“Why Companies Should Mandate Vaccines” with Valerie Samuels of Arent Fox

Jeffrey (0s):
Well, hello everyone. And welcome back to Radio Entrepreneurs. The show that’s constantly streaming stories of entrepreneurship in real time, how people are dealing with this economy, adapting and stories of success, as well as stories of, you know, fortitude to some degree, I want to say hello to my guest hosts the one and only fabulous. Marc Z, Marc Z. Legal staffing. Hello, Marc.

Marc (23s):
Jeff. Great To be here. Very thank you for your kind words.

Jeffrey (27s):
Always a pleasure. Our next guest is Valerie Samuels partner at art Arent Fox. Is that correct?

Valerie (34s):
Arent Fox. Close enough.

Jeffrey (38s):
Okay. I’m sorry. I might’ve read that wrong. That mine and mine was a little bit different, but why don’t you tell us a little bit about your practice and what we’re going to focus on today?

Valerie (48s):
Sure. So I’m an employment lawyer. That means I help companies and some individual executives basically solve all kinds of thorny, Legal employment, related problem, sexual harassment, wage, an hour lay offs, and a hot topic. COVID

Jeffrey (1m 10s):
Sick topic all the time, Right? Well, you must be quite busy in this economy because it seems like, you know, some of these topics, they used to be less common than they are today and today they just seem so, so much more common in business. Do you have a, you have a thought about all of that?

Valerie (1m 29s):
Oh, absolutely. I mean, what I’m getting now, well, since the pandemic, it’s been crazy busy with layoffs and COVID questions. I think some clients think of an MD instead of a J D, which I’m not an MD. I may play one at times, but I’m really not. The hot topic now is really what to do about vaccine mandates. And of course, some employees don’t want to get vaccinated. Some don’t even want to get tested, believe it or not. And they’re coming up with all kinds of medical and religious reasons. So that’s a big, big topic right now,

Jeffrey (2m 12s):
Marc?

Marc (2m 15s):
I know that the medical religious reasons, but what I’m hearing, because I, like, I always say to Jeff and Nathan, it’s like my business, we’re an incubator for some of these issues. We go through them and you know, I’m hearing religious exemptions are really tough to prove. And the medical exemptions, law firms and companies are really taking them very specifically to heart because with everything going on, what are you seeing as far as trending though, in terms of policies that I’m one hand I’m hearing from companies and law firms they’re mandating. Well, if they’re telling us candidates need to be vaccinated to work here, right?

Marc (2m 59s):
And I talked to another client, well, we’re going to follow the guidelines, CDC guidelines. We’re not mandating. We could eventually Mandate vaccines, but for, For, as an employment lawyer, what, what, what are you advising your clients? Now

Valerie (3m 15s):
I’m advising clients to mandate the vaccine. I think it’s frankly, it’s a no brainer. In fact, EOC, the agency that enforces federal anti-discrimination laws issued a guidance in May, 2021, in which they said, employers can mandate the Vaccines. Now nobody wanted to do that until the FDA issued approval, final approval for Pfizer. So a lot of people were reluctant. A lot of employers are very reluctant. They kept saying, you know, it’s no secret. It’s a, it’s a hard time to hire good people right now. Employers were wary of that.

Valerie (3m 56s):
But since the Pfizer vaccine was approved, there’s been a sea change. Many employers are now, man, they need a vaccine. Of course, government contractors have to have to do it or soon will have to do it. I should say the, the OSHA rule is pending right now at the white house. It could come out any day now. And also president Biden has announced that employers of a hundred or more are going to have to mandate Vaccines or testing. So I think there’s been a real sea change. And now we’re seeing less art argument from clients about, should I Mandate it’s more about what do I do with the recalcitrants, who don’t want to be vaccinated?

Marc (4m 40s):
The interesting part though, that I’m finding is that Biden can say federally, this is what you need to do, but you have Texas and Florida in certain states that aren’t going to enforce that because of state’s rights. And if somebody is not in the federal space, like for example, I had to suddenly fly out for my first time in almost two years. And you go to the airport, it’s mass, whether or not you’re in Texas, Florida, or Massachusetts, it’s mandated because the airports are run federally. There’s they’re not run by the state. So you can have that.

