering to workplace to be vaccinated for COVID-19 (subject to reasonable accommodations for disabilities and religious beliefs) and employers may offer incentives to employees regarding vaccinations.

None of this is particularly earth-shattering.

But it should give more support to employers considering vaccination requirements.

Anecdotally, I’m hearing of more clients either strongly considering or even implementing vaccination requirements to come back to the workplace.  In a few instances, landlords are requiring vaccinations for tenants.  I think that trend will continue, particularly in Connecticut where we have some of the highest vaccination rates in the country.

Why the push for vaccinations? Because vaccinations provide a straightforward way for employers to operate with a minimum level of disruption.  Vaccinations allow an employer to worry less about contact tracing, quarantines, or additional time off.  As a result, employers should consider providing incentives to employees who may still be recalcitrant about getting vaccines. Extra time off — particularly to deal with side effects — can be a good start.

Despite the lousy weather this past weekend here, we have a lot to look forward to this summer in Connecticut. Getting more people back in the office safely is a good step back to take.

 

Did you like Executive Order 12 which set forth a new mask rule in Connecticut? Well, I hope you didn’t get used to it because it changed again on Thursday.

Executive Order 12A tweaks the prior rule.

It provides that the Department of Public Health shall issue a rule setting forth a comprehensive list of facilities, venues and other locations where masks and face coverings are required.

The Department of Public Health later set forward a rule (as opposed to the guidance I noted yesterday) stating in no uncertain terms that everyone must wear masks in certain situations including inside public or private school buildings, inside transportation hubs or using transportation services (planes, trains and taxis, etc.) or other specified situations.

The new rule adds a new enforcement mechanism that anyone who doesn’t wear a mask in accordance with the DPH rule shall be fined $100.  In the case of an employee, the new rule states that an employer rather than the employee is liable for the fine for any employee’s failure to wear a required mask as set forth in the DPH rule.  This fine does not appear applicable to situations where an unvaccinated person doesn’t wear a mask in a public place.

How this rule will ultimately be enforced remains to be seen.  And to be clear, none of the orders or rules suggest that masks must be worn outdoors.

One other side note: The Governor also released Executive Order 12B which extends several of the emergency orders until June 30 or July 20, 2021.  A full list of such extensions is available here.  

Regardless of the changes, employers should again consider maintaining masks or face coverings in indoor work settings, particularly for unvaccinated workers, as the guidance here continues to be fluid.

After my post yesterday regarding Executive Order 12, the state Department of Public Health released its guidance further clarifying (or not) the rules of the road for masks going forward.

The problem is there is still some questions that remain even after the guidance.

Before I talk about that, let’s talk about words. When someone says you “must” or “need to” or “are required” to do something, odds are you’re going to do it. That is even more true if that someone is the government.

But what happens when someone says you “may” or “should” do something? Is it really required? When it comes from the government, does that change your perspective? What happens if you don’t do it?

That is, in essence, where some of the remaining confusion lies.

In one part of the new DPH guidance, it states that all people (vaccinated or not) “need to” wear a mask inside a school building.  That seems pretty direct without much wiggle room: A requirement.

In another part of the guidance for businesses, however, it states that stores “Should consider requiring customers to wear a mask when they are inside an establishment…”  That seems more optional.  But questions start to arise: If a company fails to follow this guidance, is it opening itself up to a claim?

Now take another example.  In another part for businesses, it states that they “should require employees to wear a mask if they are unvaccinated or their vaccination status is unknown and they cannot maintain continuous separation from customers or coworkers.”

Does this mean that employers are not required to have their unvaccinated employees wear masks? It certainly suggests it, though the guidance could also still be read to require unvaccinated employees to wear masks “indoors”.

Thus, we’re back where we were earlier this week. Employers should exercise caution when opening back up and should recognize they still have a duty to provide a safe work environment. Thus, employers should continue to think about mask mandates indoors for at least unvaccinated employees.

If and when we have any additional information, we’ll provide an update.

