John Cernelich:
Well, good morning, everyone. Hi, I'm John Cernelich, and I'm one of the co-chairs of the Labor & Employment here at Calfee, Halter & Griswold. Thanks to everybody for joining us here this morning. It's kind of a damp, dreary morning here in Cleveland. We're happy you're with us. We're really excited. We planned these seminars, and we were all thrilled to see we have over 200 people register.
John Cernelich:
So, thank you for your interest. We hope we've put together a presentation here this morning that will address some of the issues you're seeing as HR professionals, in-house counsel, and management employees.
John Cernelich:
We're going to talk generally about workplace issues 2020 and in particular, of course about COVID, how that's been impacting the workplace. We're also going to talk about some new NLRB decisions. Todd Palmer is going to take us through that. Those have to do with possible disruptions in the workplace. And then, Ray Tarasuck we'll talk to us a little bit about Ohio's new law providing for immunity for employers as to COVID-19 related lawsuits.
John Cernelich:
During the morning, during the presentations, you'll be able to ask some questions along the bottom of the Zoom. Please recognize that when you ask a question, all the participants will be able to see it's your question. Your name will be identified. We welcome questions and our speakers are going to try to answer those questions in writing if they can.
John Cernelich:
Many of those though will probably entail them having to talk a bit and talk about scenarios and there'll be a little lengthy in their responses. So those kinds of questions we're going to try to save for the end. We're going to try to save about 15 minutes at the end to answer your questions.
John Cernelich:
So thanks very much. We appreciate you being here. We're very grateful for our clients and friends. We're going to start this morning with senior counsel, Jennifer Colvin, again, is in our Cincinnati office and she's one of the leaders in the clubhouse in terms of our lawyers in addressing COVID-19 issues. And she's going to talk this morning about recurring issues about COVID-19. So hopefully we'll stay on track and again, thank you everyone. Here's Jenn.
Jennifer Colvin:
Good morning, everyone. Thank you for joining us. As John mentioned, I'm going to talk about recurring issues managing COVID in the workplace. We'll start with some best practices for returning to work. And I know we'll do that briefly. I know a lot of you have already returned to the office.
Jennifer Colvin:
We'll move into managing employees in the physical workspaces when someone in your workplace is positive or presumed positive for COVID-19 and then how to manage the different benefits that we've seen come into play when you have either employees who have been affected by the COVID-19 virus or submitting other requests based on whether it's children out of school or even other illnesses, they don't stop simply because in a pandemic.
Jennifer Colvin:
So goals of returning to work, like I said, we'll touch on this briefly. I mean, I think when we're bringing people back into the office the goal is, the first one is to prevent and reduce the risk of transmission of the virus. And that's key as a baseline.
Jennifer Colvin:
We also want to get back to do the business of the business; reopening and getting back to what you normally do. Minimizing risk of liability, and Ray we'll talk a little bit about that. There's been some developments there at the end of our presentation, and then positive employee relations. And I think there's really an opportunity here as you return in person or reopen that the way you do it can actually benefit the company and increase positive employee goodwill.
Jennifer Colvin:
So best practices for returning to work, have a plan. And we're talking about developing a detailed written plan, really think through all the different components of bringing people back into your workspace. And each workspace is going to be different. Are you a multilevel high rise building with many tenants? Are you your own physical facility? A lot of these considerations change based on your individual characteristics and a written plan will help you respond to any type of inquiry from the department of health or OSHA.
Jennifer Colvin:
And it gives intentionality to the process. I've seen a lot of clients walk the building, walk the floors, finding the choke points where you think really it's going to be difficult for employees to stay distanced. It gives them real intentionality to bringing people back into the building.
Jennifer Colvin:
Elements to include in your written return to work plan, certainly these are things you can consider. Not everyone is going to do these the same way and not everyone is necessarily going to include every consideration, but things to consider would be temperature and system screenings, and this would be upon entry. The goal, not to let anyone into your building who is positive for either fever or symptoms of COVID-19.
Jennifer Colvin:
Face coverings and employers have addressed this in a lot of different ways, but thinking about how you're going to mandate require face coverings be worn, where there'll be worn, and whether there are any safety considerations, there are certain positions where it's really not advisable, it's not safe to wear coverings or cloth over your face during their job functions.
Jennifer Colvin:
Social distancing, how you're going to enable employees to stay distanced in the workplace? Cleaning disinfection and ventilation and when we're talking about cleaning and disinfection, we're talking about enhanced cleaning procedures, getting those touchpoints, where are people congregating or where are high use high traffic areas? Ventilation, can we increase ventilation? And this is going to be especially important as you come into the winter months, can we increase the exchange of fresh air in our building?
Jennifer Colvin:
Travel, I've helped a number of employers create a new pandemic travel policy. And so thinking about, what our customer needs and what are just really practices that have been normal in non pandemic times. And then exceptions to return, not everyone's going to feel comfortable and not everyone really is advised to return to in-person settings at this point. So considering each case individually and creating a practice, a plan for how you're going to handle exceptions.
Jennifer Colvin:
So managing COVID cases in the workplace, the first thing that I wanted to address is when employees should be asked to stay home. And hopefully, if you're doing the entry screening hopefully no one ever gets through your doors, but it's possible that someone might. And then it's also possible that someone calls and asks you, "Well, should I come to work today?" So employees should be asked to stay home, certainly if they have a positive test for COVID-19. If they're presumed positive for COVID-19, so say they live with someone who is a frontline healthcare worker, and they started having a few symptoms, there are certain instances where you could presume a positive case before a test.
Jennifer Colvin:
Exposure to COVID-19 and there's a new test for the CDC here. So exposure is now as of last week, exposure is close contact, which is within six feet mask or no mask, for 15 minutes or more. And now that's cumulative exposure over the last 24 hours. So it used to be that exposure was a contact with someone for 15 minutes or more. Now it's a cumulative test. So it's harder to administer and it did change last week.
Jennifer Colvin:
And then if anyone has symptoms of COVID-19. So this is someone, an employee who doesn't think they've ever been around anyone who has COVID-19 but all of a sudden they have a cough or shortness of breath or actually I've seen quite a bit of a loss of taste and smell. And it's a pretty innocuous symptom for those individuals, but it's pretty specific to COVID-19. Those employees should be asked to stay home. How long should an employee be asked to stay home?
Jennifer Colvin:
Generally, anyone who is exposed to COVID-19 should isolate at home for 14 days, this is now different tests and we'll get to that next, if someone is actually positive or has symptoms and has a positive test or is presumed positive. But if someone is exposed, they should be asked to self isolate for 14 days at home.
Jennifer Colvin:
If someone has symptoms that, and we've come across this quite a bit, that could be COVID or something else, allergies, something like that, then you can have them stay home and return to work with a positive diagnosis of some other illness or allergies, something that is not COVID-19. But generally, if someone has symptoms of COVID-19 or they think they've been exposed, they should self isolate for 14 days unless they pass one of the return to work tests.
Jennifer Colvin:
So approved returned to work methodologies. There are three, and these are for individuals who are positive, either a positive test or presumed positive. We're treating them as if they have COVID-19. The symptoms based strategy is the most common and the easiest to administer. The person returning to work has to be 24 hours without a fever unmedicated and then other symptoms are improving. The CDC is no longer mandating or requiring that symptoms be absent, but symptoms are improving. And then there are at least 10 days since the symptoms first appeared.
