Earlier today, my colleagues and I gave a webinar on mandatory vaccination policies. It’s almost like the President was listening.

This afternoon, President Biden announced that the Department of Labor, and specifically, OSHA will be issuing a new rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. According to the White House, OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.

The rule is expected to go further. According to the White House,  “to continue efforts to ensure that no worker loses a dollar of pay because they get vaccinated, OSHA is developing a rule that will require employers with more than 100 employees to provide paid time off for the time it takes for workers to get vaccinated or to recover if they are under the weather post-vaccination. This requirement will be implemented through the ETS.”

There will be more on this over the next few days. But there’s no need to wait. You can still view our webinar here. We answer a lot of your questions including how to deal with medical and religious exemption requests, how to collect information on vaccination and how to implement a policy.

We’ve been working on this for many months now. There’s no reason to do this alone.  Feel free to reach out to us (or any of your other trusted counselors) with any issues.

Earlier today, the U.S. withdrew the last troops stationed in Afghanistan, bringing a close to a 20 year war there.

The war has had a substantial impact in America’s workplaces over the years.  For example, back in 2008, after years of inaction, Congress passed a sweeping expansion of the federal FMLA law to provide for protected leave to  Specifically, an employee may take 12 weeks leave, where the spouse, or a son, daughter, or parent of the employee is on active duty (or has been notified of an impending call or order to active duty) in the Armed Forces in support of a contingency operation and there is a “qualifying exigency”.

The war in Afghanistan was most definitely one of those “contingency operations”  also known as “an action or operation against an opposing military force.”

In addition. Congress also expanded the FMLA to a military caregiver leave which allows an employee to take up to a total of 26 workweeks of unpaid leave during a single 12-month period to take care of his or her military relative if he or she has a qualifying serious injury or illness.

These changes — and corresponding one in Connecticut in 2016 — were in response to the continued strain being placed on families for the war on terror.  Another law that has been implicated far more in the last 20 years — USERRA — will also be implicated less with the end of the war.

That said, the end of the war is a somber time, with the heavy loss of life from the various armed forces just last week.

I was reminded of that recently on a visit to a local pub, Four Dad’s Pub in Granby.  On a table right by the door, was table “reserved” for the fallen service members.  This is the picture above.   I found it touching and a reminder of the toll that war has had on so many families in Connecticut and beyond.

So today, we remember those we’ve lost in the war and honor their memories.  May their memories be for a blessing.

 

As the Delta variant continues make its presence known, more employers are continuing to explore mandatory vaccination policies for their staff.  This comes on the heels of Governor Lamont’s executive order that requires teachers and others to be vaccinated against COVID-19 or submit to weekly testing.

My colleagues and I have been fielding questions on a daily basis.  Can we mandate vaccination for employees? (Yes) Are there exceptions? (Yes.)

The questions have gotten more nuanced, however, as this pandemic develops. For example, when and how can you challenge an employee’s request for a religious exemption? What accommodations can you really provide when someone isn’t vaccinated given the contagious nature of this virus?

I’ve covered some of the basics before, but I’m going to be digging a little deeper with two upcoming webinars in the next two weeks.  Please feel free to sign up where applicable.

On September 2, 2021, at 2 p.m. my colleague Sheridan King and I will be speaking to the Connecticut Construction Industries Association about mandatory vaccination policies and the issues unique to the construction industry. For example, can contractors ask subcontractors to only send vaccinated employees to a worksite? How do exemptions work when a customer requires vaccination? You can see the flyer and sign up here.

A week later, on September 9, 2021 at noon, Sheridan King, Jarad Lucan and I are presenting a Shipman & Goodwin LLP Webinar for all private employers about the very latest in developments concerning mandatory vaccination policies.

This free webinar will provide employers with a better understanding of the legal and practical considerations of mandatory vaccine policies and address frequently asked questions related to employee requests for accommodations. While the content will focus mainly on the applicable requirements in the private sector, public employers may find many of the principles useful in analyzing similar issues.

Among the topics we’ll cover:

  • Legal and practical considerations of instituting a mandatory vaccine policy
  • Who pays for the vaccine: the employer or the employee?
  • Workplace surveys and record keeping for employee vaccination status
  • Addressing confidentiality concerns
  • Responding to requests for accommodations, engaging in the interactive process, and undue hardship

You can sign up here.  Attorneys can also get one hour of CLE credit for participating in the program.

Mandatory vaccination policies are here to stay. Whether they are right for your workplace and whether you are ready to manage this is something that you and your business will be better able to address after our webinars. Look forward to seeing you then.

