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Labor and Employment Issues with COVID-19 Vaccine Distribution

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Kristin McGurn, Seyfarth Shaw LLP, and William Kishman, Squire Patton Boggs, discuss employment issues related to COVID-19 vaccine distribution. The speakers talk about the recent EEOC guidance, including what employers should do about employee objections to the vaccine, and what sort of accommodations must be made. The podcast also discusses labor union issues, liability protections, and other state and federal guidance. From AHLA's Labor and Employment Practice Group.

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Speaker 1:

Welcome. My name is Kristen Mcg. Uh, I am with CER Shaw and it's Boston office, and I co-lead the health law group at Cfar Shaw and am a vice chair, um, with the l e Practice Group of A H L A in charge of publications in the labor and employment space. Um, I am here with Will Kishman, and we are, um, hoping to speak with you about some practical considerations for, uh, rolling out vaccination programs, which, as you know, we're sort of in, in the heat of it now. Um, with me is Will Kishman, um, will, would you like to introduce yourself?

Speaker 2:

Yeah. Hi everyone, my name is Will Kishman. I'm an attorney in the Labor and Employment Practice group of Squire, pat and Boggs, and I'm pleased to have an opportunity to speak on this topic for every employer right now that's, uh, determining how to approach COVID vaccinations for its workforce. Kristen one<inaudible> development that occurred earlier this month is the US Equal Employment Opportunity Commission issued a detailed publication that provides guidance for employers on several key issues as employers are determining how to roll out vaccines for their workforce. What were some of the key takeaways that you had after reviewing that E E O C publication?

Speaker 1:

Yeah, well, thanks for the question. You know, we were, um, we, we've been watching whether the F D A or the C D C was going to require the COVID nine, the 19 vaccine. Um, and, uh, you know, although the CDC does recommend it, um, it does not require at this point, the, the vaccine, it, it does require other healthcare provider, um, vaccinations including Hepatitis v B and flu, measles mumps, um, and others. Um, so we were watching closely for that. And, um, and in the emergency use authorization, um, context for the distribution of the vaccine, we understood that fact sheets were being distributed that made it very clear that the taking of the vaccine was going to be a choice. So we weren't sure whether the E O C was going to authorize mandatory programs, but in fact, the guidance that was issued in the middle of this month, in December of 2020, uh, entitled what you Should Know about Covid 19 and the A d A Rehab Act and other EEO considerations, um, does indicate that employers can mandate the vaccine so long as it's provided by a third party provider that does not have a contract with the employer or the employer can establish that the vaccine requirements are job related and consistent with business business necessity. Um, so really this leads us right back to those legal restrictions under the E O C that derive from medical examinations and disability related inquiries. Uh, the E O C guidance indicates that the vaccine itself is not a medical exam. Uh, we'll see whether courts agree and continue to, um, hold the same. Uh, and the EOC guidance found that asking whether someone got the vaccine is not a disability related inquiry. Um, but, but the key here is going to be in how the program is rolled out. Um, E E O C says that employers can ask pre-screening questions without showing job necessity and business relatedness only if the program is voluntary, so that an employee's decision not to answer or to answer is voluntary. And the only consequence of their refusal is you don't get the vaccine, or, um, those pre-screen questions can be asked by a third party without a contract with the employer. And then those concerns of the E O C, uh, related to employer disability related inquiries will not be implicated. Um, so we're seeing employers evaluate this right now, um, which of its employees, it can establish business relatedness for and consistency, um, you know, with a, with, uh, um, uh, business need. And in that context, employers, um, can find themselves justifying those pre-screening questions, those medical inquiries, and implementing the program, uh, on their own. Otherwise, we are seeing within the healthcare community, um, reliance on third party providers for the distribution and implementation of vaccine programs. Are you seeing something similar will in your, uh, client population?

Speaker 2:

We are so, so most employers, especially employers outside the healthcare space, of course, are using third parties to throw out the vaccinations, and they are attempting to limit the numbers of questions that they engage in. Um, the healthcare providers who right now constitute the, uh, majority of the employers who have access to vaccines, they're pretty well practiced at understanding what information do you really need to know before a vaccine is administered. The employers who are outside the healthcare space, who are starting or outside, um, the practice of actually providing vaccines on a regular basis, they're making sure to utilize third parties and, um, not substitute their own judgment in determining what types of information they need before they administer vaccines. One interesting issue that we are already getting questions about, and I think these questions will start to ramp up significantly after these initial stages of the vaccine have been rolled out and administered involves, what does an employer do if an employee rece, uh, if an employee objects to taking the vaccine, especially if the employee objects on the basis of a, um, uh, claim disability or a sincerely held religious belief. Kristen, what were your takeaways from the e EOCs guidance in terms of how employers should address those particular issues?

