Business as Usual: Exploring COVID-19 Vaccinations and Employment Law

So good afternoon, everyone. This is Audrey Russo and welcome to business as usual today. And timely topic. As always, I'm very excited to introduce our guests, who is Jamie 2d. And I'll we'll talk a little bit more about her. She's a shareholder at Buchanan, Ingersoll and Rooney. And we'll talk about the topics in a moment, I want to give a deep appreciation to our sponsors, people who believe in us at Huntington bank, as well as the Jewish health care Foundation, and along with the wholly owned subsidiary, and the 501 C, three of the Pittsburgh Technology Council 40 by 80, which is the longitude and latitude of Pittsburgh focusing on workforce development, and entrepreneurship. So thank you all for joining today, and can't be more timely in terms of having a conversation with Jamie. And her expertise as a skilled employment attorney is going to come in really timely and handy, because we're going to talk about the topic of vaccines. So let me just set the stage for a moment before we join Jamie. So when we talk about vaccines, right, we have to recognize that the subject can be charged. It's a charged topic, both the approved vaccines have set records in terms of the time it took to bring them to the market. And for some people that made them a bit nervous, right? Well, the number of people who are considered vaccine hesitant, is quickly falling. You know, as more data is shared, I just want to acknowledge that this can sometimes be a very sensitive topic, and that it requires thoughtfulness. And it requires patience. And you know, there's history tied to it. So when you merge a discussion about vaccines with workplace policies and practices, this topic can be even more dicey. So as a quick vaccine update, the we have Brian Kennedy, our team, he always keeps up with the vaccine tracker. So here's a little bit about you know, today, the US has achieved daily vaccination rate of more than 910,000. This is daily administered doses, which is just shy of the rate needed to vaccinate 100 million people in 100 days. That's President Biden's stated goal. That's his intention. So while the vaccine has been scarce recently, you know, based on President Biden's executive orders that he will sign today, and current trends, we anticipate that more and more availability of the vaccine in the coming weeks and months. And I can tell you personally, I am very excited by that and anxious and wanting to get that vaccine. So with more availability expected soon, employers find themselves they may find themselves in uncharted territory, you know, what's the policy, what's the procedures, and that's what this session is intended to be about. We're not so much about the discussion about what an employer should do, but more about what they absolutely should not do, to remain compliant with state and federal laws and what they can do. I think that's really important in the context of the guidance they're receiving from regulatory authorities. So Jamie, Jamie chidi, I already said a little bit about you. And I'm thrilled to have you on the show want to thank your firm, Buchanan, Ingersoll and Rooney, for allowing you to be with us today. I know you're shareholder, and you have expertise and employment law, and certainly you've been busy. So as we start, let's say I just want to address this issue that is often front and center in the vaccine discussion. To date, are you familiar with any state or local regulation that would require people to take the vaccine and let's just start off there, and then we're going to have a conversation.

At this point in time, I'm not aware of there being any kind of state or local or federal mandate requiring the vaccination. I think that it's interesting that when you look at your the flu, that's something that there are requirements by different states, including Pennsylvania, for vaccinations in certain fields, but at this point, that has not been required.

Great. So so some employers and you can see my misbehaved puppy in the background and I deeply apologize, are guided by an interest in the welfare of their employees we care, right, we you know, may want to offer encouragement or even rewards or incentives for employees to take the vaccine, what are some considerations? Is that the right thing to do? What should be we take into account when they start to tread into the space? Right.

So I think that you know, each employer needs to be looking very much at their individual circumstances. I you know, Wolf's order is still in effect about teleworking, and less, it is impossible. And so as a result, many employers are still having their employees working from home. And so really to rush and to make certain requirements, if employees are not even in the workplace, that's something that needs to be really thought through, particularly when it's very difficult to this point for everyone who may want to to be able to get the vaccine. So I do think that employers need to be thinking through, you know, kind of their plan as to what from a business necessity standpoint, how they're going to be bringing employers back into the workforce, I think a big question that a lot of employers are struggling with is, who do they need to have come back into the workplace, and then even the timing on that we do have still a lot of orders that are in place. And I don't know that we can, in any way interpret that because vaccines are available for certain employers, and are becoming are going to be in the coming days, that that's going to necessarily be a panacea, though, to eliminate some of the other precautions that need to be taken.