 

So yesterday’s post was about being a Miami Hurricane. Today’s? A real-life hurricane/tropical storm (Henri) is making it’s way to Southern New England.

It’s impact here in Connecticut is still very much up in the air as of midday Friday but for employers, this is still another challenge to have to manage.

Thankfully (or not, as some of you remember), we’ve had experience in this area before and so rather than write something entirely new, I’m going to highlight some prior posts that should provide some guidance on the items to think about during this next tropical storm.

Over the next few days, keeping employees safe and keeping your operations going will be imperative. Trying to do this in the face of an increasing surge (again) in the pandemic is something none of us have dealt with before.  Most of the legal issues can wait but make sure you’re not doing anything crazy either.

Stay safe everyone.

Tis the season for dropping kids off at college.  My family is no exception.  We recently visited Miami — Coral Gables to be exact — to drop my daughter off for her first year as a Hurricane.  It’s exciting and exhausting. Add a out-of-control pandemic in Florida, and it’s downright stressful.

(But who would’ve thought though that we might be dealing with a Hurricane in New England before Miami?!)

Around campus at the U, masks are required for all indoor events and vaccines are strongly encouraged. Contrast that to Connecticut where many universities are requiring masks AND vaccines. But in Florida due to an executive order and legislation, even private schools like University of Miami are prohibited from requiring students to be vaccinated against COVID-19.

As a result, during orientation, there was a constant mantra of “While we’d like to mandate the vaccine, we must follow the law so we strongly encourage you and your students to be vaccinated.”  Thus during the first week of operation, the school already has 41 active cases from students, and 71 cases from employees.

Contrast that with the news in Connecticut on Thursday of Governor Lamont requiring all teachers and state employees to be vaccinated or face weekly testing.

It’s just yet another reminder that during this pandemic, we have 50 different states of responses.

For now, employers have to juggle a lot. Those considering mandatory vaccinations have to ensure that local laws are met, that exemptions are considered, and that the policy is well thought out and implemented fairly.

And for those that aren’t mandating vaccines, managing expectations and mask wearing is another challenge. Pandemic fatigue is real.

My trip to Florida was enlightening on a few other grounds too (beyond the realization that Florida pizza is just a pale comparison to the New Haven-style pizza that abounds here).

  • There are plenty of people in Florida who don’t care about the pandemic. Maybe they never did.  Mask wearing during a visit to Target was maybe 35 percent — at best. Around our hotel, it was similar. Without mandates, people who don’t want to wear them won’t wear them.  Having government make this a “personal choice” allows for a lot of discretion.
  • That said, at almost every restaurant or store we visited, employees were wearing masks even though they are not legally mandated.  (Some had them below their nose, but I digress.)  This dichotomy between a non-mask wearing public and the mask wearing staff that serves them is just weird.  For employers, it’s hard to keep your employees protected without both.

There is something to be said about persevering during this pandemic.  In Florida, there’s plenty of outdoor eating and opportunities to be outside where things are a bit safer and many places we walked by were full of people taking advantage of it.  But this pandemic has shown that doing all or nothing aren’t great options. Shutting down hurts too many people while opening up entirely, no holds barred, lets the virus run rampant and causes many people to restrict their activities too.

For employers, it’s a hard balance to get right. Employers that thought about returning to the office full time next month have had to rethink their plans.

Patience is hard to come by nowadays.  But that might be the one thing that employers will need most over the next several weeks as we continue to ride this Delta wave.

Over the last few weeks, I rediscovered the “draft” folder of the back end of my blog. By last count, I had nearly twenty posts that I started and then didn’t finish for one reason or the other.

Some posts have just a title and maybe a line or two; a few were basically finished.  Some are pre-pandemic but there are quite a few from the pandemic itself giving a window back to what I was thinking at the time.

But rather than keep them unfinished, I decided to “finish” several of them here — so I can close them and start fresh.

The oldest of the posts dates back to 2015 based on observations I had on a trip to London.  Turns out the ADA and public accommodations portion of that law is pretty important in the United States. Back in London, I realized how important that law was as I saw people with disabilities really struggle trying to navigate steep steps in a theater or many steps in the Tube. I probably didn’t finish this because I would’ve then had to reveal that the theater show we saw was Cats. Needless to say, Cats was better this draft post.

