Recorded live on September 16th at 1 PM EST
Hazards of Return to Work: Legal Risk, COVID Vaccination Policies, Employer Lawsuits
Please note: On Saturday, November 6, the Fifth Circuit Court of Appeals placed a temporary hold on the OSHA Emergency Temporary Standard (ETS) requiring COVID vaccination or testing for employees of employers with 100 or more employees. The current ruling is temporary, but there are likely to be updates soon. MP will update our materials accordingly. In the interim, our HR services experts recommend employers continue to prepare in case these deadlines are upheld.
Healthcare: A preliminary injunction has enjoined the Centers for Medicare and Medicaid (CMS) from enforcing its COVID-19 vaccine mandate nationwide. Appeals may result in the mandate taking effect later. Employers may choose to proceed considering state-specific requirements and prohibitions, or wait for a final decision on the mandates if applicable. Based on the outcome, all affected employers should stay updated and prepare to respond quickly.
Federal contractors: A preliminary injunction has been declared, prohibiting the federal government from enforcing its COVID-19 vaccine mandate for all federal contractors and subcontractors. Appeals may result in the mandate taking effect later. Employers may choose to proceed considering state-specific requirements and prohibitions, or wait for a final decision on the mandates if applicable. Based on the outcome, all affected employers should stay updated and prepare to respond quickly.
View Transcript – Please note, this content was automatically generated by Zoom and has not been reviewed for accuracy. Please listen to the recording for complete accuracy.
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MP: Good afternoon, everyone we’re going to give attendees a few more moments to sign on and we’ll start the program momentarily.
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MP: Good afternoon, and thank you for joining us today for an empty webinar on the hazards of return to work legal risk covert vaccination policies and common employer lawsuit.
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MP: i’m amy Lehman head of marketing here and P, and for those of you joining us on a webinar for the first time MP, is a full service human capital management company.
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MP: offering a suite of products and services, including HR payroll benefits administration time and attendance and compliance assistance.
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MP: We support our clients with cutting edge technical solutions, as well as proactive reliable service and deep HR and payroll expertise and MP, we are wired for HR and we help our clients succeed by aligning their HR strategy with their business goals.
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MP: i’m thrilled to introduce your presenter today attorney mark vento from she finished law firm mark is the Co Chair of the firm’s Labor and employment law practice group.
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MP: He provides focus practical advice about the many aspects.
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MP: Of the relationship between an employer and employee, with an eye towards risk management and claims avoidance.
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MP: He also develops agreements policies and protocols concerning hiring trade secrets termination and separation wage and our.
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MP: Family and medical leave employment discrimination and non compete and other compliance issues you frequently works with executives negotiating and drafting agreements and compensation arrangements, both of the initial in terminal points of employment.
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MP: A little bit about she in phinney I is one of the premier full service business law firms in New England, she infinity provides a broad range of sophisticated legal services to clients in traditional and emerging areas of law.
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MP: With approximately 60 attorneys and a talented and diverse support team she infinity represents clients throughout the New England region nationally and internationally.
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MP: Many of their attorneys have been named among the best in the field by chambers USA would relate and martindale hubbell.
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MP: In the most recent chambers USA publication she infinity is the only new Hampshire based law firm to be ranked in the top tier for every listed area of law.
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MP: The firm is also a member of the prestigious late when dive the world’s leading Association of Independent law firms and esteemed mark of excellence for legal services within the international community.
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MP: Additionally, she unfunny capital group offers government relations and legislative lobbying services to clients throughout New England and Washington DC.
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MP: For more information, you can visit the firm’s website, just a quick disclaimer this training is intended for educational purposes and information informational purposes, but should not be construed as specific legal advice.
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MP: A recording of the webinar will be sent out later today, along with the slides, and you have any questions during the presentation feel free to submit them in the Q amp a and with that i’m going to hand them off to mark.
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Mark Ventola: Thanks amy and welcome everyone, we are going to spend the next half an hour 45 minutes talking about a few of the most important issues that are very timely with respect to return to work in light of Kobe.
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Mark Ventola: What we’re going to cover the following topics of course vaccination issues and we’re going to cover them from the perspective of both.
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Mark Ventola: What happened most recently last week in terms of the presidential announcement about vaccination and also from the perspective of what was in place and what existed in what did we know about vaccines and vaccine mandates before that time.
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Mark Ventola: talk a little bit about vaccination policies talk about return to work and travel for employees that need to travel as part of the job.
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Mark Ventola: we’ll talk also about some litigation that has taken place to date.
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Mark Ventola: And, and especially in light of the risks that that type of the type of litigation that has happened to date might pose for your organization and then we’ll talk also about some legislation that’s pending around the country next slide please.
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Mark Ventola: So.
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Mark Ventola: With the delta variance and other variants that have arisen in the past few months states of really, as we all know, responded by.
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Mark Ventola: rolling back what had become more relaxed standards for dealing with coven and while we still see and while we’ve seen vaccination numbers increase recently it really it had up until recently plateaued so.
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Mark Ventola: what’s going on with respect to vaccination well most employers most businesses do not want to return and I don’t think government either wants to return to a shutdown mode so.
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Mark Ventola: Employers have over the last 234 months been asking, can we mandate, our employees to be vaccinated and the answer to that question was pretty clear and, in my mind, it remains clear, but there was always an open question and we’ll take the next slide about whether.
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Mark Ventola: An employee, whether the federal government can mandate, a vaccine next slide please.
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Mark Ventola: So.
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Mark Ventola: Can the federal government mandate that employees and that members of the general population be vaccinated.
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Mark Ventola: very interesting question.
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Mark Ventola: We as lawyers have had our views about that for quite some time, we can look at the next slide now amy.
