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August 29, 2022

Legal experts: COVID-19 vaccine mandates easing; hybrid work here to stay

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By Skyler Frazer

With summer coming to an end and vacation time drying up, some employers are revisiting their thinking around two concepts: vaccine mandates and a return to in-office work.

After the COVID-19 pandemic hit in March 2020, many industries began allowing their employees to work remotely to mitigate the spread of the novel coronavirus.

Once COVID vaccines were made available, employers began grappling with whether or not to mandate the shot before workers return to the office.

Now, more than two years into the pandemic, Connecticut employers continue to struggle with both issues, although many are taking a more lenient stance on vaccine mandates, while still trying to figure out how to manage where and how their employees work.

Return to work

Daniel A. Schwartz

Shipman & Goodwin Attorney Daniel Schwartz said that remote and hybrid work are here to stay.

“The fight for talent is so tough right now, that employers are reluctant to impose any set of rules that might turn off a prospective hire, or encourage employees to leave,” Schwartz said. “I don’t see a significant change coming to the flexible office.”

Schwartz said companies that have already begun a return-to-office plan will continue down that road, but many employers that he’s talked to have implemented some form of a hybrid workplace.

Zach Zeid

Pullman & Comley Attorney Zach Zeid agreed, and said that employers are especially hesitant to require a return to work at a time when so many sectors are facing labor shortages. In such a competitive market, attracting and retaining employees is important, he said.

Connecticut employers reported 105,000 job openings at the end of June, down from 119,000 unfilled positions in May, according to new data from the U.S. Bureau of Labor Statistics.

“In the industries where it works and makes sense, I absolutely think [hybrid work] is here to stay,” Zeid said. “It’s become an expectation of top talent.”

Day Pitney Attorney Glenn Dowd said, along with the labor shortage, other significant factors popped up at the same time over the past two years that have forced many employers to maintain a flexible work environment.

Glenn Dowd

“There’s the Great Resignation, a pandemic and a shortage of workers all kind of converging at the same time,” Dowd said. “Employers have been struggling to come up with the right mix of things.”

He said he’s seen a variety of return-to-office plans.

“I have about 20% of employers who are full remote, 20% who are back in the office, and 60% who are kind of in the gray in-between coming up with some kind of hybrid solution,” Dowd said.

While remote work has grown in popularity since 2020, Dowd emphasized that many executives are worried about the “culture” they could be losing by going fully remote.

His colleague shared similar sentiments.

Susan Huntington

“We are seeing a recognition that the culture’s not the same and the level of training isn’t the same,” said Day Pitney Attorney Susan Huntington. “There is a price to pay with the remote model, and employers haven’t figured out how to address those gaps effectively.”

Not every industry, like manufacturing, can operate remotely or hybrid, the experts said. But those that can, like many technology companies, have continued to offer a hybrid or fully remote workplace model.

“If you’re not going to offer a hybrid workplace, someone else will,” Schwartz said. “I think as employers continue to fight for talent they’re realizing that being flexible where an employee works may be an important factor.”

Vaccine mandates

Zeid said that most of the companies that enacted vaccine mandates over the past year-plus are keeping them in place, but he’s heard much less about new mandates in recent months.

“I have not done a new mandatory vaccination policy for a client in probably six months — we’re just not seeing new ones coming into play so it’s really a maintenance of the status quo,” Zeid said.

Schwartz said he’s also hearing less about vaccine mandates from his clients.

“Last spring and summer there were lots of calls about implementing vaccine mandates and such, but those calls have virtually dried up,” Schwartz said.

Many companies in industries like biotech, education and health care that enacted mandates over the past few years are keeping them in place, but other industries aren’t necessarily, Schwartz added.

“Many employers have either quietly dropped the mandates or are enforcing them a little more loosely than they have in the past,” Schwartz said.

Zeid said companies have also eased some alternative health and safety measures, like employee symptom surveys, mask mandates and temperature checks before someone enters an office.

However, the potential for omicron boosters this fall could change that over the next several months. Schwartz said it’ll be interesting to see if employers require those shots, or “stay a little bit more on the sidelines.”

“Employers have been letting employees make their own judgement on those,” Schwartz said of boosters.

Huntington said most of her clients are healthcare organizations, so their employees are at higher risk of contracting COVID-19. Vaccine mandates have remained for most of those entities, including hospitals, but many aren’t requiring boosters.

Like hybrid work, Dowd and Huntington said vaccine mandates could influence certain people’s decisions about working for a company.

“We’re seeing less policing by employers and more reliance on employees acting reasonably, like don’t come into the office if you’ve got COVID symptoms or tested positive,” Huntington said.

Zeid said he expects there will be discussions between employers and workers about the new booster when it comes out, especially if the company has asked its workers to return to the office.

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