Well, that that takes me into a question that that I had dissipated, asking you, you know, in terms of remote work, right, we have that we're at this inflection point. And it's not just in Pittsburgh, it's around the world, right? Everyone is looking at this, but what we care about are the rules and regulations. And the protocol for for Pittsburgh, and obviously, for the United States, because many people are employing people remotely, even now, for new hires. So people are actually either living other places, or they're allowing their existing hires to live other places, at least for the foreseeable future. So you know, they're tackling, you know, difficult decisions on positions, like who can come to work, who can become, you know, what's permanent remote work, how to handle this whole, you know, return to work for positions that might not be best for remote situations. And in the tech world, we have a lot of people who actually, while they can work remote, they still need to be in the office actually touch things, particularly in our in our space, where people are in information and things and they're working on autonomous vehicles and robots, etc, etc. What are some of the legal considerations that need to be, you know, reviewed? As we start thinking about this, and you start developing policies, this is no one here in our audience is an expert in this stuff. So we're seeking some guidance? Yeah, I

think that one of the biggest issues that we have is that there's individuals who will fit into different groups of individuals who will have a preference to be working from home versus individuals who, because of medical conditions, may need to be working from home. And so that is a very serious consideration that employers have to be very delicate with. Because obviously, you want to be treating employees consistently, you don't have two employees who have the same job and one's permitted to work from home and one isn't, right. But at the same time, you also really need to be looking at an individual's circumstances and seeing if reasonable accommodations can be made. And part of the challenge, I think, that we have is now that a lot of employers are saying, okay, you know, we were doing temporary accommodations of even eliminating essential functions of individuals jobs that we didn't have to do under the law. But we did because we're in a pandemic, and it was the right thing to do. Now, we need to kind of peel back those layers, because we do need to have people in the office and it's not he was on a temporary basis, and it can't be up forever or indefinite. So that's really requiring a lot of conversations and engaging in the interactive process. And following the FDA, as well as the Pennsylvania Human Relations Act, and other local laws that cover Disability Discrimination as well. And that it is all very sensitive, because employers don't want to be probing into employees medical conditions, and there's many prohibitions on that. But at the same time, there is a need to have an understanding as to whether or not employees can perform jobs. And employers are able to certainly require employees to come back to work at certain points when that there is a business necessity for that. And also, they're going to be permitted to exclude employees from the workplace if it's going to create a direct threat. That is a high threshold. But that is something that, you know, in terms of the recent guidance that has come out from the EEOC, we know that you know, the December guidance, they did speak to it. Some of the the two main areas where we'll see we're likely to see objections from employees as to disability objections, as well as sincerely held religious beliefs, objections.

so complicated, varied, customized, very often, that's the antithesis of protocols and policies that companies develop.

Correct. And a lot of it, I think that a lot of employers are right now, being very careful in terms of their communications, and making it very clear that the remote work is temporary, because the business goals and objectives are to have employees come back to the workforce. Now, they're obviously not going to be rolling everybody into the office tomorrow. But there is the plan, that eventually, there will be that that build up in a safe manner to get people back into the office. And if that's something that is important, it makes sense to be making sure that employees expectations are aligned. And if there are exceptions for certain positions. I'm also making those determinations in advance. Okay, well,

I just want to tell everyone, Jonathan cursing, I fail to intro him as I do every day. He is the Vice President of all things, media and marketing. He's going to be monitoring the chat. So if there are questions that come through, please, please don't hesitate. So but on the employee, there's so many ways I want to go with this. So on the employer front, we aren't you know, we aren't familiar with any of our own members who have attempted to make the vaccine mandatory? We haven't, you know, we haven't heard that. In in December, the EEOC issued some guidance to employers about the vaccine policy. So can you share an overview? So can I Audrey Russo, say to my team, you need to take the vaccine. Okay.

