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Title: “How Companies Are Reacting To Mandatory Vaccine Mandates”
Guest: Walter Foster – Eckert Seamans
Interviewer: Jonathan Freedman – MAGE LLC

Click here to read the transcript

Jonathan Freedman (1s):
Welcome back to Radio Entrepreneurs, I’m Jonathan Freedman, and our next guest up is Walter Foster, a partner of Eckert Seamans. Welcome to Radio Entrepreneurs.

Walter (9s):
Thank you. Good morning.

Jonathan Freedman (11s):
Great. It’s a pleasure to have you on, and you’ve got a topical discussion for us this morning. Something you wanted to talk about mandatory vaccinations in the workplace.

Walter (20s):
Yes. I think it’s a topic if not at every breakfast, lunch and dinner right now, but yes,

Jonathan Freedman (27s):
Absolutely. And I, and you know, we can, we could probably skip the whole backstory of what got us here, but it it’s fascinating to me that we saw a very slow reaction in that it was just talking to a former guest or a prior guests, I should say, not former, but a prior guest about this. That it seems as though everything started at the federal government, the expectation they’re going to put everything in place. And then that can got kicked down to the state level and governor’s out, let them put mass mate. Then let them decide things. A couple of, you know, forward thinking industries or frontline industries, you know, sorta put, you know, business now puts the regulations in place. And so where are we? We’re sort of at a place where, you know, I think some businesses now, some governments have caught on and said, we’re gonna, we’re gonna mandate.

Jonathan Freedman (1m 9s):
So it’s, it seems like we’re in that messy space of nobody knows who’s responsible. Some forward thinking companies are taking it upon themselves. Tell us, tell us from your perspective.

Walter (1m 19s):
Well, that’s a great overview. I think there’s exactly historical that has led us to this point that’s been happening and under the title of it’s a work in progress that that’s where we find ourselves. And so the federal government can only go so far. We’re obviously being at least hopefully informed by science, but most private employers have been hopeful in different, you know, that the pandemic is handled at a much larger level and what’s really occurring is with the Delta variant coming up. And what we thought would be someone, a return to normal where we’re in really another surge, if you will, but of a different type.

Walter (2m 2s):
And unfortunately, private employers are dealing with, you know, it’s been what year and a half and not everybody, not everybody can go remote. So, you know, retail business is in the light. Of course, any health care industry, nursing homes, restaurants, you know, they, they, they really, isn’t such a thing as going entirely remote where many other industries there are. So what you’re seeing is grappling where we think it’s on its way out, but we’re dealing with, you know, really kind of a crisis in terms of the, the amount of people in hospitals are going and being able to spread it.

Walter (2m 42s):
So we’re seeing the typical protocols comeback, but what is now square, front and center is where the private employers mandate vaccines or how they handle that to again, minimize the spread, but largely so that they can remain open. You know, it it’s like teetering on, instead of pointing your entire workforce again and shutting down, how do we keep it going with the protocols and a process in place knowing that in. And I’m going to talk about Massachusetts first because it’s a highly backstage, but if you have a national based company you’re dealing with, you know, locations in every state across the country,

Jonathan Freedman (3m 21s):
Right? And then I was, as I was talking with, with a prior guest, I said, they used the example that I came across, where an employer, Massachusets exactly to your point is 70, 80 employees. And they put out a mandate and they had a handful of people that pushed back. Well, what happens when you put out that mandate and 40% of your workforce pushes back or 60% of your workforce pushes back and other parts of the country. So, you know, I think it’s probably a off used, but really the case here we’re in unchartered waters. And it seems to me that employers are sort of left, you know, the buck stops with them and they’ve got to make decisions. So how do, how do we handle those uncharted waters and do it properly from an employment perspective?

