By Tom Puckett  |  WBEN  |  August 26, 2021 6:00 am

‘Have you been vaccinated?’ Employers have a lot of latitude in vaccine mandates, says lawyer

Exception may come in union shops

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Buffalo, NY (WBEN) – What’s your COVID vaccination status?

It’s a question employers in Buffalo and beyond are asking as companies work to get a handle on the COVID vaccination status of their workforce. And the question comes often with a reaction of anger, fear and anxiety.

President Joe Biden is calling on companies to require their employees to get vaccinated.

Speaking from the White House on Monday, Biden said it “only makes sense” to require a vaccine to stop the spread of the coronavirus.

When it comes to employers mandating their employees get the coronavirus vaccine, one Buffalo area lawyer says there is plenty of latitude for them to require the shot.

“Employers relatively have free hand,” says attorney Jim Grasso of Phillips Lytle. “They have the right to require their employees be vaccinated or show proof of vaccination or agree to testing.”

Grasso says employers can also require employers to mask up. “Under the circumstances, employment at will, unless you’re in a union atmosphere, employers can make that a condition of employment,” explains Grasso. Under a union shop, Grasso notes such a requirement would require bargaining. “An employer would have to bargain with the union before they could force the union employees to be vaccinated. That would mean the employer would have to sit down and negotiate with the union before they do that,” notes Grasso.

Grasso says concert venues and restaurant owners also have the right to require patrons to be vaccinated to enter.

In Amherst, AJ Baynes of the Amherst Chamber of Commerce says employers were preparing to bring staff back to the office in a hybrid format next month, but that could be delayed. “With the variants and all of things we’re seeing with the uptick of positive cases, some are pushing things back until late winter,” says Baynes. “I do know some employers are looking at mandates on vaccinations with their employees and they’re working through it with their legal and HR departments. They’re also trying to get employees to voluntarily disclose whether they’ve been vaccinated and determining the precautions needed to bring them back.”

Baynes says everyone is taking precautions as they seem what their level of tolerance is to COVID, “but if you have people who are vaccinated, they’re just trying to figure out what’s the way there. How are they interacting with people, how are they not.” Baynes says small retailers and restaurants had a rough year with regulations and a lot of them are trying to do business as usual until any regulations are put in place.

Baynes says one thing is crucial. “Communication between the employer and employee is key, and the employee needs to understand the employers want to keep them safe and the businesses open and operating,” says Baynes. He says that will keep a repeat of 20 percent unemployment from happening.