Speaker 1:

Right, so it's, you know, like any, um, you know, disability related, um, inquiry, you know, healthcare employers need to be exercising caution and planning ahead for the need for, for an escalating number of these kinds of accommodation requests. We see them now, um, even with the initial distribution and rollout of the vaccines, whether implemented in a voluntary or, or, um, mandatory program. And we anticipate, of course, as the vaccine becomes more available, that more and more employees are gonna be coming forward with, um, with these sorts of requests for accommodations. So employers really do need to ensure that, um, if they are intending to impose a vaccination requirement, that we'll tend to screen out those with a disability, then they are going to have to show that an unvaccinated employee would pose a direct threat in the workplace, meaning a significant risk to risk of substantial harm to the health and safety of other that employee or other employees around that person, um, that can't be reduced with a reasonable accommodation. And so, you know, the direct threat analysis really needs to be an individualized analysis, like any interactive process analysis that employers are accustomed to going through. Um, it, it will depend on the duration of the risk, the nature and severity of potential harm to that particular unvaccinated employee or his or her coworkers, the likelihood that the harm will occur in the workplace and the imminence of that, you know, potential for harm. So that determination, you know, even according to the EEO recent guidance necessarily, is gonna include a determination of whether an unvaccinated employee would expose others within the workplace. Um, and even if a de direct threat is established or, um, demonstrated the employee, really you need to think about whether you can exclude that employee from the workplace, um, and only if there are no other reasonable accommodations. And the fact that we have been through 10 months of this or more, um, and that we've found ways to navigate around, um, the potential risk of harm from covid 19 in the workplace through things like P P E and remote working and other accommodations will necessarily become part of the analysis as employers are considering, um, you know, these vaccine questions and these requests to be exempted from vaccine programs. Similarly, on the religious side, you know, to the extent that, um, you know, an employer, an employee presents with religious objections, um, to being vaccinated, title seven, um, you know, suggests that a reasonable accommodation discussion needs to be undertaken and, um, the employer must provide the reasonable accommodation unless there's going to be an undue hardship in, uh, in doing so. And that means more than just a mini risk or, you know, a, a slight burden. So, um, normally we encourage employers to assume that there's a sincerely held religious belief if someone comes forward and says that their religion prevents them or their practices or observances prevent them from being vaccinated. And for many religions that, you know, we have heard those, we've seen those cases, we've heard those, um, those objections. Um, you know, if the employer has an objective basis to question whether there's, uh, a sincerely held religious belief, then documentation could be requested, um, in the context of that reasonable accommodation dialogue. Um, but, but only if there's no possible accommodation for an employee who presents, uh, with that sort of request for, for exclusion or, or exemption, can that employee be, you know, excluded from, um, work for failure to take the vaccine. So as you suggested, we'll, we're going to expect to see an uptick in the number of these accommodations, and really we need to be sure that our managers and human resources personnel, um, are ready to identify these requests and when they come forward, there are no magic words to be used. You know, they need to identify when they're faced with this kind of, um, request and what are consistently applied reasonable accommodations that should be considered, uh, all of this interaction being documented to in ensure that employers are well positioned to defend, uh, if a, if a, um, complaint arises for, um, you know, for any particular outcome. Are you engaging with employers now, will in, in these sorts of accommodation discussions has, have you seen an uptick yourself?

Speaker 2:

