Season 3 • Episode 2
As the COVID-19 pandemic continues, employers around the globe will soon face new challenges: will they require employees to be vaccinated? To get down to the legal nitty gritty, we sat down with employment law expert Jay Wang of Fox, Wang, & Morgan to provide guidance on vaccine mandates, the recent FDA approval, and what this means for employers and employees around the nation.
About DE Talk
For DirectEmployers, it’s all about valuable connections and meaningful conversations. This monthly podcast features honest and open dialogue between powerhouse industry experts on a variety of HR topics ranging from OFCCP compliance advice to emerging recruitment marketing trends, diversity and inclusion initiatives, and insightful solutions that help infuse new life into your HR strategies.
Hosted by Candee Chambers, Executive Director of DirectEmployers Association.
Episode Guest
Jay J. Wang
Partner at Fox, Wang & Morgan P.C.
Mr. Wang’s practice focuses on employment litigation that includes civil claims involving wrongful termination, harassment, unpaid wages, discrimination, trade secrets and workplace violence claims. He is also involved in counseling his clients as to human resources issues ranging from family leave practices, workplace investigations, and HR policies.
Episode Transcript
Candee Chambers:
Welcome to the DE Talk Podcast. Tune in for dialogue between HR experts to amp up your HR strategies. Don’t worry, we’ll mix in a few laughs as we know you need it.
As the COVID-19 pandemic continues, employers around the globe will soon face new challenges. Will they require employees to be vaccinated? While many are encouraging their workers to get vaccinated, relatively few workplaces are making shots a requirement of employment. To get down to the legal nitty gritty, we sat down with employment law expert Jay Wang of Fox, Wang, and Morgan to provide guidance on vaccine mandates, the recent FDA approval, and what this means for employers and employees around the nation.
Ever since COVID-19 vaccines became widely available to the masses, the great debate whether the vaccine mandates would be coming to the workplace has taken place in board rooms, Zoom rooms and news rooms alike. For employers, the pandemic has introduced a whole new level of confusion related to what can be required, what cannot, what other like industries are doing, and more. News reports of vaccine passports, requirements, and continuing mask mandates remain hot topics and much gray area exists as employers grapple with the next hurdle, to require COVID-19 vaccinations as a condition of employment or not.
With the recent FDA approval of the Pfizer vaccine, how will the landscape continue to shift, and what vaccination requirements will begin to take shape? To answer these questions and more, I welcome employment law expert, Jay Wang, partner in the California based firm of Fox, Wang, and Morgan to the DE Talk Podcast.
Jay specializes in employment litigation that includes civil claims involving wrongful termination, harassment, unpaid wages, discrimination, trade secrets, and workplace violence claims, and also counsels clients as to human resources issues ranging from family leave practices, workplace investigations and disciplinary write-ups.
We could not think of a better person to have join us today as he has provided much COVID-19 guidance and information to our own operations team at DirectEmployers. Welcome Jay. It’s great to have you join us.
Jay Wang:
Thank you. It’s a pleasure to be here.
Candee Chambers:
We’re very happy to include you today. Before we get started, can you just share a little bit about your background with us?
Jay Wang:
Sure. I’ve now been practicing law for … I think about how long it’s been, a little surprising but 22 years.
Candee Chambers:
Oh wow.
Jay Wang:
Graduating from Georgetown Law School in 1999. I’ve done employment law, specifically employment defense law, advising corporations, employers to HR policies, and defending them in litigations since 2004. I’ve spent about 17 years now doing employment law. I’ve got to say 2020, 2021 sort has sort of re-oriented a lot of us employment lawyers into a whole new area we’d never thought we’d be exposed to.
Candee Chambers:
Oh, I know. I gave a webinar yesterday and I was literally talking about accommodation requests. Everyone I know in the employment world is getting more of those than we’ve ever seen before. We’re hearing about religious accommodations. It goes down the way. It just seems like there’s so much more today than we’ve seen ever, and I’ve been in my field of human resources for gosh 35 years, so I know what you mean.
To that point, you’ve become somewhat of a subject matter expert for your clients on COVID-19 regulations, requirements, and mandates, and all of that. Was this a topic that you just naturally gravitated to, or is it something you find interesting, or how did that all happen?
Jay Wang:
Honestly, I don’t think any employment lawyer could have known that this was something that we’re going to gravitate to. No one would have suspected a world-wide pandemic occurring …
Candee Chambers:
You’re exactly right.
Jay Wang:
… but given what has occurred, it’s sort of been the area of specialty for any employment lawyer. If you’re an employment defense lawyer and you’ve not addressed a return to work issue, or safety precautions in the workplace issue, accommodations, which we’ll talk about later, in a little bit, or COVID vaccine mandates, as this podcast is about, then you’ve kind of missed the boat I guess. I don’t know where you’ve been.
Candee Chambers:
Exactly.
Jay Wang:
Yeah, the results of the pandemic has really made all employment lawyers sort of experts, and geared us more towards this subject area.
Candee Chambers:
Yeah, something that none of us really ever wanted to have to face, I know for sure. Looking back at 2020 and I think the date, March 13, 2020 when we first went remote, and I think almost every one of our members did as well, and fast forwarding to today, what do you think has been the most surprising element that you’ve seen unfold related to COVID-19 and the employment situation?