So employers are able under the EEOC guidance to mandate that employees take the vaccine. But you need to be prepared for some objections that may occur. And you really need to go through the analysis as to what your environment is like. I mean, I think an obvious example where it would be it will make sense for there to be those kinds of mandates are in healthcare. But there are some environments where mandating employees to take the vaccine may be more questionable. For example, if you are going to an all remote work atmosphere, why would you need to be mandating that employees take the vaccine? That seems silly. So I do think that there is initially still some factor analysis that needs to be done for your particular company. And then I do think, though, if it is necessary, with the EEOC analysis goes through and says is that you know, you're looking at, really, it makes sense that there could be the conclusion that somebody who does not have the vaccine could be a direct threat to others that they're coming in contact with. And now again, though, you need to be looking at whether or not there's any kind of reasonable accommodation that can be given. Because if an employee is objecting to taking the vaccine, because they have a disability, or for religious reason, that you can't just bypass and say, Okay, we're going to terminate you. Because then you're the there's too much of a risk there of litigation, from title seven, or from the ADA, or from the other corresponding state and local laws. So there has to be the analysis done as to can we accommodate this person? And does this create an undue hardship, and that is going to be very fact based, I could see two different employees working for the same employer that because they have very different jobs, it's a completely different analysis.

Okay, that's not fair. But I get it. And I think and I appreciate your sensitivity to that. Because many of us who are leading people, we would like to provide consistency. And I think we're moving into a world where there's a lot of, I don't want to say aberrations, but differentiators that are requiring us to be more reliant on understanding some of these nuances legally, as well as culturally.

And I think that one of the issues too, that I've heard pointed out is that, you know, on one side that the vaccine has not been approved, you know, while the vaccine is certainly authorized, it's not approved. And so you know, that distinction for some may make a difference. The other issue that I think we have to think through is, you know, there are going to be changes with the new administration, as you pointed out when we started, right and so could there be a conclusion made That, you know, in order to have a safe work environment,

that, you

know, OSHA could come out with, you know, guidance under its, you know, safety clause that there needs to be you certain mandates for certain positions or certain things like that. I think those are a lot of the public policy issues that are being thought through right now. And there will definitely be more to come on this. But I think at this time, what I'm seeing, just as you've commented that most employers that your are not mandating the vaccine yet, but they're recommending there, there may be strongly recommending it for when employees for the employees who are in the office, or who are going to be returning to the office sooner rather than later. And that's, you know, something that you can do through incentives and through different methods. But once again, you know, all of this has got to be looked at very much on kind of your organization, where it's at who's the office? What makes sense. And so I do think that there's going to be a lot of planning and timetables being set, to figure out how this all makes the most sense. And to make sure that the communications to employees go over in a way in which you're building employee morale, and not polarizing the environment. Again, again,

it's tough. So just to remind everyone that we actually had the head of OSHA early on in the on the show in the pandemic, just trying to understand what are the safety issues? And what was the prognosis for ahead, who knew that we were going to be still having these conversations, if not more complex, you know, nine months later? So what about travel? Like, let's let you know, the personal right, you know, we start to authorize travel? And are there any legal pitfalls that they should consider in terms of asking employees to become vaccinated or provide proof of the vaccination before they're permitted to travel or when they return? And And what about this in terms of personal travel? Right, awesome. have that? So can you speak to both of those issues?

I can. And I think that, you know, in terms of the personal travel, I don't see employers wanting to prohibit personal travel. But it can impact access, especially for essential workers who are in the workplace, you know, them having to comply with the governor's order related to the quarantine time period. And, or getting the test. So those kinds of things, you know, I think most employers, and certainly should be making sure that they are having their employees self certify, that when they are coming into the office, they're complying with all of the regulations that are required, you know, they're they're wearing their masks, they're, you know, socially distancing, they're if they have traveled outside of the states have complied with what is required. So the the personal travel, I think, is not something that I'm seeing banned. But it is something that is impacting operations. And I have seen a lot more in terms of employers talking about when thinking through when they're approving vacations and or PTO, and kind of talking through those issues with their employees so that they understand what's going to be the impact, because it's never helpful when you have somebody who's out for a week, and then has to be out for another 10 days. Right. So So working through those issues is certainly key. You asked the other question about requiring employees to prove that they've gotten the vaccine. Yes, that's something else that the EEOC has also opined on? And yes, there is the ability to ask for the test results. And that's something that I think some employers are going to maybe give an incentive for having done that. But I also hear you that in terms of travel for companies that have employees who do regularly need to travel, and to the extent that different businesses start to open up more and are allowing for there to be those meetings taking place. I do see that one of the concerns that I think has always been a concern is in advance of having those kind of client meetings, you want to make sure that your employee does not have any of the symptoms or is going to be doing anything that could endanger them, but also making sure that they're not exposing a client to the vaccine, because that's then going to cause there to be a need for communications. You know, that and nobody wants to be the one who's who's done that. So, I think, you know, those are the types of employees who employers are going to be even more interested in. strongly encouraging or talking To about getting the vaccine.

