Video and Transcript of Path Forward: Ask Me Anything – Legal Questions



Larry Lorber:

Good afternoon. And welcome to Ask Me Anything from the U.S. Chamber of Commerce Foundation. I'm Larry Lorber Counsel at Seyfarth Shaw in the labor and employment department in the Washington Office. And with me is Chris DeMeo, a partner in his Seyfarth health legal department in our Houston Office. And we are here to answer your legal questions regarding COVID and the issues emanating from it, Chris.

Chris DeMeo:

Okay. It looks like we have some questions available. Now let's jump right into them.

First question comes from Michael Fettinger, Better Way of Miami: What do you recommend regarding a policy for requiring vaccinations for frontline workforce or workforce in general?

Larry, I'm going to let you-

Larry Lorber:

Yeah, let me start with that. The recommendation we’re giving is that where possible – and the where possible becomes important because vaccines are still not totally available though they should be available by May 1st – that employees should be encouraged to become vaccinated. Certainly frontline employees who are working and are having contact with customers or others or the workforce in general, again, if they are having contact with other colleagues. I think the issues are the federal regulations require that employers consider religious exemption requests, bonafide religious objections to vaccination or medical requests, disability and indeed there are issues involving women who are pregnant or lactating, but generally speaking, I think we believe that we would recommend vaccination whether we require or not, that then depends in part on the job, on the ability or the contact your employees would have with others, either fellow employees or customers. Chris, you want to add anything to that?

Chris DeMeo:

Yeah, I would just leading off from there, I would say if you're in the healthcare industry or anything touching on a vulnerable population, you may want to consider mandatory. We are seeing that more with our healthcare clients that on the front lines, those employees would need to have a vaccination unless they qualify from some exemption as recognized under federal law. I think part of that is because when it was recommended there wasn't as much acceptance. And so now I think we'll see more people in the healthcare industry make it mandatory.

Great.

So, our second question comes from Phyllis Frank of Gulf Coast Authority, and Phyllis asks: Can the workplace use vaccination status to manage travel? Is there a difference between personal travel and business travel?

Again, Larry, I think I'll let you take the lead on this one as well.

Larry Lorber:

Sure. Well travel depends on where employees traveling. The business is responsible for essentially regulating business travel, but there you have to look to the state if the employee is going to be traveling out of state because different states still have, some of them have quarantine requirements if the individual traveling into this state is not vaccinated, others have different quarantine requirements. So you really have to look to see what if the travel is out of state, what are the quarantine requirements? Again, I think that the employer does have some obligation to certainly manage business travel and looking to that, if the employee is traveling to an area where there may not be a significant or certainly no herd immunity yet, but a significant number of vaccinated individuals, and you could find that online, then there are employers who are requiring employees be vaccinated before they travel to those areas.

And of course, finally, there's air, there's the means of travel. And you have to see how the employee would be traveling. Car will be preferable. Airplanes, airlines are now allowing people to travel, some with some seating spacing, others I think have eliminated that. So, you take all of those factors into consideration.

Chris DeMeo:

Yeah. And then just to follow up on that, I think where we are seeing employers get into personal travel issues is where we have large employers, large employee base, and a large part of that employee base is working virtually. So, if you have office quarantine policy for a large firm, then you're not going to feel those effects on a day-to-day basis as a small independent place, it has to be in-person. All right.

Our next question comes from Linda Small of the Santa Ynez Chamber of Commerce: Could an unvaccinated employee be required to wear a mask if vaccinated staff are not required to wear one?

Larry Lorber:

Yeah. Let me take that. I think the short answer is yes. Again, one has to look to see what the... If there are still mask requirements in the jurisdiction, a lot of states still have mask requirements so you'd begin with that. The extent to which employees are vaccinated, they still might have a mask requirements again, depending on the local requirements, but certainly if an employee has been vaccinated, as you'll hear later on I think with Dr. Bhadelia maybe Dr. Frieden, vaccinations having shown now to lessen the spread. But an employer can certainly ask if the employer knows if the employees have been vaccinated, because remember employees can become privately vaccinated. I don't know if the employer has a policy of requesting notification of the vaccination. So, you have to deal with those issues because the employer may not necessarily know if the employee has been vaccinated.