Jennifer Colvin:
So if someone had their first symptom 10 days ago, and they haven't had a fever for 24 hours, and you're more than 10 days, 10 days or more from their first symptoms and their other symptoms are improving. Say their cough is getting better, they feel like they can breathe much better, everything is improving, then those individuals can return to work under the symptoms-based strategy.
Jennifer Colvin:
The CDC has clarified that loss of taste or smell that persists for a long period of time should not be used as a reason to keep someone out of the workplace or out of other settings. It just seems like there are a few symptoms that do persist for much longer than 10 days. And they've determined that's not necessarily indicative of being able to pass the virus to someone else.
Jennifer Colvin:
Time-based strategy, this is where someone who's asymptomatic but has a positive test. So they have a positive COVID test but they never had symptoms, how do you calculate when they come back to work? It's at least 10 days since the confirm test. And again, no symptoms. If someone develops symptoms, you're back to the symptoms-based strategy.
Jennifer Colvin:
The test-based strategy is the third. This one has become disfavored over the last week or so with the CDC. So this would be used as a last resort. Someone who is asymptomatic and test positive, then they are able to return to work or other activities if their two negative test results collected at least 24 hours apart that are consecutive negative results and respiratory specimens. Again, I think this one is less favorite certainly than the other two tests. So, use it only as a last resort.
Jennifer Colvin:
So how are other employees affected? If you have and like we said, hopefully you're catching people at the door that doesn't always happen. So if someone was in your workplace and is now positive for COVID-19, if they were not in the workplace within seven days prior to either having symptoms or the positive test, then there's really nothing additional you need to do, no additional disinfection measures. Continue with your enhanced cleaning protocols that you've hopefully been doing in accordance with your return to work plan.
Jennifer Colvin:
If your COVID positive employee was in the workplace, or was not in the workplace in the prior 48 hours, then no one at work has been exposed, so you're not really affecting other employees. However, for the workspace, you should use additional sanitization and cleaning efforts to especially sanitize and disinfect the area where that employee may have been or any common areas.
Jennifer Colvin:
If the COVID positive employee was in the workplace while presumed contagious, and this is 48 hours prior to either a positive test or 48 hours prior to experiencing symptoms, then you need to engage in that contact tracing activity, notifying potentially exposed employees and asking anyone exposed to self isolate at home for 14 days.
Jennifer Colvin:
In the past, our advice really has been, "Hey, you can notify employees who are exposed, but you have to be aware of confidentiality and not disclosing the name of the affected employee; the employee who tested positive." With the new CDC tests, that becomes really an administrative nightmare to try to contact trace when you're trying to figure out whether someone has been around this affected individual for a cumulative 15 minutes over the past 24 hours, or even kind of some type of 24 hour period within the last 48 hours that they were in work.
Jennifer Colvin:
So there is an alternative that you can use to ask the affected employee to either kind of wave their confidentiality with respect to disclosing their name or their identity, asking if they're okay with you using their identity to contact trace. Something to consider and we really haven't seen how this is going to play out, confidentiality obviously is paramount when you're talking about medical considerations but there's a real difference here with how we're going to be able to contact trace.
Jennifer Colvin:
So a little hypothetical, and I'm trying to be mindful of time. So there's a few in here. We've included them in the written materials. John is an employee in your accounting group. He attends a backyard barbecue. And by the way, this is where we're seeing the spread social activities, on a Saturday. Comes to work on a Monday, works regular business hours.
Jennifer Colvin:
On Monday, he finds out that one of his friends tested positive for COVID. He has no symptoms. So who's affected here and what do you do? You just kind of unpack it, John has no symptoms and John is not having a positive test for COVID. So within the past 48 hours on that Monday he was at work, he has not exposed anyone to COVID-19. He doesn't have COVID-19 and he has no symptoms.
Jennifer Colvin:
So no employees in the workplace will have necessarily been exposed, obviously asked John to keep in touch and let you know if he develops any symptoms. But if he shows no symptoms and does not have a positive test by Wednesday, then your employees aren't going to be affected. John will be affected because John will now need to self isolate at home for 14 days, he has certainly been exposed to his friend if he say socialized with him. So if he spent 15 minutes or more over the course of the barbecue with this person, then he's been exposed and needs to stay home.
Jennifer Colvin:
Hypothetical A-1, just a quick note, this is totally different for critical infrastructure employees. So if John is a nurse in an emergency room, then an exposed critical infrastructure employee is permitted to continue working so long as they carefully monitor for symptoms. The employer uses some additional safety measures and the employee has no symptoms, asymptomatic. So a little bit different and obviously, we're here for questions for anyone who is critical infrastructure, but just wanted to mention that.
Jennifer Colvin:
Hypothetical B, Jane is an employee in inside sales. She attends a family birthday party on Sunday. She comes to work and works Monday through Friday. On Friday afternoon, this would be typical, five to six days after exposure she loses her sense of smell on Friday afternoon and she loses her sense of smell on Friday night. She is able to get a COVID test on Saturday and gets a positive result Monday morning, October 26th. So what do you do with Jane?
Jennifer Colvin:
Well, first, hopefully you have a written plan. And as soon as Jane started coughing on Friday afternoon, you sent her home, so hopefully you've minimized exposure in that way. Since Jane is now positive for COVID-19, you will need to determine who has been exposed to her.
Jennifer Colvin:
So using the new CDC rule, you're looking at who was within six feet of Jane, and this is masked or unmasked for 15 minutes cumulatively, over 24 hours. And you trace 48 hours from the beginning of symptoms, not from the positive test. So you're going to look at who Jane was in close contact with on Wednesday, Thursday, or Friday. It's difficult. It's a difficult test. And like I said, I've helped a lot of employers through this because it's very technical.
Jennifer Colvin:
So all exposed employees need to be asked to isolate and work from home for 14 days. So employees who were exposed say on the last day she was at work, Friday, are going to be asked to isolate at home until Friday, November 6th. It's a long time. It's really important, this highlights how important it is to know where employees are in the building, how they're working in proximity to one another, and then how they're moving throughout the building, especially in common spaces.
Jennifer Colvin:
Now what about Jane? Well, Jane can come back to work 10 days after she developed symptoms, as long as she is 24 hours fever free with improving symptoms. So Jane, as long as she meets those requirements can come back to work on Monday, November 2nd. So I mentioned that because it's a little counterintuitive, the positive employee who actually was affected can come back to work before the employees who are self isolating because they were exposed. So watch for that. It doesn't make a lot of sense to employees. We get a lot of questions.
Jennifer Colvin:
So the benefits that have been implicated, obviously the new Families First Coronavirus Response Act, paid emergency sick leave up to two weeks, 80 hours, and then expanded family medical leave. And this is only for care of a child whose school or daycare is closed or unavailable, and those are paid. Traditional FMLA, obviously there's a lot going on with COVID, that's been implicated with COVID and then with other conditions that persist, it's unpaid leave for illness of an employee.
Jennifer Colvin:
Say if you're a COVID long hauler, you could end up needing FMLA for a period of time to recover or leave to care for illness of others. And this could be COVID or other illnesses. And then the interplay with the Americans with Disabilities Act, again, there's this group of COVID long haulers query, whether it rises to the level of a disability, it might.
Jennifer Colvin:
So there's going to be COVID implications with the Americans with Disabilities Act. There's also going to be considerations related to whether someone with an existing condition now is considered disabled maybe when they weren't pre pandemic, whether it's because of the risks or they're unable to wear a mask or other considerations. So we've seen the ADA certainly come into play here.