Jay Wang:
There’s really four things, I think, that really surprised me generally. The first thing is I think the lack of understanding, it’s kind of interesting that a lot of people, and even some employers, had no idea that they had an ability to impose vaccine mandates, and that’s operational procedure or policy that can be mandated or can be put into place with the certain caveats and the appropriate protections, but it’s sort of new to employers.
Jay Wang:
It’s a little surprising that that was not well-known. The other second thing is the general misunderstanding of HIPAA. I’ve seen a lot of calls about HIPAA, and you can’t ask me whether I’ve been vaccinated. You can’t ask if I have had COVID or the symptoms, and just the general misunderstanding of HIPAA, and how it applies.
The third thing I would say is the uniqueness of the labor market in this pandemic. What we’ve seen is that employees have taken control over their own future and are more willing to change jobs, change careers without a backup necessarily in the pocket. They’ve taken more ownership over their control.
I don’t know if it’s just because of the catastrophic nature of the pandemic has made people kind of realize carpe diem, seizing the day, or what, but that sort of willingness to step away is one of those issues that employers face when they start thinking about mandates, about well, I’ve already got issues about a workforce labor shortage, when we have over 10 million jobs, I think in the last report, available, and even though we only have 6 million unemployed, those jobs aren’t getting filled. The last thing I need is more employees walking away.
The last thing, and this is from a bipartisan point of view, that’s really been surprising is what I perceive to be poor messaging from the federal agencies under both administrations, under both President Trump and President Biden. I feel there’s been a lot of … What’s the right word, but a lot of …
Candee Chambers:
Misinformation for one thing.
Jay Wang:
Yeah, misinformation, a lot of lack of clarity that I think would have been …
Candee Chambers:
That’s a good way of putting it, yeah.
Jay Wang:
… Yeah, that would have gone a lot way toward us waging a lot of fears about vaccines, or about lockdowns, or things like that. I think the messaging could have been better. I follow Dr. Scott Gottlieb on Twitter, and I’m actually about to get his book. He used to be the head of the FDA under Trump, but left in 2019 before the pandemic. I’m very excited to read this book. I just think it will be very interesting.
His perception of how the US handled the COVID pandemic, and plans or suggestions for how to, in the future, ensure we don’t have the same situation arise, whether any other global catastrophe occurs in regards to the pandemic.
Candee Chambers:
You know what’s really scary is they’re saying that this isn’t going to be the only one. They keep talking about the next pandemic. I jokingly say around here that face palm emoji is my favorite one, and every time I think about another pandemic, I see myself putting my hand in my face going, “Oh geez, not again.”
I think this really did bring a lot of
, I don’t know, opinions and things to the surface that people didn’t normally argue about, and the vaccination requirements or mandates. I think it’s creating so much dissension across the business world, and I know we’re going to talk a little bit more about some things but I think that’s been a real challenge for everybody.
Talking about stances on vaccines, there’s been employers all across the nation, and they’ve all taken various stances. Some are making vaccine a condition of employment and that was kind of interesting. I had one of our members say, “How can I put this in a job description?” Some are strongly encouraging … We have monthly staff meetings, and I literally said, “I’m begging you.” I’m not mandating it, but I’m begging you to get a vaccine.
Some companies are suggesting that, kind of like me, that you get a vaccine, but they’re not making that a requirement. There’s companies like Morgan Stanley, Goldman Sachs, Wells Fargo, I think Walmart, and other companies. They have not mandated that all workers must get vaccinated, or share their vaccination status before they return to the office.
Then others, like General Electric, have said they’re not going to make those requirements because they don’t want to complicate global operations. Some are saying you have to have a negative test. It’s going to be interesting, but I think all employers, and you kind of hinted at this, think about the legal minefield that they’re going to find themselves in. Let’s just start here. I want to give you a series of questions, so are COVID-19 mandates legal?
Jay Wang:
Generally …
Candee Chambers:
Go ahead.
Jay Wang:
I’m sorry. I was going to say, generally speaking yes. Even before the COVID-19 pandemic, vaccine requirements have been supported by regulatory rule, state and federal statute, and Supreme Court case decision. I know a lot of people like to site the Jacobson V. Massachusetts. This is where I’m going to get a little bit into the legal ease. I’ll try to keep it as short as possible, but there is case law as well as regulations related to the right of employers to require vaccination in the workplace. Jacobson was a case where the Supreme Court basically upheld the power of state legislatures to require vaccinations. In 1922, the Supreme Court then ruled on a different case upholding school vaccine mandates. These mandates have been in place.
What you’ll see though is that the discretion is wider and more available for private employers than it would be in regards to legislation or mandates. I speak about this Jacobson case. I’ll talk about it a little bit more when we start talking about what the Biden administration just announced last week in regards to mandating vaccines.
In regards to private employment relationships, there’s been great discretion, a great leeway provided to private parties, in regards to how they managed their relationships, how they determine who they want to work with, who they want to have as an employee, and interact with, or have represent them. That leeway has generally existed.
Now, to be clear, there’s certain caveats you want to make sure are in place, and we’ll get to those, I imagine, when we get further into this podcast.
Candee Chambers:
Well, I’ll tell you what, in my position, I’ll just come right out and tell you, the thing that scares me about putting a vaccination mandate in place is losing employees. I don’t want to lose people that I know have strong opinions, some I understand, some I don’t, but I don’t … That kind of cripples me from making people get their vaccination. It’s a difficult position to be in for any employer. Do you see any particular risk for employers who mandate the vaccinations?
