Given the hot mess that 2020 delivered, perhaps it is no surprise that 2021 has been the year of the Covid vaccine controversy. Some employees are afraid to work alongside unvaccinated coworkers while others are refusing to get vaccinated.

In this episode, Mike talks to employment law attorney Paul Simon about Covid vaccine mandates, addressing vaccine hesitancy, and potential employer liability for workplace-related Covid infections.

 

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Paul Simon

Paul is a founding member of Simon | Paschal PLLC, an employment and business law boutique law firm in Frisco, Texas.  Paul graduated from Hope College and Michigan State University College of Law, where he graduated magna cum laude.

Paul is both an active transactional attorney and a litigator.  Paul regularly appears before state and federal courts on behalf of his clients.  In addition to his work as a litigator, Paul serves as an outside General Counsel for many of his clients, a role in which he regularly represents employers before the TWC, EEOC and various other government agencies. 

Paul is a member of the State Bar of Texas, the Dallas Bar Association, and the Dallas Association of Young Lawyers.  Paul is a five-term member of the DAYL Executive Committee, where he ultimately served as President.  Paul has been selected annually as a Texas Super Lawyer since 2014.  Paul has been recognized by D Magazine as a Best Lawyer in Dallas.

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Transcript

Paul Simon: If you’re going to not require vaccinations, you’re still going to have the naysayers that says, “That’s idiotic and you’re putting us at risk.” If you try to explain why you’re requiring vaccinations, people are going to say, “Well, that’s not the best route. I’ve already gotten COVID so I’m the most protected Superman here.” I think it’s just like any other employment policy, you just kind of have to figure out what makes the most sense for us.

[intro music]

Mike Coffey: Good morning, HR. I’m Mike Coffey, and this is the podcast where I talk to business leaders about bringing people together to create value for shareholders, customers, and the community.

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As businesses bring employees back to the workplace, they face new challenges. Should we require employees to be vaccinated? What about those employees with sincere, if misguided, aversion to vaccines? What about employees who are afraid to work alongside un-vaccinated coworkers?

And what liability might I have if an employee contracts COVID at work? And add to that, President Biden’s intention that OSHA require employers with more than a hundred employees to mandate COVID-19 vaccines or require employees to undergo regular COVID testing.

And it’s understandable why employers are apprehensive. Here to definitively answer each and every question an employer might have, once and for all, is Paul Simon. Paul is an employment law attorney and a partner at the Law Firm of Simon Pascal. Paul’s a litigator who represents employers. He acts as outside counsel for many of his clients and also represents his clients in front of the EEOC, takes his workforce commission and other regulatory agencies. Welcome to Good Morning, HR, Paul, and now you can give me your legal disclaimer.

Paul Simon: Thanks Mike, it’s good to be here.

Mike Coffey: Clearly this is all fluid and what’s best practice today may change tomorrow, but let’s just start with why shouldn’t an employer just require all their employees to get vaccinated and get it over with?

Paul Simon: I mean, yeah, the question as to whether or not an employer should require everyone to get vaccinated, you’ve got the legal implications and obviously that’s some of why I’m here and we can talk about that. But then just, I think more of the HR, what makes employees happy? And so kind of like you addressed, I mean, you’ve got to appease the employees that have concerns about being around un-vaccinated people, but you do have a large segment of people that just for whatever reason, don’t feel like the vaccination’s right for them and you kind of have to weigh that.

And employees are hard to get, especially good ones, and so if you’ve got a really good employee who’s not wanting to get vaccinated, that’s a tough call to make us an employer. From a legal perspective, I mean, really the general rule is employers can absolutely mandate vaccinations.

The two exceptions really right now for that is if someone has a disability that qualifies under the ADA, and they can’t get the vaccination. I actually just had someone yesterday reach out who was terminated, but doctors won’t allow him to get vaccinated. That’s an interesting situation he’s got going.

And then the second one is, sincerely held religious beliefs. Haven’t run into that as much, but there is a lot of people contacting some interesting churches around the country and asking for confirmation that I’ve been a member since yesterday and as a member of this church, we don’t believe in COVID vaccination. Those are kind of the two exceptions we’re dealing with right now on the legal side.