Jennifer Colvin:
I want to mention, generally in Ohio, there is a requirement under the Stay Safe Ohio order that requires employees to wear face masks. We get a lot of questions about, well, someone doesn't want to wear a face mask or they were wearing a face mask and now they've said they're unable to, we're considering that kind of best practices to follow the ADA inquiry.
Jennifer Colvin:
If there is now a condition let's find out what are the functional limitations of this condition? What are the physical limitations that are being brought to you? And do they really justify not wearing a mask, a face covering? If you find yes, okay, the doctor's order says, "Hey, it does. And this is where we are now in the pandemic." Then I think the second prong is that reasonableness prong and looking at, is it reasonable to excuse the face covering requirement? Because if this person works within six feet of others, then it's probably not. So considering that reasonableness underpinning of the Americans with Disabilities Act.
Jennifer Colvin:
Hypothetical C, Tommy requests expanded FMLA to be home with his school-age children, Mondays, Thursdays, and Fridays. They have a hybrid learning schedule where they're only allowed in person two days a week. Is it permissible? And what do you have to pay? Yes, it's permissible and it's not considered intermittent. This is going to be really leave as of right under the FCRA. And he must be paid up to two thirds of his pay up to the limits of the statute.
Jennifer Colvin:
Note that he would only get paid leave if he's unable to work or telework. So again, a lot of these maybe we may be able to resolve them with telework. So same hypothetical, except one of his children test positive for COVID-19 and now he requests continuous leave to care for his child. Is he entitled to leave? And what do you have to pay him?
Jennifer Colvin:
So now, it's important to look at that emergency paid sick leave portion because that's broader than leave for care of children for school and daycare closures. So if Tommy has not exhausted paid sick leave, then that leave would cover someone who either is suffering symptoms... care for someone who's suffering symptoms of COVID or has been directed to isolate or quarantine because of COVID-19.
Jennifer Colvin:
So he would be entitled to the paid sick leave portion up to two weeks. And if it's for care of someone who actually has symptoms or is quarantining, then that paid leave is full pay. So if emergency paid sick leave has been exhausted, then this becomes care for someone who is ill under regular FMLA. And I just want to note here that the FCRA is much broader and applies to many more employees than regular FMLA.
Jennifer Colvin:
So if you didn't have to comply with FMLA prior to the FCRA, then a request to care for someone over a long period of time even if it's COVID is going to be coming under the regular FMLA. And so, it may not apply to Tommy. But those are the considerations you'd want to take into account here. It shifts a little bit, even though he is already approved for that FCRA for care of his children.
Jennifer Colvin:
Slightly different, one of his children has a severe broken leg requiring multiple treatments and a surgery. He requests continuous leave for four weeks. Well now, COVID isn't implicated at all and so you're not looking at the paid emergency sick leave. That really applies to COVID related pieces. So here, he is requesting traditional FMLA. And again, the considerations are, is the employer covered, FMLA covered, FMLA employer. And if so, then FMLA can be granted and used and it will be unpaid.
Jennifer Colvin:
So the next two slides we've included them in your written materials. I'm not going to go over them, but we've included some sources of guidance which we thought were particularly useful and helpful as a reference. So those are in there and I will introduce Jason Dejelo, who is going to be our next presenter and Turn it over to Jason.
Jason Dejelo:
So good morning, with various clinical trials currently well underway, the availability of a COVID vaccine now is not so much a matter of if, but a matter of when. So naturally, employers are beginning to ask the question and I think it's fair to ask the question and consider it now, can we require our employees as a condition of employment to get the COVID vaccine when one becomes available? So I guess we can just cut to the chase, are employers.
PART 1 OF 4 ENDS [00:25:04]
Jason Dejelo:
Well, I guess we can just cut to the little chase. Are employer mandatory vaccination policies legal? And with regard to vaccinations generally, the answer is yes, but with an asterisk. And we know this because mandatory vaccinations in the workplace while not common are not new, and some law and guidance on this issue has developed primarily in the last 10 years regarding mandatory flu vaccination policies.
Jason Dejelo:
So what about mandatory COVID vaccination policies? Again, I think the likely answer is going to be, yes, you can do them, but again, with an asterisk. And I say likely because that law that has developed in the last decade has mainly centered around the healthcare industry and healthcare workers who work with sick patients, many of them elderly who are most susceptible to a high risk of severe complications from the flu. And even then, most hospitals did not mandate flu vaccinations right away until decades after the vaccine was developed and only after it had been shown over the years to be a safe and effective way to prevent the flu. And still even today, the vast majority of employers don't mandate flu vaccinations, they simply offer it on a voluntary basis and encourage employees to get vaccinated.
Jason Dejelo:
So how that law applies to employers in other settings outside of healthcare, for example, in manufacturing and office settings and during a pandemic such as this remains to be seen. But I think it's fair to conclude that that same legal framework will apply here. So why the asterisk? And I think the better answer is yes, with a whole series of asterisks or caveats, because even if an employer has a mandatory vaccination policy, employers are still required to make certain exemptions for some employees from that mandate under certain circumstances. And we'll talk about those. There are also a whole host of other laws that might impact how employers can implement and enforce the policy and not to mention the practical considerations in mandating vaccination for your workforce.
Jason Dejelo:
But before we get to that, what are the benefits of a vaccinated workforce? And this is regardless of whether you, as the employer decide to mandate it or just offer and encourage vaccination for your employees. Many of these are pretty obvious, so I'm not going to run through each of them, but you can expect there to be fewer absences because employees are healthier. And the families and persons in their household, who they may have to miss work to care for, will be healthier too. You can expect fewer disruptions associated with infection control measures, such as deep cleaning when an employee gets COVID and potentially exposes other employees to COVID. Employees eventually will be able to travel more and visit and service customers and have more face-to-face interactions without fear of becoming ill or getting others ill.
Jason Dejelo:
And I think while less obvious, but no less important, I think it can't be understated the mental health benefits of knowing that the workforce is vaccinated as anxieties for both the employer charged with keeping employees safe and employees who have to come into work during a pandemic is very real. Probably most importantly, it not only protects that individual, but protects his or her co-workers, customers, visitors who come on-site, and their families. And so I think regardless of whether you choose to mandate a vaccination or not, I think these are the types of benefits that should, can, and should be communicated to employees when you promulgate your policy to get them to buy into getting vaccinated.
Jason Dejelo:
So having considered those benefits, you might say to yourself, "Then we should mandate vaccination as soon as possible." Right? Well, the answer is not that simple. So let's talk about where we are today. Over 170 potential vaccines are being developed worldwide, five of which are... And this is actually four. One is coming up shortly, are currently in phase three clinical trials in the US. We know that the FDA is requiring that the vaccine be shown to be at least 50% effective, although how much above 50%? Is it 60%, 70%, 80%? Will a vaccine that has been approved, how effective that will be, we don't yet know. We also know that earlier this month, the FDA has issued a guidance saying that it wants companies to wait until they can provide two months of safety data after their phase three trials conclude to include that data in their application for approval.
Jason Dejelo:
So we're really looking at December probably until we get approval for a vaccine and it can start to be rolled out. And that's going to happen in phases. The Ohio Department of Health just last week published it's four phase plan to distribute the vaccine. And the first phase is going to focus on healthcare workers, first responders, and those higher risk populations. And the vast majority of people are going to be in that last phase, that phase, the fourth phase. So there's still a lot of unknowns as to how and when... How effective it will be, when it will become available generally to the public, how frequently someone has to take it. We know that most vaccines that are in trial right now require two doses. We don't know whether it's going to be an annual vaccine like the flu vaccine, or if it's just a one-time thing. And then we still don't yet know the potential side effects. And we probably won't know that until the vaccine gets FDA approval and the side effects are announced.
