Today, Leonard Segal joins the show to talk about Covid-19 vaccine mandates. How will this affect the home inspection industry? Is vaccination required among inspectors? Can clients deny services from non-vaccinated providers?
Reuben highlights that vaccination against Covid-19 is a common subject among small business owners and employees. Leonard shares that the Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing and reviewing the mandate to require vaccination of employees.
Leonard shares that it’s important to get legal advice about the vaccination mandate for specific situations; what is applicable today may not be accurate in the future. Reuben asks about possible exemptions for religious beliefs or medical conditions and possible HIPAA violations. Bill asks advice about how companies can manage the rolling-out of this mandate without harassing employees to get it.
Leonard explains how to probe and manage the vaccination status and interest of employees as well as drawing the line between being casual and harassment. He also discusses the legislative jurisdiction of mandates and the possible non-acceptance of sizable states.
Leonard Segal champions employment and labor laws. Reach him at (952) 358-7408 or lsegal@schindelsegal.com.
TRANSCRIPTION
The following is a transcription from an audio recording. Although the transcription is largely accurate, in some cases it may be slightly incomplete or contain minor inaccuracies due to inaudible passages or transcription errors.
Reuben Saltzman: Hey, you’re gonna come inspect our house, are your home inspectors vaccinated?
Bill Oelrich: Welcome, everyone, you’re listening to Structure Talk, a Structure Tech presentation. My name is Bill Oelrich alongside Tessa Murry and Reuben Saltzman. As always your three-legged stool, coming to you from the Northland, talking all things houses, home inspections and anything else that’s rattling around in our head. On today’s episode, we’re gonna be discussing the new vaccine mandate coming for private sector employees. So Reuben, why is this even something three people who inspect houses have an interest in?
RS: I know, this seems to have nothing to do with home inspections, but if you’re a home inspection business owner, it’s a really good question because we’re starting to get questions about this like, “Hey, you’re gonna come inspect our house, are your home inspectors vaccinated?” And then I’m on Lenny’s email list and I get updates from him now and then, and it’s intriguing. And I saw the one saying that there’s this new mandate for small businesses, and all of a sudden I’m just going, “Whoa, I need to know about this,” and lots of home inspector company owners throughout the country, are discussing this like, “What do we need to do?” And if we’re thinking about it, all small business owners gotta be thinking about this. And I’m hearing a lot of chatter from other people who are just employees of other companies talking about this. It’s a big deal for everybody. This is a universal topic and I figured if we could get somebody awesome on here who knows this inside and out, let’s do it.
BO: Should we introduce who our special guest is because nobody knows who we’re talking about.
RS: Let’s do it.
BO: Yeah. [chuckle] Well Tessa, Reuben and I know nothing about law. So today we have Lenny Leonard Segal on the podcast with us, who is an Employment Labor attorney at Schindel Segal PLLC in downtown Minneapolis. Just so everybody knows Lenny’s background here. He’s been practicing law for more than 25 years, he’s a certified specialist in Labor and Employment Law like I mentioned, and he’s got that certification through the Minnesota Bar Association. Little more background, Lenny did his undergrad work here at the U of M and went out West and got his law degree from UCLA. And then for some odd reason, he decided to come back to Mini and suffer with all of the rest of us. Welcome to the podcast Lenny. We really appreciate you making some time for us to dig into labor law as it relates to private sector employers.
Lenny Leonard Segal: Well, thank you Bill and Ruben, and Tessa for having me. I’m excited to be here. One clarification though Bill, we’re not downtown, we are just outside of downtown. We’re kind of the West End area of St. Louis Park.
BO: Oh, awesome. Well, if you wanna fill in any gaps in your background there, how did you get into Labor and Employment Law?
LS: Yeah, it’s kind of a funny story. I went to law school UCLA, graduated in 1993, and then worked for a law firm in downtown LA where I started working while I was still a law student. I didn’t know anything about labor employment law. I never had taken a Labor and Employment Law class. I was expecting to be a business commercial litigator, and that’s what the firm was gonna hire me for. A week or two before I started the job, I was actually back here visiting family after taking the bar exam and things like that. My new employer called me up and said basically, “Well, we really don’t have room for another litigator.” And so I thought I was getting fired before actually starting my job. But the person on the phone said, “But we do need a labor and employment attorney and we think you’d be really good at it, you’d really like it.”