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Mark Ventola: And that our views were up until last week, I think that the government would not from from a federal perspective, be able to mandate that employers impose vaccine requirements on their employees well, the world has changed a bit, as we know.
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Mark Ventola: The presidential mandate came down last week, the President has directed OSHA to issue what’s referred to as an emergency temporary standard.
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Mark Ventola: That will require employers private employers with 100 or more employees to do one of two things either mandate that employees receive a vaccine or.
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Mark Ventola: For employees who don’t receive a vaccine that they produce on a weekly basis a negative coven test.
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Mark Ventola: So that’s the basic standard an emergency temporary standard is something that I think we’ve all.
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Mark Ventola: In the last 18 months come to know things about the law about government and about regulation that we never before had any reason to deal with.
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Mark Ventola: But an emergency temporary standard is something that OSHA the occupational safety and health, administration can issue if it determines that there is some grave danger presented to employees and that a standard or regulation or rule must therefore be.
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Mark Ventola: put forth, so the President has directed OSHA to issue this emergency temporary standard now as part of it, we know that.
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Mark Ventola: Employees who are directed to be vaccinated must be given paid time off to be vaccinated we think but we’re not sure that they would be given.
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Mark Ventola: compact time that is compensable to test that’s something that will be coming forth in the emergency temporary standard regulation.
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Mark Ventola: And what we don’t know about the paid time off that employers need to provide is whether that time will somehow be reimbursed.
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Mark Ventola: by the Federal Government as other paid time off during Kobe has been reimbursed so we’ll look to the regulations to see if that is something that is addressed so again, we know.
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Mark Ventola: Something things we know a broad outline, we do not know the answers to many of the questions that employers will have, but there were a couple of things that I can say about this.
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Mark Ventola: And things to keep in mind, at least at this point, the first is try to figure out as best you can whether this emergency temporary standard is going to apply to your workplace.
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Mark Ventola: Some of you may be asking well, we have not 100 people in one location, we have 50 in one location 40 and another location and 30 and a third location.
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Mark Ventola: From what i’ve read so far, it will be the 100 number will be viewed from the perspective of adding up all of those separate locations, again we won’t know for sure, but from what i’ve read that’s what it will look like.
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Mark Ventola: Think about in the context of getting ready if these standards apply to you and, frankly, even if you’re confident, they do not, and I suspect that many employers on the webinar are smaller employers who have fewer than 100 employees, but even if they do not.
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Mark Ventola: Whether.
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Mark Ventola: You would like to look at these emergency temporary standards as a model or guide.
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Mark Ventola: As to how to deal with your workplace for those of you who are still considering these kind of things so think about how you would deal with remote workers.
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Mark Ventola: for purposes of vaccination or testing think about how you’re going to identify, to the extent you have not already.
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Mark Ventola: vaccinated and unvaccinated employees and how to keep how to obtain that information and then how to keep it and keep it securely and think about who would then have access to it.
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Mark Ventola: Think about whether you will require.
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Mark Ventola: or or sponsor on site vaccination clinics, or perhaps partnering with other local employers to provide on site simple, easy vaccination opportunities.
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Mark Ventola: Think about whether and how to provide paid time off for vaccine and it’s not just to obtain the vaccine, one of the things that the emergency temporary standard.
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Mark Ventola: Will will say we know this much is that the time off will be yes to obtain the vaccine, but also to.
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Mark Ventola: recover from any side effects of vaccination and I think we all know, we did the experienced ourselves or we know people who have experienced some side effects from obtaining the vaccine so think about all those things in terms of.
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Mark Ventola: Looking at this emergency temporary standard lastly i’m going to say on this topic, but the emergency temporary standard before moving on is that.
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Mark Ventola: While the President says and OSHA says that these standards will be coming out within a couple of weeks, we also know that there are legal challenges.
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Mark Ventola: That already are being mounted and it would not at all be surprising if, as a result of one or more of these legal challenges.
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Mark Ventola: A Federal Court somewhere in the country issues and injunction, meaning a stay an order saying that these standards cannot be implemented until there’s further court action, so there may well be delay.
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Mark Ventola: The standards once they come out may well not be implemented immediately, but we should all stay tuned and and keep this right on the radar screen so next slide please.
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Mark Ventola: So, up until now, when thinking about the vaccine mandate, there really has been no precedent, if you will, for the Federal Government mandating on a nationwide basis vaccination different states have done it.
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Mark Ventola: From time to time and get mandated vaccines in certain situations, but the Federal Government itself.
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Mark Ventola: has never done that the President acknowledge that, and you see the news clips were you know, six, eight months ago, a year ago, the thought of mandating a vaccine was not on people’s mind, and in fact the exact opposite was was being thought.
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Mark Ventola: So the eeoc, however, has always said that a vaccine may be necessary for some particular types of jobs.
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Mark Ventola: But there always has to be and we’ll get into this a little more exceptions for opportunities to opt out for medical or disability reasons for also to accommodate some religious beliefs next slide please.
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Mark Ventola: So.
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Mark Ventola: Thinking back, it was only on December 11 of last year, so not even a year ago that the FDA issued the first emergency youth are useful authorization.
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Mark Ventola: For the Pfizer vaccine and one of the things that the FDA requires when it issues, an emergency youth use authorization is that any patient who is going to receive the vaccine be informed that they have the option to accept or refuse that vaccine.
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Mark Ventola: i’m going to come back to that later in the slides when we talk about litigation, but the idea that I wanted to get across on this point is that.
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Mark Ventola: That particular warning or information that a patient has the option to accept the refuse is really just applying in the medical context.
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Mark Ventola: Right, I have the option to accept or refuse this vaccine and you’re I need to be warned about that just before i’m going to receive the vaccine.