Jason Dejelo:
But I think probably the biggest obstacle to mandatory vaccination is whether employees and Americans in general are willing to get the vaccine if one is approved. And here, I think the main concern is that the development speed and safety of a new vaccine. And perhaps calling the process operation work speed may not have been the best choice of name because what we see in recent Gallup polls, and this came out just this month, American's willingness is decreasing. It's fallen from 66% in July, and that percentage was higher to about 70% in April. And currently, about half of Americans say that they would be willing to get it now if the FDA approved a vaccine. That percentage decreases for older adults. Women are less, more... It's about 44%, less than half of the women polled said they will be willing to get a vaccine, and parents who have children under the age of 18 show that they're not as willing to get vaccinated.
Jason Dejelo:
So there's a fairly sizable proportion of the population who if a vaccine were approved now and it were offered would be hesitant to get it. So you're probably asking, "Can't the government just mandate it?" And then I think this has been a view shared by a lot of employers. Rather than taking the approach of just recommending, just tell us what we need to do or what we can do and we'll do it. I think a federal mandate is not going to happen. Dr. Fauci just recently said it's never in the history of America been mandated in terms of a vaccination and that it's not going to happen on a nationwide scale.
Jason Dejelo:
Now, it may at the state and local level, but it's very unlikely that they're going to mandate it for everyone. I think you can pretty much say that they're not going to. And that any government mandate is going to be specific to certain industries. So healthcare, nursing homes, possibly schools, meat packing plants, those types of industries. And the majority then is going to fall on whether just the general population decides to get it on their own or whether employers offer or mandate vaccination policies.
Jason Dejelo:
So back to the asterisk, I think there are... Well, there are two principal exemptions. One, under the ADA, if an employee has a medical condition that qualifies as a disability, that prevents him or her from safely receiving the vaccine. And the other is Title VII's prohibition against religious discrimination. If an employee objects to receiving a vaccine based on sincerely held religious beliefs, practice, or observance.
Jason Dejelo:
And again, until now, it's been... Mandatory vaccination policies have mostly been limited to the healthcare industry, but as you can see, based on another Gallup poll last year, mandating it has increased coverage. Almost 45% of healthcare workers said their employers require the flu shot, and of those employers, 98% of employees got vaccinated. And this is compared to 90%, I think for, in general, in the healthcare industry. Healthcare industry, they're pretty good about getting vaccinated, but I think with regard to the general public and other workplaces, I think you can expect that percentage to be a lot lower.
Jason Dejelo:
So the exemption for medical reasons. I think that the key thing here is that we don't yet know the components of an improved vaccine or any medical contraindications. So we're probably going to have to wait until after FDA approval to establish the protocol for a medical exemption. I will note that for the flu vaccine at least, there are very few conditions that are medical contraindications. It's really just a severe allergy to eggs. And this is more than just a sensitivity or more than hives. And then Guillain-Barre syndrome, which is an autoimmune disorder. If you take the vaccine, it could lead to risks of paralysis or death.
Jason Dejelo:
But with regard to the religious exemption, I think you can prepare right now as to how that would apply. And here, it's important to note that employers must provide an exemption, absent undue hardship. And an undue hardship for purposes of a religious accommodation is a lower standard than under the ADA. It's more than a diminimous cost to the operation of the employer's business. But I think since we're all wearing masks, one of the accommodations for people who have been exempted from a vaccination policy, whether it be medical or a religious, is that they be required to wear a mask while at work. So, we're doing this anyway. So I think the undue hardship standard may not come into play here with regard to the COVID vaccine.
Jason Dejelo:
What has been at issue is whether opposition or opposition to vaccine is a sincerely held religious belief. I think a lot of opposition to vaccination is sincerely held. The question is, is it a religious belief? And I cited to a recent Third Circuit case that issued a three part test to determining whether a belief, a sincerely held belief, is religious. And it talks about what constitutes a religion. And I think the most important thing is that it's really a comprehensive system of beliefs, not just an isolated teaching. In that case, the court held that opposition or just worries about the health effects of a vaccine, a disbelief of the science that taking the vaccine is safe, it was a flu vaccine in that case, or just wishing to avoid the vaccine is not enough. And even just the belief that one should not harm their own body, that's more of an isolated position rather than a comprehensive system of beliefs to show that it's based on a religion.
Jason Dejelo:
Formal and external signs to look at, things like formal services, the existence of clergy, formal structure and organization, observance of religious holidays as associated with traditional religions. But be aware that some courts, including there's a decision in the Southern District of Ohio that held that veganism can rise to the level of a religious belief, at least enough to survive a motion to dismiss at the beginning of a lawsuit. But some courts in the EEOC have interpreted religion more broadly in the context of mandatory vaccination policies. I think what has been established is that opposition to vaccination for personal or secular or political philosophical reasons are not enough to constitute a sincerely held religious belief.
Jason Dejelo:
The EEOC has also issued guidance on this citing to the medical and religious exemption. They first issued a guidance in 2009 during the swine flu outbreak. And in that case, they simply recommended that employers encourage employees rather than require them. And this was due to a concern of potential discrimination based on disability or religion. They updated this in 2020 in response to the pandemic, but as of... They simply just pointed out the self-evident fact that as of the data, that update, there is no vaccine available. The one helpful thing they did do is they acknowledged that the COVID pandemic meets the ADA's direct threat standard, specifically if employees who have COVID or have symptoms of COVID enter the workplace. So they allow for more extensive medical inquiries and controls than typical in the absence of a pandemic, things like temperature and symptom screening, even on-site COVID testing, although not antibody testing. So I think that might give you a hint at what they might view. I think it's likely that they're going to say mandatory vaccination policies are permissible, but they're still going to recommend that employers simply encourage employees rather than require it.
Jason Dejelo:
The OSHA takes a similar view, but they didn't know in 2009 during the swine flu outbreak, that employees who refuse vaccination because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death, such as a serious reaction to the vaccine may be protected from retaliation under 11(c) of OSHA, which is their whistleblower statute. There is no private cause of action, but they can bring a complaint to OSHA and OSHA could investigate it. I think it's notable that OSHA is actively encouraging its inspectors to get the COVID vaccination when it becomes available. So, likely, OSHA is going to say, yes, again, you can mandate it provided you give those exemptions, but employers should encourage it rather than mandate it.
Jason Dejelo:
Other considerations. If an employee has an adverse reaction to the vaccine, that could still have a potential workers' comp claims. Ray's going to talk about the Ohio's new immunity law, but that doesn't really address worker's comp claims for employees. If you have a union represented workforce, you're likely going to have to negotiate with the union and most unions aren't going to like having employees be disciplined or potentially terminated if those employees refuse a vaccine. But I don't think unions generally are opposed to vaccination itself.
Jason Dejelo:
Be aware of employees who talk amongst themselves about the vaccination policy, or gather together and oppose a mandatory vaccination policy. That can be protected under the NLRA and lead to an unfair labor practice charge if employers were to discipline based on that conduct. Again, you can expect some opposition and exemption requests if you just look at how difficult it is to mandate masks, and especially in light of the anti-vaccination movement that is happening today. But also keep in mind that a vaccine's not going to be a fail-safe way to provide a safe work environment. And that for a period of time, employers are likely going to have to continue those safety protocols, mask wearing, distancing, even after a vaccine has been approved and becomes widely available.