LS: Well, like most people who are brand new at a job of course you say, “Yes, I’ll do it.” And it’s certainly been a blessing in disguise. It was a huge learning curve back then, like I said, “I’d never taken a course and didn’t know anything about it, so it was a steep learning curve, but it really was a blessing in disguise.” I really enjoy what I do, I like working with the businesses, I like trying to help them do things right, and then if they make mistakes, obviously I help them then as well. And it’s constantly… It’s fascinating, it’s constantly changing, COVID and these vaccines and all that, it’s just… One example, something I never thought I’d be dealing with in here that we’ve been on for the last what, 18, 19 months.
BO: At that point, what… Can you give us a time frame?
LS: Yeah, so when I graduated law school, so it was the fall of ’93 when I started. In the firm in LA, I was doing more of the litigation side not the advice and counseling, which made sense because I would not have known what I was doing if I was giving advice and counsel at that point, but then gradually I learned more and more. When I moved back here in 1996, I joined a firm in Downtown Minneapolis and then I got much more involved in the counseling side as well. And so I’ve been with big firms, I had a solo practice for a while and I’ve been now at this firm since 2013, and my plan is to be here till I retire.
BO: Awesome.
LS: It’s been a good fit for me.
BO: Okay, give me just a little brief history of employment law. When did it become a thing? And it feels like in the early ’90s or mid-90s, maybe that was pretty early on.
LS: It was, I would say lawyers before then practiced employment law, but wasn’t its own practice area. Now when talking about labor law, so unions and that sort of thing, that was its own area, but most of the employment law as we think of it today, the lawyers did that, but it wasn’t its own practice area. It’s really, with the passing of the Family Medical Leave Act and the Americans with Disabilities Act, as we’re talking in the 1990 time frame, that employment law really started to become its own practice area, maybe a little bit before that. And so I came in, not at the ground floor, but pretty close to the ground floor where people started looking at employment law as its own practice area.
BO: Thank you, that helps. So Reuben, you own a company obviously and we’re talking today about vaccine mandates. What’s going on upstairs for you?
RS: One of my biggest questions is… I know you have no way of knowing this for certain Lenny, but do you see this as something that’s gonna be coming down the pipe for smaller and smaller companies? Because originally we just heard this is some type of government thing and then I saw an email from you, I can’t quote it, but it said something about, “If you have 100 employees or more, it’s gonna be a mandate,: . And is this the direction we’re going?” I look at building code requirements and they just get stricter and stricter. You need GFCIs here, then you need them all over the place. Is that what’s gonna be coming with vaccines?
LS: It could, I think we’ll see how this mandate works. If it actually happens I think there’s gonna be a lot of legal challenges, so I think it’s still at the whether it actually gets implemented. But even if it does I think we’ll see how it works. And if we’re still in the situation with COVID that we are now, I would not be surprised just to even try to lower the number to 50 employees or some other number to get more people vaccinated.
RS: Okay and what is currently required with the current mandate? What’s going on with that?
LS: Well the current mandate is not in effect yet. President Biden announced it on, I believe it was September 9th and it was gonna be a rule promulgated by OSHA, Occupational Safety and Health Administration. They would pass basically an emergency rule called “Emergency Temporary standards”, ETS, but just an emergency rule that would apply to private sector employers with 100 or more employees. OSHA submitted its proposed rule to the White House Office of Management and Budget for its review. That review will probably go pretty quickly in the next several days I would think or soon in the next week or two.
LS: And I would think in the next two, three, four weeks, we’re gonna see a rule get published. Until that point, we don’t know exactly what’s in it. We know it’s gonna cover employers with 100 more employees, we know it’s gonna require that those employees be vaccinated or be subject to weekly testing, but there’s a lot of things we don’t yet know, and I think as employment lawyers, we’re all anxiously awaiting to see.
RS: What about… I don’t know if you can comment on this or not, but what about for employers who have already mandated a vaccine? For instance, my wife works at a hospital, and it’s a big to-do, there’s people who feel strongly on both sides of this vaccine, and there’s people saying, “Well, maybe I can get a doctor’s note. Doctor can say because of religious reasons or something, I don’t need to get a vaccine.” How does that all work?
LS: One thing that interests me is how they deal with those exemptions in this new OSHA rule that’s coming out, and we’ll see what they say. But generally speaking, Reuben, with regard to vaccine mandates, employers here in Minnesota can issue that. Some states they can’t. Texas governor just earlier this week or last week, issued an executive order saying employers cannot do that, but in Minnesota and most states, they can. So even small, tiny employers, if you wanna have a vaccine mandate, you can do that. But generally speaking, you need to have two possible exemptions, one are for people that have religious beliefs, sincerely held religious believes, or two for somebody with a medical condition or disability, that prevents them from getting the vaccine, we can talk more about how those exemptions work.