Chris DeMeo:

Okay. Great. Thanks Larry. So next we have a question that we had on video earlier, so we could cue that up for the audience please.

Attendee Question, Lisa Taylor:

Hi, I'm Lisa Taylor tuning in from Virginia. My question is, can your employer require you to get the shot, even if you've had COVID-19 in the past?

Larry Lorber:

Well, let me start with that. Employers, more and more employers, are requiring that employees get vaccinated. I know for example, that New Jersey and California are specifically allowing employers to require mandating vaccinations. There are questions again, whether or not having had COVID will not only make you immune, but enable, puts you in a position when you're not going to be a transmitter of the virus. So the short answer, and Chris really should follow up because there are a lot of health issues, is an employer can, if that is the employer's policy to require vaccinations, to require employees to be vaccinated even if they had COVID, if the employers have a business reason to be concerned about spread of the virus. Chris, you may want to jump in.

Chris DeMeo:

Right. And I think that's a good point, Larry. I think examine what the employees would be doing, who they come in contact with again, we talked briefly about healthcare employers and how they have special considerations in that regard. And I think that you go down a deeper level to say, well, when did they have COVID? How did it resolve? And because the current science is that the immunity provided by infection is not forever. So, I think if you have somebody that caught it last year, last summer, and now we're on 10, 12 months later, then I think that's something that you would go with treating that employee same as others. And of course this would be a standard policy – you wouldn't do every single employee differently, but you want to set, go to the, I forget the latest guidelines, but if you were attacked six months, previously had resolved COVID, then you have to have a mandatory vaccine. And then depending on what their job responsibilities are, again, if they could work virtually, then they may not need to have the vaccine, but if we're talking about people that have to be on-site, dealing with the public and other employees closely on a regular basis, then I think you want to draw a time stamp on when they had the vaccine and then everybody beyond that, it would need to be, I mean, were infected rather, then beyond that will get the vaccine. Well, that was great. So we have another video question actually, that came in beforehand. So, if we could cue that up and see what they have to say.

Attendee Question, Denise Hart:

Hi, my name is Denise Hart and I'm the president CEO of the Apache Junction Area Chamber of Commerce & Visitor Center. And my question for you today is: With the Arizona Governor's newest executive order, if businesses decide to not enforce masking or social distancing, are they liable, if someone gets the virus?

Chris DeMeo:

Great question. And I'll take the lead on that. The short answer is no. The way that it's phrased and I don't practice in Arizona, but I'm familiar with what's been going on in the various states and my understanding of the current Arizona order and I believe the one that the question was referring to says that businesses are encouraged to continue to follow the CDC and OSHA guidelines, but if they don't want to, they don't have to, not in so many words, but it's part of the opening up of the state. And so from a legal perspective, one in liable in a court of law, most likely not, it would be very difficult for that individual to track that they got COVID in your place of business and worse more than that a business owner apprentices owner has responsibility to its business invitees to exercise reasonable care, to prevent injury from hazardous conditions that the licensee may not be aware of.

It goes with that saying everybody in the world is aware of the dangers of COVID-19 and going out and shopping or engaging in any of the commercial activities, you do at your own risk. Now, whether that means you won't be subject to liability and the court of social media, or in some other regards, it's a different story. So, we advise clients to stick with what's been going on, if at all possible, recommend that people continue to use masks, recommend social distancing, have the tape on the floor and continue those countermeasures for a couple of reasons. One, if you continue to do those things then, what happens is you don't get pinned for not following the guidelines because exercising reasonable care is one thing deliberate disregard of a known risk is another thing. And you may not have that protection under the law.

Secondly, you may have some potential for life, but for immunity, from liability under federal law. So, I think that what we're saying, we're advising our clients to continue those countermeasures in place. I know in my home state of Texas, it is a very touchy issue with people not wanting to wear masks. And so if you ask for masks at the front door, you supply masks, if somebody does not have one, I think you're in good shape, both from a legal liability standpoint and in the court of social media. Larry, I don't know if you have anything that you want to add to that.