Mike Coffey: Yeah, I can start the church on what’s happening now and give people notes from deacon Coffey all day long, I guess, for a tithe. It’s a practical issue then for employers, do we want to lay this down, or do we want to let employees, while they’re unconscious or whatever it is, and decide however they want to? The thing that comes up when I’m talking to employers a lot is, okay, so I can do it, but if I don’t do it, what’s my liability if we have an instance where somebody contracts COVID in the line of duty?

Paul Simon: Yeah. I mean, and that’s a tough one. I mean, I think really what you’re looking at is whether or not… Employers, under OSHA, have a general duty to provide a safe workplace, super vague. What is a safe workplace? That doesn’t mean absolutely that no one’s ever going to get injured, it’s more of a negligence question, was the employee negligent?

Our thought on a lot of that is, I don’t think if you’re an employer that says we’re not going to require vaccinations, that that’s a negligent action. It’s kind of that spectrum. If you’re an employer who says, we actually encourage you not to get vaccinated, we don’t want you to wear a mask, and maybe we even forbid you to wear a mask in the workplace, we cram everyone shoulder to shoulder cubicles, you’re starting to look kind of negligent if someone contracts COVID there and gets seriously sick or dies.

But even in that instance, you still have the legal issue of causation. You got to prove that the person caught the virus at work and I think that’s going to be extremely difficult to do. And that’s same thing, I know a lot of people are having issues with, is this something that falls into worker’s comp if someone gets COVID at work? And I think a lot of insurance companies are taking the stance of, we don’t think you can establish that you got COVID at work so we’re not going to this as a workplace injury.

Yeah, I think the liability’s pretty low. It’s more of a, I think PR standpoint, it can look pretty bad that if you’re a large enough company, or super spreader type of situation at your workplace, that can put a pretty big black eye on your company.

Mike Coffey: Sure. And even if somebody gets COVID or claims to have COVID at work, I guess it’d be hard to prove that they’re not the one who brought it into the workplace and gave it to somebody else.

Paul Simon: Sure, absolutely. Yeah, or caught it walking in the grocery store that morning before coming to work. It doesn’t just magically appear right then and there. Like I said, just because a coworker got sick and you sit next to that coworker, our logical conclusion is that’s who I caught it from, but you can’t necessarily prove that either.

Mike Coffey: The Biden administration is actively preparing OSHA directives to say, apparently that if you’ve got more than a hundred employees, you either have to mandate vaccines or have all those un-vaccinated employees undergo weekly, I guess, COVID tests. We’ll talk about the mandate stuff, because I’ve got some hot opinions there, but would testing you think… Testing or are there other processes that might mitigate any liability or just mitigate those public concerns that people may have?

Paul Simon: Yeah. I mean, I definitely think, again, anytime that you can show that you’re taking steps to try to limit the risk, that’s a good thing. Wearing masks, social distancing, and absolutely requiring… When COVID first came pre-vaccine, we were doing all of the temperature checks and that kind of stuff. And so I think a further step would be, yeah, that we were require people to get tested.

Now, it’s still an issue of… I know right now the CDC guidelines very much favor the vaccinated folks, even though it’s been shown that just because you’re vaccinated doesn’t mean, one, that you can’t contract it, and two, that you can’t spread it. That’s a question, is if you’re going to do testing, do you do it for all employees or do you do it just for the un-vaccinated employees? And then, yeah, as you said, we’ve got the Biden administration that may take it out of employers’ hands as to whether or not they have a choice as to how they want to operate in that context.

Mike Coffey: Well, I’ve seen a number of business organizations and some large, privately owned businesses, rather, owners, indicate that as soon as this regulations issued it’s going to be challenged in the courts. What would those challenges look like do you think?

