By Patrick Connelly, originally published in Buffalo Business First on Apr 2, 2021, 11:00am EDT.

Months in, employers still debate mandatory Covid-19 vaccinations

Months since the first vaccinations went into arms, employers are still grappling with whether to make Covid-19 vaccinations mandatory, especially since New York state announced eligibility would be extended to those 16 or older beginning April 6.

James Grasso, partner at Phillips Lytle LLP, has advised business clients in most industries to think twice before taking a hard stance on requiring vaccinations.

“I haven’t had a lot of clients, at least that I know of, that have decided to require vaccinations,” he said.

Grasso said factors to consider include monitoring logistics, morale issues among staff and the desire to let private medical information remain that way. Employers should not want to be viewed as overbearing or paternalistic about enforcing vaccines, he said.

“The number of people who are voluntarily being vaccinated is a good sign,” he said.

Employers of any type, however, are operating in the clear if they do make it mandatory, according to guidance from the federal government. Exceptions are allowed for people with a medical condition that would make a vaccine potentially harmful, as well as for people with religious objections.

New York state has required employers to give employees paid time off to be vaccinated and it is legal for employees to ask for proof of vaccination.

“That is permissible,” Grasso said. “Once you get that type of information (as an employer), though, it’s confidential medical information and it really should not be shared except to those who have a need to know.”

Amy Hemenway, partner at Harter Secrest & Emery LLP, said some employers have made vaccinations mandatory for certain subsets of their staffs, particularly those who have direct contact with the general public.

“I think it really depends on the business,” she said. “Each business has different risks that may be present within the workplace.”

A business should consider how many employees are exposed to the public on the job and how closely they work with colleagues.

“Each business needs to make a decision based on its own situation,” she said.

In workplaces that have made vaccinations mandatory, employers are justified when firing an employee who refuses to be vaccinated if they don’t qualify for an exemption, said B. Kevin Burke, attorney at Gross Shuman PC. However, he said he advises businesses to clearly explain to employees why they should be vaccinated and what the process entails.

“The most important thing is that you talk to your employees,” Burke said. “The phrase that I’m constantly using with clients is to be an active listener. Rather than preach at them and give them mandates, you should want to listen to what they are saying and want to ask active questions that show you’re listening and then follow up on the employee’s concerns.”

Employers should consider their obligation to keep all employees safe when determining mandatory vaccinations or even allowing an employee without an exemption to skip vaccination.

“You have arguably exposed yourself as an employer to an OSHA claim if you are making exceptions that are not grounded in a rational basis of the reasonable inquiry that you have to do by law,” he said.