LS: But that would be the general rule. You have to get vaccinated unless you’re subject to one of these exemptions, and I think employers who want to go that route, just need to think about what’s gonna happen, and what happens if an employee won’t get vaccinated and it’s not for one of those reasons it’s exempted. And when I told employers, told clients, I said think about what if it’s your best employee who refuses to get vaccinated, and that person says, “It’s not a religious belief, it’s not a medical issue, I just don’t trust the vaccine.” What are you as an employer gonna do? And that’s your best employee, are you really gonna risk losing that employee or not? So think about it. Don’t just jump into something.
RS: And, does this violate any type of, I don’t know, HIPAA laws? I’m using words, I don’t understand now. Any type of rules about disclosing medical information, if I’m gonna require my employees to show me their vaccination status?
LS: No, the federal EEOC, which is the Equal Employment Opportunity Commission, which administers, a lot of the federal anti-discriminations laws, they’ve came out and said “No, you can ask somebody if they’re vaccinated and you can require a proof of vaccination through the little weight vaccination card that you get when you get vaccinated, that’s okay. That said, if you do make copies of those cards, that is confidential, so keep it in a confidential medical file, not in someone’s personnel file, you’re not supposed to be sharing it with other people. If you ask an employee said, “Are you vaccinated?” and the employee says no, you shouldn’t go the next step, which we don’t wanna do and say, “Why aren’t you vaccinated?” And you can’t do that because that might lead to disability information, maybe they say, “I’m not vaccinated because I have a certain medical condition,” that’s the piece you don’t wanna know, so it’s okay to go so far as to just say, “Are you vaccinated?” It’s okay to get the vaccination card, but that’s about as far as you wanna take it with your employees.
RS: Okay, alright. To go down that path even more, let’s say I don’t want to implement a vaccine mandate at my company, but I do have clients who are saying, “I want to only work with a vaccinated home inspector,” can I legally just go out to my team and ask them, “Are you vaccinated? Yes or no?” Is that a legal question for me to ask?
LS: I think that’s okay to do, but again, with the people that say no, don’t ask why.
RS: Yeah, no follow-up questions. Just check the box.
LS: No follow-up question. And, I would tell them why. We have some home owners, some customers, some clients, however you refer to them, that require people to be vaccinated that are gonna enter their homes. And so we need to know for that purpose to make sure we’re assigning the right people to the right homes. So yes, I think you’re okay asking that question.
RS: And so, if they say yes, can I do a follow-up and say, “Please, send me proof of vaccination”?
LS: Yeah, you can get that card.
RS: Okay.
LS: You don’t have to. You can just do an honor system if you want to, but you certainly can get the proof, but if you do, and if you’re gonna make a copy of it versus I’m just showing it to you, keep it in a separate medical file.
RS: Okay, alright. And then, a follow-up question to the part about the religious exemption, it seems as though anybody who feels strongly about not getting a vaccine… If they wanna get their easy get out of jail free card, they just check the box that says, “It’s against my religious beliefs.” Isn’t that right?
LS: Yeah, there’s been a lot of discussion about some people who are using that as… Like you say it’s kinda the easiest way to get out of it, you just say, “It’s a religious belief and therefore I’m not gonna get the vaccine.” Generally speaking, when you’re talking about somebody’s religious believes usually employers don’t ask questions because they assume that people are being honest about their religious beliefs and don’t go further.
LS: If, however you have a objective basis or factual basis to think somebody’s not telling you the truth, or that it’s really just a personal belief versus some sort of sincerely religious belief, then you can ask some follow-up questions and dig a little bit deeper and engage in this interactive process with somebody. But it can get a little bit dicey, and so one thing I would encourage folks to do is get legal advice on a specific situation. Actually, I mention this whole conversation, nobody out there should accept as legal advice for any specific situation. In particular because with this COVID and everything that is happening, things are changing very rapidly. And so what we talked about today may not be accurate a month from now, and so make sure to get legal advice for a specific situation. Also, depending on what state you’re in, it could vary. Texas is handling things much different than Minnesota, for example. So, be careful on those issues.