Paul Simon:

Yeah, I mean, it’s going to be a little bit of some constitutional arguments, some state versus federal. Biden has asked this to basically fall under OSHA and its purview so there’s just going to be a lot of legal fights as to whether or not, does OSHA have the authority to enact things? And again, how that process works, because they’re not really making a law. I mean, they’re kind of just saying, here’s our regulation, and then what kind of teeth can a regulation have?

Everything right now, whether it’s from the EOC, OSHA, CDC, are all guidelines. It’s just things that, here’s what we would suggest you do, or hope you would do, but employers have the right to say, we don’t want to do that for a whole mirrored post of reasons. This would be a change in that context. I mean, I know I’ve seen things that violations of this may be $14,000 per violation. It’s not clear as to, does that mean every employee that you don’t test is a $14,000 penalty every single week? That’s unclear, but yeah, there’s definitely going to be a fight, pro-business just doesn’t want government to intrude any more than it already is.

Mike Coffey: And the devils in the details and we’ll see what the final regulations look like, but as it was introduced by the administration initially, there seems to be no differentiation between remote employees versus employees who are actually… If I’m working from home all day long I still would be subject to that, at least as it’s initially was presented. Plus, no risk assessment in a particular workplace. Employees working outside, construction, things like that. All the science suggests are very unlikely to spread it outdoors, in that kind of environment. I guess we’ll just have to wait and see what the regulations come out to say, and then what feasible challenges there might be to it.

Paul Simon: Yeah. And personally, I’m not necessarily against the idea of in the future of mandatory vaccination. I mean, we have that with quite a few different things, but I think COVID’s just shown that government’s not good at a lot of things. And there’s a lot of laws that have a lot of issues in them, and it really takes a lot of time, I think, to develop a good law and then time for that law to evolve and all the kinks to get worked out.

Yeah, last year with the regulations regarding sick leave for COVID, I mean, that was just an absolute mess, because again, they threw that law together in a matter of weeks. And that’s my concern with this one too, is yeah, you’ve identified a whole sub of issues, and there’s tons more as well. Yeah, it’s a little bit concerning if this goes through, just because it’s going to not fix all the issues.

Mike Coffey: And let’s take a quick break.

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And now back to my conversation with Paul Simon.

Well, let’s say an employee decides the route we’re going to go is to require vaccines, except in those conditions where there’s an ADA issue or sincerely held religious beliefs. And let’s say an employee presents on the ADA side, there’s a physical reason I can’t get the vaccine. Walk us through the ADA process. Anybody who’s been to HR Southwest or SHRM National has sat through this a dozen times, but now when we actually need it, we’re like, what do I do? Just walk us through that one more time, what’s the ADA interactive process look like for something like this?

Paul Simon: Yeah, I mean, the ADA doesn’t say that just because someone can’t get vaccinated that you have to allow them to work there. You have to do an analysis basically, does a reasonable accommodation exist? And yeah, as you mentioned, the interactive process.

Someone comes and says, “I’ve got this disability.” What you typically would want to do in that context is, okay, here’s your job description, and hopefully you have a very detailed job description that says, does your position require you to interact with people, be face to face? All the duties that you truly want someone to do. Give that to your doctor, have your doctor come back and give us a recommendation as to if you allow the employee to…

Easy example, work from home, they can still perform the essential functions of their job. And so that’s what you have to do is kind of walk through that. If the doctor gives something… We’ve got bank clients, for example, I think that’s an easy example, of a bank teller. If the company says, we’re going to require vaccinations of all employees, bank teller says, “Well, I’ve got a disability that qualifies under the ADA. I need a reasonable accommodation.” They can’t work from home. You’re not going to have-

Mike Coffey: You have to drive through my backyard to get some money, yeah.

Paul Simon: Yeah, here’s your cash. And so then the question is, okay, well, do you require them to wear a mask? Is that a reasonable accommodation? I don’t know. Do you have them do a different type of job for a period of time? That possibly is a reasonable accommodation. And if you kind of walk through the traps and say, “I don’t think there’s a reasonable accommodation we can give a teller.” Then you’re making the decision that we’re going to terminate them.