Yeah, I, I am. And, um, Kristen, I'm sure this has been the case for you. These types of discussions are nothing new just now, they're specific to vaccines. You touched on, uh, a couple of points that I, I always emphasize with employers and, uh, i, I think are worth expanding upon just briefly here. Number one, when you're ta you refer to accommodations for disabilities and sophisticated employers. Labor employment Attorneys know that the term disability has a very broad meaning under the a d a or under state laws to protect people with disabilities. Uh, what a lay person might think of a disability is something like a blatantly obvious physical impairment, but with, even in the context of vaccines, courts have recognized that a disability could encompass a person who has some sort of a chemical sensitivity to, um, make having physical contact with the needle. It could encompass a person who has an anxiety disorder that, um, ex that causes the person to have specific anxiety about receiving a vaccination. If the employer ultimately had to litigate those issues, that it would at least good counter-arguments, and there would be at least a good chance it could prevail. But as an employer, you wanna be mindful of these concepts in advance. A couple other considerations as you touched upon, um, in order to, uh, potentially trigger the requirements for religious accommodation, as you mentioned, it simply needs to be a sincerely held religious belief, which can encompass in a, an observance. So even something like veganism could entitle a person potentially to an accommodation on the basis of, um, a religious belief. There's one decision that came out earlier this year that recognized that if a person objected to a vaccine because it contained an animal product, that objection on the basis of veganism could, um, trigger rights under, uh, title VII for the person. There also is, uh, some interesting authority regarding people with observances relating to cannabis. I think it's unlikely that those would be implicated in, uh, the context of a covid vaccine, but it's important for employers just to be mindful of the fact that a religious accommodation can be required for something that's more than just a traditional religious belief that might come to the mind of a, of a layperson as, uh, just briefly as Jan says it, it's going to be at least unusual where an employee of checks to receiving a vaccine, and that allows an employer to ultimately separate the person due to that objection. It's, I think one of the biggest takeaways for employers in this conversation is even if a person objects, and even if there is a legit, uh, a disability or sincerely held religious belief that form the basis for that objection, you should be thinking about other options before you start considering the prospect of separation. You many instances, employers will have the ability to reassign someone, give them new p p e, maybe change their schedule, even possibly change their working hours. It would be better to put some, if you face the situation between, um, separating a person and putting them on a part-time schedule than at least many cases, it'd be better to put them on a part-time schedule. So it's better for employers to, uh, keep these other options in mind as well.

Speaker 1:

That's right. And I think what we tend to see in, in the rollout of these vaccination programs will, is, you know, is openness to, um, having, you know, sliding scale or are different levels of, um, of accommodation depending on the nature of the role. And certainly someone in a patient facing position, um, may be treated differently than someone who's in a billing, um, department and unlikely to cross the path of someone who could be covid positive, um, in an unvaccinated state. So you're right that the, you know, the ways in which we accommodate employees, um, in other contexts, and we've been doing it for years, are, are all fair game and should be considered, you know, remote work, other sorts of p p e, um, you know, social distancing and as you say, transferring either to different, um, times of day or nature of job itself, um, you know, all worth discussing as a, as a possibility in accommodation, conversations with employees who may be reluctant, um, to take the vaccine or, um, express the need for some sort of exemption. I think that that goes to, um, one of the other topics that we, um, you know, we really need to put at the forefront of this discussion, which is developing buy-in and making sure that, um, you know, as employers are evaluating, you know, when they may get access to enough vaccines to, um, you know, to really line their folks up and, and expect them to, to take, um, these vaccines. Um, you know, how do we make sure that this is a conversation that's strategically planned, that folks understand the pros and cons of taking the vaccine and the way in which it will be, you know, helpful to them and their family members and their communities, um, and really, you know, are our business leaders prepared to roll up their own sleeves and, and be seen leading from the top, um, not in a me first kind of way, but in a me too kind of way to ensure that, um, the questions, the legitimate questions that arise about a vaccine that came, you know, that was produced so quickly through Pfizer or Warp Speed, or, you know, the programs that kind of got it to us in just literally lightning fast record time. Um, you know, how are we going to strategically communicate starting now about the, you know, the, the, um, the way we're gonna roll out our program, the, um, you know, the ability for employees to trust, um, you know, that we're not putting them in harm's way. And you know, that that takes a tone of apolitical safety and corporate responsibility, which is really, um, you know, I think from a communication standpoint what's most needed right now. So, will, though setting aside what the E O C has recently said and the anti-discrimination concepts that we've just, um, gone through in terms of the reasonable accommodation discussion, there are other federal laws that are providing guidance now, um, and some sort of key, um, takeaways, the nlra being one of them. What are you, what are you seeing, uh, as practical advice for unionized employers in this environment?

