Vaccination push stirs uncertainty
Biden mandate’s announcement leaves employers asking questions about implementation
Large and midsize Connecticut companies are looking ahead with plenty of questions after President Joe Biden said all organizations employing 100 people or more must require vaccinations against COVID-19 or require weekly tests for the infection.
Biden’s declaration on Thursday stunned the world at a time when the nation is divided over vaccine mandates, and left at least two huge questions: How will that happen? Can he do that?
Aside from those big questions, managers, lawyers and executives in Connecticut wondered on Friday about details. Would employers face fines? Or would companies be forced to terminate workers who do not comply? Would those workers qualify for unemployment compensation?
“I did not see it coming,” said David Lewis, CEO of the human resources advisory firm OperationsInc in Norwalk, who called Biden’s move “a well intentioned effort at driving more of those who are not vaccinated to get vaccinated.”
But Lewis said the announcement was “poor in execution and planning that left 100 questions, a fair amount of confusion and the likelihood that none of this will matter for some time until they work it out through whatever court challenges surface.”
In addition to larger companies, any organization that sells goods or services to the federal government must adhere to the new rule.
“Let’s see how it works out — had the same thing with state employees,” Gov. Ned Lamont said on Friday. “Obviously if everybody is vaccinated that’s the best. But if I lose a third of my corrections officers because they don’t want to get vaccinated, that doesn’t work, so that’s the balance
“It’s not clear yet — we’ll have to wait for OSHA guidance — on whether the rules apply to all employees or just those in company facilities. There isn’t necessarily any legal precedent, which often means this may be destined to go quickly to the Supreme Court.”
Gary Phelan, employment law attorney with Mitchell & Sheahan
you’ve got to reach between mandates and just really giving people strong incentives to do the right thing.”
As for the rules in Biden’s declaration, the U.S. Occupational Safety and Health Administration is working up initial guidance for expected release next week on how employers should implement the order. Two of every three U.S. workers, or about 100 million people in all, would be affected by the requirements, if enacted as Biden articulated on Thursday.
Biden promoted the move as necessary to lower the infection rate for COVID. The White House suggested the federal government has already established a legal precedent by requiring nursing home workers to get vaccinated if they treat patients covered by Medicare or Medicaid.
Under the new rules, other medical workers will be required to get vaccinated or weekly testing including home health workers.
Connecticut has among the highest vaccination rates in the nation, with nearly 2.9 million residents having received at least
one dose according to the latest update Thursday.
“It’s not clear yet — we’ll have to wait for OSHA guidance — on whether the rules apply to all employees or just those in company facilities,” said Gary Phelan, an employment law attorney with Mitchell & Sheahan, which has a Stratford office. “There isn’t necessarily any legal precedent, which often means this may be destined to go quickly to the Supreme Court.”
A spokesperson for General Dynamics, whose Electric Boat subsidiary in Groton is one of the largest work sites in Connecticut, said the company is awaiting specifics and that it will comply
with whatever new rules surface. Electric Boat offers vaccines through its own on-site pharmacies in Connecticut and Rhode Island.
“Since vaccines first became broadly available, we have encouraged our employees to get vaccinated to help protect themselves, their families and their coworkers,” said General Dynamics spokesperson Liz Power in an email response about Biden’s order. “We record any EB-administered vaccinations, and have asked our employees who get vaccinated outside of work to report their vaccination status to our medical team. We believe our
vaccination rates are close to those in the communities surrounding our sites.”
Nationally, some unions have said thee order must be bargained — as happened in Connecticut last month when Lamont ordered mandatory vaccines for all nursing home employees and contractors, and for all state employees. As an illustration of the difficulty of carrying out these mandates, Lamont agreed to delay the $20,000-a-day fines against nursing homes from Sept. 7 to Sept. 27.
Daniel Schwartz, a Shipman & Goodwin partner specializing in employment law, said some companies will welcome the development as providing a justification for a vaccination standard they may have been hesitant to implement on their own.
“Some were on the fence, and there were some who didn’t want to be the leaders in that — but they are more than happy to be the followers,” Schwartz said. “This type of rule will give cover to many employers to implement perhaps even stronger ... policies.”
Biden pointed out that some companies have already moved ahead with their own vaccine and testing requirements, including Walt Disney, United Airlines and Tyson Foods.
“My message to unvaccinated Americans is this: What more is there to wait for? What more do you need to see?” Biden said Thursday in prepared remarks. “The vaccine has FDA approval. Over 200 million Americans have gotten at least one shot. We’ve been patient, but our patience is wearing thin. And your refusal has cost all of us.”
But the precise cost for any companies or workers choosing not to comply has yet to be revealed by the Biden administration.
OperationInc’s Lewis said companies subject to the new rules should consider alerting their workers by Monday that they are aware of the announcement and awaiting guidance for next steps. Employers will have to investigate options for tracking vaccination and testing status, he added. And with many mass vaccination and testing sites having been dismantled, the possibility exists those will return to handle any masses of employees choosing the testing option as opposed to getting the vaccine.
That could make for long lines in cities such as Bridgeport, Hartford, New Haven and Stamford, Lewis noted, even with Connecticut’s relatively high vaccination rate compared with other states.
“Now the tough part comes,” Lewis said. “How are we going to implement this? How are we going to get everybody behind this? Where’s the teeth in enforcement here? And what are we going to do when we take a closer look at where we have the populations of people who are not vaccinated, and what the attitudes are of the state governors in those areas?”