Health Law Talk presented by Chehardy Sherman Williams
+ Full Transcript
Rory Bellina (00:15):
Hello everyone and welcome to Help Law Talk presented by Chehardy Sherman Williams. Before we get started, please be sure to subscribe to our podcast and follow us on Facebook, Twitter, LinkedIn, and YouTube – links in the description below. We hope you enjoy this episode.
Conrad Meyer (00:37):
Welcome back to another episode of Health Law Talk with Chehardy Sherman Williams. Here you have Conrad Meyer and the infamous Roy Bellina.
Rory Bellina (00:45):
Conrad Meyer (00:47):
Or good afternoon, right? Yeah.
Rory Bellina (00:48):
Depending on when you’re listening and this, Right? Good morning or good afternoon.
Conrad Meyer (00:50):
And today, I think one of the things that we thought we talk about was something that’s flashing across the news particularly on this date. And, and today is June, I think the 11th Yes. Of 2021. So even though this might get released, it may be a little bit later date, but right now things that are going on I is vaccinations. Absolutely. And what happens at the workplace with private versus public employers, mandating vaccinations, voluntary vaccinations, How does all that work out? Yeah,
Rory Bellina (01:24):
This is a, every day, this seems to be a developing topic and I, I feel like every day I get a question from someone, whether it’s in the private setting or a public hospital, an employer or an employee. in the news this week, there’s been discussions of a big lawsuit filed in Texas for a big hospital system where employees didn’t meet a deadline to get vaccinated. So I’m getting calls, I’m sure you’re getting calls as well, about can I mandate, what if they don’t follow the mandate? What am I allowed to do or not do? And it’s, it’s changing every day. And we have new guidance from the E E O C out for mandatory and, and voluntary vaccine program. So I think that’s a really timely topic that we discussed today.
Conrad Meyer (02:04):
Yeah, I think so. I mean, and the case you’re referring to is in Houston’s the Methodist Hospital case. Yes. You know, so that over 180 employees have filed a lawsuit in federal court because the hospital from one of, I’m paraphrasing, basically said, We have a mandatory vaccine vaccination program here. If you wanna stay employed, you must be vaccinated. Correct. And if you don’t show proof of vaccination, you’re fired, basically.
Rory Bellina (02:28):
Yes. That, that’s, And, and, and apparently they had a deadline. The deadline came and went. A group of these employees did not get the vaccine, and now they have this lawsuit. I know some of the employees, from what I’ve read, were claiming religious exemptions. Some were claiming medical exemptions. Right. And so that’s another layer that gets, that gets played into this. But it’s gonna be interesting to see how the courts handle this, because these vaccines, all three of the big ones in the United States at least, are all emergency use right now. So they are FDA approved for emergency use, but they are not FDA approved vaccines. I think that’s a big distinguishing factor that we should discuss
Conrad Meyer (03:04):
A little bit. That that is the distinguishing factor. And that’s what the E E O C was focusing on, was what is, what effect does EUA have? And that was the question. I mean, the question was, Hey, you’re, we have an employer in a private sector who is mandating vaccination of, of their employees. Right? Right. And, and right now, all three of the vaccinations that have EUA approval, you know, Moderna, Pfizer, Johnson and Johnson are just that eua. Correct.
Rory Bellina (03:34):
You know, so, and we expect them to get final full FDA approval as they go through more testing. And I believe the Pfizer one is the one that is doing a lower age test right now. They’re testing it. And I believe going down to five year olds, that one will likely be the first one to get full FDA approval. So when that happens, then we’re gonna have this discussion again, Is this a vaccine that will be mandated? Can it be mandated by employers, schools, you know, private sector, public sector? That discussion’s gonna continue to come
Conrad Meyer (04:04):
Up. So what’s the, I mean, I guess the, the first question, what’s the current lay of the land? I mean, does, there’s so many, like, just breaking this down from a legal standpoint, so many legal issues involve with this, right? You’ve got ADA issues, you’ve got GINA issues, and, and we’ll go over that a little bit. Sure. you have you know, public versus private federal versus state. Mm-hmm. , I mean, we’re talking multi-jurisdictional lines, you know, from, and also public and private lines. Right. So, I mean, we’re dealing with a lot of different variations on a theme
Rory Bellina (04:40):
Here. And then we have the medical exemptions, which there is no standard for what a medical exemption would be to not get this vaccine because it’s so new. And we have religious exemptions, which is as a whole, that could take another episode on, on just religious exemptions.