Larry Lorber:

No, I think that covers it. The issue here is both in workplace and generally is a very difficult causation issue involving the virus. Where did you catch the virus? And that pertains most roughly to liability. We discussed ahead of time, whether there's workers' comp potential. And as you know, under workers' comp there's a causation issue involved. So I think Chris's advice is the appropriate advice, understanding that you just don't know in many respects where the virus comes from if somebody does turn out to have the virus.

Chris DeMeo:

Great. So our next question: If an employee refuses to get vaccinated and subsequently gets COVID-19, can the employer make them use PTO during their time off to quarantine?

Larry, what are your thoughts on that one?

Larry Lorber:

Yeah. I think the answer is yes, but it doesn't really pertain to whether or not the employee refuses to get vaccinated. The issue there is if an employee gets COVID and has to quarantine, assuming that's the situation. If it's asymptomatic, they'll have to quarantine. If it's symptomatic, obviously there may be extended time. That could be, and would be any potential leave availability that the employee has. The employer can make them take it. The question suggests that there may be some extra liability for the employee punishment refusing to take the vaccine. Again, federal law and several state laws now do allow medical or religious exemption bases to decline taking the vaccine. So you can't really, at least in the first instance, penalize somebody for refusal to take the vaccine because it may have been within your legal rights to do so, but employer can certainly require and apply any available leave to the out of work, be it quarantine or additional health treatment that might be necessary.

Chris DeMeo:

Great. Next question from Elise at Elite Personnel: We are a staffing service and are wondering if our clients will be allowed to require us to provide only vaccinated candidates. Are we allowed to ask prospective employees?

Larry, what do you think about that?

Larry Lorber:

Well, that's a very interesting question, I think, and there are two parts to it. A client can, as long as it's a business justified requests can request any criteria before you send a candidate, if they are requiring vaccinated candidates. Remember we're not at May 1st yet. So there's a recognition. There's not vaccine now available universally with within the country. The question really is on what basis are they doing it? And does that request somehow trigger other requirements on your side as the personnel agency, perhaps ADA or other related issues? It's a complicated question. I just gave you a complicated answer. I think the shorter answer is, you should ask is there a basis for their request – now that company may have a mandate for employees to be vaccinated. And the question is you find out what their mandates are – remember there are exemptions that have to be considered if an individual or a potential applicant in your case requests an exemption due to religious or medical reasons.

And your second question very quickly, are you allowed to ask prospective employees? Yes. I mean, the privacy rules have been somewhat abated during the pandemic. You can ask if an employee has been vaccinated or what the status of the vaccination situation is. And my guess is as we head to the summer, hopefully we're going to revert back to ADA type of limitations on questions. But now you can ask if an applicant, in your case, has been vaccinated.

Chris DeMeo:

Yeah. And I just like to follow up on the issue with the staffing client. I would look to your contract to see whether there is any justification for them imposing requirements that aren't already listed in the contract for your personnel. And then I'm guessing there's probably a fallback that everybody has to comply with the law. And so we look to where these mandates are allowed under the law. And again, if the type of business that you're staffing, if it's dealing in the healthcare industry or with other vulnerable populations, that might be something that they can push through under some more generic language in their contract.

So next question: Can I require an employee to come back to work on-site, even though they don't feel we provide sufficient safeguards to protect them?

Larry, I'll let you start off on that one.

Larry Lorber:

That is the $64 question these days, because it really goes as Chris talked earlier about an obligation of employer to provide a safe workplace, that's an OSHA requirement. And it has arisen, obviously under COVID. It's up to the employer, if the employer believes that the employer is in compliance with CDC guidance and guidelines, if the employer requires social distancing, masking, to the extent it's possible separation, physical separation of employees with plastic shields, or what have you – all that augers on the side of yes, employer can require an employee to return to work. On the other hand, I would be careful if the employee suggests that they have any co-morbidities or other medical conditions, which might then make them either more susceptible to the virus or more susceptible to a harmful response if they acquire the virus.