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Mark Ventola: That does not, however, mean and the emergency thought use authorization does not address any employment consequences for a refusal to accept the vaccine and this.
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Mark Ventola: option, if you will, to accept or refuse the vaccine does not apply in an employer mandate situation so something that’s really important to understand here next slide please.
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Mark Ventola: So the eeoc has always said and consistently said that any vaccine mandates need to be drug related consistent with some business necessity.
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Mark Ventola: Think about For those of you who either work in the healthcare field.
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Mark Ventola: Or, if you have employees who are sent into healthcare environments employees were sent into hospitals or doctors offices on a regular basis for years hospitals have had a mandate that any.
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Mark Ventola: vendors, who send employees on to their sites, each year, have to demonstrate proof of flu shots and mmr vaccines and other vaccines so that’s an example where.
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Mark Ventola: The eeoc has looked at the job requirements and whether a vaccine mandate of that type is drug related it consistent with business necessity and has determined that yes, it is so that.
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Mark Ventola: notion of vaccination the flu shots mmr other vaccinations being mandatory for work has been around for quite some time.
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Mark Ventola: Next slide please.
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Mark Ventola: So the eeoc guidance on vaccinations.
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Mark Ventola: has made it clear also that, if an employee refuses to get the vaccine, based on a medical or religious reason.
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Mark Ventola: Reasonable accommodations need to be made, or should be considered, so the basic idea here is yes, employers.
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Mark Ventola: are allowed to mandate that employees receive the vaccine, but in doing so, they need to recognize that exceptions must be made and reasonable accommodations must be considered for employees who present medical reasons or religious reasons why they could not receive a vaccine.
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Mark Ventola: Next slide please.
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Mark Ventola: So a.
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Mark Ventola: Reasonable accommodations exist, based on both title seven, which is the federal law about disabilities and religious rights, and they also exist, based upon State law protections for disability and religious rights.
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Mark Ventola: And next slide please.
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Mark Ventola: Now, when you’re when you’re progressing, excuse me, addressing issues associated with requests to be exempt from a vaccination mandate.
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Mark Ventola: And the request to be exempt is based on religious belief.
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Mark Ventola: You have to it’s not just any religious belief, this has to be a a a sincerely held religious belief anything that’s non religious in terms of opposition to the vaccine is not sufficient.
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Mark Ventola: And so it must be something where the employee can describe for the employer with sufficient certainty, why it is.
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Mark Ventola: And how it is that their particular religion is one where a vaccine would not be allowed okay on what information can be requested that is enough to satisfy you was an employer, that the request is.
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Mark Ventola: Something that is sincere and that it is certainly firmly held by the employee and it’s something that is.
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Mark Ventola: clearly established in this particular religious belief next slide please.
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Mark Ventola: So.
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Mark Ventola: An employer being presented with a request for a religious accommodation.
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Mark Ventola: needs to.
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Mark Ventola: recognize that and to reasonably accommodate it.
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Mark Ventola: Unless doing so would result in some kind of an undue hardship to the employer okay.
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Mark Ventola: undue hardship you’ve probably seen this concept when dealing with disability claims and requests for medical.
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Mark Ventola: accommodations the concept of undue hardship exists there as well.
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Mark Ventola: In the religious accommodation arena it’s a bit less stringent when we’re looking at what is an undue hardship, it has to be something that.
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Mark Ventola: presents more than a minimal burden on the operation of the business which that’s the standard that’s a much easier standard to meet than the standard that’s presented for purposes of disability next slide please.
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Mark Ventola: If, as an employer you’re presented with a request to be exempt from a vaccination mandate, based upon a disability or for a medical reason.
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Mark Ventola: you’re in that similar mode where like the Ada you have to make some inquiry and determine is this.
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Mark Ventola: disability or medical condition recognized, is it truly a physical or mental impairment, that would prevent this employee from receiving the vaccine, in the course of doing that.
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Mark Ventola: Assuming you determine that there is in fact a legitimate disability, the employers, then obligated to engage in an interactive process like.
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Mark Ventola: Under the Americans with Disabilities Act engaging and interactive process to discuss what quarter could not be reasonable accommodations for the employee.
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Mark Ventola: Now.
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Mark Ventola: One thing to make clear is that.
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Mark Ventola: A reasonable accommodation.
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Mark Ventola: does not exist if the request is one that would present a direct threat to unvaccinated employees in the workplace.
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Mark Ventola: A direct threat is a concept that runs through the eeoc regulations and guidance.
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Mark Ventola: On vaccinations and an employer is not obligated to make an accommodation, where to allow an exemption from vaccination if doing so would present a direct threat to other workers in the workplace next slide please.
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Mark Ventola: The direct threat analysis looks at four things they’re shown on this slide you look at the duration of the risk, the nature and severity of the potential harm.
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Mark Ventola: The likelihood that the potential harm might occur and the imminence of that potential harm so we’re looking at and taking into account things like what is the work environment.
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Mark Ventola: In the area where the request is being made, what is the level of Community spread, is it high, is it low, what is the general vaccination rate in your workplace if the vaccination rate, for example, is 98%.
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Mark Ventola: And you are being asked by one of the 2% to not be vaccinated that is certainly something the vaccination level and percentage is something to take into account.
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Mark Ventola: The other The other thing to keep in mind is the frequency of the contact between and amongst co workers how often.
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Mark Ventola: Does this person who is requesting an exemption from the vaccination requirement interacting with other Co workers, so all of those things are taken into account when looking at and considering the direct threat analysis next slide please.
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Mark Ventola: So if as an employer you’re running through this analysis and you determine that the unvaccinated worker poses a direct threat.
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Mark Ventola: You can’t exclude that person from the workplace unless there’s no way to provide that reasonable accommodation that would either eliminate or reduce the risk of the threat, for example, could you put this employee in his or her own workspace closed off from all others.