Conrad Meyer (04:54):
And, and think about this too. So not just the, the, the issues I raised just a minute ago, but think about all of the legal issues involved with, if you decide to do this, you go through the process. So what is, what information are you collecting from your employees prior to vaccination? Where does that fall? And are you crossing a line via ADA violation? if you’re asking your employees too, too many invasive questions. Right. You know, cuz you can’t ask when, when you’re hiring someone. Right. You can’t ask them certain questions. Correct. Right. But now in the vaccination, when you’re doing a voluntary vaccination then, and you’re asking this pre questionnaire, you could run a foul of some, some, some violations of ADA if you ask the wrong questions. Absolutely.
Rory Bellina (05:39):
And I know that the question that I’ve been getting recently is the basic one, can we mandate the vaccine for a patient or our employees to come to work, a patient to come into our building, or mainly employees to come into work. I know that you’ve been hearing that as well. What are some common concerns that you’re hearing from your clients?
Conrad Meyer (05:59):
Well, I think, I think, I think the issue is, is, is the question well, the one I got recently, which was very interesting, was we’re not gonna mandate vaccinations of employees, but we want any non-vaccinated employee to sign a waiver of liability for the others in case they do catch covid. Correct. So they don’t come back and say, Oh, wow, I caught covid at, I caught covid at the, at where I work. Right. And I, and they did it for multiple reasons. One, for not only just exposure, but workers’ comp. Right.
Rory Bellina (06:31):
Right. Absolutely similar question than I’ve had is we’re not gonna mandate vaccinations, but if you don’t get one, we are going to shift you and your roles and duties to a role that is less public facing, per se. So you’re not around people, you’re not around our clients. And, and that comes into, well, that’s not the position that they signed up for. That’s not their typical job. But since they’re not getting a vaccine, they’re being forced to do something that they might not want to do. They might want to be in front of the public, or they might wanna be working in front of the shop with the customers per se, but if they’re not vaccinated, their employer is making them be in the mail room or in the stockroom away from them. So those are issues as well.
Conrad Meyer (07:13):
But it opens up a whole problem. Right. In, in my mind, it opens up a problem because let’s just say, for example, the employee’s pregnant. Right?
Rory Bellina (07:22):
Conrad Meyer (07:23):
Rory Bellina (07:24):
Mean, then you now, so you have another issue,
Conrad Meyer (07:26):
You have another issue there. Right. Right. And what if, let’s just, you know, I’m laying hypothetical here. What if the employee also has some disability that you have, you know, made a reasonable accommodation for under ada? Absolutely. And suddenly you’re saying, like to your example, Oh, you know, John Doe, you could no longer do X, which we’ve done a reasonable combination, we’re gonna put you somewhere else that maybe might not work out as well for you.
Rory Bellina (07:51):
Absolutely. And it’s, it has financial implications as well. If you’re in sales or marketing or if you’re, you know, in medical device sales, I’ve, I’ve read of one company where if their, their representatives are not vaccinated, they’re asking them not to go into surgeries, they’re asking them not to go meet with their doctors. So that’s directly affecting their compensation. And it, it becomes a huge issue.
Conrad Meyer (08:16):
So let’s, let’s touch base on the new E E O C guidance. Ken out. Dee. Yes. And one of the things they talked about was the mandatory vaccination. Yes. So in other words, if, if a private employer decides we’re gonna have a mandatory vaccine program using one of the current eua and for of the e emergency use authorization. Right.
Rory Bellina (08:39):
The three big shots in the United States.
Conrad Meyer (08:40):
Correct. So, so, so, you know, they’re not FDA approved. That’s what people need to understand. Yes. EUA does not mean fda FDA approved approval. Correct.
Rory Bellina (08:48):
Now, will they likely get approved? Yes. Yes. But technically they’re not FDA approved
Conrad Meyer (08:53):
As of right now.
Rory Bellina (08:53):
And all of the guidance as far as mandatory vaccines is for FDA-approved. If you, if you take the example of your children that are in school, most schools require FDA-approved vaccinations, measles moms, rubella meningitis.
Conrad Meyer (09:09):
Right. You can’t go to school that does.
Rory Bellina (09:11):
Exactly. And so
Conrad Meyer (09:12):
How many times have you had to, I mean, now they, I remember back when I was a, I was a kid, I used to, we used to have the card that the doctor signed off on hard. Remember that now they have these electronic, you know, repositories where you have this amid everything, everything’s done in the cloud.
Rory Bellina (09:26):
Yeah. But, but that’s where this is heading. So will the C vaccine likely get to where it’s one of those that’s required to go to a university, go to a summer camp, go to school? Yes.