BO: But Lenny, that’s where I wanted to go. This feels like a very sticky situation for a small company. And, I imagine companies to just wanna get out ahead of it and be like, “I don’t wanna have to defend the opposite side of not having a vaccinated crew, I wanna move forward with confidence,” but yet… What advice are you giving to small companies that are small, but they’re big enough to have a wide variety of beliefs. They have enough employees, so they have a wide breadth of beliefs, what advice are you giving to them as they try to roll this out, to stay in compliance with the law without creating a harassing environment for people who don’t choose to get it? It just feels like this whole thing is fraught with potential damage.
LS: Yeah, it’s very challenging. And one thing that’s been unique with all this Bill, is we’re all learning at the same time. Like the government agencies, the lawyers, the human resources people, businesses. Normally like this OSHA rule that’s gonna be coming out, normally there’s a long process and OSHA does the rule, there’s a public comment period that people can talk about it, it gets tweaked and changed and it goes on for a while, and then finally if it’s implemented, a new law gets passed, and usually there’s some regulations explaining that law. Right now, everything’s happening at the same time, and everybody’s learning it at the same time. So it is a challenge, and especially for smaller businesses. Your 400-500 companies, they have lawyers and HR people and what have you on staff or certainly on speed dial. It’s a lot harder for your smaller and mid-sized businesses. But I think a couple of things. Number one, think about if you want to do a vaccine mandate, and if you do, make sure you’ve got the exemptions and have a process for somebody to claim a religious exemption or an exemption due to a disability or medical condition, so that people know what to do, and then you’ll know what to do with that thing as well.
LS: If you don’t wanna have the mandate, and there’s various reasons some companies don’t, some just don’t feel it’s appropriate for businesses to do that, some are concerned we’re gonna lose too many employees if we do that because we’re in an industry, employment is tight as it is, we can’t afford to lose anybody. Some are concerned not only will we lose people but they’ll go to our competitor then who does not have a vaccine mandate. So there’s various reasons not to do it. If this employer’s not gonna do it, I think you really have to think about almost two sets of rules. What are the rules gonna be for vaccinated people and what are the rules gonna be for unvaccinated. As an employer, if you wanna encourage vaccination, you certainly can.
LS: So maybe you have some promotions. Hey, if people get vaccinated we’ll give you an extra PTO day or a Target gift card or something like that. But even short of that, what a lot of businesses have done is, they’ll say, “Okay, if you’re vaccinated, you can come to the workplace, you can take off the mask, you can meet in conference rooms and do all these things that we used to do before March of 2020. If you’re unvaccinated, you can’t. You have to wear the mask at all times in the office, you can’t be within six feet of other people,” and so you make it a little harder to be unvaccinated. And in that way you’re accomplishing two things, one, you might encourage some of those folks to get vaccinated, but those who really don’t want to, they’re still doing their jobs, they just have to comply with these different types of rules.
BO: I find law endlessly fascinating, because what you’re telling me is that sometimes it’s as much about the process as it is about the actual written word or it’s interpretation heavy, right?
LS: Yeah, so far as use the word process though because when you talk about an exemption for disabilities, or even religious, key phrases employment lawyers, HR could use all the time is an interactive process. So if an employee, for example says, “I can’t take the vaccine because of this medical condition,” and let’s assume it’s all on the up and up, for the purpose of this conversation, as an employer you have to engage in an interactive process with that employee, “Okay, what accommodation can we give you so that you can still do your job.” It is a process.
BO: Are vaccination mandates something new? It feels like this is being thrust on us now, but is this a new thing?
LS: No, we haven’t for… I think the first vaccine mandate was the early 1800s, when they had the smallpox. The Supreme Court addressed it in 1905 I believe it was. That the government could impose a vaccine mandate for public health and public good. Supreme Court in 1922, I think it was, approved vaccine mandates for school kids, the kids going to school, all have, I don’t know what we’re up to now, 10, 12 different vaccines that kids have to have to attend school. So vaccine mandates are nothing new. I think what’s new is seeing in the private sector. How many jobs have you gone to and the employer says, “I wanna see your proof of vaccine.” But most of us in the private sector, can’t think of any private sector job you’ve had where they’ve said, we want proof of the vaccine. That to me is what’s new, and then obviously, what’s new here too, it’s just because everything’s happened so quickly, so that part’s new. Vaccine mandates have been around for a long, long time.
BO: And is it typical for Texas move quickly to step up and say,”This is not gonna work in our state. And I believe Florida did something similar?” Is that a typical process when some sort of mandate comes out, and I have two questions here, what jurisdiction typically is applying or issuing this mandate? And then are these sort of jocking in for position, this posturing, is this typical as a process, like this plays out?