Jay Wang:
Yeah, so there’s three particular risks I’ve seen in advising clients or revealing certain cases that have come up or issues that have come up. I think the three issues, the main issues I’m seeing the first one, and to be clear, these are legal issues. The first one is how to determine whether that exemption request is appropriate. If the person does have a good faith religious belief, a sincerely held religious belief, to request an exemption from the vaccine mandate, or whether they have a medical condition that precludes them from receiving the vaccine. That’s the first issue.
Candee Chambers:
It’s interesting because I was on a webinar where they were talking about this with a law firm, and they said that there are really limited religious exemptions, or I’m sorry, not religious, medical exemptions. They said, a lot of times people will say they have allergies. I literally wrote it down. They said, “If you have an allergic reaction to polyethylene glycol you should get the J&J vaccine because that’s not in that particular vaccination.”
If you have an allergy to polysorbate, then you should get the Pfizer or Moderna vaccination, and they said there aren’t really many medical issues that would prohibit you from getting the vaccination. I have Type I diabetes and have had it for gosh 36 years, and my doctor said my system would be severely compromised if I didn’t get vaccinated.
Jay Wang:
Yeah.
Candee Chambers:
That’s a tough one I think because some people just don’t have enough knowledge maybe about their newly diagnosed medical situation. That’s a tough one.
Jay Wang:
Yeah. Let me address that medical condition issue. That [inaudible 00:15:43] you tentative generally correct. If you look at the CDC website, the CDC and discussing vaccinations really only recommends three specific health conditions that would preclude vaccination, and what it really only does is delay vaccination. The first one is if a person is receiving monoclonal antibodies or convalescent plasma for COVID-19 treatment. In other words, they’ve already gotten COVID. They’re now getting treated for COVID. They suggest don’t get the vaccine, but that only delays vaccination for about 90 days is the CDC recommendation.
The second instance is people with known COVID-19 exposure where you may have COVID. You don’t want to get the vaccine until you’re through your quarantine period and you’re through the COVID exposure concern, the possibility that you might have COVID-19.
The third one, which I think you addressed at the seminar was severe allergic reaction. Those are the only three health conditions the CDC kind of recognizes that hey, hold off on getting vaccinated. Now, I know some employers, some clients of mine, have taken a more conservative approach because, again, it’s medical conditions, getting a handle on understanding whether a person has a disability or a medical condition a lot of employers are hesitant about. They’ve got not a clear understanding of how to handle the process or what they can ask to confirm a medical.
Candee Chambers:
Right, exactly.
Jay Wang:
They kind of err on the side of caution. We’ve seen employers provide exemptions in regards to heart conditions related to Moderna. There was a concern about maybe one of the side effects of Moderna is some myocardial issues that resolved, but that they want to be careful in that regard. I know a lot of pregnant women on a practical basis are avoiding it because they just don’t understand whether it has any impact on fetal development of babies womb, even though the studies show that there’s no impact on fetal development from any of these vaccinations.
Candee Chambers:
Or even for breast feeding moms. My own daughter had a baby and she was concerned about nursing her daughter last year, and literally asked the pediatrician and her obstetrician if there was going to be a concern. Both said no, so she got vaccinated.
Jay Wang:
Yeah. That’s where the advice and counsel of your treating physician really becomes important. One of the things that I kind of stress with my clients when the employees come in with these kind of issues is have them talk to their physician. It’s very clear it’s a very limited amount of medical conditions that preclude vaccinations, and in regards to precluding vaccination, all it does is delay it. You can get vaccinated subsequently. The exemptions are very limited with medical conditions.
Sort of the same thing with religious exemption. Just to pivot a little bit because it is also very limited in regards to who would have a sincerely held religious belief. To my knowledge, I’m only aware of three really religious sects that is documented well-known have an issue with vaccination. One is a Dutch Reformation Church, which I only learned about through research, Christian scientist, and fundamentalist loved ones. Those are the only ones that really have expressed and put in part of their religious doctrine concern about vaccination. It’s also limited in that regard.
Then, that’s where employers kind of come in as one of the risks, that deals with this risk about what can I ask to determine if the person actually has a sincerely held religious belief. How do I confirm this to ensure that they are exempt from having the vaccination?
Candee Chambers:
I think that the hardest part for employers, and you hinted toward this, they don’t want to do the wrong thing, but they also don’t want to upset their employees. I sit there and think about worker’s comp cost and I know some companies are saying, “Well, you can’t travel on company business if you’re not vaccinated.” They’re coming up with all different types of suggestions, and to your point about HIPAA, I had suggested for a conference, and I’ve heard a lot of conferences are doing this, they wear either the lanyards that would be red, yellow, or green, or bracelets or even for weddings.
The red says, “Please don’t come close to me.” The yellow says, “Well, if I know you, or whatever,” and the green says, “Hey, yeah come give me a hug.” That sort of thing. I had one person say, “Well, that’s a HIPAA issue.” I’m like, “No, it’s not. That’s a personal choice, thank you very much.” Yeah, it’s …
Jay Wang:
Yeah, that’s …
Candee Chambers:
I think it’s just one of those things that people are just afraid. We don’t want to do the wrong thing, and so they, like you said, err on the side of caution, but what do you think about that recent announcement for the Biden administration about vaccine mandates? Wow. I was joking around, and I guess I need to hire about 15 people, so we have to do it, and it’s not my requirement.