Then there’s the 2017 post I had drafted based on a Fox News host who was suspended after texting three female work colleagues pictures of “male genitalia”.  I think I decided not to followup because I had just talked about sexting a few weeks early.  I didn’t think I needed to emphasize the point yet again that you should not text pictures of your private parts to co-workers.

But starting in 2020, I had a series of half-written pandemic posts. Some were never finished just because the pace of developments kept outstripping things I had drafted a few days before hand.

For example, on March 12, 2020, I wrote “What Next” and noted that “We’ve got our contingency plans to work remotely with staff but for how long?”  Suffice to say, I didn’t think I’d still be working mostly from home in August 2021.

Almost one year ago, in August 2020, I started reflecting on what working from home had meant to me.  “I have actually sorta, kinda enjoyed working from home. My wife has gotten used to my making coffee in the morning and I’ve gotten halfway decent too.  And I think everyone has gotten used to me having absconded with my wife’s former office in the house.”  But in that draft post, I started to think about whether the pandemic would roar again in the fall and just wanted to wait and see before posting.

In March 2021, I actually did a complete post reflecting on one year into the pandemic. I think I held off publishing because it seemed too personal at the time to share. But I’ll share one note of it: “I miss my law partners, my colleagues who I saw everyday and the staff that I work with.  Not every day; the virtual chats that we have are a decent substitute at times.  But some days. I miss the walking down the hall to ask someone a question, or find out good news about a relative, or even just to talk baseball or soccer.”

I still do.

Just the next month, in April 2021, I had my last draft post.  It only had one word in it and that was it’s title — “Hope.”

Back then, I had a great deal of hope that vaccinations were going to bring a respite for a good portion of the year.

But now we’re heading in the wrong direction yet again on the pandemic.  It’s time to reach back from the past for the future — hope remains a powerful tool to keep us going.

My hope for all of you is to find that strength to keep persevering. Stay safe and thanks for your continued readership.

 

 

Maybe it’s the Delta variant. Or maybe the publicity regarding Walmart and Disney. But over the last two weeks or so, there’s been a renewed interest in whether employers can mandate vaccines in Connecticut.

Indeed, we have been fielding lots of questions from employers (and friends and family) about mandatory vaccination policies.  But many of the conversations are similar. Can we? Should we?

Yesterday, I spoke with Dennis House and News8 about this issue but read on for more on the topic. 

Do I have to get vaccinated against COVID if my company mandates it? CT employment attorney weighs in

So, here are some of the FAQs and some more of my thoughts that didn’t make the interview:

  • I’m an private employer in Connecticut. Can I mandate the vaccine to my employees?
    • Yes.
  • That’s it? No caveats?
    • Well, of course there are exceptions. But generally, employers are free to mandate that their employees be vaccinated.
  • What kind of exceptions are we talking about?
    • The kind you’ve already been dealing with throughout this pandemic. The law provides that you must provide a reasonable accommodation for religious beliefs, disabilities, or pregnancy.  But even for this exception, there’s a larger exception in play.
  • I’m confused. Does that mean that if they get a note from their doctor or rabbi, they’re exempt?
    • No. It just means that you ought to consider whether they have a disability or a religious belief that qualifies for an accommodation and then see whether there is actually a reasonable accommodation you can provide, on a case-by-case basis. But remember, there’s no doubt that unvaccinated workers can be a direct threat to themselves or others and employers don’t need to provide an accommodation that is an undue burden on the employer. Thus,  in many instances, an unvaccinated worker may still be barred from the workplace or the accommodation may not be “reasonable”.  If an assembly-line worker asks to work without a mask while unvaccinated next to others, you can probably say no — even if they have a note from a doctor.  As with other types of accommodations, you should engage in the interactive process.
  • What types of religious beliefs qualify?
    • That’s an open question. Existing EEOC guidance has noted that typically employers should not be in the business of challenging an employee’s sincerely held religious beliefs.  But political beliefs or conspiracy theories aren’t enough and most of the major religions do not have any prohibitions on vaccinations that are part of their faith.  Indeed, many faith leaders have been encouraging people to get vaccinated. An employer is entitled to push back a bit but such skepticism should be based on facts, not speculation.
  • How do I go about mandating vaccines?
    • One place to start, if you haven’t done so, is with a survey of employees to determine who is and who isn’t vaccinated.  Are you at 95% or 65% compliance? That may help inform how and when a mandate should be done.  After that, develop a policy and run it by your lawyers.  Then announce it and give employees sufficient time to get fully vaccinated. Be sure to manage the requests for exemptions.
  • If I decide not to mandate the vaccine, what do I do with complaints from vaccinated workers?
    • Good question and another one without a clear answer. Employers have an obligation to provide a safe workplace.  Is having unvaccinated workers in your midst a safety hazard? No doubt an attorney will seek to file suit on this as one of my Twitter feeds suggests.