LS: Yeah, so on your second question first, is it typical? I don’t know, Bill, I think we’re in unique times here, and so much of this has become political in, “whichever side you’re on, and so I think unfortunately there’s lot of this, no matter what the other side says, I’m gonna disagree with it, because they’re on the other side.” And again, I think that applies to both sides. So I think that’s a little bit unique. In terms of states like Texas, that the governor said, “No vaccine mandates for employers,” which is gonna run right up against this OSHA rule when that gets implemented, ’cause that OSHA rule for employers with 100 or more is gonna say, you do have to get vaccinated. Generally speaking that I think how it will work is the federal rule, historically at least would trump any state rule, but I’m not sure that’s gonna fly this time and courts are gonna decide. I imagine States like Texas, they have their lawsuits already written, ready to be filed. So as soon as this new rule gets imposed, those laws are gonna be flying, and I think we will have to see what courts do with that. Obviously, Texas is gonna go to a Texas court, so they’re gonna have a home town court that in theory is gonna be more favorable to them. I think it’ll be really interesting to see what happens. I wish I could venture an educated guess what’s gonna happen, but we’ll all find out at the same time.
TM: I got a quick question for you, Lenny. I’m just wondering, who’s your typical client? Because as you’re talking, I’m just thinking, “This is such uncharted territory and it’s so complicated and I could see how it could get really messy,” and for all these smaller businesses, like Structure Tech we’ve got fewer than 100 employees, how do we navigate this properly without the guidance from someone with expertise like you? Do you work with a lot of small companies that are less than 100 employees, or…
LS: Yeah.
TM: You do?
LS: Yeah, yeah. Tessa, my bread and butter are small to mid-sized businesses, and a lot of people think in terms of dollars, I think in terms of the number of employees. Most of my clients are less than 200, 250 employees, and the majority are less than 100 employees. Many are less than 50, some are even smaller mom and pop sized businesses. I get a couple of larger businesses, but that’s my bread and butter. And I like to pride myself on being their outside in-house counsel if you will, that they can call me even if it’s not employment they can call me for other issues too, and usually I know somebody either in my firm or elsewhere that can help them, but those are the clients I help. The clients, they don’t need a lawyer on staff. They need a lawyer who they can call when they have issues that come up. And those are my bread and butter clients. Unfortunately, those are the ones who sometimes don’t seek out the help because they see that there’s a cost to it, and I don’t wanna spend the money.
LS: I’ve often said to folks I say, “You know what, probably 80 90% of them you’ll be just fine. The problem is you don’t know if you’re gonna end up in that 80% or 90% crowd, or the 10 or 20% crowd. And if you end up in the 10 or 20% you’re sure gonna wish you had that advice upfront.” So I would encourage clients to call to get legal advice and make sure they’re doing it right. That said there’s… If you really wanna do it yourself, there’s a lot of resources online, the key is make sure you’re looking at the most current, because like this era, things are changing so so damn quickly. Make sure your focused on the most current thing you need. If you’re in a state that disagrees with the Feds, make sure you know which one’s gonna apply. ‘Cause it’s not a defense later on to say, “Well we thought we were doing right thing only to find out we were doing the wrong thing.”
BO: Now you get back to the procedure of law.
[chuckle]
TM: Yeah. Right. Well, for some business owner, small business owner, is there a good website to go to? As you’re talking about this, it varies from state to state, so do you have to go to your own state-specific website to figure all this stuff out, or…
LS: Yeah, yeah just speaking from Minnesota there’s a lot of good resources out there in this kinda health website for example has some really good resources. The federal government, if you look at the White House website, you just Google vaccine mandate, Joe Biden or White House or something like that. You’ll get a lot of resources on this whole school that’s coming up. So there are a lot of good resources out there that you can find fairly easily, if you just make sure you’re looking at the most current guidance. ‘Cause that’s one issue with the Internet, is it’s out there forever. And you don’t wanna be looking at something from six months ago because six months it may not fly in this arena anymore.
TM: Yeah.
BO: Lenny, as it relates to small business owners, I feel a lot of them run their businesses with the best of intent and often times they think they understand law but maybe not so much. Do you run into a lot of situations where you’re cleaning up messes that could have easily been avoided had they just made that extra phone call?