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Mark Ventola: In the in the workplace, if that’s something that you could do and it’s a reasonable accommodation to do it because there is an empty Office say.
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Mark Ventola: that no one is using in this work, we could be there, more or less wall day that would be a reasonable accommodation that would reduce the risk if you can’t do something like that.
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Mark Ventola: You have a direct threat and there was no way to make a reasonable accommodation that doesn’t present an undue hardship that would be the point at which you’d be looking at things like termination or a layoff or extended leave for that particular employee.
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Mark Ventola: Next slide please.
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Mark Ventola: Now.
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Mark Ventola: Some of you may have unions here and.
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Mark Ventola: we’re seeing this a little bit more now.
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Mark Ventola: With the emergency temporary standard unions are taking a position on this most are in favor of vaccinations, to provide a safe workplace for all of their workers, but even with a mandate and even with the presidential mandate or with an employer mandate.
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Mark Ventola: There will, in most cases, need to be some type of bargaining with the Labor union in order to.
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Mark Ventola: Effectively institute the mandate.
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Mark Ventola: Typically, the employer will typically not always but typically under the management rights clause of a collective bargaining agreement, an employer will be allowed to make the decision.
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Mark Ventola: to vaccinate and to mandate vaccination but the employer will also have an obligation to bargain about the impacts of that.
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Mark Ventola: decision and to reach conclusion and that bargaining before the mandate is actually instituted.
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Mark Ventola: Next slide please.
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Mark Ventola: If, as an employee decided not to mandate vaccination, can you provide incentives to do so, yes, the answer is yes and that’s been fairly clear from the beginning, employers are free to provide.
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Mark Ventola: Incentives The only question that has come up and i’ve never seen it be a problem it’s just more theoretical question is whether those who have a religious or a medical exemption.
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Mark Ventola: And us are not able to get the vaccine should be given similar incentive again just the theoretical question at this point.
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Mark Ventola: Alternatives to vaccination so.
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Mark Ventola: Obviously these things could include many of the things we’ve been looking at from day one of coven moving employees to a new job or a different workspace testing on a more or less regular basis, remote work, at least for a period of time.
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Mark Ventola: pee pee and different forms of pee pee instituting furloughs or leaves for some people, all of these are alternatives that can be explored for any one person who.
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Mark Ventola: will not get the vaccine and and or if an employer decides that they are not going to mandate the vaccine termination as i’ve said, should be the last option.
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Mark Ventola: Only when an unvaccinated employee represents a direct threat to others and there’s no possible reasonable accommodation that can be made for that person.
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Mark Ventola: Next slide.
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Mark Ventola: The one thing we want to make sure of as we’re going through this and as you’re developing policies, and also as you’re dealing with individuals is that consistent consistency be paramount employees really need to be consistent with respect to how.
00:31:44.370 –> 00:31:53.730
Mark Ventola: These these mandates for these decisions are made so that people in similar situations are treated similarly.
00:31:55.620 –> 00:31:56.220
Mark Ventola: Next slide.
00:31:58.560 –> 00:32:10.080
Mark Ventola: So we’re going to move on, just to the next topic and talk about travel a little bit we’ll do this quickly, but just to think about this from a background perspective, it was not even two years ago.
00:32:10.650 –> 00:32:18.720
Mark Ventola: The end of January, where the first travel ban was put into place for non US citizens traveling from China.
00:32:19.770 –> 00:32:22.020
Mark Ventola: between February may of 2020.
00:32:23.340 –> 00:32:25.950
Mark Ventola: Travel was limited between.
00:32:27.120 –> 00:32:30.300
Mark Ventola: A number of other countries next slide please.
00:32:33.000 –> 00:32:44.040
Mark Ventola: The list of countries seems to change daily we’re seemed to for quite a while international travel, as we know, was really taboo for quite a while.
00:32:45.300 –> 00:32:45.810
Mark Ventola: and
00:32:46.890 –> 00:32:50.370
Mark Ventola: We can even think, as you know, this this now is probably.
00:32:51.630 –> 00:33:01.350
Mark Ventola: ancient history, and you know ancient history in this context is really six months ago, thinking about two years ago is is.
00:33:01.860 –> 00:33:16.710
Mark Ventola: seems to be like when the dinosaurs roamed the earth, but there were times when people were asking questions can I drive my car across the border from Massachusetts to new Hampshire or can I drive from Massachusetts into main or Vermont or if.
00:33:18.150 –> 00:33:19.470
Mark Ventola: Those things are not.
00:33:20.610 –> 00:33:27.870
Mark Ventola: Now issues for us the interstate travel, but at one point they were next slide please.
00:33:29.970 –> 00:33:37.800
Mark Ventola: We do know that business travels slowly increase last summer and then through this summer, but the delta variant has really.
00:33:39.960 –> 00:33:51.930
Mark Ventola: come along and reversed, many of the the gains we had made with respect to travel and especially interstate and international travel next slide please.
00:33:55.050 –> 00:33:57.300
Mark Ventola: May of this year August of this year.
00:33:58.860 –> 00:34:17.220
Mark Ventola: Countries began opening to travelers with proof of vaccination or with proof of testing we just you know just recently Canada opened its borders, UK opened its borders and over the summer, people were traveling again to many places in Europe.
00:34:18.270 –> 00:34:20.790
Mark Ventola: Next slide please right now.
00:34:21.810 –> 00:34:29.130
Mark Ventola: The CDC has just recently just on August 25 updated its guidance about travel.
00:34:30.180 –> 00:34:36.540
Mark Ventola: And I would encourage all of you to look at that, to the extent that you need to deal with travel for your employees.
