Lawyers advise employers on handling vaccine exemptions

Photo | Liese Klein Bar on Crown Street with new vaccination-verification rules posted on the door.

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By Liese Klein

To mandate or not to mandate?

That’s the question facing many businesses as the Delta variant of the COVID-19 virus continues to rampage across the land.

Vaccination issues around employees returning to the office is the hottest topic facing employment lawyers, two specialist attorneys said Wednesday at an online COVID update hosted by the Greater New Haven Chamber of Commerce.

The key move for employers is to set clear policies on vaccination and masking, said Emily Zaklukiewicz, attorney associate at Robinson+Cole.

“It’s going to be really important to clearly convey to employees what the policy is, what you’re trying to accomplish through that policy and what the potential consequences may be,” Zaklukiewicz said. Businesses can require vaccination under federal law but must obey rules around those seeking exemptions, she added.

“Can the employer push back?” said Sarah Westby, an associated attorney at Shipman & Goodwin LLP, referring to exemptions that may seem dubious.

Employers can ask for documentation if a worker asks for a medical exemption from COVID vaccination, Westby said. With those who object citing religious belief, the terrain is much trickier.

“Typically the employer has to have some basis for believing that there is not a sincerely held religious belief, or it’s not in fact a religious-based belief but it's more political or social or is based on some kind of misinformation,” Westby said. In that case, the employee can be asked to name a reference from their religious community to vouch for the belief or supply evidence from the religion’s literature.

An employee’s past history of signing up for vaccination clinics or expressing skepticism about religion can be grounds for rejecting an exemption request, Westby said.

Those who are granted vaccination exemptions should not be singled out in the workplace by individually based mask requirements at risk of violating privacy rules, according to Zaklukiewicz.

“You want to be careful not to unintentionally disparately impact different protected classes of individuals,” Zaklukiewicz said. A better option is to urge all employees to wear masks indoors, a measure already required by many Connecticut cities and towns.

Rules around COVID precautions are getting easier to enforce said Frank Patrick, managing partner at BAR New Haven. BAR was one of the first businesses downtown to require proof of vaccination for patrons.

Patrick said fewer and fewer people attending his venue’s dance parties and events are complaining about the vaccination card requirement.

“In the end, people are going to appreciate this,” Patrick said. “This is really going to be the norm for large event spaces.”