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COVID-19’s Still a Complex Legal Conundrum
Safety

COVID-19’s Still a Complex Legal Conundrum

By Sphera February 16, 2021

Workplace legal expert Jon Hyman returns to the SpheraNOW podcast to discuss how employers handled the COVID-19 situation in 2020, whether employers should make vaccines mandatory and more.

 

The following is an edited transcript of the podcast. Listen to the 2020 COVID-19 podcast.

James:

Welcome to the Sphera Now podcast, a program focused on safety, sustainability and productivity issues. I’m James Tehrani, Sparks editor in chief. Today. I’ll be speaking with Jon Hyman, a partner in the law firm Meyers Roman, who is an expert in labor and employment disputes. He is also the master of workplace schadenfreude and writes the popular Ohio Employer law blog. We’ll be revisiting our COVID-19 employer risk conversation from last year, and we’ll be discussing what he has seen and learned since that time. Thanks so much for joining me today, Jon.

Jon Hyman

Jon Hyman:

Thank you so much for having me back. I really appreciate it.

James:

Well, it was a great conversation last year. So let’s just talk a little bit. How has the COVID-19 situation affected you?

Jon Hyman:

I’m still working from home. I’ve been at home since March 13 of 2020 with my new officemates, my wife who’s also been at home since March 13, and my two dogs. So it’s been fine. Knock on wood, I think if you can get through this whole catastrophe healthy and employed you’re well ahead of the game. And so far, I’m two for two, although I probably just jinxed myself, I don’t know. But so far so good. It’s definitely, I think, taught a lesson in kind of… I think it’s taught a lot of people a lesson in how we work and I think the lack of efficiencies just built into our work days and work schedules in general and kind of what is necessary from a physical work environment standpoint and what can be managed remotely, and I’m managing remotely fine. So no complaints on my end, really.

James:

OK, so let’s get into it. So let’s start out with some positives. What do you think employers have done right in terms of keeping their employees safe in the past year?

Jon Hyman:

As I touched on a few minutes ago, it’s really been a whole paradigm shift in how we work. So I think a lot of employers have done remote work very, very well. I think employers, by and large, and there’s exceptions to everything, but by and large employers have done masking very well and they’ve done social distancing really well, and they’ve done let’s make hand sanitizer readily available and let’s make Clorox wipes readily available. They’ve done that stuff really, really well for the most part. So I think the remote work thing has been the biggest shock to the system. It’s something I’ve argued for years to whoever would listen that employers needed to get real about the benefits of flexibility and remote work arrangements. And I think if there’s one lasting change that will come out of this is, I don’t think we’ll be wearing masks forever, I don’t think we’ll be standing six feet apart forever, but I do think that less people will be making that daily commute now, even when the pandemic is over, than they did before.

James:

OK, great. Makes perfect sense. And so on the opposite end, what are some of the things you’ve seen that employers have done wrong in the past year?

Jon Hyman:

It’s the flip side of the same. There are still employers who are either COVID deniers, who just don’t believe in the validity of the virus to begin with, though I think that has lessened over time. There are the employers who either don’t enforce mask mandates or flat out tell their employees don’t wear masks at work. There’s employers who have not lessened head counts in the workplace to maintain distance. There are employers who are enforcing attendance policies that force and/or incent sick people to come to work, or telling sick people that they have to come to work.

Jon Hyman:

Every year I do my worst employer list over at my blog. And last year, I split it up into two different categories. One being that general run of the mill worst employer, and then the other being the COVID worst employer list. And there were some doozies on the COVID list. There was the employer whose managers set up a betting pool for which of their employees would get sick with COVID. And this was as they had a 3000 employee workplace and a thousand of the employees had gotten sick and they were placing bets on which employees-

James:

So it’s like an NCAA pool?

Jon Hyman:

Yeah, like an NCAA-style betting pool for which employees were going to get sick. They had five deaths among their employees and they were placing cash money bets on which their employees were going to be the next to get sick. There was the employer who fired a working mom. She was working remotely and she had a one-year-old and a four-year-old at home and her kids interrupted her during a Zoom call. And her male boss fired her for apparently not being dedicated to her job or being distracted by her children or some other BS reason like that. And that was the winner or loser, depending on your perspective last year in the COVID category. So there are lots of employers out there that either because they don’t believe in the science behind the virus or because they just put the almighty dollar above all else, still are not treating their employees well.