So, you really have to look at all of those factors, but if you are complying with CDC guidance, OSHA has its own guidance by the way. They have not yet issued an emergency temporary standard. I believe California has done so. Some other states are considering doing so, Virginia, you have to look to that as well, both federal law and state law to determine if you're in a compliance status, or if you're following – to the extent you can – health related guidance, and that then combined with the employee could inform your answer to that question. But Chris, you may want to jump in on that assesses. We're getting a lot of these questions in our own practice firm.

Chris DeMeo:

Yeah, I think in my specialty, the healthcare field, what we're seeing with our clients is, if the job description requires you to be on-site and work in these types of conditions, then if, as Larry said, you are following the OSHA guidelines and the CDC guidelines and anything at the state level, then I think you can require those people to come in, because that's the nature of their job, the nature of your business.

I think we have a time for maybe a couple of more questions.

The next is: I work for a nonprofit and we run a large store as well as work closely with many volunteers. So as an employer, can I legally create a policy that all employees must get vaccinated within a certain amount of time?

I think the short answer to that is, yes. I'll let Larry elaborate that on that a little bit. And then I might chime back in.

Larry Lorber:

Yeah, our answers are on a loop in this context. As we said, we believe employers can mandate that their employees be vaccinated. The question is in a certain amount of time – I’m aware of some employers who have established the May 1st date. That is the date when arguably there will be enough vaccines for every adult in the country to be vaccinated. So the employer can do that mandate, but again, remember the employer has to allow the employee to request an exemption due to religious – closely held religious beliefs – or medical reasons. The exemption does not mean quickly that the employer has to let the employee onto workplace. What this does mean is that the employer, with the employee, have to consider whether there are any accommodations and this employee telecommute, and this employee be in an isolated work environment. In many instances no, but again, I know Chris, you deal with this and the healthcare side of the world, and we get this question quite frequently.

Chris DeMeo:

Right. And I just want to touch on a couple of legal issues on that we haven't already covered. What we're seeing in this regard is pushback back against mandatory vaccines. There's a legal theory that because the current available vaccines are only authorized for emergency use – an EUA if you're familiar with that acronym – that under the food drug and cosmetic act, that you can't force somebody to have a vaccine that only has an EUA, as opposed to a vaccine that's been fully vetted and approved by the FDA. And the legal response there is that that provision of the FDA is on the books. But number one, it allows you to require it as long as you explain what the consequences are of not taking the vaccine. And number two, that statute is solely under the authority of the FDA. So in other words, an employee could not sue a business for violating this rule of the FDA regarding limiting the mandatory vaccines if it just has an EUA.

The epilogue to that there was a lawsuit filed last month in New Mexico, against an employer, who also happened to be a County Agency. And the theory there was not so much that you were violating the employment rights of the individual plaintiff, but as a unit of local government, you do not have the authority to punish under this mandatory vaccine because it's only an EUA. So slight caveat for government employees. That's a theory that we have seen out there, we won't get too far down the line on that, but that's where the state of the legal battle is now on, on mandatory vaccines.

Larry Lorber:

Let me add one quick coda to that. I'm aware of the fact that whichever vaccine you're using it is always accompanied with a fact sheet. Fact sheet is FDA approved. The fact sheet sets out what any EUA is, and it sets out what the individual's rights are. They can refuse the vaccine, but the fact sheet does say that, then they have to be informed of the consequences of the refusal. But there is a fact sheet that has to be given out when a vaccine is administered either by the employer or a third-party under contract with the employer, or indeed if they go to a drug store or any place else now, a vaccine site, they're always given the fact sheet. And that fact sheet is important and employers should really have that fact sheet so they know what the individual are being told and what their rights are. And I think we may be near the end.

Chris DeMeo:

Yeah, unfortunately. I think we're not going to be able to get to the last question that is our time. Thank you everyone for your participation and these great questions. I hope this was helpful. Thank you again to the U.S. Chamber of Commerce Foundation for making this possible. And again, have a great rest of your day. Larry, do you have any final comments?

Larry Lorber:

No, not at all. And I think some of these questions, if you're hopefully going to be in with Dr. Bhadelia, Dr. Frieden, or the other speakers this week certainly should be directed at them as well to get the medical implications as well as the FDA policy implications and the others. But again, thank you all very much for listening in.