Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On August 6, 2021, Governor Lamont issued Executive Order No. 13B mandating vaccination of all employees working at long-term care (LTC) facilities throughout Connecticut.1 The order also covers all contracted service providers and volunteers that have direct physical access to patients or residents. The order is effective immediately and remains in effect through September 30, 2021 unless earlier modified or terminated. The order was issued at the request of Gov. Lamont and signed by Lieutenant Governor Susan Bysiewicz in her capacity as acting governor, due to Lamont’s temporary absence from the state.2
The order directs that by September 7, 2021, LTC facilities3 shall require that all employees and covered service providers are: (i) fully vaccinated against COVID-19, (ii) have received a first dose and have either received a second dose or have an appointment for the second dose, or (iii) are exempt from vaccination. Failure to comply with the order shall result in a civil penalty of $20,000 per day, and may also constitute an imminent danger to the health, safety, or welfare of patients and/or residents pursuant to section 19a-534 of the Connecticut General Statutes.
Under the order, fully vaccinated means that at least 14 days have elapsed since a person has received the final dose of a vaccine approved for use against COVID-19 by the FDA, or as otherwise defined by the CDC. LTC facilities shall not employ (or continue a contract for services with) any covered individual who fails to receive a second dose of a two-dose series vaccination “on the appropriate date or at the scheduled appointment without good cause.” Good cause is not defined in the order.
The order explains that covered individuals may be exempt from the vaccination requirement where a physician, physician’s assistant, or advanced practice registered nurse determined that the administration of a COVID-19 vaccine is likely to be detrimental to the individual’s health, or the individual objects to vaccination on the basis of a sincerely held religious belief, and the individual is able to perform their essential job functions with a reasonable accommodation that is not an undue burden on the long-term care facility.
Employers are required to authenticate the vaccination status of individuals subject to the order. Additionally, employers must maintain documentation of vaccination or exempt status for all covered individuals. Further—in a form or manner yet to be prescribed—employers must report compliance with this order to the Department of Public Health. Even if all covered individuals are fully vaccinated, failure to comply with the order’s documentation and reporting obligation will constitute a violation of the order, subjecting an employer to the civil penalties described above.
Notably, the executive order likely removes any decisional bargaining obligation under the National Labor Relations Act should the employees be represented by a labor organization. Employers, however, must be mindful of “effects” bargaining obligations that may exist and should be prepared to bargain over such effects if requested by the applicable collective bargaining representative.
1 Notably, Connecticut has not yet issued any similar mandate that would apply to acute care hospital employees.
2 Governor Lamont’s press release noted that “[t]o date, approximately 55% of all nursing homes in Connecticut have a staff vaccination rate of lower than 75%. Only 21% of nursing homes in the state have a staff vaccination rate higher than 85%.”
3 The definition of long-term care facilities includes: nursing homes; residential care homes; assisted living service agencies; intermediate care facilities for individuals with intellectual disabilities; managed residential communities; and chronic disease hospitals.