00:34:37.050 –> 00:34:43.350
Mark Ventola: I would encourage all of you to look at it, the breakdown of course in it it’s it’s only logical, is there a different.
00:34:43.860 –> 00:35:00.030
Mark Ventola: types of restrictions and recommendations, based upon whether the travel that’s needed is domestic or international, and also based upon whether the traveler is vaccinated or not vaccinated so again to the stench you have employees need to travel.
00:35:01.050 –> 00:35:06.300
Mark Ventola: I would strongly recommend you look at the CDC website on that point next slide please.
00:35:10.590 –> 00:35:13.470
Mark Ventola: OSHA has a few things to say about travel as well.
00:35:15.120 –> 00:35:16.530
Mark Ventola: So and.
00:35:18.150 –> 00:35:19.650
Mark Ventola: When you think about OSHA.
00:35:20.670 –> 00:35:35.670
Mark Ventola: The the general point to keep in mind with respect to Kobe is that employers have a duty under what is referred to as the general duty clause, have a duty to keep their workers safe.
00:35:37.380 –> 00:35:49.440
Mark Ventola: And that’s obviously a very broad duty that can be thought about and considered from any perspective so from the perspective of employees who.
00:35:50.190 –> 00:36:04.800
Mark Ventola: Have as part of their job, a requirement of travel, how does an employer keep those employees safe certainly by following the CDC guidance on travel that’s a start certainly by thinking about whether.
00:36:06.210 –> 00:36:08.550
Mark Ventola: Travel is actually necessary.
00:36:09.630 –> 00:36:10.500
Mark Ventola: Next slide please.
00:36:12.810 –> 00:36:13.290
Mark Ventola: So.
00:36:14.490 –> 00:36:16.080
Mark Ventola: A couple of things to consider.
00:36:17.670 –> 00:36:19.080
Mark Ventola: We probably all have.
00:36:20.670 –> 00:36:33.240
Mark Ventola: Is travel really necessary and can the task be accomplished by remote meetings right should we mandate, even if we’re not broadly mandating vaccines for our employees.
00:36:33.810 –> 00:36:44.100
Mark Ventola: Should we mandate that employees who have a need to travel more or less frequently be vaccinated before they be allowed to travel on business.
00:36:46.530 –> 00:36:56.070
Mark Ventola: Certainly it’s a time if you haven’t already to update any policies that you have about travel and about conduct during travel.
00:36:56.640 –> 00:37:10.440
Mark Ventola: and looking at and thinking about the common requirements masking whether you using indoor dining or outdoor dining whether you’re allowing employees to use rideshare applications things like that.
00:37:12.060 –> 00:37:32.520
Mark Ventola: Also, whether, if you are going to mandate vaccination for travelers whether the rules will be different for those who are vaccinated and those who are not vaccinated Lastly, I just say, I think we all recognize this concept of pan pandemic fatigue we’re all experiencing it.
00:37:34.050 –> 00:37:52.350
Mark Ventola: More or less, to some degree and employees are not at this point, and this is we’re seeing this all the time as ready and as willing to accept guidelines as they once were so that should all be kept in mind with respect to employees who travel.
00:37:53.490 –> 00:37:54.360
Mark Ventola: Next slide please.
00:37:59.580 –> 00:38:00.750
Mark Ventola: Next slide please.
00:38:04.020 –> 00:38:04.230
00:38:06.660 –> 00:38:07.110
Mark Ventola: So.
00:38:10.890 –> 00:38:21.900
Mark Ventola: We suggest that, at a first cut you decide whether travel is necessary, of course, and that in doing so job descriptions be updated.
00:38:22.290 –> 00:38:37.050
Mark Ventola: So that they include if travel is necessary, usually that is in the job description, but make sure that travel is included, and think about it from the perspective of whether travel is one of the essential duties of the job.
00:38:38.220 –> 00:38:48.990
Mark Ventola: And we say that because the concept of essential duties ties into the whole disability request for accommodation standard.
00:38:50.640 –> 00:39:02.580
Mark Ventola: minimize non essential business travel and ensure that proper accommodations are discussed in light of vaccination status and if.
00:39:03.450 –> 00:39:14.880
Mark Ventola: Employees are not traveling or not allowed to travel and it’s due to the inability to be vaccinated that there be no retaliation, as a result of the inability to travel.
00:39:16.440 –> 00:39:17.430
Mark Ventola: Next slide please.
00:39:19.260 –> 00:39:25.170
Mark Ventola: Very so now, I just want to talk for a few minutes about some of the cases that we’ve seen.
00:39:26.850 –> 00:39:27.330
Mark Ventola: and
00:39:28.440 –> 00:39:47.010
Mark Ventola: The first couple of cases the bridges case and the class in case both deal with vaccination issues they deal with them in different contexts, the bridges case was one of the first cases brought by healthcare workers right against the Houston Methodist hospital, which had.
00:39:48.120 –> 00:39:51.060
Mark Ventola: instituted a mandatory vaccination policy.
00:39:52.440 –> 00:40:04.200
Mark Ventola: The argument presented at the at the time by the workers is that or was that the vaccine was experimental and that they should not be required.
00:40:04.890 –> 00:40:16.650
Mark Ventola: To essentially be human guinea pigs for the vaccination, the Court did not accept that clearly court didn’t accept the argument but it’s been made.
00:40:17.460 –> 00:40:29.520
Mark Ventola: In it is continuing to be made, there was a case filed just two or three days ago against another hospital hospital in Kentucky and that argument, among others, is again being made.
00:40:30.960 –> 00:40:40.530
Mark Ventola: The Court is saying court and bridges said, and I expect the Court in this case in Kentucky to say that it is certainly fine to require.
00:40:41.310 –> 00:41:00.150
Mark Ventola: An for an employer to require in a healthcare setting your employees to be vaccinated subject to the requirement that we discussed that there be religious exceptions and disability or medical exceptions made to the vaccination requirement.
