“What Most Business Owners Don’t Know About The Vaccine Mandate” with Dick Glovsky of Locke Lord

Nathan (1s):
Welcome back Radio Entrepreneurs, listeners and fans, I’m producer Nathan Gobes filling in for Jeffrey Davis this morning. I’m joined by two excellent cohosts. I’ve got both marks of the Radio Entrepreneurs fame here with me, Marc Z of Marc Z Legal Staffing and Mark Furman director at Tarlow Breed, Hart and Rogers. Welcome to you both.

Mark (23s):
Thanks Nathan. Great to be here. Nice to be with you, Nathan, looking forward to hearing from our next guest,

Nathan (31s):
My me as well. Our next guest is Dick Glovsky partner at Locke and Lord. Welcome Dick.

Dick (39s):
Thanks very much, Nathan. It’s going to be here and hopefully I’ll make my mark today too,

Mark (46s):
Well, all right, well thanks Nathan. Great to have you on the show deck and you know, mark and I, our, our law firm junkies, and you really have a huge specialty in the employment world and a very well-respected there. One of the big issues going on right now are the return to work issues facing all types of employers and just in terms of balancing between the health of their employees and the rights of their employees. And just wanted to see if he could talk a little bit about that to our business audience,

Dick (1m 26s):
Happy to, and we probably don’t have enough time to cover it all, but you put your finger mark on an issue that every employer’s dealing with today, and it’s troubling many of them because the choices are not wonderful, but you have edX for those employers who have over a hundred employees. You have this edict from the white house about COVID and vaccinations. And now every employee with few exceptions are to be vaccinated by January 4th. So for employers of a hundred or more employees, and the definition of employee is very broad flutes, temporary workers, part-time workers, seasonal workers, and an enclosed and includes whatever locations they may be in.

Dick (2m 17s):
So if you have a hundred or more employees, that’s something you have to reckon with. And we can get into more detail about that. If you’d like, then there are those employers who have 99 or fewer employees, and they also have issues to deal with, which are a little less defined, at least in terms of what president Biden has issued for the department of labor, occupational safe and healthy administration has issued, but those employers have many of the same issues. And what a lot of folks don’t realize in light of the publicity that has surrounded the OSHA mandate about vaccinations is that within that mandate, they also asked for public comment about whether the same requirements are to extend a smaller employer.

Dick (3m 16s):
So there’s a very good chance in my opinion, that Paul employers are going to be covered by something like that, which the OSHA mandate articulated. Now having said that, what complicates the matter too, is that there are at least 11 lawsuits going on in 11 different United States courts of appeals around the country, the fifth circuit court of appeals, which most lawyers will tell you is the most conservative of all the, the circuit courts has enjoined the issuance or the implication, the, the implementation of that mandate.

Dick (4m 2s):
So what does that mean? What that means is that within the confines of that circuit anyway, in which has only four or five states circuit, including states like Mississippi, it’s binding on the other hand, the rest of the country, one could argue is not covered by that particular order. So including when you get to Massachusetts and new England, I think a lot of lawyers would say that does not necessarily, it does not apply here. So that employers here need to proceed now to make it hopefully more clear and less confusing for your listeners.

Dick (4m 48s):
The Biden administration has asked that the 11 cases be consolidated into one and that apparently is going to happen. The deadline for that is on is November 16th. And there’s a lottery that goes forth among the circuits as to which one will wind up with the case. And of course, there’s one in 11 chances that it’ll wind up back in the fifth circuit, but there are 10 of 11 chances that it’ll wind up in another circuit in the fifth circuit to the judges would Trump appointees. And the third was a Republican appointee. And if you, if you believe that the president who appoints the circuit court judges does so with the hope that they may side with his view of things, then I think you have to say that there’s a better chance.

Dick (5m 43s):
Whichever other circuit may pick up the case or the cases combined cases that they may have a different view, the same slick, an issue that is headed to the U S Supreme court at some point of 2022 for decision. Yeah, yeah. In law likelihood mark. But of course they don’t necessarily have to take it. So that remains to be seen. But yes, I don’t think there’s any question that whoever prevails in the circuit court, did you ever want it winds up and is going to be the appellee when losing side who’s the appellant and appeals that a ruling.

Dick (6m 30s):
So yes, this I think is going to go into 2022. Whichever circuit is select the, the fifth circuit had moved pretty quickly and they’ve had several hearings already. The circuit that gets the case, I think is likely to move quickly as well, but how quickly the Supreme court or reacts to it. I don’t know, but it wouldn’t surprise me if the circuit that is selected makes determination before the first of the year, possibly even before Thanksgiving.

Mark (7m 4s):
Here’s, here’s the issue though. And again, when you’re balancing, there are a lot of employees who are working remotely right now. So what’s interesting, even in my business, we’ve had people that work remotely and they’re saying, well, you know, I’m not coming into the office anyways. So why do I need to get vaccinated? And some employers are saying, well, there’s a chance that you will have to go to the office sometimes. And then you have other people are saying, well, I have a religious exemption or I have a medical exemption. And so what are you advising clients? Because it’s, until some of these decisions are made, obviously it’s great to have a decision, but it’s also the enforcement. And a lot of employers are trying to like read as they go or apply as they go.

Mark (7m 49s):
You know what I’m saying?