LS: Yeah, unfortunately I do. I think what you said though was really true. I’ve always been of the view that the vast majority of employers that I work with out there, they’re well-intentioned. They try to treat their employees well, they try to do things right. But there’s a lot of laws and there’s a lot of places to get tripped up. And laws are constantly changing, whether it be at the city or state government level or because of a court decision that came out or the federal level, what have you. And so, my view is they’re always well-intentioned. Some of these people just make mistakes. We’re all human, we all make mistakes and then when you’re dealing with something that’s foreign to you, it leads to even more mistakes. And so yeah, I think a lot of them try to do the right things, they make a mistake, and it’s something that can help them clean up the mess for a low cost, sometimes unfortunately it costs more, and it’s always heartbreaking the same point.
LS: I wish you would have called me before, ’cause we could have avoided all of… You could have spent 500 bucks and avoided all of this and now you’re looking at something that’s gonna cost several thousand with a much lesser outcome. I’d encourage folks to make the phone call. And most lawyers, and I definitely put myself in this category that we wanna try to help folks. And I’ll speak for myself, if somebody calls me up and just look for 10 or 15 minutes of my time, I’m not even going to charge them for that ’cause I feel like that’s me be giving back a little bit to help folks. But even if it’s more involved in that, I try to be reasonable with folks and my goal isn’t to go out there and just bill people a whole bunch of money. I want people to be happy with whatever I did for them, have it help them, and then maybe down the road they call me up again or they refer me to somebody else.
RS: I’ll second that, I can attest to the truth of that, ’cause that’s how I got connected with Lenny. I was looking for a referral. And a buddy of mine said, “Yeah, I know someone who’s really good and he’s a lawyer type guy who I trust a lot,” and I ended up chatting with Lenny about this and he took a lot of time to give me a really thorough in-depth answer to something I don’t even remember what it was, but it was something I had last year when everything was shutting down, and I was like, “Alright cool, send me a bill, whatever… I really appreciate your input.” Lenny was just like, “No dude, it’s cool. Let me know when you got a real problem,” [laughter] I couldn’t believe it. So he’s absolutely right.
BO: Hey, Reuben, do you remember when the COVID thing was blowing up and the whole concept of unemployment was gonna be a thing and how do you report and who can get it? We’re getting questions from the team, or like…
RS: That’s probably what it was surrounding. That’s probably what I was asking about.
BO: Certainly it was, but it’s just so hard to give the right answer in real time without having Lenny on speed dial on me like, “How can I answer this so I don’t get in trouble, but… “
LS: Oh my goodness, Bill, when we first hit with COVID and all the shutdowns and everything else. I was just get flooded with questions as… Where other lawyer would do the same thing as me and we’re giving the best answers we can, in a really unique circumstance. In COVID, we’re trying to fit a square peg into a round hole. And you get all these laws, they’ve been around for a while, how does COVID fit into that? And we’re all trying to give our best advice without real guidance yet from the government, ’cause they were all trying to figure it out too. It was crazy. And I think we’re gonna see more that again now with the vaccine mandates and these rules. I should mention too. Well, we’ve been talking with private sector employers. There’s rules now for government contractors. Now federal contractors have to have a vaccine requirement that I think employees have to be fully vaccinated by December 8th. I tend not to do public employment work, but in the private sector, I think it’s December 8th when they have to be fully vaccinated. So there’s a lot of different rules for different entities out there.
BO: Does the public side of it always eventually end up in the private side? Does it bleed over eventually once it’s tested, embedded and so forth?
LS: Sometimes, but not always. Yeah, no, there’s a lot of things that apply in the public sector that do not apply in the private sector. I think, maybe this is me guessing a little bit, but I think that President Biden in his heart of hearts really didn’t want to have to go to a private sector mandate. It’s one thing to mandate it at the federal government level and that sort of thing, but to kinda reach into the private sector, I suspect it was pretty uncomfortable to do, but seeing numbers get out control, it felt like he had to go that way. I just can’t imagine he wanted to fight over this, but I felt like he had to do it. Other people may disagree but that’s what my gut says happened here.
BO: Can I ask a very micro question as it relates to this topic? Let’s say one employee starts asking another employee about vaccination status, is there a well-defined point of you’ve crossed the line now you’re in a harassment type of a situation or is it just a curious question? How does that work in the micro?