Jay Wang:
Yeah, it’s very interesting. It was a six-point plan that President Biden announced, and for purposes of employment or workforce, the American workforce, it’s really four main points that really addresses employment. I think what you’re going to see is that some of them he has pretty firm legal standing ground on. Some are a little more questionable, and one that I think is going to be very interesting test case.
In regards to his proposal, his mandate regards to federal employees having to get vaccinated, and there will be no exception for opting out, to be tested to opt out, would probably be legal. Imagine the federal government as a corporation, Biden’s the CEO, he’s directing what employees he wants in his employment. That’s fine.
There’s not much legal challenge there. I think your organization put out a very good WIR about the legal effects or implications of Biden’s proposal to have federal contractor employees be vaccinated. Contractors who work on certain types of contracts with the federal government, their employees having to be vaccinated. His announcement is a less secure legal standing. He needs to go through regular procedural process through the administrative procedures that one way will …
Candee Chambers:
They’ve got to land it down more.
Jay Wang:
… one way will… exactly. You’ve got to provide notice. You’ve got to allow public comments, but you can get around that. The agencies just issue emergency mandate in regards to vaccination of contractors, they probably could get around public notice requirement. The one that I think is most interesting is the big one.
The one that private employers are really concerned about, which is President Biden’s directing, yeah directing OSHA to issue an emergency temporary standard requiring employers who have 100 employees or more, require vaccination or offer alternatively require testing every week, on at least a weekly basis, to opt out of vaccination.
Candee Chambers:
Yeah.
Jay Wang:
The reason that’s interesting. The reason that’s interesting, and I’ll try not to get too much into sort of the legal issues that just fascinate me as a lawyer, but basically what he’s doing is using the emergency standard that OSHA allows, and the problem employers face when they yell, “This is unconstitutional,” is the fact that OSHA has very broad powers. Congress authorized OSHA some very broad powers, and under the emergency temporary center, those powers are even broader.
I think, if I recall correctly, the standard is they only have to show that there’s a grave danger to employees one, and two, that such emergency standard is necessary to protect employees from that danger. No one can dispute that COVID-19 is a danger. Where we get into the interesting legal arguments is one, you’re going to need a smart lawyer to basically come in and say, “Listen, Congress didn’t have authority to delegate that power to OSHA.”
The non-delegation doctrine. That’s too expansive. Congress is supposed to be making laws. Secondly, the other argument is courts need to not follow the Chevron Doctrine. The Chevron Doctrine basically says that if Congress has not made a direct law on an issue, an administrative agency proposes or pushes out a regulation, courts should show deference to the administrative rule. It’s interesting from my viewpoint as a constitutional scholar as a side interest to know if someone’s going to now argue to remove the Chevron Doctrine.
The one caveat I will say about emergency temporary standard from OSHA, OSHA issued, if I remember correctly, 10 emergency temporary standards since 1971. Seven of them have been challenged. Of those seven, five had been stayed or vacated. OSHA doesn’t have a very good standing, a very good record in regards to enforcing their emergency temporary standards. That’s where I see you’re going to see the legal challenges, especially from big organizations that represent groups of employers to challenge that rule.
Candee Chambers:
Wow. What do you think? I mean what guidance are you giving to your clients that are asking you, “Gosh, what does this mean? Does this mean that we have to have everybody vaccinated? What are we going to do?” What guidance are you giving, Jay?
Jay Wang:
Yeah. Honestly, outside of the Biden administration proposal, purely from talking with my clients as private employers, those who want to provide vaccinations or require vaccinations, which I recommend. I think it’s perfectly legal, and that’s our goal to get it past this pandemic, I recommend the vaccine mandate, provided you put in the appropriate exemptions, and more importantly there’s really five things I think I’d tell my clients.
The first thing is don’t take an all or nothing approach. Don’t say, “You either get vaccinated or you’re getting terminated.” Provide the alternative, the opt-out possibility, whether that’s weekly testing. There’s issues related to that, that we’ll get into, or offer the incentive to the employment. Again other issues arise from there, but don’t offer the all or nothing approach.
Two, know your workforce. What’s palatable to the largest majority of your employees? Get an understanding of where your employees are on this. What’s going to work in California is not going to work in Tennessee. It’s not going to work in Montana. It’s just different standards, so understand your workforce. Understand what they’re going to be comfortable with.
Additionally, when you are implementing the vaccination policies, try the carrot before the stick. What we’ve seen is employers have tried many different ways to encourage vaccination. They’ve used carrots and they’ve used sticks. More and more we’re seeing now that the sticks are being used because the carrots don’t seem to have the impact that the employer wants, but start there. Start with the stick. Start with the incentives with the gift cards or the bonuses that are more encouraging.
Then finally, provide notice. Keep your employees informed. Keep the communication open. Start even before … If this is dealing with returning to work, before returning to work, give them warning. Let them know what your thinking is. Allow Q & A sessions with your company. Allow questions. Have someone dedicated to answering those questions to help them understand why you’re going the way you are. Provide that notice. Provide them the warning.
Encourage them in such a way that like you pointed out, Candee, concern about losing employees, and you want to do this in a way such that you don’t want to deter employees from returning to work. You don’t want them to go off and find other employment, but you have that counterbalance. You have employees, and I’ve heard these situations, who are unwilling to come back unless there’s vaccine mandates. They don’t want to work with the individuals who are unvaccinated.