Speaker 2:

Right, right. Well, an important issue for an employer with a labor union that represents any of its employees is do you need to bargain over your vaccination policy? Do you need to bargain if you are going to be requiring employees to take vaccines? Or do you need to bargain, even if you're merely offering vaccines to employees or offering them some sort of a subsidy for a vaccine or time off to get vaccinated at default, requiring a vaccine or even offering a vaccine to employees would be a substantial material and significant change under the N nra, such that at default, an employer typically would be required to bargaining over that. So then the question becomes, has the union somehow waived its opportunity to receive notice and a chance to bargain over the employer's approach to vaccinations? Uh, as, um, people experience with labor union matters will know the NLRB recently changed the standard for an employer to approved waiver in a way that allows it to avoid providing notice and a chance to bargain to a UN waiver union. So now it's not quite as difficult to establish a waiver as it was in the past. And in many cases, a current collective bargaining agreement would give an employer at least a fair argument, if not a strong argument that the employer, um, doesn't need to provide notice and a chance to bargain in because the, um, employees have have waived that opportunity. That could be the case, for example, if the C B A contains particularly strong language about the employer's rights to, um, make decisions about health and safety procedures, or if the cva, uh, shows that the parties have discussed things in detail. For example, uh, many CBAs with nurse groups or other healthcare professionals specifically talk about the prospects of vaccines and other procedures to, um, help protect people from medical issues. And if the parties specifically discuss that in detail, and if the CBA doesn't prohibit the employer from requiring vaccines, then the employer might have a good argument that the union waived its right to bargain. That being said, uh, two considerations for an employer to keep in mind if before it actually relies on a waiver to, um, simply issue a mandatory vaccination policy without first giving the union a chance to bargain, number one, there's at least a real chance that the N L R B will not under the Biden administration, will rescind this new waiver standard, if not explicitly, than in practice, that the general counsel's office will be less likely to, um, treat a particular situation as constituting a waiver. And even if that doesn't happen for practical reasons, which we'll be expanding upon further here in the moment, it's always, uh, well, almost always at least good practice for an employer to try to work with its labor union, keep them apprised, give them advanced notice, make, make itself available for at least a discussion before the employer deals with employees or promulgates some sort of a policy. So even if an employer dis determines that it doesn't need to bargain over its approach to vaccinations with any union that represents its people, the employer should at least strongly consider reaching out to the union and initiating some sort of a discussion before it unilaterally issues a policy, Kristen.

Speaker 1:

Right. And that's just to, you know, in the spirit of developing and fostering goodwill and increasing employee buy-in, um, you know, in the unionized environment, what do you think will, in the, in the union avoidance, um, context, um, could not the strategy be impacted if employees feel in the context of a vaccine program that their concerns are not being listened to? Um, e whether it is that they're fearful of getting the vaccine, or they're fearful of being the only one in the unit to have received the vaccine, if, if the program is not mandatory and others around them, you know, they may come to feel, continue to expose them to risk in the workplace. Do you see, um, union avoidance strategies being, uh, impacted in this way, um, such that, you know, leveraging, um, organizing activity in response to vaccination programs could be a problem for employers who don't yet have unions in-house?

Speaker 2:

Yeah, that, that's a really important point, Kristen, even non-union employers, even employers who don't have unions representing their employees, need to be mindful of the National Aid Relations Act for the reasons you just mentioned. So this, certainly if an employer rolls out an unpopular vaccination policy, that certainly could make the employees believe that it's in their best interest to vote to try to have a labor union certified, because the, they might believe the employer doesn't wanna listen to them or doesn't have their best in mind, even though, of course, an employer that rolls out of vaccination policy is going to be do, doing so in effort to protect its employees, but people might not always see it that way. And it could certainly influence their decisions about whether or not support of labor union. We're seeing many, many instances where unions are citing covid related issues as talking points in an effort to get traction with non-union employees and organized new groups of workers. And then another really important consideration along, along this point is that non-union employees often will have more flexibility to engage in legally protected group actions, doing things like striking, walking out, circulating petitions, and they sometimes will be more likely than unionized employees to take these steps, because if a group of employees has a labor union, then they often, if, if not, in most cases, we'll be a party to an agreement that prohibits them from striking during the term of the agreement, whereas non-union employees will not be a party of that agreement. And under the nra, these types of group actions strikes, walkouts, circulating petitions, starting social media groups that complain about an employer, they're typically protected unless you can establish as an employer an exception so long as they're, they appear designed to, um, change working conditions for a group of employees. So it's important for non-union employers to be mindful of these concepts. Kristen, uh, you talked about some other safety and health considerations, and you, we've discussed guidance that's been issued by quite a few different government agencies. What are you seeing from a safety and health perspective, and what do you think might be, um, coming down the pipe from OSHA or from state agencies that are responsible for safety and health measures?