LS: It’s probably not an harassment thing as long as the two workers are both at the same level, it’s not a supervisor-subordinate situation. If it’s a supervisor or manager then you’ve got issues ’cause supervisor or manager that is the company talking. It might not be the owner of the company but they’re in the shoes of the owner in a sense. But if it’s two workers at the same level, it’s probably not an issue unless its repeated. If everyday somebody’s coming and saying, “Hey are you vaccinated now? Are you vaccinated now? Are you vaccinated now?” Now you might run into a problem but as an employer… I did a blog a few months back on vaccine mandates and I said something like, “It’s taking the place in Minnesota at least, of talking about the weather. Oh, are you vaccinated or not? It’s almost the first thing people think about instead of how’s the weather today.” So employees are gonna talk to each other, but it’s probably not an issue unless it really is getting obnoxious.
BO: I was thinking to myself when you’re saying that, thank God people are asking a different question than the weather in this state, ’cause it’s just… It’s so inherent, but this is just a conversation that’s too fraught with it. A follow-up question. So who’s in trouble in that situation? Say it arises to harassment, is it the company? Is it the offender? Or is it both?
LS: It could be both. Generally speaking, if it’s a supervisor doing it, then the company definitely has a potential legal risk, and as does the individual supervisor. If it’s two employees at the same level, the company’s risk is lower unless the company knew or should have known what was going on and didn’t stop it. I don’t wanna scare people and say… Your employees are gonna talk. If not, not everything they talk about is gonna lead to an issue. If you think of it like in a sexual harassment context, if one employee is sexually harassing another employee and at they’re at the same level of organization, that’s a problem that the employer has to get involved in. If you have one employee who’s constantly harassing other employees about their vaccine status, the employer needs to get involved and stop that. But short of that, employees can talk.
BO: It feels like it’s an expensive thing to have to prosecute, and you don’t want that popping up in your company, but it feels like it’s probably not gonna pop up anyway, because people are tough. A lot of times, they just suck it up and take it and move on.
LS: Yeah, but as an employer, if you feel like some employees is being… I don’t know if bullied is the right word, but harassed, bullied, what have you. As employer, you do have an obligation to step in and do something and put a stop to it. As an employer, you don’t wanna be a defendant in a lawsuit there, especially Tessa was asking about the smaller mid-sized businesses and stuff. A long lawsuit can be devastating to a business of that size, it really can be. Even if you prevail, the legal costs and the lost time and how to respond to it, is really devastating. Negative publicity if you’re a business that happens to be in the public eye in some way, it really can be devastating. So as an employer, I think you really do wanna try to stamp that out to the extent you can.
TM: Reuben, I’ve got a question for you. I’m just curious, and you may not know the answer to this, but do we get a lot of requests when people are calling and scheduling to ask the status of… The vaccination status of our inspectors?
RS: To the best of my knowledge, no. Basically, it doesn’t happen. I think we may have had one or two. I’d have to ask our client care coordinator team to know for certain, but I don’t think so. I don’t think it’s really happening much. But I just… I wanna be prepared if and when it does start happening.
RS: Right.
BO: Right. You don’t want somebody to kinda skim or hesitate through that moment, you wanna have a just flowing conversation. Yep, we’ve got that covered. We mapped that out here at the company and gives them confidence moving forward.
RS: Try to be proactive about this stuff. That’s right.
LS: I think that’s the key is to having… Tessa just used the word process. Having that process and knowing… And maybe you don’t cover everything, there’s always twists and turns that you didn’t anticipate, but at least if you have a basic process in place and you’re being consistent in following it and I think that’s really, really helpful.
BO: Lenny, if you’re looking into your crystal ball, let’s say we’re having a conversation in 18 months, what do you think is going to be the outcome of this mandate? Do you think it holds or is it just gonna move on?
LS: Yeah, so first of all in 18 months, I hope we’re not having this same conversation.
[laughter]
LS: That’s if you asked me 18 months ago, I would have said, I think in 18 months we’ll be passed all this stuff and look, here we are still. I probably want to say we’ll be done with it, but I would have thought we would have had most of it in our rear view mirror, and that hasn’t happened. So, lets hope the next 18 months we are. I think what will be interesting with this new mandate coming out, my guess is lawsuits will be filed, and we’ll try to do an injunction to stop it. What an injunction does is tells OSHA, you cannot enforce, you cannot implement this rule. And I think there’s a decent chance that a court in Texas issues such an injunction to stop it. And then that’ll very rapidly go up to a Court of Appeals level that then hopefully fairly soon it will be in the Supreme Court. But when I say soon, it’s still in the legal world, we’re not talking days. It could be weeks, it could be months. It would not surprise me to see this federal mandate be implemented, and then very quickly get blocked for some period of time. Individual states and cities can do mandates. In Minnesota we’re not likely to have a mandate given the makeup of the state legislature and the governor’s office. Other states may be different but I don’t think we’ll see that here in Minnesota.
