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Title: “What The Mandatory Vaccine Order Means For Employers”
Guest: Mark Furman – Tarlow Breed Hart & Rodgers
Interviewer: Jonathan Freedman – MAGE LLC

Click here to read the transcript

0 (1s):
Welcome back to Radio Entrepreneurs. I’m Jonathan Freedman and our next guest needs no introduction, but he gets one just the same Mark Furman of Tarlow, Breed, Hart & Rogers, always good to see you on Radio Entrepreneurs.

1 (11s):
Hello, Jonathan. Great to be with you.

0 (14s):
So we’ve got a lot of topical stuff in the world. The legal world is always, and one of which w we try, we’ve heard a lot in the headlines, the new executive order, I believe that mandates vaccination requirements for employers with a hundred plus people. So what, what generally happens when there’s an executive order of that type and, you know, how does it all roll out? How does it, how does it get implemented at the, at the organizational level, at the corporate level? Messy, probably,

1 (47s):
You know, for presidents love to issue executive orders, particularly on matters that they can’t pass laws that say, and then they generally get challenged in court of whether it exceeds the president’s authorities, governors do the same thing. So there’s always an element of doubt. I mean, the general rule is Congress passes laws, presidents have the choice to either veto them or sign them. And that’s how laws get passed. The, but executive the, you know, executives try to exercise power and it’s a combination of public health and political considerations that go into these things.

1 (1m 37s):
So I do expect that there will be challenges to the order, but it does, I think suggests a movement in this country towards a concern that there’s so many people who are not vaccinated and don’t intend to be vaccinated and businesses are places where people congregate and they work together. They work closely together. And although we’re still in the stage where there’s a lot of remote work, you know, a lot of businesses require people to be up close and personal.

1 (2m 20s):
So I think the impact of this policy by president Biden will extend beyond employers with a hundred or more employees in that I think it gives some cover to smaller companies who want to be more strict because it, it, I think there’s a lot of smaller companies that have been following say the, the state or local guidelines or orders and, you know, those create kind of minimum standards.

1 (3m 2s):
But I think this suggests that people want to be more strict in terms of employee vaccinations, they can do it. So I hear a lot of discussion now about either you have proof of COVID that they’d been vaccinated, or that you have to have negative tests that get shared with your employer. Let’s call it once a week. You know, it could be another time period.

0 (3m 41s):
We, we, we seem to be butting up against the number of issues here, you know, privacy, HIPAA, you know, individual freedoms rights, you know, it’s, and it’s certainly seems to be a messy landscape that shaping up in particular for employers, you know, and we’re, I guess, trying to do the right thing in essence, protect their employees and their customers and, and, and such. And yet the government sends something out. And then what happens is in the, in the, in the very likely event that we have a litigation over this, you know, both at the federal level, perhaps people, you know, in decay is suing, I guess, the federal government, which seems to be a losing proposition, but maybe you do win.

0 (4m 33s):
I don’t know if that goes all the way up to the Supreme court at some point. And, and then, you know, puts puts us in further murkiness, perhaps from the employment perspective where, you know, smaller employees, employers are potentially being, I don’t know whether we’re going to see lawsuits against employers for imposing those mandates, but it seems that we’re creating a very murky and messy path forward, potentially.

1 (5m 3s):
Absolutely. And I think Merck is the right word because what you have here is a clash of rights that we hold dear in this country. And so, you know, when you have a government to compromise some degree of personal Liberty, personal freedom, that’s the cost of government. And the debate since before our country was founded, was that balance between individual rights and state rights and federal government rights and religious rights.

1 (5m 47s):
And so there is, it’s kind of a clash of things that we hold dear as a country. So we can’t eliminate the murkiness and the uncertainty employers will certainly be sued because there’s all sorts of requirements, reasonable accommodations of people with disabilities. You have the question of people who are allergic to components of these faxing means you have the religious objectors.

