Why Law Firms May Not Require Vaccine For Attys And Staff

Law360 (January 21, 2021, 10:18 AM EST) -- Deciding whether to require lawyers and staff to get the COVID-19 vaccine, strongly encourage it, or remain silent on the matter is top of mind for law firm leaders right now, as many are waiting to see what peers do before making a move.

U.S. law firms are for the most part in research, deliberation and wait-and-see mode, but they do need to act quickly to position themselves when deciding how to approach the coronavirus vaccine as it is rolled out to the general public in the coming months, according to lawyers who represent law firms in employment and professional responsibility matters, and the executive director of the Association of Legal Administrators.

ALA Executive Director April Campbell said she does not know of any law firms that have vaccine policies in place, and in fact she has not even seen drafts of policy language shared among the organization's members yet.

Firms appear to be waiting for a first mover to take the lead, and most are still gauging the temperature in the room, or more specifically the temperature at their firm and in their particular geography, Campbell said.

"Everyone is thinking about it. Many are getting pressure from staff to have a response or answer on whether the vaccine will be required to come back into the office," she said. "But as with everything law firm, they want to know what everyone else is doing."

While most firms do not yet have a policy in place, many have been thinking about how they want to proceed and have at least identified their options, according to Noah Fiedler, an adviser to lawyers and law firms on professional responsibility, risk management and ethics at Hinshaw & Culbertson LLP.

Those options include a policy mandating the vaccine, a policy encouraging it, or no policy on the vaccine at all.

"It is true to say most don't know yet, but it's also true to say most firms have spent months thinking about it," Fiedler said. "They have identified options ... but it's all checklists and no answers."

The wait-and-see approach may work for now, but it will be only a matter of months before the vaccine will be made widely available. Michael Cohen, a Duane Morris LLP partner who advises law firms on employment matters, said firms must act soon.

"While I understand they don't want to finalize anything yet, we should not be doing nothing," Cohen said. "There should be meetings in firm committees to discuss this issue, to start talking about, from a philosophical standpoint, what makes the most sense — to mandate, to encourage, and if they choose to encourage how to do that most effectively."

The U.S. Equal Employment Opportunity Commission released guidance in December telling employers federal law allows them to require employees to get vaccinated, with exceptions for those who are medically unable to get it and for those with sincerely held religious beliefs that prevent them from doing so.

State and local laws also affect employers, and for large law firms that means there are often a large number of different state and local laws to be aware of when drawing up a policy.

Everyone who spoke to Law360 Pulse for this article agreed that the vast majority of law firms will probably end up choosing to encourage the vaccine, with a possibility that some will both encourage it and only allow those who have obtained it to return to the office in person.

"Law firms, I think, are less likely to mandate the vaccine than some other industries," said Michael Jones, an employment lawyer at Eckert Seamans Cherin & Mellott LLC. "It's almost impossible for us to have a fantasy football league with lawyers because we fight about the rules."

Jones said he believes that many employers, including law firms, will adopt a middle-of-the-road approach by strongly encouraging the vaccine and putting restrictions on employees' and attorneys' abilities to return to the office if they do not.

And under the Americans with Disabilities Act, working from home is likely a sufficient accommodation for someone who cannot get vaccinated for medical reasons, he said.

As for how law firms might encourage their attorneys and staff to get the vaccine, the experts offered a number of possibilities, chief among them allowing flexibility for extra paid time off to get the shot and covering any co-pays or associated costs.

Also, Duane Morris' Cohen said, some law firms may be able to provide incentives through their wellness programs the way an employer might encourage other healthful behaviors.

Law firms can also contract with third parties to offer the vaccine to employees, he added, but would need to be exceedingly careful to not collect employees' sensitive health data.

"It would not surprise me to see some firms make it mandatory, but I think that will be by far the exception. And it may depend on where they are; there may be more appetite for that in New York City than in Milwaukee," Cohen said.

One potential issue law firms need to be careful of when drawing up any policy is the fact that the vaccine can be a polarizing issue for some people, said Hinshaw's Fiedler.

He said the larger firms he's working with are actually conducting surveys to figure out what their employees and attorneys are thinking — do they want to get it? Would they be afraid to come back into the office if it is not mandated?

And the ALA's Campbell says she has seen the same thing, with some of the organization's law firms conducting surveys.

"It seems to be a time of unprecedented back-and-forth communication between management wanting to make sure employees are comfortable," she said. "It's a much more empathetic tone than we've seen in the past. But it's just to get the temperature, not to make a final decision."

--Editing by Brian Baresch and Alyssa Miller.

For a reprint of this article, please contact reprints@law360.com.

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