Jason Dejelo:
I'm running short on time, but I'm going to run through this, but it's in your materials. What's right for your workplace? Again, you can mandate with those two exemptions. Some may decide that a hybrid approach, mandating it for some employees who, for example, work with high-risk individuals or work in environments where it's difficult to distance, should be required to get the vaccine, but other employees, for example, those who work in offices where you can shut the door, don't need to get the vaccine. You can offer the vaccine to employees, again, on a voluntary basis and encourage employees to get vaccinated. And I think this is probably where most employers are going to land given that we don't know how effective the vaccine is. We don't know how many people are going to get the vaccine, and we're going to have to continue those safety measures and mask wearing for a period of time anyway.
Jason Dejelo:
Options if you mandate employees who are exempt. Again, this might just begin and end with continuing to wear masks, but the considerations would be all the other considerations that you would consider when an employee requests an accommodation, just as you've probably been doing during this pandemic. Best practices. I think the one thing I want to point out is that you want to give enough time in advance to notify employees of the policy. You want to provide a deadline for requesting an exemption and have separate exemption request forms, one for medical and one for religious, and then have a later deadline for getting vaccinated. And allow for time to consider and enter into that interactive process for those who request an exemption.
Jason Dejelo:
And typically, it's about a two month period between notifying employees of a policy and the deadline for getting vaccinated with time in between to submit the exemption request and make a determination. The vaccination should be free of charge. And consider, if possible, making them available on-site. If that's not possible and employees have to go to like a pharmacy to get the vaccine, you can consider keeping them, or I would recommend keep keeping them on the clock. You can consider providing a PTO for that day.
Jason Dejelo:
One other thing I think is to educate employees. You can have a webinar for your employees about the safety and benefits of vaccination. The CDC does have a website on promoting vaccination in the workplace that can give you some helpful ideas. And that's with regard to the flu vaccine, but I think it's just as applicable here. And last, just like anything that employers have had to do during this pandemic, you want to monitor the law and guidance for more answers and just continue to adapt to this changing situation as more people become more comfortable with the-
PART 2 OF 4 ENDS [00:50:04]
Jason Dejelo:
People become more comfortable with the prospect of getting a vaccine. Now I'm going to switch it over to Todd and he's going to give the NLRB update.
Todd Palmer:
Thank you, Jason. Sorry, let me get my slideshow going here, my mouse is not cooperating. Here we go. As many of you know, and it goes without saying, 2020 has been the year of the unforeseen and the unpredictable and it's not over yet, we still have two months to go and who knows what may happen in the next 60 days or indeed even beyond into the New Year. But some of the forces and movements, which have been impacting our country in 2020, could very well play out in the workplace.
Todd Palmer:
With that in mind, we've done some thinking about possible ways that, your workforce could be disrupted in the coming months and how those disruptions are treated under the National Labor Relations Act. To cover some fundamentals, and Jason mentioned it with respect to a vaccine policy, but one of the bedrock principles of labor law is something called Protected Concerted Activity, and that arises under Section 7 of the NLRA, which-
Maggie:
[crosstalk 00:52:10] Sorry to interrupt. We can't see your second slide.
Todd Palmer:
All right, let me... Is that better?
Maggie:
No, if you want me to, I can share my screen really quick and get it up there and you can just direct me.
Todd Palmer:
Yes, please.
Maggie:
Okay, go ahead and click, stop share and I'll get yours up.
Todd Palmer:
Okay. I'm sorry, folks. Let's see, stop share. Okay. All right.
Maggie:
Give me one second, I'll get it up.
Todd Palmer:
All right. Thank you, Maggie.
Maggie:
No problem.
Todd Palmer:
Section 7 grants to employees, the right to self-organization. In other words, to form and join and assist labor organizations to bargain collectively through representatives and also to engage in other concerted activities for the purpose of collective bargaining and other mutual aid or protection. The important takeaway from this is that Section 7 rights extend to all employees, union and non-union alike. One of the greatest myths that I hear from time to time, is from non-union employers who say, "That National Labor Relations Act, that doesn't apply to me because I don't have a union." That is a false myth, it applies to all employers.
Todd Palmer:
Sorry, next slide, please. Let's just unpack a couple of key concepts within this definition of Protected Concerted Activity, and the first is, concerted activity. That occurs when two or more employees act together to address their terms and conditions of employment. It requires a linkage to group action, some type of a group concern or activity engaged in on behalf of others or initiating or preparing for group action. It can be solo action by a single employee, but if it's being done on behalf of a group or on behalf of a group concern, it's protected.
Todd Palmer:
Now, the other key concept in Protected Concerted Activity is, mutual aid or protection. The activity must relate to the employees' terms and conditions of employment. And terms and conditions of employment is a very broad concept, it encompasses everything from wages and hours to benefits to the price of soda in the vending machine, in the employee break room. But the focus of mutual aid or protection is whether employees are seeking to improve their lot, as employees. Next please.
Todd Palmer:
That brings us to the first variety of disruption that we're seeing, some of, so far in 2020, but we may certainly see as COVID continues to flare, and those are safety related work stoppages. This is an issue on which the law differentiates between union and non-union employees. With respect to non-union employees, the National Labor Relations Board, that's the agency that enforces the National Labor Relations Act, the board says that Section 7 protects employees when they take collective action that is; work stoppages or strikes, to protest what they believe to be unsafe or unhealthy conditions.
Todd Palmer:
The employee must have a reasonable, good-faith belief that working under certain conditions is unsafe. Importantly, the employees don't have to be right to be protected under Section 7. They can be honestly mistaken, or the employer may disagree with them and deem that the disputed conditions are safe, but regardless, so long as there's a reasonable, good-faith belief, the employees are protected. Let's look at the next example or the next set of rules for safety related work stoppages, which involve union employees. And that's on the next slide, Maggie. Thank You.
Todd Palmer:
Union Employees are governed by a slightly different statutory provision. It's Section 502 of the Labor Management Relations Act, which was actually a 1947 amendment to the National Labor Relations Act. And I'm trying to avoid a lot of the esoterica of labor law, and believe you me, there is abundant esoterica.
Todd Palmer:
Under the Section 502, which governs union employees, a refusal to work over safety conditions is protected, if the work is abnormally dangerous. It's a higher standard than for the non-union situation because here, union employees must have a good-faith belief based on ascertainable objectives evidence.
Todd Palmer:
Refusals to work over unsafe conditions in the union environment, are not considered strikes for purposes of a no strike clause in a collective bargaining agreement. But importantly, refusals to work by unionized employees can be protected, even if they're done by a solo employee, because in this context, the presence of the union is what brings the concerted part to the activity.
Todd Palmer:
Especially in this time of rising COVID case loads, what do you do if employees walk off the job because of their concerns about COVID and their employer's prevention and mitigation methods? I can tell you one thing not to do, and it's not to follow the example of an employer who in late September, the NLRB, through an advice memorandum, advised and gave the go ahead to proceeding against the employer for violating the NLRA. In that case, a group of employees... they worked in a food distributor company, and a group of employees protested the employer's failure to provide personal protective equipment and things such as gloves and masks and hand sanitizers. And they also protested, the employer's failure to set or enforce any sort of social distancing guidelines.
