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Why Are So Many Big Law Firms Chicken About Mandating Vaccines? (2)

Aug. 2, 2021, 3:22 PMUpdated: Aug. 5, 2021, 10:33 PM

For a bunch of tough guys, some law firm leaders sure are wimpy.

They lack gumption in making almost all public-facing decisions—whether it’s setting associate salaries, taking a public stance on social justice or voter suppression or declaring a clear return to office policy. It’s like they’re constantly playing a game of chicken—watching to see if the other guy will dive in first before any of the others will dip a toe into the water.

I’ve been covering the legal world long enough that I should be used to its namby-pamby ways. Still, I’m irritated by how Big Law is dealing with the pandemic—namely, why it seems so hard for firms to openly require that their employees be vaccinated. To me, it’s a critical matter of safety that everyone in the workplace be vaccinated, particularly with the rise of the Delta variant.

If firms can require that you show up at the office (or on Zoom) wearing a shirt or dress, why can’t they require that folks be vaccinated, especially now when you’re supposed to be back at the workplace collaborating with colleagues and soaking up that wonderful corporate culture?

So far, less than two dozen or so major firms have publicly declared that vaccinations are required for those setting foot in the office. It started slowly—with Davis Wright Tremaine taking the lead, followed later by Paul Weiss. It’s only in recent days that other firms joined in. As of Aug. 5, the list also includes Akin Gump; Arent Fox; Clifford Chance; Cooley; Crowell & Moring; Davis Polk; Debevoise & Plimpton; Fenwick & West; Fried Frank; Hogan Lovells; Lowenstein Sandler; McDermott Will, Mintz Levin; Reed Smith; Schiff Hardon, and Weil Gotshal. And now that big-name companies are hopping on the vaccine bandwagon—including mighty Morgan Stanley whose legal chieftain Eric Grossman recently commanded his outside counsel to return to the office—more firms will likely join. That said, what a pathetic list so far!

Why the vaccine hesitancy? Is it based on legal concerns? Are firms concerned it’ll drive away recruits or clients? Or are firms just chicken, incapable of true leadership?

“There’s no legal impediment for mandating vaccines,” says James Brudney, a labor and employment professor at Fordham Law School, citing recent rulings involving Houston Methodist Hospital and Indiana University that overcame employee challenges to vaccine requirements.

If there’s no legal impediment, why don’t firms get on the stick? “Well, they’re law firms,” says Brudney. “There could be concerns about respect for privacy and administrative costs to tracking compliance and managing exemption requests. Law firms are also concerned about claims for discrimination on religious or medical grounds.”

All things considered, law firms prefer a “soft mandate,” explains Brudney, in which unvaccinated employees are required to take at least a weekly Covid test.

I’ve been hearing variations of this “soft” approach from a few firms, and I find it a bunch of hooey. What’s crazy to me is that some firms and companies won’t require vaccinations but feel entitled to command that the troops return to their desks.

Some firms say they are diligently “studying” the issue—as if more analysis might lead them to conclude that there are better alternatives to vaccinations. A partner at a New York firm tells me, “Frankly, we’re hedging the issue for now. We’re hoping that everyone will get vaccinated before we go back in September without requiring the vaccine—though the Delta variant could change things.”

What’s with the hopey/changey stuff? Do you really want to be breathing the same office air with someone that you “hope” is vaccinated?

Also maddening to me is that some firms have vaccination requirements in place but they don’t want to state it publicly. One firm, which happens to be based in a “red state” where the governor has prohibited mask requirements, tells me it’s not the kind of media attention it wants.

I’ll give firms located in places where vaccinations might be greeted with hostility a pass—for now—but that still leaves a whole bunch of powerhouse firms in New York and California that’ve been cagey on the issue. “I think it’s a combination of ‘big brother’ complex and fear of alienating some clients who are anti-vax,” offers a law firm leader in New York.

To me, the right—and obvious—thing to do for everyone’s protection (and peace of mind) is to mandate the damn vaccine. As Paul Weiss chair Brad Karp puts it: “I see my principal duty as ensuring the safety of our workplace, so I don’t see myself as having much of a choice.”

Yes, there is no choice. What’s everyone waiting for?

(This update adds law firms requiring vaccines. It also removes a line saying Greenberg Traurig took a "hard stance that employees return full time to the office." A firm spokesperson said Aug. 5 the firm has no “hard stance” on returning to the office.)

To contact the columnist: Vivia Chen in New York at vchen@bloombergindustry.com

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