Conrad Meyer (09:40):
How about the colleges? I mean, you see colleges now telling across the country, Right. If you’re a student and you’re gonna come to class in the fall, you’re gonna have to get a, you know, show proof of vaccination. Absolutely. Or not, you don’t show up.
Rory Bellina (09:54):
And then this goes farther, and we can go off on this tangent, but that goes farther. If you’re not vaccinated and it’s a public university, what happens? Or if you say, I have a religious exemption or a medical exemption, are they gonna mandate you to sit in the back of the class and wear a mask? I mean, you have numerous things that, that can come of this and, and, and, and no one really knows where this is going. And now it’s being tested in some of the courts.
Conrad Meyer (10:18):
Well, we have the four, we have four cases. One was the Methodist Hospital. Yes. But they, you know, we can go into more about the other cases. So I think it’s gonna play out under EUA with these three drugs and see where it goes. Right. one interesting thing, the E E O C started when they, when they came out with the new guidance at Thea just a few weeks ago. if an employer decides to have a mandatory program and a mandatory vaccination program, there’s still an out. I mean, and the employer has to be very, very careful because if, if an employee has a disability, for example Yes. That, that absolutely presents a problem with a vaccination. They can’t do it. They can’t force that employee to get the vaccination. Right. With one exception if they consider the employee a direct threat. Very interesting. That’s,
Rory Bellina (11:04):
And, and we don’t know what that means.
Conrad Meyer (11:05):
Well, well, we, they give us some guidance of what, what does a direct threat mean? And, and, and according to the E O C’s race, recent guidance, that’s someone who’s in the type of work environment that the employee works alone or with others, and it, you know, are they by themselves? Correct. Are they with other people? How close contact are they
Rory Bellina (11:25):
Similar to the, the mail room versus the front of the
Conrad Meyer (11:28):
Store? Exactly. Is there ventilation? Yes. you know, the frequency of duration in duration of the interaction of this particular employee with other, other employees the number of vaccinated fully or partial of around this individual, You know, so, so there is, there is a, an analysis that’s been posed as to whether or not the, the, the individual with an, with a disability Right. Is considered a direct threat. And, and they, they, they wrap it around the wording of is that individual a significant risk of substantial harm to others. Right. So, and if you believe that’s the case, they say, you know, . But I mean, do you want to be the employer to test that water? I mean, do you want to be, I mean, on the
Rory Bellina (12:10):
News, talking being sued or, or, or possibly worse. Absolutely.
Conrad Meyer (12:14):
Right. And, and, and if, and if they do, interesting enough, if, if the direct threat assessment right, demonstrates that the employee with a disability is not vaccinated will pose a threat, they must consider, is there some other reasonable combination that would reduce or eliminate the threat? So that, I mean, literally it goes, it keeps on going and going and going.
Rory Bellina (12:36):
And is that reasonable combination to force that employee to wear a mask or to stay isolated? Those are things that we don’t know. I mean, this is guidance, but it, there’s no bright line on what to do. When I have someone call me. The big question is, can I mandate it? And I always preface it with tell me why you’re thinking about making it mandatory. And tell me a little bit about your, your practice or your business and, and what’s going on. Because I like to talk through, I think it’s important to it. I don’t think that there should be a hard and fast yes or no for different businesses or providers on if they should mandate it or not. I think it’s a, it’s an individual conversation that needs to be had. If you’re a business that doesn’t have a lot of customers coming in and out and your employees are separated, that’s one discussion. But if you’re in a big hospital setting that, that’s another one. What are you typically telling people when they, if they just call you and say, Can I mandate it? Should I mandate it? How do I mandate it? Pros and cons
Conrad Meyer (13:33):
For those? I I would, I would tell them that if you, I would, I would err if I’m giving advice on the exposure side, Absolutely. Air the conver on the caution of going to a voluntary program. Yes. and, and the way I would say it is, it’s, it’s invol, it’s voluntary. You can encourage correct employees to do it. And even the E E O C says you can incentivize
Rory Bellina (13:57):
By allowing them to not wear a mask
Conrad Meyer (14:00):
Or, or do other incentives as long as those incentives are not coercive. And so which is a vague term to define, but it still, And then, and then I, I, I noticed that the E E O C also said, Well, if you decided to a voluntary program, then, you know, you could tell the other unvaccinated employees. You have to, like you said, wear a mask. Right. Socially distant and do other preventative get tested. Right. Things like that don’t come in if you have symptoms. So I would, I would err with the on the side of, of doing a voluntary vaccination policy within my, within my
Rory Bellina (14:41):
House. That’s been my advice as well, because I, I knew that there are some systems that are testing out compensation. You know, if you get a vaccine, we’ll give you an extra $200 or $300 I would consider Is that coercive?