Walter (4m 3s):
No, don’t direct answer, but as you can imagine in an incremental way, so what we’re seeing amongst our clients and what I’m seeing, so I’m going to give you the example. Of course, it was highly publicized. CNN, CNN is mandatory. Vaccines, didn’t have it. You’re fired, right? That’s we call that a zero tolerance policy, but most employers opting for something in between. And what we’re seeing is that most employers are saying yes, because you have every right to ask, are you vaccinated? You still have what are called the OSHA obligation, right. To keep a workplace that is supposed to be safe. And, and so that you can work. And there’s a business interest to make sure the business keeps going. So you don’t want people, I would say so, most employers are asking if people are vaccinated and

Jonathan Freedman (4m 49s):
Can I stop you on that one wall? Cause it seems to me that there’s potential there that, you know, and this may be great again, is where does, where does HIPAA start and stop as far as that, is that not information? Cause that’s, you know, that’s one of those gray areas again.

Walter (5m 3s):
Yeah, it is. It is so both because of the necessity. We have guidance both from OSHA and from the EEOC. That is absolutely fine to ask if somebody is vaccinated, because it’s about a status. It’s not really about a disability per se. And it’s not what you would call, you know, intimate medical record. The answer is though it’s still is medical information about that individual. And so employers must keep that private. They can’t go and say, oh well to foster company X got the vaccine. They can’t share that. But they do that all the time. When you get a doctor’s note saying I’m going for, and sometimes people put up going for my cancer treatment, you know, I need these next days, three days off company knows that it’s all HIPAA protected.

Walter (5m 50s):
You just don’t share it with anybody else. So that part, at least,

Jonathan Freedman (5m 55s):
So those in those, in the need to know HR, senior leadership has, has the duty or the, or the right to know as you, as you point out, as long as they protect that information, that’s on spread. Don’t publish clarifies at least one area.

Walter (6m 11s):
Yeah, yeah, no, there’s lots of ground rules here. And so, you know, it, it, it flows from like, okay, how do we actually do that? So that’s the first step of what we’re seeing is instead of just firing people, if they’re not, we’re seeing what are called an incremental policy that is adapted to a workforce, that’s not a hundred percent vaccinated. So what the most recent ones that I’ve seen and where a number of employers are going is okay, if you’re not. So just say it’s 20 or 40% of your workforce. That is not what they’ll say is that typically if you can do remote work, continue to do that.

Walter (6m 52s):
So that’s one safety valve, right? Another safety valve is a ramp up time. It’s giving people like 75 days to opt to get in. So I call it the reluctant group. That’s on the beds. We have our, our hard and fast right. People who are like for whatever reason, plus there are exemptions even under the law, under the EOC for discrimination purposes, for deeply held religious beliefs or because of a medical condition. So what most are doing is that if you fall into that unvaccinated, for whatever reason, you must follow these protocols. So there’s often more protocols and posts and what I’m seeing around those protocols, not the least of which is masking and or distancing the typical protocols that unfortunately we now know, like the back of our hand, what I am seeing is that some employers are saying, you have to go get tested twice a week to let us know that you’re, you’re not infected and

Jonathan Freedman (7m 54s):
Their expense or your expense expense.

Walter (7m 57s):
Right. Which means that there’s a couple popular states that don’t allow that there’s a couple of states with state laws that better saying, Hey, if you’re mandating that somebody go do that or, you know, to comply, it’s up to you. The question there is if there’s a free vaccine and there’s no legal reason for not taking the vaccine, why would the employer have to pay for that with a vaccine is free and available. So that’s one of the questions, but there are employers who are saying, Nope, go get tested at your own expense, take all the precautions. Others are saying, stay at home, you know, for, you continued to do remote work, but let’s take the example of those who cannot like can’t do remote work all the time.

Walter (8m 42s):
What we’re seeing is essentially this, Hey, that’s fine. You will become an inactive employee. And you’re welcome to come back. Anytime they’re not quote unquote firing or terminating, but they’re suspending people Peck. And so effectively, it’s like, okay, that really is, you’ve lost your job. At least for that period of time. What I think a number of employers are doing is looking down the road in a six month timeframe when perhaps this surge and, or hopefully no further variants come out, but that we actually get on top of this, right? Hope Springs eternal. But they’re, they’re looking to, if you will continue to kick the can down the road, but knowing that it’s not, it’s, it’s a percentage of the workforce now.