Jon Hyman:

And I think, what I hope as we talk about kind of lessons learned from the pandemic, I think we know that not every business is going to come back from this. This was just an awful shot in the arm to our… I don’t think shot in the arm is the right metaphor. But it was just an awful jolt to our economy. Our economy took a hit back in the spring of last year. We have not yet recovered. It’s going to take a while to recover. Not every business that closed, or not every business that has survived even this long will survive the pandemic and businesses will close. And my hope is if the universe works the way I hope it works, and karma is what it is, that the businesses that are treating their employees well and have taken the virus seriously and are doing the right things by their employees and their customers will be the ones that survive, and the businesses that are treating their employees horribly, that have denied the legitimacy of the virus, that are forcing sick people to come to work, that are not enforcing masking rules, and what have you, are the ones that will not survive or will go out of business.

James:

Sure. So I was reading a story in the New York Times a couple of days ago about a doctor in Houston who had 10 vaccines that were about to expire and he only had a certain amount of time to get those vaccines into arms. And so he called around and he gave some to some sick people in his area. And then with the last shot, with about a half hour left before the vaccine was about to expire, he gave one to his wife who did have some health issues as well. And then he wound up getting fired because of it. So I guess my question to you is, as a lawyer, how do you balance ethics and common sense? Because it seems to me that giving people a vaccine is a good thing.

Jon Hyman:

Giving people a vaccine is a good thing. It’s an awful story. This doctor did everything right, both from a common sense standpoint and from an employment standpoint. My understanding is that he worked for a county health department. He actually called one of the county health commissioners to say, like, “This is the situation. I have these 10 vaccines doses that are going to expire if I don’t get them in people’s arms. I don’t want to waste the vaccines. This is my plan.” And the response he got was, “OK.” And so he, as best I can tell, believed that he had the permission of at least one of his superiors to go find people to give the vaccines to. The last one he gave it to happened to be his wife, who I understand had an underlying medical condition that made her at risk for COVID-19 complications. And then he got fired as a result. Not only did he get fired, but he actually also got brought up on… They pressed criminal charges against him for theft, for stealing I think it’s $135 worth of vaccine. I.

Jon Hyman:

He did everything right. And I think to add insult to injury, when he was fired, the comment was made… He’s of Indian descent, and the comment was made that a lot of the people that got the 10 doses of the vaccine had Indian surnames. And so I think the supposition being that he went and gave them to his family and friends. But if you’re under the clock and you’re trying to find people to give the vaccine to, you’re not calling people at random, you’re going through your phone and finding people that you know. So I think it makes sense that he’s going to find people in his community to give the shot to. So I think on top of firing him for I think doing the medically correct thing and doing what he thought he had permission to do, I think they probably stepped into a national origin discrimination claim on top of it by that comment surrounding the termination.

Jon Hyman:

I think common sense has to go a long way. When you talk about ethical versus common sense, this doctor has an ethical obligation to do no harm. He took the Hippocratic oath. And so he thought he thought he was doing the right thing from a medical ethics standpoint, to not waste doses. These things are in short supply. The only way we’re going to end this pandemic is if we reach herd immunity through a combination of people being exposed to the virus and getting shots in arms. And so he thought he was doing the right thing, thought he had permission to do it, and lost his job as a result. And if I’m the legal counsel giving advice to that particular public health agency, I am telling them to not only rehire him immediately, but to cut him some kind of check for pain and aggravation surrounding the termination and getting a settlement agreement and release signed as quickly as possible, because it’s a claim that I don’t think both from a public relations standpoint and a legal standpoint that I don’t think this agency wants to take on.

James:

Got it. All right. So while we’re talking about vaccines, when we’re talking about mandatory vaccines, what are the potential sticking points that employers need to be careful of? I know we addressed this briefly when we talked last year, but I’d like to revisit the topic.