The other issue that you deal with ADA is, undue hardship is what you hear a lot of times. And so let’s say, you can work from home, but I’m a smaller company so I don’t have the technology that has secure servers, and all of that stuff, and it’s going to cost me $40,000 to upgrade our I.T. just so that you can work from home. $40,000 is a large percentage of our revenue, our overhead, that may be… Now again, a reasonable accommodation exists. I can do it, but it may be an undue hardship. That’s always a risk though, because what you’re doing in that context, if you say, I’m not going to provide you the I.T. service so I’m going to go ahead and terminate you is, you’ve acknowledged that they qualify under the ADA and a reasonable accommodation exists, but you have a legal exception that it’s a hardship.

You have to basically go all the way to trial at that point to get a judge to say, “Yes, I agree, that’s an undue hardship.” And undue hardship, again, is not… Reasonable accommodation, I think from an employer standpoint, is always something we don’t want to do. It’s always not our preference, it oftentimes cost us more money than the employee that doesn’t have a reasonable accommodation. Working from home may not be our preference, all those sort of things, but that’s not an undue hardship. An undue hardship is truly, it’s possible, but it’s really not possible and practical from the company perspective.

Mike Coffey: If our policy is mandated, we’re going to mandate vaccines, and an employee has an issue, we give them the job description, they take it to their medical provider. Does it have to be a physician or can it be a PI? Do you know?

Paul Simon: Yeah, there’s no requirement in terms of the level. An employer can always get basically a second opinion. If you get a doctor’s note from someone that you don’t necessarily consider to be that qualified, or you don’t really like their recommendation diagnosis, you can always go and try to get your own, send the employee to your doctor to get that opinion.

Mike Coffey: And that’s a whole nother thing in the job… How many job descriptions are out there that say part of the job is sitting within eight feet of other people, talking to other people, passing people in the hallway, those kind of interactions? I thought our job descriptions covered a lot of things, that you have to climb stairs because we’re at an old building and we’re on the second floor and to get to the desk you had to do that. Now we’re all remote so it’s a moot point. But so those are new considerations. Do those need to be put into the job description now or do we just wait till we get that exception and then we say, okay, here’s the special circumstances related to this vaccine?

Paul Simon: Yeah. I mean, I don’t think you need to get that detailed in terms of the job description, because again, at that point, it starts to almost water down the job description. But the issue, if it’s not in your job description, you’re going to have a little bit of an argument as to is that an essential function of the job?

Typically we’d expect an essential function mean, this is what is expected of you and what you have to do in order to complete the job. And if it’s not in the job description, there’s going to be that argument. But again, it’s easy to say, yeah, I’m not going to say that you need to walk up the stairs, but if I put in my job description, regular physical attendance at our work locations expected or required, then if you happen to be on a higher floor that doesn’t have an elevator, then yeah, that’s going to be a natural requirement of the job.

Mike Coffey: And that’d be the same situation on the COVID side, just having to work, interact with other employees, in somewhat close proximity, even with social distancing, that may be still an issue. We’d present that to the doc. And then as you said, if whatever we get back from their medical provider it just kind of gives us liver quiver, it doesn’t seem legitimate.

Or we Google this doctor and it’s a chiropractor who’s on YouTube pushing Hydrochloroquine, or ivermectin, or whatever the hot, new, crazy, substitute is. I know I’m going to get emails about that, but bring them on… But if we see we don’t trust that medical provider necessarily we can go get our own and send the employee, I think at our expense, to have that second opinion.

Paul Simon: Correct, yeah. The employer, it would be their expense and then you would basically, to the extent that those two doctors’ conflict, there’s always the third tie breaker doctor that can be sent, again at the employer’s expense, to… And again, usually you’re probably not doing an analysis, that analysis is probably more, does the person have a disability that prohibits them from doing the job? The reasonable accommodation, it’s not really… Anyone can make a, here’s what I propose as a reasonable accommodation. And if you think that’s just completely out of whack, you just respond with, “We don’t believe that that’s a reasonable accommodation.”