Mandates don’t solve all the problems an employer has in dealing with the pandemic but it solves several including dealing with quarantines, contact tracing, symptom tracking, travel restrictions, PTO and more.   Employers should be mindful though that mandates may lead to other obligations such as providing employees with paid time off to receive the vaccine and deal with its side effects too.

It may not be for every employer but it’s a good solution for some. Time to think about it.

Earlier this month, I talked about how the Delta variant could start making more of an impact in this area as it had “already shown itself to be far more contagious than prior strains”.  Optimistically, I said that employers probably had some time (maybe two months) to figure out their next steps.

That window of opportunity seems to be closing. Fast.

Reports from both The Washington Post and The New York Times from this evening of a CDC slidedeck (findings that will be discussed by the CDC in the next day or so) suggest several conclusions about the newer Delta variant of COVID-19 that should have employers rethinking office reopening plans. Among the findings:

  • Vaccinated individuals infected with Delta may be able to transmit the virus as easily as those who are unvaccinated. This does NOT mean that they will get as sick, but rather suggests some transmissibility — even if they have no symptoms.
  • The Delta variant is far more contagious than the prior strains — on par with the Chicken Pox — and far more contagious than the flu or even a common cold.
  • Yet vaccinated persons have a far lower rate of hospitalizations and deaths than unvaccinated persons.
  • Still for unvaccinated people, the Delta variant may cause more severe disease than prior strains.

In short, the Delta variant is different from previous strains. It is highly contagious and maybe more severe.  However, existing vaccines are still highly effective against it, particularly in preventing serious illness.

While we will still need more information from the CDC, OSHA, and other medical professionals, in my view, this means that employers have far more on their plate than just a few weeks ago.

Here are the issues now on the table:

  1. Should you now strongly consider mandating the vaccine (subject to legal exceptions)?
  2. Should you reimpose new mask requirements in the workplace including for vaccinated workers?
  3. Should you postpone any “return to office” requirements until the newer wave of Delta variant plays itself out?
  4. Should you impose other restrictions on your workforce including strict travel requirements? Limits on in-person business meetings?
  5. Is it time to “get the band back together” and consider what steps should be taken for your workforce assuming this next wave continues to increase for a while?
  6. If you decide not to impose a mandate, should you consider testing regularly (even if that may only provide a false sense of security)?
  7. Are additional screening methods needed given that a few vaccinated workers may become infected and might be able to transmit the disease without even symptoms?

The modest “good” news is that the Delta variant wave in the U.K. appears to have crested and at least for Connecticut, their vaccination rates are on par with a good portion of the state. The bad news? The rest of our country’s vaccination rates are not and the rate of illness is rapidly increasing.

This week has brought a LOT of new developments: New incentives from the federal government and new mandates from many companies.

And there are still many unknowns. Will this Delta variant burn out quickly? How much worse will this wave get? What other things don’t we know?

For employers — particularly those who have unvaccinated populations like independent schools — summer vacation is over. Time to get back to work keeping your workplaces safe.

Again.

Connecticut’s next round of increases for the state’s minimum wage law goes into effect this Sunday, August 1st.

You may recall that the state last increased the minimum wage in September 2020 to $12 per hour.

On Sunday, the rate increases to $13 per hour.

These step increases are due to a law passed in 2019 that set the state on a multi-year increase to $15 per hour.

In fact, in July 2022, the minimum wage increase to $14 per hour.

Employers should be mindful not only of the increase, but the salary compression that is occurring due to these increases.  As a result, other salaries may need to be adjusted to take this increase into account.

Continuing my deeper dive this week into new laws from the General Assembly, today’s post tackles Public Act 21-69, which goes into effect October 1, 2021.

The law amends existing law by making it a discriminatory practice for an employer or an employer’s agent to request or require an applicant provide their:

  • age
  • date of birth
  • dates of attendance at or date of graduation from an educational institution.

This prohibition applies to an “initial employment application”, suggesting that an employer can ask for this information later on in the hiring process.

Employer can ask for this information on an initial employment application if it is based on a bona fide occupational qualification or need, or when such information is needed to comply with state or federal law.

Employers should immediately revise any job application to ensure that these questions are removed.

This law applies to all employers with three or more employees.