Candee Chambers:
Exactly. I literally read something, I think, last week, and they said that a lot of the people that are really for, or are proponents of the vaccine mandates are the vaccinated people because they don’t want to work with unvaccinated people and be placed in an unnecessary risk situation. I remember thinking when we were talking about a hybrid work policy, which I’ve since pushed back to even bringing some people back to work a few days a week or something, and I didn’t want to lose people with that.
I mean I don’t want us to be 100% remote, but I don’t want to require everybody to come back five days a week because I know I could very easily lose some people, and we’re being successful as we are, and I think it’s the same type of decision-making process that every leader is going through, and you want to do the right thing, but you also, and I’ve made it very obvious with my employees, is that safety is first. Safety is first.
We’ve seen people. We’ve seen loved ones get sick. We’ve seen loved ones die, and I wouldn’t want that for anyone else. It’s been a real challenge. I think this is something that as we said at the very beginning of the podcast, people that are working today have never experienced this before. I mean we’ve had smallpox, but that’s really been prior generations that had to deal with that. We’ve all learned about what they went through, but we haven’t faced it ourselves.
Jay Wang:
Yeah, and very briefly, let me just point out, that’s one of my concerns about the Biden administration’s announcements last week. The messaging about getting vaccinated really only appeals to those who are already vaccinated. Once you impose a government issued mandate, what I’ve seen is it hardens the position of those who don’t want to get vaccinated. “Hey, don’t tell me what to do,” …
Candee Chambers:
It’s interesting.
Jay Wang:
… sort of thing, and what we were seeing before the announcement is one, a downturn on the Delta variance, small downturn, but a downturn a little bit, and actually increased numbers in vaccinations before Biden’s announcement. The vaccination numbers were getting higher and higher, and a lot of that had to do with private employers or private relationships resulting in vaccinations or seeing what has occurred in the Delta variance, I thought we were on the right path for getting vaccinated, and my concern about the mandates that President Biden issued, is going to steal the fortitude of those who just don’t want to get vaccinated. Now saying, “Well, why’s the government pushing it?”
Candee Chambers:
That’s an interesting perspective. I hadn’t actually thought of that, but that really is interesting. Interesting to think about. Let’s talk a little bit about some of the requirements or ideas that companies are putting into place, like Delta Airlines, and the mandate. I’ve also heard, well no, It was Delta that is putting a $200 surcharge, a monthly surcharge, on their medical benefits. What do you think about some of these? Are they legal? Are they good ideas? What’s your thought?
Jay Wang:
Let me start sort of from the most lenient in regards to not requiring vaccinations to the most stringent, in terms of vaccine mandates and what I’ve seen across the spectrum. You start with those companies who are not putting in any vaccine mandates, making no requirements for non-vaccination. That is becoming smaller and smaller. I don’t see as many employers, unless you’re, like I said, in certain states that are very luciferous about not having those kind of mandates in place.
Those are smaller and smaller, and more importantly, even if you have no vaccine mandate, that means you’re going to have to impose sort of all the social distancing, masking, temperature checks that we had at the start of this pandemic before we …
Candee Chambers:
We’re still doing that.
Jay Wang:
Exactly. Then, we go sort of closer served using the carrot. “Hey, we’re requesting you get vaccinated. If you get vaccinated, I’m going to offer you a gift card, or bonus, or extra PTO,” things like that.
Candee Chambers:
I don’t really like that.
Jay Wang:
Yeah, a lot of people don’t like it, but the thing that their clear definition on, because the EEOC on May 28th when they issued and updated their COVID-19 guidance, made it clear that’s permissible.
Candee Chambers:
Oh I know. Yeah.
Jay Wang:
Yeah, those incentives, and that’s where employers are saying, “Well, I’ve got a guidance from EEOC. I know I can do this.”
Candee Chambers:
You know what Jay, on my thought, or what my thought is on that is that what about all the people that were taking the position early on that, “You know what? They recommend we get this vaccine. I really should probably get it,” and they do. They didn’t get any benefit.
Jay Wang:
Yeah, they didn’t get any benefit.
Candee Chambers:
Yeah. That’s something that bothers me.
Jay Wang:
Well, the messaging I always tell my clients that raise that issue is think of it this way, the way you encourage them, the benefit is you are now no longer working with unvaccinated people.
Candee Chambers:
I know. I knew that was …
Jay Wang:
That’s the benefit to you.
Candee Chambers:
I knew that was coming, Jay, and you’re right. You’re right, I get that, but it’s unfortunate that it takes that.
Jay Wang:
Yeah, it’s unfortunate, but you see companies like Trader Joe’s, ALDI, Amtrak offer those kind of programs, incentive programs, to warrant vaccination. The one caveat I want to put in place with the listeners to be thinking about that is the permissibility of those incentives, less than if the employer itself is administering those vaccination programs.
The three things I caution is make the rewards small. The larger it gets, you don’t want to make it seem like you’re coercing anyone into vaccination.
Candee Chambers:
That’s a good point, yeah that’s a good point.
Jay Wang:
If you offer a car, [laughing].
Candee Chambers:
Hey, I’d do about anything right now.
Jay Wang:
You offer a $50 gift card … Offering time off for vaccination is a safer bet than cash stipend. Time off is easier to administer and handle. If a financial incentive is offered, you have to find alternatives, for instance, for those who have religious beliefs or medical exemptions.
