Hi, I'm Jeff Rea, your host for Economic Outlook.

Welcome to our show, where each week we take a deep dive into the regional economy and the people, companies, communities and projects that are helping our region grow.

The roll-out of three COVID-19 vaccines have businesses excited about the end of the pandemic and a return to some normalcy.

But it's also created a whole new list of questions as to how they should approach vaccines in the workplace.

We'll sit down for a closer look at COVID-19 in the workplace and how employers should approach vaccinations coming up on Economic Outlook.

Can I require my employees to get vaccinated, what are other employers doing?

How should I approach vaccines in the workplace?

These questions and more are top of mind for employers as they're carefully navigating this in their workplaces.

There are no easy answers are going to attempt to give you a better understanding of how it's being approached on today's show.

Please join me in welcoming a familiar face.

George Lepeniotis, my normal co-host, but also a practicing attorney here in our region for that conversation.

Just one note before we get started; here at WNIT, we're respecting social distancing and as such, have both our hosts and our guests joining us virtually instead of in person.

George, welcome to the show.

Thanks for having me, John.

Hey, George, I'm thrilled to sit down with you and appreciate the good work that you do normally on the show.

And we're going to put you on the other side of the microphone today and tap into your expertise.

For those who don't know, George kind of moonlights with us as--on--on-- Economic Outlook.

But--but his day job, he's a practicing attorney here in southwest Michigan and northern Indiana.

And so we're going to tap into that experience today, sir.

George, thanks for offering some of that--that advice and expertise and really I want to just have a conversation.

And so, George, generally, there's a--there's a tremendous amount of excitement in the community.

I think the rollout of three vaccines, the open ages, that now people can enroll.

There's hope.

I think people are optimistic that we're getting close to the end of the pandemic.

And--but it also is causing a lot of questions in the workplace.

So we'll--we'll talk a little bit about that today.

And so thanks for for sharing your expertise on that.

So let me ask first just that as you're dealing with your clients and such, what is their state of mind now?

I know many are probably tired of COVID, but are they optimistic about this coming to an end?

Yeah, I think so, Jeff.

I think that we as a society have gone through a lot this last year and employers are no different than the rest of our population.

I like to say that--I'd like to think that it's purely a rational, reasonable thought pattern on a vaccine coming to cure a disease and a pandemic about to be over because the population will reach what they call that--that herd immunity.

I'm not sure it's quite so simple.

I think that there there's some--there are some other thoughts, politicized--political and otherwise.

But generally speaking, I think employers are very excited to have an option to get past COVID that doesn't involve losing revenue, shutting down especially north of the state line in Michigan, where shutdowns have been a bit more, well, more than a bit, there have been more prominent and pronounced.

So, George, you know, in the workplace, we've seen many stories in local media and such that where businesses had to shut down because of a COVID outbreak, maybe among staff or so, so--and so, clearly some lost revenue.

So I know businesses are in this mindset of I got to stay open however I can and we want we want to--customers.

And so this is I think where vaccine conversation starts to go.

So--So now every employee is eligible to get a vaccine.

And so, first kind of how how is that going?

My guess is many are thinking, hoping.

I hope my employees are signing up voluntarily.

But but give us some insight into what what what employers are thinking as vaccines are now available to their employers.

Sure.

I think the first thing that they're thinking is now that we're past some of the availability concerns, they're probably thinking, how can we utilize this to the--to the--to the betterment of the business and also for the safety of the employees and the customers.

I mean, I think that most businesses--I don't like talking superlatives because they're--they're oftentimes, there are always exceptions--But most businesses are conscientious and understand that the safety of their customers, their--their employees in themselves are top priority, even beyond just driving revenue.

You can't--you can't be in business safely.

Most people would never do it, or at least in the most safe way you can be.

And now the vaccine provides that alternative.

So I think our clients are coming in and asking us, hey, what do we do?

You know, the number one question that we'll probably get into a little bit later is.

Can I demand or can I require that my employees get this vaccine?

The interesting note is that the most what I'll call the most high risk for transmitting the disease or causing greatest harm were the first people that got it in those first responders, those medical and health care professionals.

Those people were--those professionals were or had access to the vaccine long before we did.

And I think, by and large, you're seeing a significant amount of adoption.

I think you're seeing a large percentage of those employees taking the vaccine when it is available to them.

I think if you have some experience here in St. Joe County, but in Berrien County, Berrien County rolled out the vaccine and actually reached out to employers, health care, employers, dentists, doctors, hospital facilities to help coordinate vaccination of staff.

So it was a hand in hand collaboration, a corroboration between the municipality, the health department and the employer to try to get the employees vaccinated.

Of course, that's just one step of the equation.