00:41:01.980 –> 00:41:07.680
Mark Ventola: The second case the clawson case came up also a vaccination case came up in a bit of a different context.
00:41:09.660 –> 00:41:13.470
Mark Ventola: Many of us have had to deal with the requirement of.
00:41:15.120 –> 00:41:26.190
Mark Ventola: Children going back to College and the college or university requiring students to be vaccinated as a condition of coming back to school.
00:41:27.960 –> 00:41:33.000
Mark Ventola: The University of indiana was sued had such a policy, and was sued.
00:41:34.380 –> 00:41:46.800
Mark Ventola: And the first the District Court, the Federal District Court that heard the case upheld the mandatory vaccination requirement and then the seventh circuit the seventh circuit Court of Appeals.
00:41:47.910 –> 00:41:54.030
Mark Ventola: Which is the highest level, you can go in the federal system, other than the United States Supreme Court.
00:41:55.080 –> 00:41:59.070
Mark Ventola: also upheld that vaccination requirement, saying that.
00:42:00.330 –> 00:42:10.890
Mark Ventola: And citing a case that was brought in Massachusetts back in 1905 dealing with the smallpox vaccine and saying that.
00:42:12.570 –> 00:42:22.860
Mark Ventola: The vaccination requirement for students to attend the university is fine that there is historical precedent for it, and that in fact the students have choices.
00:42:23.610 –> 00:42:37.890
Mark Ventola: And the Court looks at it from looked at it and looks at it from the perspective of the student having the choice of attending or not, the vaccine mandate is there, if you wish to attend, but the choice to attend these the students and there are colleges.
00:42:38.910 –> 00:42:51.930
Mark Ventola: and universities that do not have a similar matt requirement so from the courts perspective there is sufficient choice, and no one is being forced to have the vaccine so.
00:42:53.370 –> 00:43:04.200
Mark Ventola: The arguments that were made, as I said, was this human trial that it’s an experimental and dangerous situation that this is only an emergency use authorization, although we know that.
00:43:04.530 –> 00:43:19.980
Mark Ventola: The Pfizer vaccine has gotten beyond that, at this point, but that it was only an emergency you use authorization and that to force employees to make the choice, but at least with respect to the Houston Methodist hospital case.
00:43:21.090 –> 00:43:24.570
Mark Ventola: to force the employees to make the choice of being vaccinated who are not.
00:43:25.980 –> 00:43:32.670
Mark Ventola: really put them in a situation of being wrongfully terminated the courts have rejected all of those arguments today.
00:43:33.960 –> 00:43:34.980
Mark Ventola: Next slide please.
00:43:36.360 –> 00:43:47.700
Mark Ventola: So, in particular industries what we’re seeing the industry’s we’re seeing the litigation in are the ones that really have been sort of front and Center that had to keep working.
00:43:48.720 –> 00:44:03.120
Mark Ventola: During the pandemic the healthcare industry, the retail industry manufacturing that’s where we’ve seen the bulk of the cases, although it’s not exclusive in the types of claims we’re seeing about are about.
00:44:04.680 –> 00:44:13.620
Mark Ventola: Employees requesting leave and remote work as accommodations primarily primarily we see the cases when those are not granted.
00:44:14.700 –> 00:44:30.150
Mark Ventola: we’re seeing cases about retaliation claim that employees claiming they’re being retaliated against for perhaps making complaints to OSHA or departments that helps about their work environment.
00:44:31.800 –> 00:44:33.690
Mark Ventola: we’re seeing discrimination claims.
00:44:34.710 –> 00:44:48.060
Mark Ventola: we’re seeing wage in our cases primarily based upon remote work and the challenges that remote work presents in terms of keeping good track of work hours and.
00:44:49.350 –> 00:44:56.310
Mark Ventola: The challenge that an employer has of knowing whether an employee is on work time and working or not.
00:44:58.440 –> 00:45:08.160
Mark Ventola: We see cases about the workplace being unsafe and we’ve seen now some cases about emergency paid sick leave, under the family first coronavirus relief act.
00:45:09.180 –> 00:45:19.170
Mark Ventola: Okay we’re also seeing and that’s fine we’ll stay with this life, but just so you know many of these claims we’re seeing are against smaller employers.
00:45:20.610 –> 00:45:33.180
Mark Ventola: And I think the reason for that is that smaller employers have fewer resources to keep track of all the requirements that they’re being presented with an all of the different.
00:45:34.680 –> 00:45:45.150
Mark Ventola: challenges that they’re seeing and most smaller employers are having a difficult enough time just keeping business going as opposed to.
00:45:47.040 –> 00:45:52.410
Mark Ventola: Trying to stay on top of all of the different corporate requirements now.
00:45:54.150 –> 00:45:57.390
Mark Ventola: If you’ve laid people off and you’re thinking about retiring.
00:45:58.560 –> 00:46:04.980
Mark Ventola: One thing to look at is whether the layoff initially was described as temporary or permanent.
00:46:06.090 –> 00:46:08.640
Mark Ventola: If it was described as temporary.
00:46:10.470 –> 00:46:16.440
Mark Ventola: The former employees really need to be brought back rather than first hiring from outside.
00:46:18.000 –> 00:46:26.190
Mark Ventola: If if the layoff was described as permanent then new employees, rather than the ones who were laid off.
00:46:27.420 –> 00:46:37.050
Mark Ventola: could be brought it’s safer to bring those in bringing employees from the outside, same goes for the rehired terms, should they be the same or should they be different.
00:46:37.470 –> 00:46:43.680
Mark Ventola: If there are going to be changes they should be carefully documented and it is always safer to make any changes.