1 (6m 31s):
So what I like to do is to counsel people, make sure if you’re a business owner, you have employers practices, employment practices, liability insurance. It’s not going to protect you against every claim, but it’s going to protect you against a significant amount of claims. And irrespective of the merits of a claim, the cost of litigation is so expensive that to have an insurance company paying the defense cost is a huge benefit, particularly for smaller businesses who can’t afford to be self-insured.

1 (7m 17s):
These policies are reasonably priced. I’m not a sales person for the industry. I don’t get a commission. It’s just, I’ve seen over and over again. How things were when there is the argument for coverage, or at least the argument for defense costs when there’s not. And our, our litigation system is not designed to be fast and efficient. It’s designed to kind of dig out every little fact that could be relevant to a claim.

1 (8m 1s):
And it takes a long time and it’s extraordinarily expensive and the laws are vague and applying them to situations is vague. So that’s an important thing. And when funds, or

0 (8m 17s):
Is it possible that courts will decide not to hear these cases until something happens at the federal level? I mean,

1 (8m 23s):
No, that’s not possible because there are state laws too, that protect religious freedom that protect freedom from discrimination. If you’re handicap laws that require reasonable accommodation by employers. So what’s reasonable accommodation. Well, perhaps beauty is in the eye of the beholder and it’s, it’s not people look at it differently as the nine judges on the Supreme court decide cases five to four with a fair amount of frequency because people look at the world differently.

1 (9m 7s):
And I think this plays out here, I mean, in a passionate way, this, the pro-vaccine anti-vaccine, it’s, it’s just another political passion that in our divided society gets, gets played out. And I think, you know, I think it does get exploited by politicians is the vision for their own purposes, but, you know, everybody has their own view, but, you know, there’s the view that look, we’re community our, as a community, we have to take care of each other.

1 (9m 53s):
We have to take care of our customers. We have to take care of each other’s families, which I think the family piece is, you know, many people have family members that are close to her work have compromised immune systems or babies or babies with who are not eligible to be vaccinated at this

0 (10m 20s):
Point, children under, under 12, who are not eligible.

1 (10m 24s):
Exactly. You know, how, you know, people were pregnant, people were pregnant with underlying medical conditions. I mean, there’s, there’s just too many issues to, to make it too simple. So I go with the Jonathan Freedman murky rule, which is, you know, we can’t really predict with absolute certainty what you can safely do and what you can’t do. So, so, but I do, there are some general rules and lawyers try to guide clients through particular situations and make policies that, you know, to the best of their ability are not discriminatory and serve the purpose of trying to protect their, their folks that are, that work with them.

1 (11m 32s):

0 (11m 33s):
And I think that’s, that’s the good piece of guidance is, you know, if you’re going to apply something, apply it uniformly across your organization, make sure that everybody is treated equally, you know, and, and, and hoping hope the future doesn’t bring too much more work in. And it’s, it sounds as though we’re far from out of the woods on this one, it’s interesting to take a us centric view. I’m not sure these debates are going on in every other country. You know, government sets out a policy and people say, okay, seems reasonable. So I don’t remember anywhere in the bill of rights, having one that said the right to be stupid, but that seems to be the case in a lot of instances where people take the bill of rights and expand to, to their own good and own use.

0 (12m 17s):
So I think we’ve got a lot more of this to come mark. We could probably spend lots of time talking about, it’d be interesting to see how it shakes out. If clients want to talk with you or business owners want to speak with you and talk about this or other issues. What’s the best way for them to reach out to you and have a meaningful conversation about how to protect themselves?

1 (12m 38s):
I can be reached at 6 1 7 2 1 8 2 0 2 5 or at M Ferman, F U R M a N at T B,

0 (12m 52s):
Mark. It’s always a pleasure talking to you timely topical. And as I said, we, we we’ve been off a big one here. I think we’re going to have, have this one for a while. So we’ll come back and talk about it in the future. Look

1 (13m 4s):
Forward to seeing you again soon. Jonathan

0 (13m 6s):
Great, I guess, has been marked Fermin, Tarla heart, and Roger’s always a pleasure on radio entrepreneurs and we probably back with another segment.

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