The employees may be vaccinated, but then you're also talking about the general public, the customers, and that takes you into a whole 'nother conversation.

So let's talk about employers.

So employers, historically, some have mandated things like flu shots for their employees, again, wanting to keep the workforce safe and people working and the doors open and such.

And that seems normal.

The COVID vaccines may be a little bit different.

This came, in some people's minds, quickly under an emergency authorization.

And so I think it's kind of creating maybe some confusion on the employers.

And I think what I've heard and maybe this where your input is really important is that there's great debate about whether they can require their employees to get it or not.

Should it be--should it be mandated?

should we just encourage?

Should we incent people to do?

And my guess is there's some strong legal arguments on both sides.

But give us your perspective on that.

Yeah, let's start with the basic legal premise is that there are always argues--arguments on both sides of the equation and you really can't pick a topic.

The two lawyers can't figure out how to argue.

The reality is this is somewhat new, a new area of law.

Not in the necessity--not necessarily in the vaccination arena, but in the emergency use authorization arena.

And let's talk about that a little bit.

Legally speaking, both Indiana and Michigan are what we'll call 'at-will work' states.

So, the employers are there at the will of their employer.

I'm sorry, the employees are there at the will of their employer.

That means that an employer has broad discretion on how and what it wants to require of the employees within reason and within legal limits.

But requiring your employee to get a vaccination as a condition of employment, generally speaking, is allowable.

There are exceptions.

Like every legal rule, there are exceptions to the rule.

The most glaring exception is religious freedoms that we enjoy in this country.

So if you have a legitimate religious tenet or belief that would preclude you from getting the vaccine and I don't particularly know what those--I don't know all religions, but there may be some religions that don't believe in that manmade intervention in the human body or something like that.

But that isn't just--that's beyond just I don't believe in it.

It is that I am a member of this religious organization.

I hold these religious--religious tenets to be sacrosanct.

And there is evidence of that.

So that is a fairly narrow exception.

I know the--I don't think the more highly recognized religions prohibit vaccinations or have tenets against them.

So that would be a narrow slice of the population who might be able to claim that exemption.

The other exemption deals with disabilities or medical requirements.

There may be a medical reason that you cannot get the vaccine.

In the past, this was actually a topic that became fairly well litigated in the past.

And from a legal perspective, we only know the law is--is--is only really interpreted when there is a challenge to it.

And the challenge that we've seen in the past involve other vaccines, smallpox and those types of vaccines.

And they're fairly old case law, but they do stand for the tenet that if a person has a medical condition that precludes them from becoming vaccinated and then their employer cannot require that of them, that is--that is kind of beyond the at-will concept.

And the courts have upheld those.

So there are--there is a balance there, the EEOC, the Equal Employment Opportunity Commission, also has some regulations that might come into play here.

But again, all of this is very new.

So--and this is a unique, strange arena like the rest of the past 18 months have been.

We are learning as we go.

I'm not aware of any significant legal challenges to an employer mandating vaccination.

That doesn't mean they're not coming.

They might be making their way through drafting or just in preliminary stages of being filed with local and state courts.

But I'm not familiar with any as of yet.

I do believe, though, that we are--that we're waiting for that.

And on the flipside of that, we're also looking to the legislature, you know, the legislators looking legally at what it might do to intervene in this, Jeff.

And for instance, I know in Indiana there's a House bill.

And if--if memory serves me, I think it's 1488 that is being drafted now or maybe even has gone past first reading, that would make it a violation of Indiana labor law for an employer to mandate an emergency use vaccine.

That's important.

That distinction is important because it would only apply to emergency use.

Some of the things that employers are concerned about or other vaccines that have been required for years, such as the flu vaccine.

Great.

Thank you, George.

You know, it's interesting, even in the last week or so, like Notre Dame, for example, has required students before they come back in the fall, have to--not where as much of employers yet.

But I think you make an important distinction there, that emergency use authorization has some kind of wondering if now is the right time to mandate it.

I'm actually seeing more encourage it than--than mandate it.

But I think but I think some are kind of really wrestling with that because--and I think of my position as a--as an employer, you know, I obviously want to as you mentioned, I want to keep my employees safe.

I want to keep my customers safe.

How do I best do that?

So--so let me ask just from the employer's standpoint.

So--so COVID has blurred a lot of lines I feel like, right?

So--so typically my employee's health information, very personal.

I don't have a lot of right to sort of ask about it, understand it, whatever.

But during COVID I've asked him a lot of stuff.

I've asked him every day about their temperature, if they have any symptoms, all that.

Now, you know, can I ask them if they're vaccinated or not?

You know, talk a little bit about, you know, sort of that balance there and things like that.

If that's a question an employer can ask about an employee's vaccination status.