 

On Tuesday afternoon, Governor Lamont issued new Executive Order 12 updating the mask guidance that the state has been operating under since way back in Executive Order 7NNN on August 14, 2020 (and Executive Order 7BB on April 17, 2020 before that).  The new guidance skews closer to the CDC guidance that we talked about last week.

In addition, the state has discontinued all of the sector rules that were first required and then recommended to employers.  So things like contact tracing, or one-way paths, are not required any more.

Here are the key items from the Executive Order:

  • While indoors in any “public place” and when not socially distant from every other person, all unvaccinated individuals are required to wear a mask.
  • In addition, all individuals (fully vaccinated and not) must wear a mask in any taxi or car service, any commercial aircraft, any means of public transit, or within an airport, bus or train station, or homeless shelter or correctional facility.
  • The same exceptions for medical conditions that applied before remain in place.
  • Masks will not be required while eating or drinking (presumably in these public places noted above).
  • Any business, nonprofit organization, property owner, healthcare facility or office, or state, regional, or municipal government or agency may require, subject to the exceptions in subsection 1(a) of this order, the universal use of masks or face coverings or require staff to wear masks in settings under their ownership or control, including, but not limited to, healthcare facilities, offices, places of public accommodation, public venues, or public meetings.

Thus, businesses can require that customers still wear masks.

Schools will be subject to any further operational rules issued by the respective state agencies.

The Governor has indicated that the Department of Public Health will be issuing new guidance shortly to businesses. So this is all subject to further clarification and guidance. [The guidance was released late Wednesday, after this post was published.]

Employers should exercise caution in lifting all the restrictions that they have been operating under. Clearly we are making good progress in this pandemic but employers are still at risk for outbreaks, particularly with unvaccinated staff. In addition, we’re still awaiting guidance from OSHA as to what providing a safe workplace means in this “new normal”.

Talk with your legal counsel and work to figure out what makes sense for your business.  It’s not going to be a one-size-fits-all approach.

My firm will be posting more updates on our sister site here.  

You remember the first “real” week of the pandemic, right? The NBA shut down. Then the schools. And then we were all shopping for toilet paper.  Things were moving at light speed.

Yesterday brought back a lot of those memories and stress.

First, the CDC said that fully vaccinated individuals could drop their masks.

Sort of.

The agency said that masks should still be worn while flying or taking public transit and when visiting health care facilities. Schools? Workplaces? The guidance was not quite specific.

Here’s some of the language:

Fully vaccinated people can resume activities without wearing a mask or physically distancing, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.

In other words, if state or local jurisdictions require mask wearing, those rules still trump their recommendations.

Then Governor Lamont announced that the indoor mask requirement for public settings would be dropped by May 19th.  Except that the Executive Orders still needed to be modified and there will be some places were masks will be required, according to comments by the state’s chief operating officer.  As the Hartford Courant noted, 

“[T]here will be some exceptions to that rule — even vaccinated people will still be required to wear masks in high-risk spaces such as nursing homes and schools, according to the state’s chief operating officer Josh Geballe. Those rules will be finalized by the state in the coming days, he said.”

Will workplaces be one of those places? That’s still to be determined though Lamont has indicated that all “remaining” business restrictions will be dropped on May 19th.

Here’s the confusing part: Under both the CDC recommendations and the state’s expected rules, unvaccinated people will still be required to wear masks, though there will be no way to enforce this.

For employers, this is a mess. Do you survey employees to determine who is and who isn’t vaccinated?

But wait, it gets worse.  The government’s guidance is far from consistent. Right now, OSHA still has guidance on its website that says that employers should not make distinctions between fully vaccinated employees and those who are not.

Check this out: 

Not distinguishing between workers who are vaccinated and those who are not: Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person. The CDC explains that experts need to understand more about the protection that COVID-19 vaccines provide before deciding to change recommendations on steps everyone should take to slow the spread of the virus that causes COVID-19.

Now obviously, this is a bit outdated since the CDC’s new recommendations say there IS evidence that COVID-19 vaccines prevent transmission.  But still.