Candee Chambers:
Exactly.
Jay Wang:
If you treat them differently, that’s grounds for discrimination. Then we go sort of … From there we go into sort of the stick. Where people start things. Listen, we need the mandate. Now we’re going to “punish” you. For example, the one that I’m recommending the most is if you’re going to have a mandate, then imposing work restrictions on unvaccinated, mask requirements, testing, limits on interactions, those sorts of things.
Again, being careful about those who have true exemptions that that’s not altering the terms and conditions of their employment because then you’re talking about discrimination issues.
Candee Chambers:
Exactly.
Jay Wang:
The next one down is, as you mentioned, Candee, sort of financial burdens, imposing financial burdens like Delta did, the $200 increase on their monthly medical premium cost for unvaccinated. Those are permitted. There is legal precedent on that. There’s surcharges for employers sometimes imposed on smokers as part of their wellness program. You know, you run into a lot of regulatory issues. To administer, you need to worry about HIPAA. You need to worry about ERISA. You need to worry about the Affordable Care Act. You need to worry about GINA.
Candee Chambers:
Oh yeah.
Jay Wang:
These are all acts you have to be aware of, and ensure that whatever you’re putting in place, abides by all those laws.
Candee Chambers:
You know … Let me just …
Jay Wang:
It’s difficult.
Candee Chambers:
Let me just … Yeah, but I think what the unvaccinated folks don’t think about, and I mentioned at the top of the podcast, if you’re traveling on company business, and you get infected, the company has to cover that because it’s a worker’s comp issue, and you’re on company business. If you get sick, or you die, and you’re on the company’s medical coverage, that contributes to their experience rating for next year’s premiums.
I don’t think people are thinking that far into the process. I keep preaching about safety, but there’s a lot of people in a lot of companies that, I mean, you can see it. I mean I watch people walk around unmasked all the time. Yeah, I’m vaccinated, but I still wear my mask just because I don’t want to get the Delta variant. It’s just one of those things that I mean obviously I’m in a position where I have to think about costs, but I don’t think a lot of employees, they pay their medical premium, they go to work, they don’t think about the organizational costs.
Jay Wang:
No, from a practical viewpoint, I think it’s very rare that an employee thinks of the employer’s cost when issues arise from the individually. You know now it’s the reasoning by Delta. They said you know we’ve got to put in this charge, $200 surcharge, because if anyone gets COVID, treatment’s about $50,000.
Candee Chambers:
Exactly.
Jay Wang:
That our medical insurance has to cover. We’ve got to be concerned about that.
Candee Chambers:
Exactly.
Jay Wang:
I think the furthest stick you’re going to see is those who say, “Listen, either you get vaccinated or you’re getting terminated.” That’s the all or nothing approach. I’d try and dissuade my clients from taking …
Candee Chambers:
That’s not a good move.
Jay Wang:
No, it’s not a great one. It’s one that though you will see arise from more healthcare centers situations where you’re taking care of immunocompromised patients or customers and not the concern. Healthcare mandates are a little different than what you’ll see for private employers not in the healthcare field.
Candee Chambers:
Yeah. Yeah. You know, it was interesting, I was very pleased on August 23, 2021 when the FDA approved Pfizer’s vaccine and now they’re, I heard the other day that they’re expecting to have the vaccine approved for children as young as five years of age. I can’t remember if they said by Halloween or by Thanksgiving, but I’ve heard people say, “My kid’s going to be first in line.” They want to get their kids vaccinated. Do you think that this has changed employer’s attitudes, or even the unvaccinated folks, their attitudes about, “Okay well this vaccination must be safe now. Maybe I should get it.” What do you think about it?
Jay Wang:
Yeah. Unfortunately, the reasons I’ve seen, I’m not sure employer hesitancy to the vaccine in these was because of the fact that the vaccine had only been granted under an emergency use authorization by the FDA. I just don’t see that from … I mean it may be a reason. It’s not the most prevalent reason. I think the reasons I saw employer hesitancy in regards to vaccine mandates have more to do with being cautious in your approach.
One, seeing what other businesses in your industry are doing. What’s the approach they’re taking?
Two, waiting to determine the efficacy and potential risks associated with the vaccine.
Candee Chambers:
Yeah, I think that’s what it was.
Jay Wang:
Yeah. Now, we’re a little further along. We can see 178 million have got the vaccine. There’s been no known deaths, and that goes towards messaging. A lot of people seem to think there have been deaths from getting the vaccine. That’s a messaging issue. Taking a softer approach to start. A lot of employers just requested vaccines to start, not wanting to push people to need their workforce.
I think those have been bigger considerations than whether the emergency use authorization on whether the vaccine’s been fully approved. When it comes to employees, the reasons for non vaccination are so varied, I think it does affect a small number of the population, but I’ve also seen surveys from SHRM where 28% of employees said they’re not getting vaccinated regardless of whether the employer mandates it or not. They’ll just lose their job.
I don’t know. I think the full approval by the FDA as to Pfizer, changed some minds, but not to as large an extent as we would have hoped.
Candee Chambers:
I think you’re right on that. I tend to agree with you on that. What do you think about all of the vaccine requirements that vary from state to state? I know one of our employees went to a school board meeting and said what a nightmare in trying to get masks approved for children. I mean it’s school district by school district. It’s state by state. What do you think about it, and what do you think people should do to figure out what their state is requiring?