00:46:44.370 –> 00:47:04.680
Mark Ventola: To employment terms that i’m thinking of wage or salary changes if the layoff was designated as being permanent rather than temporary okay what we’ve seen here is a couple of lawsuits involving the rehire of only the younger less expensive lower paid employees.
00:47:06.000 –> 00:47:09.030
Mark Ventola: So just a couple of thoughts there on rehire.
00:47:10.050 –> 00:47:11.040
Mark Ventola: Next slide please.
00:47:13.530 –> 00:47:28.590
Mark Ventola: The last thing I want to just talk touch on briefly is legislation, there is legislation pending in many states that would do the following and it’s been pending for a while, one would be to prohibit vaccine mandates.
00:47:29.640 –> 00:47:29.970
Mark Ventola: Now.
00:47:31.050 –> 00:47:47.250
Mark Ventola: What would happen, and what will happen if one of those pieces of legislation in the state passes and how that would collide with the new presidential mandate on vaccination for employees of employers have over 100.
00:47:48.300 –> 00:48:00.030
Mark Ventola: Your guess is as good as mine, at this point, but there has been legislation pending in a number of states that would prohibit vaccine mandates there’s also legislation pending and a number of states.
00:48:01.170 –> 00:48:08.070
Mark Ventola: That would prohibit businesses from requiring custom customers to provide vaccine documentation.
00:48:09.510 –> 00:48:14.280
Mark Ventola: There is one state that i’m aware of, whereby governors order.
00:48:15.390 –> 00:48:30.390
Mark Ventola: That has actually become I guess I would describe it as the law it’s an executive order in the state where a governor has mandated that businesses cannot require customers to provide vaccine documentation.
00:48:32.340 –> 00:48:42.090
Mark Ventola: there’s also legislation pending in some states where employers would be prohibited from mandating the disclosure of their vaccination status, but again.
00:48:42.720 –> 00:48:52.590
Mark Ventola: That has not passed anywhere yet to my knowledge it’s just pending legislation, but it is something that we should all be aware of and continue to monitor so.
00:48:54.690 –> 00:49:06.030
Mark Ventola: That covers my presentation for right now, I think there are probably a few questions out there, and maybe we’ll try to answer a couple in the time that we have left.
00:49:07.110 –> 00:49:08.610
Mark Ventola: So amy maybe we could.
00:49:10.140 –> 00:49:11.670
Mark Ventola: Take a look at the questions.
00:49:12.060 –> 00:49:22.170
MP: So far, so we have a question doesn’t the presidential mandate also include employers who received funding from medicare and medicaid.
00:49:22.830 –> 00:49:35.280
Mark Ventola: That, that is correct, it includes those employers in the healthcare sector that receive any funding for medicare medicaid it also includes.
00:49:37.860 –> 00:49:43.260
Mark Ventola: What are just called federal contractors so, and this, this is an area.
00:49:44.400 –> 00:49:46.350
Mark Ventola: A mandate like this, where.
00:49:47.880 –> 00:49:58.410
Mark Ventola: employers who receive federal funding, be it through medicare or medicaid or if you’re an employer that chooses to contract directly.
00:49:59.100 –> 00:50:06.720
Mark Ventola: With the federal government so you’re a federal contractor in my mind there’s no question that those mandates will be upheld.
00:50:07.470 –> 00:50:13.020
Mark Ventola: employers who are federal contractors are subject to quite a number of executive orders.
00:50:13.770 –> 00:50:29.370
Mark Ventola: This executive order is no different and the thought here is that if you choose to do business with the Federal Government or to accept medicare medicaid money these conditions sort of go along with that So yes, that is correct.
00:50:30.330 –> 00:50:31.980
MP: And we have another.
00:50:32.280 –> 00:50:33.240
MP: oops sorry go ahead.
00:50:33.960 –> 00:50:34.620
Mark Ventola: i’m sorry go ahead.
00:50:36.150 –> 00:50:42.300
MP: Regarding the weekly testing does this need to be done at a specific location or couldn’t at home test be okay.
00:50:43.380 –> 00:50:54.600
Mark Ventola: That should be it’s I can’t answer that because we don’t have enough detail, yet that should be a question that is answered when the OSHA emergency technical standard comes out.
00:50:56.640 –> 00:51:03.360
Mark Ventola: But if you think about it, and think about part of what the President said and i’m not sure how closely anybody.
00:51:03.810 –> 00:51:17.310
Mark Ventola: paid attention to this piece, but one of the things that the President said as part of this six part program that he introduced was that places like walmart and kroger and Amazon would be.
00:51:18.180 –> 00:51:38.970
Mark Ventola: Selling home kits at cost for a period of time, and that would be a ramp up on testing under the Defense production, so it wouldn’t surprise me if it could be at an ad phone test, based on the language that the President used but will know for sure when they standard comes out.
00:51:40.140 –> 00:51:48.660
MP: that’s helpful another question, we have here could employers put all who are not vaccinated together in the same shared space six feet apart.
00:51:52.380 –> 00:51:57.480
Mark Ventola: That, I suppose, would be an option if you’re an employer.
00:51:58.740 –> 00:52:05.010
Mark Ventola: Who is that is under the hundred standard, so that the mandate does not apply.
00:52:07.710 –> 00:52:15.090
Mark Ventola: I would say, it could be an option, but it certainly would have to come with what I would describe as other.
00:52:16.290 –> 00:52:17.280
Mark Ventola: protective.
00:52:18.420 –> 00:52:27.420
Mark Ventola: Measures right you depending upon your thought about that same shared space six feet apart, whether there’s.
00:52:28.500 –> 00:52:33.600
Mark Ventola: The plexiglass whether people are masked what the other requirements are.