One thing I think that we always suggest for our clients is, you need to engage in the process, and so don’t just be the brick wall that just kind of says, “Nope, hitting that back to you. Bring another one, we’re going to hit that right back at you too.” Propose things.

Now, be smart about it, perhaps propose things that you know the employee isn’t going to want to take, but it shows that you’re trying to give them options that, “Hey, here’s how you can still work for us, and we’ll give you this reasonable accommodation.” And let the employee knock that one back to you and go, “Okay, that’s not good enough for me.” And then you can kind of say, “Okay, well, we tried, unfortunately you’re not going to be able to work here.”

Mike Coffey: Okay. Well, let’s talk about the other side of it then, the sincerely held religious beliefs. Employee comes and he says, “Hey, this is a violation of my sincerely held religious beliefs. I’m a member of the church of what’s happening now, and they’ve come out and said because of the way the vaccines are formulated, some of the stuff inside of them, which often is inaccurate, is a violation of our conscience.” How do you address those if they come up?

Because I think traditionally, most of the time, I think most of the council to employers is, don’t try to argue those things, and if you can, just do whatever you can to accommodate them. But in this case, if you really want your employees to be vaccinated, what’s the response in something like that?

Paul Simon: Yeah. I mean, it’s the same analysis as we dealt with, with the disability, it’s still a reasonable accommodation. I will say that the courts typically are very hands off with wanting and to delve into the analysis as to whether or not it’s a sincerely held religious belief. It’s very much, first amendment rights, freedom of religion, and as a court, as a legal system, we’re not going to go and say, “Yes, your religion’s a good one and one that we’ll agree as a legitimate religion, yours is not.”

Now, push come to shove, if you have to fire someone and they sue you for failure to accommodate a religious accommodation, we’re absolutely going to litigate, is it a sincerely held religious belief? When did you start going to that or when did you start practicing that religion? Show me everything that you’ve done to actually follow these rules. And I’m going to be able to probably show that the person’s received other vaccinations in the past and done other things and kind of poke holes in that, but as an employer, I would probably tell you, you can chuckle to yourself, but let’s assume it’s a sincerely held religious and go through the accommodation process. That’s your cleanest way of not getting into legal issues.

Mike Coffey: Okay. What else should an employer consider if they’re thinking about doing a mandate or putting in some other standards that may get pushback from employees? And we’re trying to keep all these employees engaged, it’s hard to hire people and we’ve got some investment in them, but you’ve always got the nervous people on one side and you’ve got the people adamant that they’re not going to do it on the other. What balances or what other considerations should we take in effect?

Paul Simon: Yeah. I mean, I really think you have to make a decision and kind of stand by it. Part of me says, here, give all of your reasoning, but I don’t think that matters to most people. If you’re going to not require vaccinations, you’re still going to have the naysayer that says, “That’s idiotic and you’re putting us at risk.” If you try to explain why you’re requiring vaccinations, people are going to say, “Well, that’s not the best route, I’ve already gotten COVID so I’m the most protected Superman here.” I think it’s just like any other employment policy, you just kind of have to figure out what makes the most sense for us and be clear as to this is our policy, here’s our exceptions, and we’re going to continue moving forward.

Mike Coffey: Well, let’s leave it there. And as this unfolds, we may be having this conversation again. And I think that’s going to be one of the things is, that this is information, what’s out there right now, the best science or whatever, can change next week and so we’ll just, like so many areas of employment law and employer relations in the year, we’ll see what the new normal looks like as it unfolds in front of us. Thanks for joining me today, Paul.

Paul Simon: Absolutely. Thanks, Mike, for having me on.

Mike Coffey: And thank you for listening.

You can find previous episodes, show notes, and contact info for our guests at goodmorninghr.com, or on Facebook, Instagram, or YouTube. And don’t forget to follow us wherever you get your podcast.

Rob Upchurch is our technical producer and Imperative’s marketing coordinator Katy Bautista keeps the trains running on time. And I’m Mike Coffey. As always, don’t hesitate to reach out if I can be of service to you professionally or personally. I’ll see you next week. And until then, be well, do good, keep your chin up.