Jay Wang:
Yeah. I think there’s a lot of … People are getting over inundated with information. Some are truth. Some are false, but it’s sort of sensationalized in regards to what the actual mandates are, and all these videos we’re seeing from school board meetings, parents getting just absolutely angry over mask mandates. Other parents being absolutely angry that there aren’t mask mandates.
Politicians who held off on mask mandates getting called the worst names, some really bad names. Trying to cut through the noise. Let’s understand, when it comes to outright bans on private employer vaccine mandates, at this stage, only two states have expressly forbidden private employers from mandating vaccines, Montana and North Dakota.
Candee Chambers:
They aren’t even that heavily populated.
Jay Wang:
No.
Candee Chambers:
Yeah, that’s interesting.
Jay Wang:
Now, that changes when it comes to state worker mandates.
Candee Chambers:
Okay.
Jay Wang:
To those listeners who are state workers, who work for a government entity, there’s 19 states that have vaccine mandates for state workers. In other words, you have to be vaccinated. There’s still several states that say, “We’re not going to put any kind of mandate, and in fact, ban certain forms of mandates in regards to state workers, whether it’s prohibiting the requirement of showing proof of vaccination, as in Indiana or Texas, or prohibiting public employers for requiring vaccination as a condition for employment, which occurs in Utah and Tennessee. That’s the state employees.
Like I said, when it comes to private employers, there’s really only two states that have precluded or explicitly said, “You’re not allowed to have mandates on your employees.”
Candee Chambers:
Which is interesting because I mean it’s so … Everything is so vocal in the political world, but it seems like some of the states that are led by Republican governors, although Indiana is, and I mean they’ve been pretty careful, I think, about what they say and what they require, but Montana is a Democratic, or you know what, that’s a Republican state now isn’t it?
Jay Wang:
Yeah, that’s a Republican state, but Montana is also the only state that doesn’t have at will employment. They’re very unique when it comes to …
Candee Chambers:
Okay, that’s the difference.
Jay Wang:
… employment laws. That goes in that regard. One of the things we need to clarify about these mandates, the big news is always about Governor Abbott in Texas, Governor DeSantis in Florida. What they’ve kind of said is, “Listen, you cannot impose mandates, a mask mandate, but that doesn’t prevent a parent from making that choice and putting …”
Candee Chambers:
That’s what I keep thinking. Yep.
Jay Wang:
Yeah, and what is sort of a different philosophy, whether it’s a good philosophy or not, it’s not for me to say, but what we’re seeing in California, and New York, and more liberal states is we’re going to tell you you have to have a mandate because we want to make sure there’s a law that makes sure you do it. What Texas and Florida is saying is, “Listen, we’re not going to make the law. It’s not our position for the government to tell you what to do, but that doesn’t prevent you from doing it. You can still wear your mask. You can still take your shot, it’s just not us directing you to do it. You should be doing it on your own.”
Candee Chambers:
Right.
Jay Wang:
It’s interesting because both Abbott and DeSantis are vaccinated, and they’ve both encouraged vaccination. They’re not anti-maskers. Governor DeSantis rolled out a very good vaccination program in Florida, but he’s just saying, “Listen, I’m not going to be the one who mandates you get vaccinated.”
Candee Chambers:
Well, I think that’s … Bottom line, I think this is ridiculous if people try to make it a partisan issue because getting vaccinated and staying healthy is truly a bipartisan issue at the highest degree.
Jay Wang:
I think that goes to the issue there’s been some mixed messaging that should have been clear. For example, when Johnson & Johnson, we had those six cases of women over 50 developing some thrombosis from taking the vaccine. The federal government put an immediate pause.
Candee Chambers:
Exactly.
Jay Wang:
Now, what you see in reality is, those people who took the Johnson and Johnson shots are people who took Johnson and Johnson shots fell off drastically after that pause.
Candee Chambers:
I know. I know.
Jay Wang:
Johnson and Johnson has not been used as much. That pause did a lot of damage when you realize this is an understanding of risk and what the statistics are. Six out of a million is still very low percentage. It’s less than, I think I saw certain studies, you have a greater possibility of developing this condition from taking birth control, if you’re a female, than getting the vaccination. It’s messaging issues.
Candee Chambers:
Yeah, and I think that …
Jay Wang:
That’s the same thing with the reporting in the website of federal government runs in regards to reporting injuries or death following vaccination. The website has the caveat. No one reads it, and I felt they should have been fair about it, but there’s no correlation. It’s not death or injury caused by the vaccine, it’s just death and injury that occurred after someone got vaccinated. It could have been from something else entirely. People have been using that website to say, “Hey, the vaccinations are killing people, and that’s not the case.
Candee Chambers:
That’s a really interesting point, Jay, and it’s probably a good point to leave everyone with, but let me just ask you one more thing. We’ve covered so much information. Is there anything else that you think employers need to be aware of, or any cautions that they need to take related to COVID-19, or vaccination requirements, or do you think we’ve covered that?
Jay Wang:
Yeah, there’s two things I think employers should be aware of coming forward. We are now seeing laws being passed in certain states where if a person loses their employment because they have not been vaccinated, they will be entitled to unemployment benefits. It’s unclear whether they’d be entitled, but three states, Pennsylvania, Wisconsin, and I believe Tennessee have introduced legislation saying if you lose your job because you refuse to take the vaccine, you’re entitled to unemployment.
