Jul 26, 2021

Grasso, Vaccination Mandates, Can Employers be Held Liable

Featuring: James R. Grasso

A labor attorney weighs in: If unvaccinated employees get Covid at work, can employers be held liable?

Employers have tough decisions to make when it comes to vaccinating their workforce, especially as Delta variant cases climb.

While they could mandate vaccinations in New York state, that’s an unlikely decision among local manufacturers facing a labor shortage.

“Employers are stuck between a rock and a hard place,” said Jim Grasso, a partner in the labor and employment group with Phillips Lytle LLP. “They’re going to have to weigh the risk of losing employees by mandating vaccinations with the risk of losing them due to a potential outbreak.”

Many manufacturers in the area employ a “mixed” population of both vaccinated and unvaccinated workers. Even though the state lifted mandatory safety protocols, Grasso suggested employers should still do everything they can to protect unvaccinated employees, due to the highly contagious variant.

“I think the Delta variant has caused a lot of employers to consider vaccinating more of their employees,” Grasso said.

Peter Coleman, executive director of the Buffalo-Niagara Manufacturing Alliance, said companies are working to develop airborne communicable disease safety plans, in compliance with the state’s Health and Essential Rights Act, or HERO Act, that was signed by Gov. Andrew Cuomo in May.

“The manufacturing community has been working in person throughout the pandemic and has done it safely,” Coleman said. “I don’t know of any manufacturing company around here that had a significant spread of the disease in their facilities.”

The Centers for Disease Control and Prevention and the Occupational Safety and Health Administration have recommended unvaccinated employees continue to wear masks and remain socially distanced in the workplace, but those are guidelines, not mandates. That’s why, Grasso said, it’s “unlikely” that employers would see legal ramifications should an employee get sick in their facility.

“At this point, if anyone in the workplace is unvaccinated, they’re really taking the risk upon themselves,” Grasso said. “By now, most are unvaccinated in their own choice, and in that sense, they’re deciding to take the swim without the life supporter.”

Employers may also want to keep track of which employees are vaccinated and who is not, to better manage a potential outbreak.

“But you still face the issue of someone refusing to tell you or show proof of vaccination,” Grasso said.

Many employers have implemented financial or paid time off incentives for employees who get vaccinated.

Lou Panzica, president and CEO of Power Drives, Inc., said that for many of his 200-plus employees, the vaccine was a “matter of convenience.” When he held a one-time clinic on site for employees and community members, he saw an additional 25 employees get vaccinations.

“We looked at it and said, ‘We want to make it as convenient as possible,’” Panzica said.