Yeah, absolutely.

So I think what you're referring to is the protected health information.

And most of us are familiar with the acronym HIPAA.

We've signed documents that--that relinquish our HIPAA rights from our providers and those sorts of things.

HIPAA, generally speaking, and I'm not a HIPAA expert, there are attorneys who can speak a lot more articulately and in depth as to the ins and outs of HIPAA.

But HIPAA is a law designed to keep your medical providers from releasing protected health information contained in your medical records.

For instance--you can think, for instance, you wouldn't want your neighbor to know that you might have a particular disease even if your other neighbor is your doctor.

So there's--HIPAA was designed to keep your--your medical records protected so that they couldn't be held against you.

But as a condition of employment, we often give our employers protected information, our Social Security numbers or our availabilities or where we might be.

That's part of the contract.

That's part of the agreement.

And that contract sees us voluntarily giving our employer the things our employer asks for that are a condition of our employment.

And so, you're right to say that we are in a different world and it's a unique situation and it's a unique reality where we are blurring the lines between privacy and the greater good, which is always seems to be where we go.

Right.

Post 9/11, our privacy was invaded in the early 2000s with some laws that were enacted that allowed for illegal--what would previously have been considered illegal searches and seizures.

So, you know, there's always that give and take between a person's privacy rights and the needs of society.

And I think in this situation so far, we haven't seen many legal challenges to the protected health information.

And I think largely because our society as a whole, the individual members that make up our society, see the value in providing that information to the people that they--that they work with and work for.

And so it really hasn't become a litigated concept, but it could be.

Right.

I'm going to ask you--I know you--and I know you're not a doctor, but I think these get blurred sometimes, right, between the medical and sort of the legal, you know, pieces of this because--because part of me as an employer thinks that now that--that--that the lion's share of my employees are vaccinated, I can--I can put different practices in place in the office, right?

Can I--can I take masks off?

Can I take the signs off the wall?

Those--those kinds of things.

I think employers are anxious to return to some normalcy.

Any advice, though, to employers on how to maybe continue to navigate things like that?

Again, I think vaccines give them--give them a certain amount of confidence.

But how should an employer approach that?

Well, I'll caveat this by saying the best way an employer can navigate these concepts is to seek legal advice, you know, individualized one on one legal advice.

I'd love to say that in--what do we got here, Jeff?

24 minutes.

I can give everybody everything they need, but that's not true.

There are many, many specific and individual fact based circumstances that must be taken into account.

And so there is--there is very much a benefit to every employer, small or large, no matter what you do.

Just seeking that hour of advice from your attorney to see what you can and can't do in your particular industry.

Attorneys have become very familiar with the COVID regime.

The CDC guidelines, my firm, for instance, Krieg-Devault publishes guidelines almost daily and I would say over the past year, most, if not 75 percent of them have been related to COVID.

So COVID is on every attorney's minds and your attorney can help you navigate these situations.

But I will say, in general, I've often start all of my conversations with my clients when it comes to COVID with caution is your best friend.

Whether you believe it or not, whether you think it's overblown or not, whether you think it's overdone or not, whether you're tired of it or not.

I personally am very tired of it.

But that--that--that being tired of it does not bring me to the point where I feel I can tell my clients, stop wearing masks and don't worry about washing your hands.

That seems like silly advice.

And I think the best advice we can do until we are given a scientific all-clear is to continue to keep our guard up, to continue to be cautious, but thoughtful.

There is the need for our businesses to survive and grow.

And if they don't do that, the--the ramifications will be great and ramifications that--that we might not be able to get over economically.

So it's important that our businesses grow and that they continue to get back on track, especially some of those industries that have been hit hardest, such as the hospitality industry, restaurants.

But you know what I say to the--for instance, let's take a restaurant owner who comes in to see me.

I would probably tell him to continue to wear masks and gloves.

And he may ask me, well, can I start serving the other half of my tables?

I think that really depends on his situation and how close those tables are and how he feels that's important.

I think the general consensus is that herd immunity is closer than--than it--than it was even a few months ago.

So hopefully we will get to that point this summer and I'm hopeful for that date.

Others may not be where practically we'll be able to get over this a little bit more.

Great.

George, early on in the pandemic, I think as I was talking to business leaders, perhaps that the greatest concern many expressed was about liability related to COVID.

Could a--could a employee say, I got this at work?

Could a customer say, I got this shopping in a store?

I think many fear that lawsuits might evolve out of of those types of activities happening.

I know in Indiana, for example, this session of the General Assembly and employer liability protections were--were passed on less familiar with sort of Michigan or nationally.

Could you just speak a little bit to employer liability and kind of what's happening on that front, maybe here in the region or across the country to help protect businesses who have had that concern?