Todd Palmer:
And so the employees walked off the job and they were off for two or three days without pay. After several days, they approached the employer, or at least the leaders did, and asked if they could return to work. And the employer said, "Yes, you may all return to work, except for you two, the two who were leaders of your little walkout." The Board found that that walkout was Protected Concerted Activity, and therefore approved the issuance of a complaint in an unfair labor practice proceeding against that employer. So, if you do have this situation, come up, first thing, just keep your cool. And I would say, ask questions of the employees, engage in some dialogue with them to try to identify what they see as the unsafe condition. And in fact, what I suppose you're really trying to do, is plumb the depths of their reasonable good-faith belief, and why they think the conditions are unsafe, but then additionally, and this goes with kind of keeping your cool, don't get angry, resist the urge to terminate or to discipline.
Todd Palmer:
And certainly, don't move forward with any discipline or termination, without consulting outside labor law counsel. Sorry, that's a shameless plug for people who do what we do. Maggie, could I have the next slide, please.
Todd Palmer:
Let's move on to something that is very 2020, because obviously 2020 has brought a renewed focus on social justice issues. So let's spend a few minutes talking about social justice, walkouts and strikes. Section 7, again, Section 7, you're going to hear me say that a lot through the rest of this. Section 7 protection extends to concerted political activity, when the subject matter of that advocacy has a direct nexus to employees' interests as employees. In other words, there needs to be a link between the political activity and the employees' terms and conditions of employment. Next please.
Todd Palmer:
So let's look at a few recent examples, and the first of these was back in February 2017, it was a Day Without Immigrants protest, and this was a protest against the then new Trump administration, and some of the immigration policies which it had announced. In this case, the employer terminated 18 employees for taking the day off, and participating in the protest march in their city. It wasn't a surprise to the employer, that the employees were going to do this. They had, individually, given notice several days before of their intent.
Todd Palmer:
Well, the NLRB, addressed this also through the mechanism of an advice memorandum, again, more labor law esoterica of which I'll spare you. But the Associate General Counsel, in that advice memorandum, found that the employees' participation in Day Without Immigrants, where they walked off the job for a full day, the Board found that to be Protected Concerted Activity, under the Act. The Board's Associate General Counsel found that the protest did indeed have a direct nexus to working conditions, because the General Counsel said that aggressive immigration enforcement threatened the job security of unauthorized workers, and yes, unauthorized workers are protected by the NLRA, which in turn jeopardized employment standards and working conditions, and could cause them to deteriorate for all workers. The board's theory was that unauthorized workers who fear deportation are not going to come forward and make complaints about anything that has to do with their terms and conditions of employment.
Todd Palmer:
Maggie, the next slide please, because we'll look at it as a second recent example, and that it comes out of the Fight for $15 movement. You may remember a few years ago, this was a movement which attempts to raise the minimum wage up to $15 an hour. In this case, the employee gave the employer a strike notice saying that she was not going to be at work the next day, because she was attending a rally to demand $15 an hour, as well as the right to join a union.
Todd Palmer:
In this case, the employee had a little help. She was an a non-union employee. She worked at a Papa John's Pizza, but she was a paid union organizer. So she had the union backing her up. And that's why she knew to do some of these kind of inside baseball things like give her employer a strike notice, but of course the employer disciplined her for that. And then she filed an unfair labor practice charge, the Board's General Counsel again, through an advice memorandum found that the employee's activity, even though she had acted alone, that it was Protected Concerted Activity. And here the direct nexus to employee terms and conditions was well, the obvious one, $15 minimum wage that certainly affects terms and conditions of employment, but also the Board found a direct nexus to advancing union rights for low wage workers. And that of course, is also protected. So now the next slide please.
Todd Palmer:
Let's look at a contrary example to this where... I'm sorry. Maggie, could we... The next slide, there we go. And this involves a very recent case. Again, it was an NLRB advice memo, and this one was, was just factually a little, strange. And so I don't know how universally applicable this might be, but in August of this year that the board issued this advice memo that advised that workers who advocate for political causes, not directly tied to the workplace, that that activity is not protected by the NLRA. In this case, and this is what makes this more of an outlier, the employer was a union. The employer was the United food and commercial workers. They fired one of their employees and international representative who took time off from work to testify in support of Police Reform. The employee did that in her capacity as a Maryland state delegate, which I guess is something in the Maryland legislature, I'm wholly ignorant to the state of Maryland. But, her advocacy had no connection to any employment concern of any employee.
Todd Palmer:
Instead, the employee was acting in the interest of the community at large and in furtherance of her own political agenda; seemingly noble goals, but the Board found that the employee's termination did not violate Section 7 because the Act does not protect employee political advocacy that has no nexus, no connection to a specifically identified employment concern. Maggie, if we could go to the next slide, please.
Todd Palmer:
Let's see what we can discern from some of these examples. First off, it's not hard to create a nexus to terms and conditions of employment. Again, with terms and conditions of employment being such a broad concept, all employees who are seeking to take time off to engage in a protest, all they have to do is tie it to something having to do with employment. Maybe it's wage issues, maybe it's safety issues, maybe it's equal employment opportunity, the list is endless. But if you are faced with employees who are telling you that they're going to take time off to participate in some type of social justice rally or march or protest, a critical question for you to ask them, or your supervisors, is: What are you protesting? By asking them that question, again, you'll be trying to flush out what is the direct nexus or if there is a direct nexus to any term or condition of employment. And, I would also advise, to the extent you get answers to that question; what are you protesting? Write them down, document those answers because you may need that down the road.
Todd Palmer:
Employers need to tread very carefully when deciding whether to discipline or discharge for this type of activity. In these cases, and again, I advise consulting with Labor Law Counsel, but I'll warn you in advance, it'll be a frustrating conversation with Labor Law Counsel because these cases are very fact specific. There are no bright lines, and they frequently turn on very facile distinctions. But it's worth watching what steps you take and it's worth consulting with counsel, because the risks here can be significant. The employee can file an unfair labor practice charge with the NLRB. And likewise there's the adverse publicity angle, no one wants Ed and Peggy Gallek from the Channel 8 I-Team knocking on their front door and putting a microphone in your face about why you, terminated these two dozen employees who were merely exercising their rights to protest on behalf of whatever cause. These are tough questions.
Todd Palmer:
Let's move now, Maggie, and to the next slide, please. To another form of disruption, but it might be relatively low grade disruption compared to say, someone walking off the job, and those are Dress Code issues. Private sector employers, of course, have the right to regulate what employees wear to work. Some employers require uniforms, others have policies that require professional appearance. Other employers have policies that prohibit vulgar and obscene or offensive images. Private sector employers may ban political clothing or display of political images or political messaging in the workplace. It needs to be enforced uniformly, without favoritism or bias, and you might remember in the recent two or three months a very significant Northeast Ohio employer was in the news for this issue. That's really not what is the purview of this speech, so I'm not going to head down that road, but... Next slide please, Maggie.
Todd Palmer:
When addressing Dress Code issues. And when confronted by employees who may be wearing something that has some connection to terms and conditions of employment or unionization, you need to be mindful of our old friend; Section 7, because you want to be very careful about banning clothing or items which relate to terms and conditions of employment or unionization or other protected matters. For indeed, the Supreme Court of the United States, a very long time ago, back in 1945, held that employees have the right to wear union insignia at work. And that phrase union insignia encompasses, anything having to do with terms and conditions of employment or unionization or other protected matters, but employees have that right to wear that material and display that material at work. It's a legitimate and reasonable form of union activity, that's protected by the Act and the employer's curtailment of that right clearly violates the NLRA. And next slide, please.