Jon Hyman:

Yeah. From a legal standpoint, employers need to make sure that they are making allowances for reasonable accommodations, both for disabled employees, who for a medical reason can’t get the vaccine, and for employees that have a sincerely held religious belief for which they can’t get the vaccine. So both the ADA and Title Seven’s religious discrimination protections are going to protect certain classes of employees. And so you have to consider exceptions to mandatory vaccination policies under those two statutes. I also have a concern that if you have a mandatory vaccination policy, that policy may disparately impact particularly African-American employees. When you read the surveys of who’s going to get the vaccine and who’s not going to get the vaccine, African-American employees at a disproportionately higher rate say they will not get the COVID vaccine when it’s available to them. From a sociological standpoint, that could probably be traced back to the Tuskegee Airmen experiments of the mid-20th century and just an inherent distrust of the medical community among African-Americans. But, if you’re going to have a mandatory vaccination policy, I think you have to worry about that policy disparately impacting African-Americans more than it does non-African-Americans.

Jon Hyman:

And then I think there’s HR or employee relations issues to worry about too. Because you are telling people as an employer what they need to or must do with their bodies. You must get a vaccine to continue working here. And a segment of your employees, even if they plan on getting the vaccine, are going to view that as an invasion of privacy. You have 60% of the population who tell you they absolutely will get the COVID vaccine when they can. You have 20% that tell you they will not get the vaccine no matter what. And you have 20% that really haven’t decided yet. And so if I’m an employer, understanding that I’m not going to change the mind of 20% of my employees no matter what, I am not going to have a mandatory vaccination policy. And I’ve seen some surveys that suggest that overwhelmingly, most employers are not doing that. That what employers are doing is… No, go ahead.

James:

I’m just curious though, if you don’t have a mandatory policy and people are coming back to work and they’re getting other people sick because they didn’t get a vaccine, isn’t that a liability as well?

Jon Hyman:

I don’t think it’s a legal liability. The risk remains what it is now, which is you’re going to have lost time, lost productivity if people get sick. I think the risk that employers run by having a mandatory policy is A, you risk certain discrimination claims related to ADA compliance or Title Seven religious accommodation compliance. I think there is a risk related to disparate impact, race discrimination. I think you have a risk of losing employees because you’re either going to alienate them because they think you’re invading their privacy, or because no matter what you say for whatever reason they think the government is injecting 5G trackers into people’s bloodstreams through the vaccine. Fine, that’s crazy. But crazy or not, they’re not going to get the vaccine. And so you’re going to alienate them and lose them as an employee. And so maybe you’re going to lose good, solid, productive employees.

Jon Hyman:

So my strong advice to my clients is rather than mandate, educate, that in order to reach herd immunity, Dr. Fauci and others say we need about 80% of the country to have COVID antibodies. So if we understand that 20% are not going to get the vaccine no matter what, 60% are no matter what, our goal as employers who have access to our employees to get them information, is to educate that 20% in the middle to push them over to the, “Yeah, we’re going to get vaccinated,” side.

James:

Well, I think you’re doing a great-

Jon Hyman:

The CDC has great-

James:

You’re doing a great job of educating our listeners here and I appreciate that. I kind of want to move on a little bit. So I was reading a blog yesterday or a couple of days ago that said that there was 2,500 COVID-19 related employment lawsuits in the United States last year. So I’m wondering what are the most common cases you are seeing or hearing about?

Jon Hyman:

They fall in one of several categories. There has been a bunch of lawsuits under the Families First Coronavirus Response Act for denial of or [inaudible 00:25:41] for taking or seeking to take paid leaves of absence under the FFCRA. That’s class one. I think the other large class of lawsuits we’ve seen are lawsuits related to accommodations surrounding COVID. So I can’t come to work because I have an underlying medical condition, or I can’t come to work because I’m of a certain age. And while the ADEA does not have an accommodation requirement, you still can’t discriminate against someone’s age. And so if you’re allowing other people to work from home but not allowing someone of a certain age to work from home, that might be age discrimination, for example. So I think that’s the other large class of lawsuits we’ve seen.

Jon Hyman:

And then I think thirdly, there have been the class of kind of whistleblower type lawsuits. The, “My employer is not following COVID safety protocols. They’re not requiring masks. They’re not providing a safe workplace. They’re not enforcing social distancing.” And then …

James:

Have there seen any landmark cases like that yet that have set a precedent?