Speaker 1:

Yep. So we have seen, um, you know, we have no clear guidance from OSHA yet. Um, they haven't historically mandated vaccines, but they have told employers that they may mandate or are permitted to mandate in certain contexts. So, you know, I guess what we would expect is that OSHA is likely to strongly encourage vaccination programs, but not require employees to employers to mandate. Um, you know, one, what we always do in these situations is kind of look back to what is the precedent that might guide us moving forward? And in 2009, when we were faced with H one N one, OSHA did say that employers healthcare employers, um, could require, um, employees to, to take vaccine. Um, but employees who refused because of a reasonable belief that they had a medical condition that created a real danger of serious illness or death, a serious reaction, um, might be protected under 11 C with from whistle a blower rights. And we would expect that to be true here too, that if an employee presented with a, a legitimate concern that they would be in harm's way if they received the vaccination, um, and somehow were subjected to adverse treatment in the workplace, that that person could conceivably bring forward a whistleblower claim. And, you know, just in terms of the, the interplay between the N L R A, which we were just discussing, and osha, we certainly see in healthcare employer workplaces in particular that, um, you know, so one is sort of following the other, right now, if an OSHA concern is raised, we're often seeing union activity or organizing activity follow and vice versa. So we would expect that, you know, this is gonna be another, uh, flashpoint for, um, potential whistle blower concerns, and employers should be prepared, um, and have a reasonable accommodation process in place to deal with that possibility. Uh, likelihood, um, we also think, you know, that OSHA could require under the general duty clause, um, you know, some, uh, or could produce some, some guidance under the general duty clause, which requires employers to furnish an employee, um, with work and a place of employment that's free from recognized harm. Um, so we're, we're sort of, we, the closest analogy was probably the, in the bloodborne pathogen standard, which required employers to make, uh, hepatitis B vaccines available. Um, we could see that used, um, to, uh, on either side, I suppose, of the VA of a vaccination program as, as we move forward, but kind of stay tuned, still waiting to see what what OSHA might do in terms of issuing, um, overt guidance as, as a vaccine becomes more widely available. Um, as you mentioned, will state law is gonna be a key consideration as well, and we've seen both, you know, states issue, um, executive summaries and guidance relating to vaccination programs and distribution protocols already. And we anticipate just as there are some states that, for example, require mandatory flu vaccine for certain healthcare providers and professionals. Um, there are other states who we are hearing intend to prohibit mandatory vaccination programs. So, you know, we're gonna have to continue to watch the landscape at it shifts, um, as the vaccine becomes more available, um, both on the OSHA side and, um, and in the state law context, what are you seeing will about liability protections in state law, you know, your state law and the way in which those liability protections might impact healthcare employers as they roll out vaccination programs?

Speaker 2:

Yeah, this, this is a very important issue, and it's an issue where if you're an employer that operates in multiple states or even multiple metropolitan areas, it's very important to have some sort of procedure in place to track the different types of legislation or types of agency requirements or guidance that are promulgated because they can differ broadly and they can be very important for your potential liability and your potential protection. Uh, most states have issued at least some sort of liability protection legislation that relates to covid, although it differs broadly in terms of what it provides. Some of this legislation is specific only to certain healthcare providers. Some of this legislation broadly encompasses many, if not most, or all private sector employers. They have different types of exceptions that they, nearly all of them will, um, not provide protection if an employer engages in intentional or reckless actions that increase the chances that someone is exposed to covid, but their, their exceptions do not all resemble each other. And then conversely, so that, that's regarding liability protections. States have also taken broadly different positions and likely will continue taking broadly different positions in terms of what employers can do for vaccines. Now, this is a developing issue, but just, uh, since early December, we've seen several states contemplating proposed legislation that would either, uh, limit employer's ability to require vaccines only allow employers to do it in very specific circumstances, or some of this proposed legislation would categorically prohibit any employer in the private sector from requiring vaccinations. And it's been an interesting mix of states in terms of those that have been con contemplating this proposed legislation. There have been some, what you would think of as blue states, it's been considered in New Jersey, New York, but, uh, Washington, but also states that are considered typically more red states, Kentucky, South Carolina, Missouri, Tennessee, and then Florida also. Um, there appears to be a significant amount of support for Florida legislation that would significantly limit mandatory vaccination policies by private sector employers also, uh, Louisiana, Virginia, and Minnesota have for period of time contemplated legislation, although it, it appears less likely that that legislation ultimately will be enacted in the law. So this is a, an important area, this is an area that as it develops, could significantly change employer's rights and obligations. And it's important as an organization to have someone who's responsible and actively monitoring these developments because it's almost like, uh, going back to March and we were seeing different closure orders every day. This is the type of thing that can change on very short notice and significantly affect your position. How about you, Kristen? So now, now I think we're almost talking about more practical type considerations, or at least considerations that are, uh, not quite within the umbrella of labor and employment law. As we're, um, getting close to the end here, do you have any other practical guidance that you recommend your clients consider as they're addressing these vaccination issues?