Todd Palmer:
There is an exception to that; the employer may restrict the wearing of union insignia where special circumstances justify the restriction. Now that special circumstances exception, is recognized in four distinct situations. And I'm not going to go through those, there they're there on the slide, but suffice to say the employer has to prove the exception by substantial evidence. It's a very heavy burden for an employer to meet, and looking at the next slide, we'll see a couple of recent examples of employer attempts to argue special circumstances. And the first involved the California burger chain, In-N-Out Burger in a case decided in just a couple of years ago, the restaurant maintained a very strict Dress Code policy that prohibited employees from wearing any type of button or pins or badges. And the employer's rationale seemingly sensible-
PART 3 OF 4 ENDS [01:15:04]
Todd Palmer:
And the employer's rationale seemingly sensible. The policy was necessary to reinforce the public image that the restaurant was seeking to create. There were two exceptions to the no buttons and badges rule. A Christmas button, which the employer issued at Christmas time for employees and then also at a different time of the year, the company had a charitable foundation, which did fundraising at a certain time of year. So in, next slide please, of course, our old trend, Fight for $15 comes back again in this case, because at one of the In-N-Out Burger locations in California, employees wore the Fight for $15 badge on their uniforms. Now they were very small badges. They were actually smaller than the size of the company's annual Christmas badge.
Todd Palmer:
The company enforcing its policy, ordered the employees to remove the badges and the employees did, but then they marched down to the local office of the National Labor Relations Board and filed unfair labor practice charges. It did not go well for the company before the board, because the board ruled that employees had the right to wear the badges, even in customer-facing situations. And the board found that the company did not prove any of the special circumstances needed to sustain its rule. And so, next slide please, let's look at another, even more recent case on dress code, which actually raises the interesting question of whether size matters. This involved Wal-mart. Wal-Mart's dress code limited, but did not prohibit union insignia. Instead, the Wal-mart policy, was content neutral, meaning people could wear badges or pins for whatever cause they wished, but provided that the badges or pins had to be small and non-distracting logos or graphics. No larger than the size of the employee name badge.
Todd Palmer:
Now all of us at some time or another are part of people of Wal-mart. A Walmart employee's name badge is about the size of a credit card. So, it's a fairly sizable object that Walmart's policy was permitting. The NLRB liked, or at least liked certain aspects of the Wal-mart policy because it found that Wal-mart's policy and its size limitation did not violate section seven, at least as it was applied to areas of the store were employees encounter customers. So, the customer floor, as well as, checkout areas and even the very front of the store with the Wal-mart greeters. Wal-mart was able to enforce its policy in those areas but, as to other areas of the store, where there was no customer contact, the board found a Wal-mart's policy unlawful.
Todd Palmer:
So finally, just in the very brief time I have left, I just want to touch on offensive speech in the workplace. Of course, first amendment free speech rights don't apply in the private sector workplace. So the private sector employer, may regulate and may punish for offensive speech. Except of course, if that speech was connected to activity protected by section seven. And here I'll tell you, I think the board has historically been very forgiving of offensive, abusive, and even racist outbursts.
Todd Palmer:
And the example I can give you, and it's a very recent case from 2016, there was a manufacturing company, had a strike. And on the picket line, striking union employees shouted the following at replacement workers who were entering the plant that day. And the many of the replacement workers were African-American. The statements were, I smell fried chicken and watermelon, don't you boys. Hey, you N words, did you bring enough fried chicken for us? That is offensive speech by any objective definition and no employer in America should have to tolerate that. But, the board for 70 years or more has said, well, that's okay. That's what happens on picket lines. Picket lines are kind of rough and tumble.
Todd Palmer:
And so in context, like picket lines or workplace discussions with management, or also more recently social media posts, the board has been very forgiving of offensive and abusive and racist and sexist outbursts. And the board has for many, many decades used a very high legal standard for that kind of behavior to be removed from the protection of title seven. Maggie, next slide please. Well, just a few months ago in July, the NLRB re calibrated its approach to these cases in a case involving General Motors.
Todd Palmer:
And in this case, the board changed the standard for determining if employees are lawfully disciplined or discharged for offensive, abusive, or racist and sexist statements in the... Even if they're made in the course of protected section seven activity. And the new standard, it changes some burdens of proof and burdens of production. Again, more labor law esoterica, but I'm sorry, next slide please. But, the bottom line is that the General Motors decision makes it easier for employers to discipline or discharge employees who use offensive and abusive or racist or sexist speech in the workplace, even if it is connected to protected section seven activity. And in that way, the board's General Motor decision finally, after many decades brings the NLRB in line with the EEOC in fighting this type of discriminatorily unlawful speech in the workplace. So, I apologize for my technical difficulties, which I think caused me to run over a little bit but I would now like to hand the baton to Ray Tarasuck. Who's going to talk about Ohio's new COVID-19 immunity law. Thank you.
Ray Tarasuck:
Thanks, Todd. So I think we're all set here. So, again Todd, thank you. I just want everybody know that we are very mindful of your time, very respectful of your time. So I'm going to run through this very, very quickly. Hopefully we'll have a couple of minutes to do some live questions and answers to any one of our panel members, but I want to start and talk about Ohio's new COVID immunity statute signed by governor DeWine, September 15th of 2020. It goes into effect in December 16th of this year. How did we get here on this immunity statute? Started back in the spring. There was a bill in the House, bill in the Senate, Civil Justice Committee in the House had House bill 606, Senate Judiciary Committee had Senate bill 308. And there were some significant differences between the two as they were making their way through committees, differences, talking about whether the permanency of the particular immunities, what could be the standard of care, what the duty was going to be.
Ray Tarasuck:
As Jason mentioned, there was even some issues, as far as workers comp is concerned. If the COVID was contracted in the workplace. This went through it through both the House and the Senate throughout most of the spring into the beginning of early summer, there was nobody, I think that worked harder to, to help get these bills through and become law, than Calfee's own Senator John Eklund, who is the chair of the Senate Judiciary Committee. And we actually did a round table discussion with two other of my colleagues, Matt Mendoza and Mike VanBuren back in June, you can see that on the Calfee website that talk about some of the issues that were going on at that time, some of the struggles and some of the concerns that they had, both in the House and in the Senate that is on a Calfee website if you're interested in seeing how, how we got here.
Ray Tarasuck:
But here we are. And we're here with the new Miranda statute. And if I'm going to try and get through some of these slides here. They affect both healthcare providers and there's a general immunity. So it's for health care providers and the services that they provide. And then there's a general immunity for essentially everybody else for businesses, schools, government entities, religious entities. And we'll talk, first of all, about the health care providers, the important parts here. It is a temporary immunity. There are exceptions to the immunity. And there are some limitations. And the qualified immunity limits adjust to services that are provided during a declared disaster. And they talk about the declared disaster being that executive order back in March that was signed by the governor declaring a state of emergency here in Ohio.
Ray Tarasuck:
And this is really for the services that are provided by healthcare providers. There was a lot of talk during committee hearings, by a number of healthcare providers and the number of people that were receiving benefits from healthcare providers about what was going on at that time when people really didn't know, and we still don't really know. But at that point in time where we can all remember, there were really a lot of unknowns going on. And some of the issues that we're talking about that are being provided this immunity are for actions or omissions that are done by decisions that are being made by those health care providers and with respect to compliance with executive orders. The other temporary immunity is from being unable to treat a person due to an executive order or a director's order.