00:52:34.740 –> 00:52:37.440
Mark Ventola: It might work, we need to know a little more, though.
00:52:38.580 –> 00:52:46.380
MP: we’re kind of another question, do you eeoc vaccine exemptions apply in New York state with the hero act mandates.
00:52:47.760 –> 00:52:51.870
Mark Ventola: That one i’m not going to be able to answer right off the top of my head i’m sorry.
00:52:52.560 –> 00:53:00.300
MP: Okay, we can follow up on that the other vaccine mandate applied to employers who are religious organizations or nonprofits.
00:53:01.350 –> 00:53:15.360
Mark Ventola: I don’t see anything right now that it would change that unless you’re, certainly if you’re a nonprofit it’s going to apply if you’re a religious organization and you have over 100 employees.
00:53:16.770 –> 00:53:19.650
Mark Ventola: It would apply unless you were one of the religions, where.
00:53:20.790 –> 00:53:25.620
Mark Ventola: it’s a there’s a firmly held belief that you cannot use vaccines.
00:53:27.180 –> 00:53:32.040
MP: Create what timeframe, do you anticipate OSHA will be finalizing the ETS rules.
00:53:32.700 –> 00:53:48.240
Mark Ventola: Based based upon the reading i’ve done so far we’re looking at least a couple of weeks, at least, and like I said in that timeframe, we may well see a core challenge that even if the Ts rules come out will delay the actual implementation.
00:53:49.770 –> 00:53:55.680
MP: What are the chances injunction will be entered against the vaccine mandates due to numerous lawsuits they’re anticipating.
00:53:55.740 –> 00:53:59.010
Mark Ventola: yeah that’s that’s your guess is as good as.
00:53:59.010 –> 00:54:02.070
Mark Ventola: Right, but I would say, if you know.
00:54:03.090 –> 00:54:11.460
Mark Ventola: I would put if I were making a bet right now, if I were standing at the table in Las Vegas making a bet I would put a bet on an injunction will issue.
00:54:12.690 –> 00:54:13.740
Mark Ventola: that’s where I put my money.
00:54:15.570 –> 00:54:31.200
MP: Green, you mentioned that hundred employees could be 50 year and 40 bear, what are your thoughts on say a franchise owner who may own 24 to 25 stores will say 10 employees at each do you think this would fall in 100 employee bucket the company has over 100 employees.
00:54:33.630 –> 00:54:53.580
Mark Ventola: yeah that’s a tough one, I think I would need to know more, but I would right now, if I were that employer that franchise owner I would plan as if this mandates going to apply to me and then hope that when the final regs come out that it doesn’t but i’m thinking that.
00:54:54.810 –> 00:55:06.900
Mark Ventola: The President wants this to be as broad as possible and so i’m suspecting don’t know but i’m suspecting that the OSHA regs that come out will be broad enough to capture that scenario.
00:55:08.580 –> 00:55:25.020
MP: Green we read that as a subcontractor to a gc we are able to release names to the gc of employees who tested positive are we also able to release names of those vaccinated are not vaccinated and are we required to release those names if they ask us for that.
00:55:25.350 –> 00:55:25.680
00:55:26.940 –> 00:55:33.330
Mark Ventola: yeah so I i’m not sure that where the concept of being able to release names of.
00:55:34.530 –> 00:55:36.690
Mark Ventola: Employees who tested positive comes from.
00:55:37.860 –> 00:55:39.750
Mark Ventola: Normally we are advising.
00:55:41.100 –> 00:55:55.440
Mark Ventola: All employers to not release the actual name, even though, in many cases by just disclosing that someone has tested positive and and sort of providing the parameters of.
00:55:56.550 –> 00:56:11.010
Mark Ventola: Where that person had been in the US, who may have been exposed your your you make it yeah anyone can really figure it out we’re not advise anyone to the actually disclose names at this point so.
00:56:12.090 –> 00:56:17.790
Mark Ventola: I think the answer that question would be no I would not be advising folks to do that.
00:56:19.020 –> 00:56:26.190
MP: And one final question for Healthcare Employers receiving federal funds has a specific date been announced that we must implement the vaccine mandates.
00:56:27.270 –> 00:56:35.160
Mark Ventola: not yet not yet that’s one of the other things that we’re waiting for and should be able to answer within a few weeks excellent.
00:56:35.220 –> 00:56:37.140
MP: Well, thank you mark I learned a lot of.
00:56:37.140 –> 00:56:44.160
MP: seminar today, thank you all for attending we hope you came away with some helpful information strategies for preventing coven related.
00:56:44.670 –> 00:56:53.250
MP: lawsuits in the workplace, I also want to remind everyone that the link to the recording and the slide deck will be sent out an email later today.
00:56:53.970 –> 00:57:06.090
MP: And also join us next week check out our website, we have a full portfolio of webinars and all these really important issues next week will be taking a deep dive into HR compliance issues around remote employees.
00:57:07.050 –> 00:57:13.110
MP: And a number of different other topics throughout the rest of the year, so thank you mark and have a great rest of your day everyone.
00:57:13.650 –> 00:57:14.580
Mark Ventola: Thank you bye bye.
00:57:15.030 –> 00:57:15.330
Mark Ventola, Esq.
Attorney, Sheehan Phinney
Many employers may be returning to work in September and October. Join employment attorney Mark Ventola from Sheehan Phinney to learn the latest return to work guidelines and the best HR strategies for COVID vaccination. Attorney Ventola will also address the latest lawsuits that employers are facing right now.
Register for the webinar to:
- Learn how to develop a return to work plan that mitigates legal risk
- Find out the latest HR compliance updates for a pandemic workplace
- Get the latest legal guidance on how to approach the COVID vaccine in the workplace
- Discover common lawsuits that employers are facing right—and how to prevent or prepare for them