Marc (5m 21s):
But in terms of my question is in terms of enforcement, in terms of what they can do now, I believe the Supreme portal so said that you could have that vaccine policy. Is that correct?

Valerie (5m 34s):
Yes. Well, I think it’s a question really of a federal preemption. Now, whether a president Biden is going to send, you know, the military down to Texas and Florida to enforce the vaccine Mandate. I don’t think so because it would be sort of a political nightmare, but you know, you have OSHA, OSHA, occupational safety and health act. It’s a federal law. There are inherent police powers, not just in the states, but in the federal government. So if OSHA comes out with a rule that says, you know, employees got to be vaccinated, that’s a federal, that’s an issue of federal preemption, frankly, Lauren, I don’t want to do it.

Valerie (6m 20s):
They’ll probably a battle that’s fought out in the courts. And I think they’re going to lose, Will die in the process. That’s what,

Jeffrey (6m 28s):
What about, what about unions? And I know you say it’s the law that, you know, they have 10%, let’s say negotiator for union. They have 10% of their workforce that doesn’t want Vaccines. They want to keep their position in the union negotiating. And they, you know, if you know, so they have to fight it to keep their position because it’s a good position, but you have the federal law. So w you know, how do we break that stalemate? Because I understand politics,

Valerie (6m 57s):
Of course. So the whole thing with unions, it’s been sort of surprising to me, although maybe I shouldn’t have been surprised that, you know, some of the police unions, some of the fire unions, fire department unions and the correctional officers for example, are very opposed to a mandated vaccine. However, all employers really have to do is bargain in good faith and reach. What’s known as an impasse and impasse is a term of art in labor law. So at some point you sit down for a few sessions or maybe more with a union, and you, you make clear to them, this is what we’re going to do.

Valerie (7m 39s):
You’ve tried to work it out. The unions may want some time off. They may want some money for getting the vaccine. You work all those issues out, but at the end of the day, at some point, and I can’t tell you exactly when that point is because it’s situational varies. The employer is going to declare an impasse and say, this is it we’re mandating the vaccine. Like it don’t like it. And people who don’t do it are going to be suspended without pay, or probably eventually terminated. But I don’t think at the end of the day, they’re going to find much support either from national labor relations board or even if it’s individual cases that could arbitration.

Marc (8m 23s):
It’s interesting it’s happening across the country and it’s being tested. And for example, I was reading about university of Washington’s football coach was fired. They gave the state of Washington, all their employees needed to be vaccinated. And they gave him a lot of time. He said, and he wouldn’t. And so they let him go. So I think employers, unlike in the beginning of COVID are being more proactive. There are saying, look, this is what we need to do. As opposed to in the beginning of COVID, it’s

Jeffrey (8m 55s):
Like, you know, sort of wending your way. So to speak, mark, you and I live in a, what I would call a big COVID a vaccine supporting state. There seems to be pockets of states that are, have a whole different political and philosophical angle on this. And I think that was interesting what Valerie said. We don’t think the president’s going to send in troops to enforce it. And you know, if we’re looking to get to be, let’s say like Canada, that has, you know, 85% people are vaccinated. We don’t hear, even though we sort of have the vaccine more than anyone else, we have a little bit of a problem, you know, trying to get, you know, mass vaccination. That seems to be a problem trying to get that last pocket of people in those states vaccinated.

Jeffrey (9m 40s):
I don’t know if Valerie, if you have the magic pill that tells us how to close that gap, I’m sure. I’m sure everybody would like to know how to make that happen.

Valerie (9m 49s):
Well, I wish I had the magic pill, but I think what we’re seeing is except for a few pockets of resistance and frankly, in a lot of those places, people don’t even want to wear masks, which is just crazy to me. I mean, on a personal level, I think it’s just nuts, but you know, what can you do? Some people have politicize this. It should never have been politicized in my humble opinion. I mean, think about it in the 1950s, we had polio in this country. We no longer have polio. Y vaccines. If polio vaccine came out today, people would be protesting against it.