Candee Chambers:
Okay.
Jay Wang:
Then, the other caveat in regards to everything we’ve been saying is in regards to a private employer, if you have a unionized workforce, there are different issues you need to confront in regards to collective bargaining, engaging with the union in regards to establishing new policies related to vaccination.
Candee Chambers:
Oh boy. It’s never ending.
Jay Wang:
Oh, I do have one other thing I realized I didn’t hit on. Payment. How employers pay for time off for vaccination, or illness, or side effects resulting from vaccination. Understand that President Biden has kind of mandated through the OSHA emergency temporary standard that employers are going to have to pay for that time off, excuse me. Understand outside of the OSHA rule, state laws are probably going to require employer payment, especially if the vaccination is instrumental or to the performance of duty.
This is going to be a case by case basis. Really about what job duty the individual has, but if they are customer facing retail, more likely that the vaccination is necessary for the performance of their job …
Candee Chambers:
Right, yeah.
Jay Wang:
… you as an employer are going to have to pay for the time off to get vaccinated, or if they get sick, have side effects, you’re going to have to pay for that time off. All of that, you need to understand, compensation issues related to vaccination.
Candee Chambers:
You left me with a good point to make and that is something that I recommend to our members on a daily basis. That’s when you’re trying to figure out what the next step is, always make sure that you include your legal counsel, and follow what they recommend because they’re the ones that are the experts about it. Certainly not us in HR.
Jay Wang:
I’ll give you two resources. One is the EEOC, Guidance on COVID-19. Obviously, stay up to date with that, and then there is a website, www.nashp.org which is the website for the National Academy for Safe Help Policy. They have an interactive map that shows mandates by state.
Candee Chambers:
Oh, that’s great.
Jay Wang:
Yeah, and provide a little bit of information, sort of superficial information, about the laws in each state related to private employer mandates, state worker mandates, health worker mandates, vaccine passports. That is a starting point to kind of keep you up to date on what the law is in your particular state, and then if you need further clarification on what the law actually says, speak to your counsel.
Candee Chambers:
Okay. That’s incredibly helpful, Jay. Thank you for that. Okay, so thank you very much, Jay, for all of your information. I’ll tell you what, I learned a lot, and I thought I knew quite a bit about this, but I truly mean that. I learned a lot this morning. We like to end every podcast though with five rapid fire questions. I’m going to give you a topic or a question, and I want you to say the first thing that comes to mind. Are you ready?
Jay Wang:
Sure. Yep.
Candee Chambers:
All right. Technology savant or luddite?
Jay Wang:
Oh, you know I know enough to be dangerous, but not enough to know what TikTok is.
Candee Chambers:
You’re kind of halfway in between?
Jay Wang:
Yeah, I’m like any Gen Xer. We’re right in the middle.
Candee Chambers:
All right. Books or movies?
Jay Wang:
Both. Actually, I have a voracious appetite for knowledge, or information, or entertainment. The problem with being a lawyer is there’s not a lot of time to read because you read for your job.
Candee Chambers:
Exactly.
Jay Wang:
Anything I can get my hands on, I will read, or watch.
Candee Chambers:
All right, well it sounds like my daughter actually. One of my daughters is an attorney, and my other daughter is in the Doctor of Physical Therapy Program so she’s having to read a lot. My older daughter has always loved to read, and had to read in law school and she doesn’t read quite as much anymore but she’s now a mom too, so it’s like I get it. She doesn’t have that much time. Okay, advice you’ve received that still resonates with you today?
Jay Wang:
From my mom who passed away 10 years ago said, “Be yourself.” Always be yourself, that’s really all that matters. If you’re true to yourself, whether people like you, whether people hate you, it doesn’t matter, just be true to who you are.
Candee Chambers:
That’s great advice. I like that. Favorite sports team?
Jay Wang:
Oh, there’s a few of them. Atlanta Braves for baseball. San Francisco 49ers for football, and San Jose Sharks for hockey.
Candee Chambers:
Okay, I’ll go with the Sharks, but ah, I’m a Colts and a Cubbies fan. Okay, as an attorney, caffeine has to be your best friend. Coffee or tea?
Jay Wang:
I’m going to have to say tea, even though I’m not a big fan of tea because I actually don’t drink coffee. I am one of the few attorneys who don’t drink coffee, and I often wonder how I survived law school without coffee.
Candee Chambers:
I do too. I do too because like I said, my daughter’s an attorney, and I know what she went through, so I don’t know how you did it. All right, well thanks so much for joining us today, Jay, and sharing your knowledge, and your insight on this very important topic. With so many unexpected challenges that we talked about earlier that have been thrown at employers over the last year and a half, it’s certainly something that requires special attention and careful consideration in businesses, both large and small. If our listeners would like to connect with you, what is the best way that they can get in touch?
Jay Wang:
My email address is jwang@foxwangmorgan.com. Our law firm website is www.foxwangmorgan.com.
Candee Chambers:
Perfect. All right. Thank you.
Candee Chambers:
Thank you for tuning in for another episode of the DE Talk Podcast. Stay connected with DirectEmployers on Facebook, Twitter and LinkedIn and subscribe to our emails by visiting DirectEmployers.org/subscribe to receive notifications of new episodes each month.