Jon Hyman:

Landmark? Not that I’ve seen, no. It’s really too early to really say kind of what are the legal precedents surrounding this. Part of it is frankly a function of COVID and that the courts just aren’t moving very fast. I was actually in a physical courtroom last week for the first time in a year. But on the civil side, I don’t expect to see civil trials for another year at least, because even once the courthouse is open, criminal defendants have constitutional speedy trial rights that they’re up against. And so the criminal cases are going to have to get pushed and the civil cases are going to suffer. So COVID has slowed down the civil litigation process tremendously. And so it’s going to take a while. I think the pandemic is going to end before we see these cases resolved and we start to see the precedent developing out of it.

James:

So it might be not til 2022 til something happens at this point.

Jon Hyman:

Yeah. I am telling clients now that if you have a case that’s just getting filed now, you shouldn’t expect a trial until 2023, because the cases that were set for trial in 2020 need to get tried in 2020, the latter half of 2021 or 2022. So the pandemic has just wreaked havoc on the civil litigation process all across the country.

James:

Definitely. And so you brought up the FFCRA and I was going to touch on that. Can you tell people briefly what the FFCRA is? And what is the current status of it? Because I thought it expired in December, but maybe I’m wrong.

Jon Hyman:

So you’re not wrong. The FFCRA is a federal statute that was passed very early on in the pandemic, mid-March of 2020, took effect April 1, 2020, which provided 80 hours of paid sick leave for a variety of COVID-19 related absences and 12 hours of expanded family medical leave, the last 10 of which were paid for employees who needed time off from work related to childcare related COVID-19 absences. It applied only to employers with less than 500 employees. And while it was paid leave, it was reimbursed to employers through a dollar-for-dollar payroll tax credit that employers could take to compensate the employers for the paid leave they were providing to their employees under the statute.

Jon Hyman:

You are correct that it did expire December 31 of 2020. Literally at the 11th hour, Congress passed sort of an extension. The statute itself was not extended, but the payroll tax credit was such that if employers who were subject to the FFCRA already chose to voluntarily extend the already existing bank of leave that had been put in place on April 1 through March 31, they could still claim the payroll tax credit for any leaf given January 1 through March 31 of this year. And so the statute is still in effect for employers who chose to voluntarily extend. It did not grant any additional leave to employers, but just extended the expiration date for the leave that was already out there.

Jon Hyman:

And then there’s talk of… President Biden, when he laid out his COVID-19 relief plans, one of his major talking points was a fairly significant extension and expansion of the FFCRA, which is right now held up in Congress so we don’t know, but that would extend the law to all employers regardless of size, while keeping the payroll tax credit at those with less than 500 employees. And it would extend it through the end of September among other proposed changes. But that right now is kind of held up in Congress so we don’t know yet what the status of that will be. But I think we could expect to see movement on it before the bank of leave currently expires at the end of March.

James:

Thank you so much for explaining that, Jon, I really appreciate it. Are there any other COVID-related issues that you think we should discuss today?

Jon Hyman:

The vaccines is really the big one I’m seeing right now. I think employers, because we have access to our employees and we have their ears, I just think it’s incumbent upon employers to really get the education out to employees about the importance of getting the vaccination. And then, two, I think just on a more general societal points, I think we all have COVID fatigue, we’re all sick of this thing and we all want our lives to get back to normal. But just because we’re done with COVID doesn’t mean COVID is done with us. We know that these more virulent strains are out there floating around, the UK strain, the South African strain, the Brazilian strain.

Jon Hyman:

We don’t yet know or understand the full science behind these new strains other than we know they’re out there and we know they’re more virulent, more contagious. So the time to slack off on what we’ve been doing to keep and remain safe is not now. If anything, now’s the time to double down on what we’re doing, double down on masking, double down on social distancing, double down on not having large gatherings and parties and whatnot. And we’ll get through this. And hopefully when kids return to school in the fall, everyone will return to school full time. And life will get back to some semblance of normal soon. But we just got to keep doing what we’re doing to make sure we all get there safely and healthily.

James:

Definitely. And I think your COVID fatigue point is very valid. My mom just got her second shot. Actually, she just called me while we were talking to tell me that she got her second shot. So I’m very happy about that. But I was telling her that you still have to continue wearing a mask because even if you have the shot, you can still pass it on to others. So I think being great humans means really taking care of each other and that’s really important these days. So Jon, thank you so much for your time again. It’s always a pleasure to talk to you. And I really appreciate it.

Jon Hyman:

My pleasure. Thanks for the invite and having me on, and stay well.

James:

You too. Thanks so much.

 

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