Valerie (10m 29s):
It’s just frankly crazy. And I think employers realize that the economy is going to suffer. If vast majority don’t get vaccinated, their individual companies are definitely going to suffer. Look at the red Sox. I mean, I live in Massachusetts too, so I’m very into the red Sox. The red Sox had a whole slew of players get COVID crazy. It’s just crazy. I don’t have a magic bullet. I wish I did

Jeffrey (10m 59s):
Well. It’s, it’s interesting how people, you know, relate this to their individual liberties. And I agree with you. I think people compare it very different than, than polio. You know, this whole quick process of approval, which I think was pretty outstanding. They use that against them, that it was approved quickly, that it isn’t the official approval process. I think it’s great that they got it into the system, the country system so quickly and a sign of adapting during a crisis. It’s like, you know, they’ve adapted quickly to Pearl Harbor to when you’re at war, you have to adapt quickly.

Valerie (11m 32s):
Exactly. Plus these M M N R a vaccines have been in production since the 1990s. It’s not like on in March, 2020, they just started researching this plus to your point, you know, the Supreme court has always said, you can’t yell fire in a crowded theater. Here’s a famous Massachusetts case from the early 20th century Jacobson versus Massachusetts in which the smallpox vaccine was mandated in. Someone didn’t want to get it. And he suffered a criminal penalty. I think it was a fine, this went all the way to the us Supreme court. And they said, Hey, Liberty’s great.

Valerie (12m 14s):
But Liberty ends when you’re endangering other people. And that’s exactly the case with COVID. You can spread it to vulnerable people. You could spread it to little kids. You can cause grandma and grandpa to die. So at that point, your Liberty ends and the rights of other people to be healthy, prevail, et cetera.

Jeffrey (12m 38s):
You know, you’re definitely speaking to the converted. So it’s hard to hard to say, and we don’t have a debate here from somebody representing the other side, but that’s always frustrating because it doesn’t seem to be a open, scientific perspective on any kind of discussion on this. You know, the only other thing I’m going to say is I never realized before how dominating those twosies are beside Marc. I feel like I’m dealing with, I feel like I’m dealing with Samson and the pillars are protecting him to his side. And you know, it’s, it’s more powerful than the vaccine market. So pretty impressive thing. But Valerie, no joking aside. If someone wants to get hold of you, clearly, you’re an expert in your area and we hope you come back to Radio Entrepreneurs.

Jeffrey (13m 22s):
Again, you bring it, bring a great perspective. How would, how would our listeners find you?

Valerie (13m 27s):
Well, the easiest way to find me is to go to errand fox.com. It’s a R E N T F O x.com. I live and work in the Boston area. So go there, login my name and I’ll all my information will pop up and give me a call or send me an email.

Jeffrey (13m 48s):
Well, and a Marc Z, the Sampson of Radio Entrepreneurs with your pillars being held up on the side. How do people find you? You powerhouse, you?

Marc (13m 57s):
I don’t know. It’ll get you everywhere. First of all, just Google, Marc Z, M a R C and the letter Z. And we’ll come right up or a Marc Z Legal dot com, M a R C Z, LPGA l.com or 6 1 7 3 3 8 1 300

Jeffrey (14m 13s):
Mark. Thanks a lot. And as usual you are the pillar of power and success on Radio Entrepreneurs. Valerie, we need a commitment that you’re going to come back again with mark and talk again about these topics. The more we focus in on this, I think the better it’ll be.

Valerie (14m 29s):
I’m happy to come back. I do want to say that when I see those twosies, I think era Zorro or ZZ top

Marc (14m 38s):
Complimentary,

Jeffrey (14m 39s):
You should see his underwear. If you think those are impressive, Hey,

Marc (14m 43s):
Let’s not go there.

Valerie (14m 44s):
I’m going to take a pass on that

Marc (14m 47s):
One. So this is a G rated.

Valerie (14m 49s):
It’s a family show with I

Jeffrey (14m 51s):
Bought I I’ll I’ll full disclosure. I took a picture of my dog. I have socks made from it pajamas for my wife. I got doggy, but personalized eat everything so

Valerie (15m 4s):
Well, I love dogs too. I have, I took my dog to see years, many years ago, and it had pictures.

Jeffrey (15m 12s):
Holidays,

Valerie (15m 14s):
Not holidays, just portraits. So you can,

Jeffrey (15m 18s):
That’s the way to go. Well, again, this is Radio Entrepreneurs, and we can say based on this interview, you heard it here first. So I want to thank everybody for joining us and remind everyone to tune in to Radio Entrepreneurs.