Conrad Meyer (14:53):
But is that
Rory Bellina (14:54):
Coercive? Right. I would consider coercive.
Conrad Meyer (14:55):
Yeah. Yes. Especially someone who’s a frontline worker. Yes. Who might be on, you know, a little above minimum wage, a little above that, That to me is, is, is punitive.
Rory Bellina (15:04):
Yeah. And if you don’t get it, you’re, you’re being essentially financially punished.
Conrad Meyer (15:09):
Rory Bellina (15:10):
Another question is that you brought up interesting. Is a waiver, a COVID waiver? Yeah. So a a company says that, or I want all of my employees vaccinated or not vaccinated. Right. I want all of them to say that, you know, we’re taking precautions, we’re following CDC guidance. Right. But I still want them to sign a waiver. What are you, what are your thoughts
Conrad Meyer (15:29):
On that? The waiver? I mean, first off, the waiver is just a piece of paper. Right.
Rory Bellina (15:33):
Conrad Meyer (15:34):
Rory Bellina (15:34):
Agree. That’s what I start with
Conrad Meyer (15:36):
As well. It’s a piece of paper. Whether or not it will hold up in court is a whole different story. You know? so we can get people to sign waivers all they want. If we challenge it and we lose, it’s, oh, well, it’s no good. Right.
Rory Bellina (15:48):
Absolutely. That’s, I, that’s the exact vice that I give, is that a waiver is sometimes only as good as the paper that it’s written on. It might chill a litigation effect, and it might give people some pause and think, you know, here are the concerns and here are is how they’re trying to, you know, protect me or protect their company. But sometimes the waiver only gets you that far. And if ultimately, you know, they want to pursue litigation, they’re going to, and the waiver might not hold up. So I love to, you know, preface when, when they ask for a waiver that I’d be glad to do one, it, it may help, but it’s not a golden ticket for you to be completely free or indemnified from liability.
Conrad Meyer (16:25):
I agree with that. And, and, and interestingly enough, I wanted to share with you , what happens when the E E O C sort of steps its toe, you know, in the ring on this particular issue. Because back in December late December of last year, in 2020, E E O C SIMP came out and implied through, through rule making through their discussions that they implied that they were supportive of mandating, you know, EUA vaccines that were currently there. Yes. And, and suddenly there was a backlash and, and, and, or a lot of questions that were raised, Well, what did the EOC mean? What do the E E O C nobody understands. Right. And all the employers were, were were scrambling to figure out all the employment lawyers and in-house counsel, and even employer, just, you know, your mom and pops, you know, small, medium, large employers were saying, What do we do? Yes. What’s, what’s the, what’s the thing?
Rory Bellina (17:19):
And, and I think the question is now coming up because I think more and more employers are starting to consider mandatory vaccines, or at least highly encourage them. I, I’ve, I’ve gotten the question from them. Well, what if my employee gets the vaccine and gets covid and gets sick or dies or, or something else happens to them are, do they have a cause of action against me because I force them to get a vaccine that’s technically not FDA approved? Right. Do I have liability? Are they gonna name me in a lawsuit against Pfizer or moderno?
Conrad Meyer (17:49):
I, I, that’s a good question. That’s a good question. How about the individual who has already maybe been infected with Covid? Right, Right. And has recovered who has antibodies. Yes. And then yet the employer now is coming and saying, Well, I want you to get a vaccine too. Well, , Right. Wait, what, what do you do then? Right. Right. I mean, candidly, So, so interestingly, the E E O C backtrack mm-hmm. , and on its guidance in May, there’s sort of the clarity that we’re supposed to get. Right. E E O C says, Well, it is beyond the E E O C’S jurisdiction to discuss the legal implications of e a or the FDA approach. So basically they just punted.
Rory Bellina (18:32):
Yeah. There’s no, there’s no answer on there’s, can it be done or not?