We have a couple of questions that I want Jonathan to grab. Jonathan, you're on mute. You're still on mute.

Sorry about that. Thanks for joining us today. Jamie. Much appreciated. Got a great question that just came in on the private chat here from Christopher Vincent wants to know, for employers who have employees working in an office with a mask requirement, are there any legal pitfalls in allowing individuals who have received the vaccine, or maybe even those who have had contracted or recovered from COVID to work without their mask? Are you allowed to request proof of vaccination or infection or recovery?

So you are able to request the proof of the vaccination, but I would be very hesitant to not be following the governor's orders. At this time. I think that, you know, until we have some clear exceptions,

we should be following the orders.

Okay, so there's still some public fat questions, Jonathan?

Yes, it needs to feather. Here's a great question. Um, doesn't the vaccine have to be approved for general usage before it can be mandated? Aren't the code vaccines only approved for emergency usage at this particular time?

You know, it I know it's not been approved. But I do know that it's been

authorized.

In terms of you know, the specifics of that. I'm not sure of the answer to that. And I think at this point, there are any mandates that I'm aware of, and that may very well be playing into it. But certainly, I'm also aware of the EEOC guidance that there has been, there's the ability for employers to mandate under you know, meeting the specific requirements, you need to go through the guidance and make sure that's all met, but they can mandate the vaccination.

Okay. Yeah. I just got a new question in here on the private chat from Kellie Kramer wants to know, can co workers ask who's been vaccinated? And who hasn't on the staff? And what is the safe, acceptable way to share if you can at all?

Yeah, so, you know, the EEOC has said that it's okay to ask for proof of vaccination. But I think you need to be very careful in terms of sharing any of this kind of information, because the follow up questions that naturally will will occur is if somebody does not, has not been vaccinated, they're going to ask why, why aren't you getting vaccinated? And so if you start then walking into questions about somebody's disability, even Gina can apply that the federal law Gina, because of it, your genetic information can be touched upon in the sense that if you're asking questions that would show the manifestation of somebody having a condition, or family members have there is having a condition that's off limits to be talking about. So I do think that employers need to be very clear on respecting the privacy of just like we wouldn't share an individual who has a medical condition that's requiring a reasonable accommodation, we should not be during this kind of information.

Interesting. So. So what do you think you think our laws are keeping up with the pace of change here? And, you know, what are some of the legislative issues that you think are going to might arise in the in the current? You know, just in the next quarter? I don't even know.

I think that it's going to be very interesting. I do think that I don't know how immediate it is going to be, because I think there is still the need to be able to have the vaccine more available. And I know that there's obviously efforts being made, as you announced to, to get it out there as quickly as possible. But I do think that we will be seeing more guidance coming from the EEOC. I do think that everything that I've said today is subject to there being changes. We we do have the new administration, we do have a lot of these laws evolving. I do think that the privacy issues related to individuals who are objecting to taking the vaccine is a very interesting issue. And I do think that, you know, there is a big distinction between somebody objecting for religious reasons or for disability reasons, versus or social or political reasons. And so, you know, employers are going to be in a unique and difficult position, trying to wade through those waters.