Ray Tarasuck:
There are exceptions here. And this gets back to what we were talking about with the standard of care. The exceptions for these services, the exceptions to the immunity, or whether or not the conduct was considered to be reckless disregard, reckless conduct or intentional willful wanton conduct. And the statute describes what reckless disregard is, which is a heedless indifference to the consequences of those particular actions that you take. And again, this was very important because at one point in time there were discussions both in the Senate and the House on having a negligence, a much lower bar to have to jump across to get out of this particular kind of immunity.
Ray Tarasuck:
And it also excludes conduct outcome. We went back there. Excludes conduct outside of the skills or training. Some limitations on this. Limitations are it doesn't create a new cause of action. There are limitations on prohibiting a class action for any of these particular claims. And again, it's limited from the executive order that the governor had back in March 2020 through September 30th of 2021. So, that's taking us all the way into the better part of next year. Talk a little bit now about the general immunity. And this goes for everybody else for businesses, schools, governmental entities. And again, this is a temporary law. It is a temporary law that prohibits bringing a lawsuit for injury, death, or loss that is caused by exposure or transmission or contraction of, and it specifically sets out what those particular issues are. MERS, SARS, SARS-CoV2, which is the disease that causes called COVID-19. And again, it negates the immunity for reckless conduct or intentional willful or wanton misconduct.
Ray Tarasuck:
Prohibits class action issues. This is probably one of the most important parts here, is that the government orders or recommendations do not create a duty of care. They're not a specific duty of care. Matter of fact, the government orders and the recommendation is not only does it present a specific new duty of care, but they also are inadmissible in court proceedings to try and establish whether or not there was that duty of care, whether or not that that due care was indeed breached. Again, time period, March 9th, through September 30th. That is a very, very, very quick rendition of the immunity statute. Open to any questions on that. I'm going to throw it back to Jen to see if we have got some questions that are in the queue here for any of our panel members.
Jennifer Colvin:
Sure. Thank you. Right. Thanks everyone for presenting. For those of you that have to hop off, please be assured that your CLE is taken care of and dropping off before the Q and A will not affect your CLE in any way. So, thank you everyone for participating. I know we are right at 10:30. But there were a few questions that I was going to address. And then if any of the other panelists have a few, so there was a common question received that was, hey, someone is quarantining in precaution because they were exposed to a person that's positive for COVID-19. Can't they go get a test, and if they're negative, come back to work? That's really, really common misperception. The answer is no. The exposed individual should isolate for 14 days. And that is because the virus can manifest in someone who's exposed between two and 14 days.
Jennifer Colvin:
So while most symptoms will occur around the five or six day mark, which is probably what people have heard, they can manifest all the way up to that 14 days. So if an employee gets a negative test on day five, six, seven, they could still develop COVID-19 up to day 14. And so that's why an exposed employee should be requested to self isolate for 14 days, regardless of a negative test. The testing return to work protocol is only applicable to a person who is COVID positive. And so if someone's COVID positive that, and two negative consecutive respiratory sample tests can act as a way to return to work. But again, as of last week, that methodology was disfavored by the CDC. So it's a very narrow exception and it's for individuals who are positive for COVID-19 not for those isolating because of exposure.
Jennifer Colvin:
The other one, I thought this was a good clarification. Do employers really have to do the contact tracing? Isn't that the role of the health department? So the short answer is yes, "contact tracing" is the role of the health department and should be done as a public health matter. So what we're talking about when we say contact tracing is really different in the respect that it only relates to the employer's effort to exclude potentially COVID exposed or COVID positive workers from your workplace. You certainly are not required to delve into the personal life of your employee, and then notify personal contacts. You are only interested in keeping COVID out of your workspace.
Jennifer Colvin:
So by finding out who they were exposed to, other employees, customers, contractors, vendors, then you'll be able to have individuals who were exposed in your workplace, stay home and isolate and stay out of your physical space to protect other employees and to prevent the spread among your employees. So that's what we were talking about when we mentioned contact trace. And so I think those were the most common questions. The rest of them we did. Let's see, we have a couple more coming in. Let's see. Okay. I don't know if Jason, I saw that you answered a few. Did you have any that you wanted to address for the group?
Jason Dejelo:
Yeah. One, of the questions was, sorry. No, I don't know what happened here. Can you hear me still?
Jennifer Colvin:
Yes.
Jason Dejelo:
I don't know what's going on.
Jennifer Colvin:
Yes.
Jason Dejelo:
One of the questions was if you take the hybrid approach to vaccination and state that some employees are required to get the vaccine and some not, is that going to raise issues of discrimination? And I agree that it might raise questions of discrimination, but what I'm talking about is not requiring it for employees over a age 65, or requiring it for employees who have certain medical conditions like diabetes. That that would be unlawful based on age and disability. What I'm talking about is based on what the employees do or where those employees, the work environment, where they work, can you treat them differently based on those concerns? And those can be legitimate justifications.
Jason Dejelo:
For example, I use the example of production employees, where it's difficult. You have to work together oftentimes in teams. It's difficult to distance versus the office employees. That's the most obvious distinction. So, I'm thinking warehouse employees versus truck drivers where the drivers, you may not have to require because they're most of the time during the Workday, they're alone by themselves driving. So as long as long as there is a legitimate justification for making those distinctions, you can do so without it being unlawful discrimination. And the key is to treat "similarly situated employees", those in the same positions, same, same types of duties, same types of work environment, treat those types of employees similarly.
Jason Dejelo:
The one thing I also want to know is that if you have this neutral policy for some employees, you should still be aware of potential disparate impact claims. So if you have a neutral policy that says only employees in a certain department will require to get to get the vaccine. If those employees in that department are largely made up of a group of employees in a protected class, for example, minority employees, female employees, then you might get, it has to be, I think the number does have to be large in order for it to be statistically sufficient, but there you might raise claims of this neutral policy, although not intentionally discriminatory, has a disparate impact on people of a certain class. So you have to be aware of that as well. I think that's it.
Jennifer Colvin:
Okay. Thanks, Jason. We had a couple additional questions from my presentation. An employee's spouse was exposed to COVID and the health department asked that that person to quarantine, but the employee who was not exposed, just have the exposed spouse could come back to work, is this okay? And yeah, so the only person who is required to isolate is the person who is exposed. So you don't have to exclude from the workplace, someone who is exposed at a second level. That second level of potential exposure. So yes, if say, John is married to Sally and Sally was around someone who has COVID and has to quarantine for 14 days, then John can still come to work, but should carefully monitor for symptoms. So should Sally. And if Sally starts showing any symptoms, then knowing that she was exposed to COVID, John should not come to work that day, or as soon as Sally starts showing symptoms. You would treat her as a COVID presumed positive until she was able to get a test or other diagnosis saying that it was definitively not COVID.
Jennifer Colvin:
Okay. And, do we have to notify the health department if an employee presents a verification of a positive test? Typically not. This may vary County to County, city to city. So, some of this is variable for those of you on the line. I know there's a lot of different localities, but typically the medical provider that determines the test is positive, is the one notifying the health department. So typically not. The positive test will be reported to the health department. And that's how the health department gets notified. It's not generally the employer's responsibility. All right. And I think that's it. Thank you all so much for attending today and participating. We will be posting the recording this afternoon I'm told. And so this will be available on our website. Thanks again, and take care