Walter (9m 27s):
And so I think most are kind of trying to make, do to accommodate those within their workforce that are not ready and or refuse to get a vaccine for, for whatever reasons.

Jonathan Freedman (9m 39s):
So it seemed to me, I’m a common principle and employment law is applies here, which is as long as you put a policy in place, treat everybody the same. In other words, you know, whatever you’re doing, do it consistently across your organization, you know, and I’ve seen situations where people, well, maybe we’ll make an exception. No, no, no. Once you make exceptions, you’ve now opened up the can of worms. So it was big.

Walter (10m 4s):
It’s a great rule of thumb rule of thumb. Absolutely.

Jonathan Freedman (10m 6s):
And then I guess the, the second one is, and you know, maybe it’s the crystal ball. Are we going to see challenges? Are we going to start to see larger challenges about the ability of, of employers to mandate? Are we going to see, I mean, I suspect we will see litigation at some point, whether it’s mass litigation or, you know, individuals, you know, again, hard to Sue your employer, but it happens all the time for wrongful termination. So I’d imagine we’re going to, we’re going to see an uptick in terms of that going on as well in the marketplace. At some point

Walter (10m 36s):
We, we are, and there, there have been a few, as you know, there, there, there are a few what I call test cases or individuals who are bringing those, the, the litigation as you know, takes forever, right? So there’s no quick answer. And ultimately what those litigations are going to involve is the weighing of various legal factors. One of them, of course, is like, let’s take a restaurant as an example, or take any other kind of which a business that has lots of people that need to be on their premises is a premises liability risk for any, any employer that says, wait a minute, you know, your customer comes in and says, you didn’t test your employees that came in February food, or they did X, Y, and Z.

Walter (11m 22s):
I got in it, your shop. And as a result, unfortunately, X person died either in my family or me or my next akin, cause I’ve got it at your place. And so there are those litigations that will come out too. So our system is unfortunately, or fortunately, however, you look at it as a common law system is built on those test cases like probing around the edges. And I do expect to see those. And I think that what you may see is differences between for instance, like mass general has a mandatory vaccine policy. I think most people would want to feel like if I’m going to the hospital, cause I have something wrong with me. Let’s just take a non COVID person.

Walter (12m 4s):
You do want the people who were bringing, who are nurses caring for

Jonathan Freedman (12m 8s):
You, right?

Walter (12m 9s):
Not to have

Jonathan Freedman (12m 11s):
Sort of a baseline expectation. You would hope you wouldn’t be

Walter (12m 14s):
And you would think, and I think that there’s for most. And I’m sure there’s always an exception out there, but I would say most reasonable people see that as a common denominator. So let’s go to the next one nursing homes, in fact, on the federal level, you know, president Biden, unknowns, you know, for nursing homes, you can now mandate which before you couldn’t. So we’re seeing a switch come because that the societal issues of stopping this in its tracks, but also the health risks. So great that they’re outweighing those other interests. I think at the end of the day, the litigation’s, we’ll be looking at that, but we won’t have that answer. And there’ll be a couple of courts that will go one way, one or two, that will go the other and they’ll go all the way and up and about two years, we’ll have our answer on that.

Walter (12m 60s):
But in the meantime,

Jonathan Freedman (13m 2s):
Oh, it’s going to be a bumpy road to figure it out with many things. I think the key word that you used there as well, two key words, most reasonable people. And then they get out. I don’t, I, you know, the more we see it, the more we look at it, the less reasonable people there seem to be in this country, but that’s all other discussion. So Walter Foster partner of Eckert, Seamans, wonderful to have you on radar entrepreneurs that people want to get in touch with you and talk about these matters or others even further, what’s the best way for them to reach out to you.

Walter (13m 28s):
Sure they can reach me at Eckert Seamans dot com, our website. And you can email me at w foster at Eckert, Seamans dot com. And thanks for having me on time,

Jonathan Freedman (13m 40s):
Sir, it’s been a real pleasure. You’re listening to Radio Entrepreneurs, I guess has been Walter Foster partner of Eckert Seamans. And we’ll be right back with another segment on Radio Entrepreneurs.

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