BO: I often wonder about how much planning goes into these battles. Like you said, there’s probably lawsuits that are already written up and just ready to be filed at a moments notice.
LS: Federal mandate too. There’s so many questions about it. You talk about the 100 employee threshold. Does that include part-time employees or just full-time? What if you have 10, 15 employees in five or six states or ten states, wherever it is. So you have 100 employees nationwide and only ten in a location. Are you gonna subject to that mandate? I think the answer is gonna be yes. ‘Cause as a company you’re 100, but we’ll see. Who pays for the testing and things like that? The rule is supposed to say as an employer, you have to give employees time off, paid time off to attend testing or if they’re sick after getting a vaccine, ’cause they… Paid time off to get the vaccine or paid time off if they’re sick after getting the vaccine for a day or two. How is that all gonna work? And who’s paying for that? Are you as the employer paying for that, or is there gonna be some tax credit that the government pays for? There’s a lot of questions we just don’t know the answers to yet.
BO: And for a lot of small businesses that are running on margins that might be razor thin, good luck. It’s just so hard to plan for a rainy day in the best season and you can get this.
LS: Right. We had last year, and even into this year the emergency family medical leave and emergency paid sick leave that did apply to smaller employers, but that had a provision in there that the government paid for the time off. As an employer, you would give the people the time off with pay which generally was two-thirds pay. But then you would get a tax credit. So you would get the money back from the government. Will there be something like that here? We’ll have to see how that works ’cause you’re right though, for companies that are on razor thin margins as it is, how are they gonna handle some of these added costs if they’re the ones that have to pay for that.
BO: Well Lenny, I wanna be respectful of your time, but I want you to be able to tell everybody how they can get a hold of you, because I’m sure anybody, at least in our state, probably realizes that they’re under-represented to some level if they’re a small business owner. How do people get a hold of you?
LS: Well the easiest way is to give me a phone call or shoot me an email. I’ll give you my phone number, 952-358-7408. That is my direct line. So if I don’t answer, you’ll get right to my voice mail. My email is lsegal@schindelsegal.com and that’s spelled L-S as in Sam, E-G-A-L@S-C-H-I-N-D-E-L-S-E-G-A-L.com, lsegal@schindelsegal.com. If you forget all about that, just jump on the website schindelsegal.com or Google my name, Lenny Segal Minnesota attorney, you’ll find me. Obviously, people can reach out to the three of you as well, if they want my contact info.
BO: Yeah. Protect yourself. It’s hard to put the genie back in the bottle. So ask the questions, and if it’s awesome to hear that, you’re willing to at least entertain the questions and then be, yes, is something we need to talk more about, or give you that advice.
LS: And I should mention Bill, if people wanna get… Reuben mentioned the email list, I don’t send out a ton of them I think Reuben can attest to that.
RS: No, he doesn’t… No.
LS: We all get flooded with emails all the time, and at some point ignore them. I try not to do that, I… I’d only send if there’s some real significant legal development that I think would impact my clients, generally speaking, the small and mid-size businesses. So if you wanna get added to that list too, just shoot me an email and I’ll get you on that list.
RS: Yeah. They’re not marketing emails, these are just emails with important updates. Yeah. I can attest to that too.
BO: I love the value-based communication. That’s awesome. Well, thank you again, Lenny, we really appreciate it. And for everybody else, do your homework, make sure you’ve covered, make sure you’ve got all of your flanks well protected [laughter] or both of them, I guess you only have two of them, so. But Lenny, thank you for your time today. It was awesome to dig into this subject with you. I find law endlessly fascinating. Most lawyers give the same answer Tessa gives to everything, which is it depends.
[laughter]
TM: It’s so complicated.
BO: I need more information and then I can give you a better answer, so but…
LS: Sometimes I give the answer, Bill, but it depends on the situation then.
RS: Now, there it is.
[laughter]
BO: There you have it. Those are the last words for our podcast today. You’ve been listening to Structure Talk, a Structure Tech presentation. My name is Bill Oelrich alongside Tessa Murry and Reuben Saltzman. Thank you very much for listening. Reach out to Lenny if you have any questions, we will catch you next time.
TM: For more information on how we can provide you with the right information about your home before you buy yourself, contact us at structuretech.com.