Sure.

Yeah.

And the reality is that liability is oftentimes a major shaper of business activity.

And I think of things such as seatbelts in cars or other types of safety precautions and consumer goods.

Those are often driven by litigation and the fear of or the fear of that type of an award that could be catastrophic to a business.

Again, I'm not privy to every lawsuit ever filed on Earth, but so far I've not heard of a dearth of these types of cases where people are suing because they got COVID.

Part of that is most likely due to the fact that we are still in it together.

We're still in--we're still in battle mode.

And oftentimes I think we as a society, as an American society are, you know, that's our greatest asset, is we're always--we'll always band together to fight a common enemy.

And whether we totally believe in it or not, I think Americans are still very much in that--that--that frame of mind.

But at some point, one of two things is going to happen.

Either COVID liability is going to come to the forefront, which we haven't seen yet, or the legislator is going to provide some sort of immunity.

I think that in the federal level, there was some talk during some of the stimulus legislation to try to get immunity for employers.

I'm not sure that that ever came through, but I do think that it was--you know, it's still on the horizon.

I really think it also depends on the science and when herd immunity happens.

But there's--there are--there are examples of outbreaks that can be traced specifically to business activity and then specifically thinking of some of the meatpacking plants out West that had, you know, that were obvious epicenters of a COVID outbreak.

And can those employees go back and sue the employer?

In most states no, because there's a you know, there's there's another regime.

You're not allowed to sue your employer, for instance, in Indiana because of worker--worker's compensation laws, you have a regime that you can look to--to provide you with compensation and care.

And so far, COVID has not--has not--I'm not sure that many people have gotten coverage under worker's compensation for COVID related infections.

But to answer your question, in short, Jeff, I don't think we're seeing it.

I'm hopeful we won't see it because I don't think it's anyone's fault.

I think that, you know, those--those meat processing plants I talked about, well, they're producing food.

We need food.

It's a simple concept.

So I hope they don't get sued because they tried to produce food.

But I also understand it from an employer's perspective.

I think employees need to be cognizant.

That goes back to what I was saying earlier.

You always want to use your best efforts.

You always really want to air on that side of caution and do the best you can to at least help spread the disease.

And that started with individuals.

But I also think it's gone to employers.

Great.

George, in our last three minutes here.

So--so as soon as I'm thinking about employers being careful, many of them have employees who are outward facing or interacting more with the public, or maybe it's a sales job or something like that.

So can an employer, you know, could I send George on an assignment instead of Susie because George is vaccinated and and Susie isn't.

I mean, will--will vaccinations come into play in terms of the assignment of work responsibilities or can it even as employers think about I want to be careful.

I don't want George to get exposed if he's out.

Help me understand how an employer might do that in the last couple of minutes here.

Yeah, that's a great question, Jeff.

I think the reality is that when you look at employment laws, there are discrimination laws in place.

You know, there are protected classes of individuals, and that includes some individuals with disabilities, you know, gender specific protections, racial and cultural perspective protections.

I don't know where that vaccinated/unvaccinated category would fall.

I can tell you that there is much debate about, as you mentioned earlier, can the employer mandate the vaccination?

And in general, we believe they can.

However, there is a good argument on the other side because of the emergency use nature of the vaccine, that--that maybe that's not the case.

But as with the vaccine, where our advice to employers is that they encourage but don't mandate just yet, tell other people maybe can can plow the trail legally or-- and maybe the same with the work load allocation.

You know, the big key is maybe not how you allocate the work, but whether or not someone loses out on opportunities to grow or be promoted or to earn because they're not given those opportunities.

So in that sales example that you mentioned, if Susie doesn't go out because she's not vaccinated and she loses a million dollars in sales to Sam and Sam gets the million dollars sale, does Susie have a claim against her employer?

And I don't think so.

I think that, again, this goes back to our advice is generally it's a condition of employment.

If you're going to be doing this job, you have to have these sets of qualifications and this is what we expect of you.

But again, the emergency use authorization nature of the--all three of our vaccines right now is throwing a wrench in the works.

Right, well, George, you've done a terrific job helping us better understand this today, some very complicated legal issues, I think were some terrific advice to employers.

And as George said earlier, you know, I encourage you to call your attorney, the folks that you deal with normally on employment law kind of issues.

And obviously, these things are changing very rapidly.

And we really appreciate your perspective today and grateful for the good work that you do on the show normally, too.

And I'm most anxious that we get back to some normalcy on--on our shows and and look forward to having you back.

But--but today, it is great to pick your brain a little bit on this important topic.

Thanks, Jeff.

And I can't wait to be back with you in the studio and out there in the field.

Great.

Well, thanks, George.

That's it for our show today.

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I'm Jeff Rea.

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