Conrad Meyer (18:36):
There’s zero answer. And, and I think, you know, that that leaves really employers in a gray area. It does. As to, you know, what do we do? So I, I think I like your approach. I think we’re doing the right approach. My personal opinion is voluntary approach. Yes,
Rory Bellina (18:50):
I agree with that. You know, and you don’t want to have a mandatory approach. And it, it, it, it causes a bad publicity issue for you as well. I mean, the goal is patient safety and employee safety, but, but this vaccine and, and the rollout in the administration has been very political. It’s been very controversial. And if you decide to mandate it, you have to be prepared as a business or as a practice to face some of that backlash to be in the news, to be talked about that, you know, XYZ practices mandating us to get this and
Conrad Meyer (19:21):
Right. We’re not gonna get into all of, you know, my body, my choice. Sure. You know, the anti-vaxxers, pro AERs, I mean, that’s not, you know, that we could go on for, for many episodes Absolutely. Either one of those positions. Right. but from a legal standpoint, we’re focusing on the issue of employers and whether or not those employers should mandate private. Now, I mean, public, you know, the, the, the government, the state government, for example. Right. Or, you know, for the state, the state agencies and the feds can do what they want. Absolutely. But from a private employer’s standpoint, what does the, you know, small, medium, large private business do mandate voluntary? What do we do? That’s the focus here. And right now, I think the answer is we don’t
Rory Bellina (20:02):
Know. We don’t know. And I think it has to be an individual discussion. I, I, I don’t give two people the same answer. I, I always start with, tell me about your business, or tell me about your practice, and what are you facing? Why do you think you wanna mandate it? Right. And have that discussion. And it, and, and that kind of leads the conversation. And we talk through the pros and cons
Conrad Meyer (20:23):
Of it. I think, I think to your point earlier about someone who is on the fence about getting the vaccination, who decides not to, and you don’t mandate you do a voluntary program like we’re discussing here. Right. But then they contract covid. And one of the comments was, Well, do we, and have now have, have I subject myself to exposure because I did a voluntary vaccination. Right. And now one of my employees has covid, Are they gonna sue me? Right. And, and I think I, from a professional liability standpoint, I will tell you that I think it would be almost impossible for the employee to prove, Hey, I caught covid at my workplace. Right. Right. Nobody could prove that. Right. So I, I, I still think the employer would be safe to say, Hey, look, unless you can definitively prove, which I, I don’t think anyone could do that, frankly, then, then I think you’re gonna be okay. So I
Rory Bellina (21:15):
Agree with that.
Conrad Meyer (21:15):
Maybe we just sit and wait Yep. To find out what’s gonna happen when these become fully FDA
Rory Bellina (21:20):
Approved and this guidance is, is helpful. But the answer is still, we’re not sure. I think the best advice for anyone listening is you have to evaluate it on a case by case basis. Discuss the pros and cons, and, you know, this might be a moot conversation when this is FDA approved, and it becomes one of the mandatory vaccines to, to, to do most things that require vaccinations.
Conrad Meyer (21:43):
I mean, and if they, and again, if they, if they choose, if they choose to do that, you know, again, the waiver issue, social distance. Yes. What do we do with our employees who are vaccinated, all these, and does that, how do you document that? Right.
Rory Bellina (21:55):
Right. Now, there’s not a universal or a national database for this. So everyone receives a card. And I know in our state, Louisiana, the Department of Health is keeping a log of that, and they’ve now tied it into our driver’s licenses. So, you know, that is one way to track it. But are you as an employer, gonna now have to, every time you hire someone, ask them for proof of vaccination. Right. You know, it, it, it adds one more thing that, that you have to check off the box.
Conrad Meyer (22:22):
Well, I guess this’ll be a wait and see, right? I
Rory Bellina (22:24):
Think so. I think until this, these vaccines are FDA approved, which we all expect them to be. Right now, the best advice is case by case basis. Let’s wait and see and go
Conrad Meyer (22:35):
From there. Excellent. Good topic.
Rory Bellina (22:37):
Yes. Thank you for listening to Health Law Talk presented by Chehardy Sherman Williams. For more information or to contact us, please visit our website linked in the description below. Also, please be sure to subscribe to our podcast and follow us on Facebook, Twitter, LinkedIn, in YouTube – links in the description below. Thank you for listening.
Can you mandate the Covid-19 vaccine for patients or employees prior to FDA Approval? Health Law Attorneys Conrad Meyer and Rory Bellina discuss current EEOC guidance and recommendations and what that looks like under Emergency Use Authorization and FDA Approval of the vaccine. They also consider the voluntary approach vs. the mandatory approach and the questions that arise from both.
Health Law Talk, presented by Chehardy Sherman Williams, one of the largest full service law firms in the Greater New Orleans area, is a regular podcast focusing on the expansive area of healthcare law. Attorneys Rory Bellina, Conrad Meyer and George Mueller will address various legal issues and current events surrounding healthcare topics. The attorneys are here to answer your legal questions, create a discussion on various healthcare topics, as well as bring in subject matter experts and guests to join the conversation.