Dick (7m 51s):
Yes, I do. So in, in the first instance, employers have to decide if an employee really needs to be in the office. I mean, there are many jobs, let’s say factory jobs, for example, which you can’t do remotely. And then of course there are many jobs which you can do remotely. So one determination that employers have to make this a threshold matter is can the employee do the job remotely or most of the employee be in the workplace? The second question is okay, if the employee is going to be in the workplace, then what is going to be required.

Dick (8m 31s):
Most employers are now leaning toward and adopting vaccination mandates. Now, generally speaking, because it varies somewhat from industry to industry or from federal contractor to the general public. But generally speaking, there are a few exceptions that are required to pay attention to. So one is if someone has a disability, which they think would prevent them or, or, or, or harm them from having a vaccine.

Dick (9m 12s):
The second is if someone has a sincerely held religious belief, those are the two primary and also women who are pregnant. And what I’m seeing is a plethora of claims of religious belief, exceptions, far more than I’ve ever seen. I’ve probably seen 50 of them in the last two weeks. Wow. And that’s become an area of the law, which has largely not had a lot of attention over the years, but now is a real focal point for employment lawyers like myself and employ hers.

Dick (9m 55s):
And it’s a relatively low bar. I used to get over to be able to claim they should be exempt. And we can get into that in more detail if you’d like, but that doesn’t end it. Whether someone has a disability or are sincerely held religious belief, all that entitles them to is to have the employer consider and get into an interactive dialogue with the employee as to whether there’s an accommodation that will allow the employee to do the job without being vaccinated, right? The next step in the process. And it’s not that if you have a disability that is applicable here, or you have, excuse me, a sincerely held religious belief, that’s applicable here.

Dick (10m 43s):
That’s not the end of the discussion question is can you accommodate the person reasonably to do the job without being a quote unquote undue hardship on the business? So

Marc (10m 54s):
Would you accommodate to, you know, someone who needs to be working in the workplace in person, but has a religious sincerely held religious objection. What’s an example of an accommodation.

Dick (11m 12s):
So mark, it depends on what the person job function is. So let’s say it’s an online factory worker. You cannot accommodate them by working remotely because they just can’t do. They have to be able to do the job with the accommodation. For a lot of employees, you can let them work remotely. And in the work to be in the workplace, then it’s a different context. And in that context, you have to, you have to consider the various measures such as masking social distancing testing under the Biden mandate, or strike that under the OSHA emergency issuance.

Dick (11m 56s):
You have seven days that someone’s going to commence to the workplace and they come in consistently. They have to be tested every seven days, or if they only come in, occasionally they have to be tested within seven days of when they come into the office. And if they test positive, then you can exclude them from the workplace. So you really have to look at what is the job function? What does the show have functional require? And then if you think you can accommodate them by working remotely or in some way, being in the workplace, then you have to implement what you thinker’s appropriate for that employee to do in terms of keeping the workplace safe.

Dick (12m 39s):
Because the overriding principle is every workplace has to be safe and healthy. That’s the, that’s the overriding consideration here. And no employer wants to get into a situation where they’re fine. It can be substantial money, especially if they’re, if they ignore these requirements can be over a hundred thousand dollars per violation. They don’t want to be caught in a situation where they were allowing someone to come back into the workplace and it’s creating a hazard for others and their health.

Nathan (13m 11s):
Thank you, Dick. It’s a very interesting conversation and obviously it’s an evolving topic. That’s going to continue to be something we need to talk about as we get closer to 2022 and into the next year, if any of our listeners or viewers are interested in getting in touch with you and you know, want to hear more, what’s the best way for them to reach you?

Dick (13m 33s):
Sure. Richard dot <em></em> yellow V S K y@loclockelord.com. Or my office number is 6 1 7 2 3 9 0 6 2 2 as my assistance numbers. Maybe that’s the easiest way to get me or, oh, 2, 4 1, which is my number.

Nathan (13m 51s):
Great. That was a Dick Glovsky partner at lock-in Lord. I’ll start with Marc Z, Marc Z Legal Staffing. Mark. How can people reach you if they want to get in touch?

Marc (14m 2s):
Well, first of all, Nathan, I want to thank Dick for coming on the show today. Dickey had a lot of great insight, which I know our listeners can really take to heart and will be really, really helpful for them. Mark, Marc Z Legal. So if you go to www Marc Z Legal dot com, M a R C Z legal.com or Google, just Marc Z, M a R C. And the letter Z is 6 1 7 3 3 8 1 300.

Nathan (14m 30s):
Right? And of course, Mark Furman.

Mark (14m 32s):
Well, let me just first say that I’ve had the opportunity to work with tic and he’s an extremely capable, skilled employment lawyer. Nobody knows his world better than Dick does. And his pleasure to work with I can be reached at either 6 1 7 2 2 1 8 2 0 2 5 or at M Ferman, F U R M a n@tbhr-law.com.

Nathan (15m 9s):
Great, thank you. And of course, everybody can reach both of the marks through Radio Entrepreneurs, giving their regular segments and updates on our show. Just head on over to Radio Entrepreneurs dot com or find us on YouTube, Spotify, LinkedIn, we’re on many different websites. The DIC want to thank you one more time for joining our show this morning.

Marc (15m 32s):
I appreciate it. And I

Nathan (15m 33s):
Enjoyed it of course. And we’re back with another segment on Radio Entrepreneurs.