So right I mean, I'm, we're gonna get it. I want to ask you one final question here. But you can imagine that if you're in a job where you have high touch, and that's, you know, high touch to other humans, that if you're saying you can't, you're not going to take the vaccine because of those other good reasons that you're protected under the EEOC, that that puts you in, in really a tough situation as an employer to say whether or not you can actually keep that person if that's really the nature of their work.

Right. And that's where, you know, the Americans with Disabilities Act, I think does give us a good framework, though. And this goes back to your previous question about kind of the keeping up with the law. I mean, the the interactive process has always been around, it's always been very fact specific. And it the end of the day, though, employers do not have to employ an employee who is not qualified to perform the essential functions of their job, or who by performing the essential functions of their job is going to put somebody else in a direct threat. By a direct threat, I mean, by there's good substantial likelihood of there being harmed. So you know, in that kind of environment where there would be a high touch, that would be one where certainly, it would be helpful if there were eventually to be some kind of litigation, to have documented the interactive process, and really having that discussion with the employee, and perhaps even with their health care provider, that would be through paper, not having a conversation with their health care provider, but being able to brainstorm on what are some potential reasonable accommodations. But if there are no reasonable accommodations that will allow that individual to perform the essential functions,

right. So we're back to we're back to just looking at the job and the accommodations, which the EEOC has given us plenty of framework for. So what about any Lastly, as we wrap this up, and then if people want to reach out to you, do you have an email or anything that you might want to share on the chat? But what are some other COVID related issues that you know, Employment Lawyers are handling or seeing these days? Are there anything that we just didn't cover in here?

I think a lot of employers are looking at just the employee morale issues on trying to stay in front of their employees, as to their expectations going forward. I think that there's been a lot of surveys that employers have been doing, as well as the constant kind of touch point meetings, to remind people of that business's particular culture and goals. And then, you know, the ADA issues have been on the rise. I think, you know, that's, that's one of the big things where, you know, with employees now, more and more, it not being it being impossible for them to telework, that that's something that is coming up.

And so am I allowed to ask a potential hire? Did you get were you vaccinated?

I think that you that's going to, so yes, the EEOC has said that you can ask about that. But also, you have to be consistent in all of your policies, right? You're asking an applicant for that kind of information, but aren't requiring it, or aren't doing that of other employees? You know, there's certain things I think we purposely frame for asking later, after we've done interviews such as salary. And and we are very careful in terms of asking about salary expectations, versus about your past salary. So I think this is would fall into that bucket for me as one of those questions that you first have your business reason for doing it, you make sure you're doing it consistently. And you would push it towards the end of the hiring process, if there is a reason for asking it.

Listen, that this is very complex. But in some ways, you've given us some nice parameters that I think people can really think about in terms of the framework. If anyone has been leading people and running companies, they know the compliance for EEOC, ADA. And those are great litmus tests for you know, as we start to move ahead, but we are in uncharted territory we definitely are. So I imagine that you've been very busy Jamie, during this period of time, and I cannot thank you enough for taking the time with all of us to sort of make us think about it. Make us understand that there's really a lot of things, dimensions to this that we just haven't, we just haven't weren't, like I said earlier, this is new ground for us. So most of all of us want to make sure that we're being fair and consistent, but we also want people to be safe. And that's that's what's just really, really important. So I want to thank Jamie Jamie today, she put her info out there with Buchanan, Ingersoll and Rooney. She has given us a lot to think about and I appreciate you just giving us you know, some sort of methodology to begin to shape our, you know, the next quarter. I think it's going to be really interesting, right if we haven't already We have an acceleration of vaccines we haven't we have when we reach the tipping point what the requirements are, so I can't thank you enough for being with us and taking the time. And I want to thank the Jewish health care Foundation, Huntington bank, and of course, 40 by 80, for supporting this work. And tomorrow, I always have to say this out loud what day of the week it is, tomorrow, Friday, we have the leader, the President, CEO of catalyst connection, where they have been around for a long time doing a lot of work in manufacturing. And we're going to hear about the current state of manufacturing and some other work that they've been doing particularly during this period of time, and that is Petra Mitchell. So I want to thank everyone for being here today. Again, can't thank Jamie 2d enough for taking the time with us and we will see you here tomorrow.

See you guys

Transcribed by https://otter.ai