For employers, this is a moment to take a deep breath — and pause.  The guidance here is shifting pretty significantly as we speak.  There’s no need to rush into things. I anticipate that over the next week or two, new guidance from state and federal officials will continue to develop and be released. That should provide some needed clarity.

The CDC’s announcement yesterday is a good sign that we’re doing well in our efforts to end this pandemic. But it’s not quite over yet.  Stay the course, keep your employees safe, and be mindful that the rules going forward are likely to look very different than the rules we’ve all been operating under for the last 15 months.

Judging from the calls I’ve fielded over the last few weeks, nearly every employer is thinking about the impact mass vaccinations are having on their workforce.

The questions (and answers), however, are basically the same:

  • Can we mandate vaccinations? (Yes, with some exceptions)
  • Are other employers considering mandates? (Yes, though they remain the minority for now. More, however, are strongly considering it, particularly after the vaccines are approved for “full” usage. Schools, non-profits, and those who interact with the public in high-risk situations seem to be favoring it along with bio-science companies).
  • What do we do with the holdout employee who doesn’t want to be vaccinated? (It depends.)

Tomorrow morning (Tuesday), I’ll be talking more about vaccinations with some of my favorite public radio folks: Where We Live. (It’s not my first time.)

Employers right now are stuck in this in-between stage where vaccinations are still ongoing but the pandemic hasn’t reached the stage where the disease has mostly disappeared too.  As such, caution remains advised.

One last unknown variable: OSHA is expected to release new workplace safety guidelines almost anytime now. That may change how employers think about vaccinations.

In any event, listen in tomorrow to Where We Live for more.

As post-vaccination life kicks in, the complications for employers continue to mount.  No doubt life was a lot harder on lockdown, but some individual decisions for employers were easy — just work from home.

But over the last few weeks, judging from the calls I’m fielding from employers of all sizes, there’s a desire to bring some people back to an office setting — and many employers are considering the role that vaccinations (mandatory?) should play too.

I’ll talk more about vaccinations (again) in another post, but I’m concerned that employers may lose sight of the other changes going on right now. These are a few of the items that should be checked off your to do list.

  1. Be mindful of the COBRA subsidy rules. “Subsidy?”, you say? Yes, exactly. My colleagues have explained all the details here. But the biggest takeaway? If you’re doing employment terminations from now through early fall, you may be required to pay for that workers COBRA premiums (and take a tax credit). Oh, and you might have to notify those people who are already on COBRA too. Work with your benefit provider to get the details.
  2. Do not forget about CT Paid Leave! By now, you should be registered with the CT Paid Leave Authority, should be doing withholdings for your employees and should have made your Q1 contributions to the state. If you haven’t, get some help now. Ignoring this will only be more costly in the months ahead. And remember: the remaining provisions of the new paid leave law kick in January 1, 2022.
  3. Masks? No masks? It’s been a challenge for employers keeping up with all the rules for running a business.  Starting May 19th, the rules are set to change again.  According to Governor Lamont, “All remaining business restrictions will end.  Indoor masks will continue.” What that will exactly look like, however, is up in the air.  Will that mean that employers can drop the masks if employees have been fully vaccinated? Complicating things more: New OSHA regulations are expected in the next few weeks.  Thus, for employers, remaining flexible remains key.
  4. Have you been putting off sexual harassment prevention training? Well, the deadline was extended again recently by Executive Order. The new deadline is May 20, 2021.  This looks to be the final extension of the deadline.  Luckily, my colleagues and I have recorded a webinar that you can use for your business at just $20 a person.  And it’s ready to go right now. 
  5. If this is not enough, my colleagues are planning our annual spring seminar on developments in labor & employment law. While targeted to the public sector, many of the topics will be applicable to all employers. And the best part? It’s virtual and it’s still free.  You can register for it here. 

Spring cleaning isn’t my favorite task but this spring, it’s more important than ever to make sure you are cleaning up the small details. Summer is coming and I know I’ll be wanting to spend it on vacation, not cleaning up overlooked messes.

And don’t forget – we have a few weeks left in the Connecticut legislative session. We’ll have a few bills to talk about soon.