Speaker 1:

Yeah, well, the, you know, the, I guess the one thing that, um, maybe I'd say two things, uh, you know, one is that as these things, um, you know, hit the shelf, right, they, they sort of came off the back of the truck and people stood in line and, um, you know, at the front of the line getting the, the, the vaccine as a healthcare provider, um, there was some logistical challenges in the rollout. Some states received less of the vaccine than they anticipated. Um, you know, some folks were met with some resistance and needed to, you know, sort of skip people in line. Um, it turned out it seemed in some environments that, you know, folks were lined up based on the job title that they had in their sy in the system, and that job title may have changed, allowing some folks who are not really legitimately on the frontline any longer to have jumped ahead in line and obtained a vaccine that really was meant to go to somebody who's working in the er. Um, so those logistical challenges, I think, do, you know, cause us to take a pause and, and look at, you know, how will we practically roll this thing out. Um, you know, the other thing that that many employers found was that the vial sometimes contained more doses than they expected. So they had an extra dose left over and the question became, you know, do we administer this dose to someone yes or no, or are we intended to, you know, not, um, engage in that sort of behavior if it, if the person in, you know, to whom we can administer it right now while it's at the right temperature is not, you know, sort of on the frontline as well. So those practical considerations are being, um, evaluated in real time on, you know, as the healthcare, um, folks that we're talking to. No, you know, lots of things are changing very rapidly in this environment too, just as we've been facing since, um, you know, the early spring. And so, you know, I would suggest that your vaccination program should account for these, um, situations. And of course, you know, we should not be wasting this precious vaccine and, and trying to get as many people vaccinated as as quickly as possible to get us to a place where, you know, the vaccine is serving its useful purpose, which is to, you know, interrupt the spread and cause covid 19 to, um, be able to spread less quickly because it's encountering more and more vaccinated people as we go. The other thing I think we just need to prepare for as a practical consideration, you know, and this is on the, on the heels of, um, you know, just sickness with the disease and, um, remote schooling considerations and, and sick leave legislation, you know, there are going to be further staffing shortages if people react physically poorly to receiving the vaccine. And if employers aren't preparing for those anticipated staffing shortages, um, you know, that's something else that we really need to be focused on and make sure that that employers are, are thinking through carefully. What about you will, what are your, what are you thinking about practical considerations?

Speaker 2:

Yeah, a few. And, and first of all, that's a great point about, as an employer, think about the consequences that providing a vaccine could have on your workers. There are a lot of reports about people experiencing symptoms after receiving the vaccine. And, um, number one, as an employer, uh, you, you don't want to have that practical situation where you have significantly, uh, fewer people available than you anticipated. So a lot of employers are trying to avoid that by making the vaccine available over the holidays, if you can, or on the, the last day of work before a long weekend. If that is an option at the end of a series of, um, of, uh, of days of conte, consecutive days of work. Then also as an employer, this, if an employee does have a reaction to a vaccine and that causes symptoms, that almost certainly will entitle them to legally protect leave. And plus, right now we're good at the end of the year where some people, uh, might not have much left in what was initially offered. So it's really important to think about those concepts, and that's another reason why as an employer, um, it, it's important to think ahead in advance about your plan for rolling this out. Just a, a couple other notes, and this is more, um, unique issues that, that employers might wanna think about is they're figuring out their overall approach. It's a good idea to watch what others in your market are doing, what your competitors or what others in your industry who are located nearby areas are doing in terms of their vaccination policies. Right now, as, as many employers have found, especially in the healthcare space, it's somewhat difficult to have your staffing levels where you want them to be. And even if you can lawfully require vaccines, the last thing you want to do is, um, ma implement a new policy that might cause people to, uh, rethink their employment status, especially if you have competitors out there who are not requiring this and, um, and you're already working to, uh, to, to keep your staffing levels where you need them to be. It's a good idea to, um, remember if, if you're someone that operates internationally, that we are focused here today on US laws, but the law and international jurisdictions can differ dramatically, especially if you're a company that operates in the EU or operates in Mexico or Canada. Most western countries is a broad statement, but most do not even, um, allow employers as much flexibility as the US in terms of issuing mandatory vaccination policies. So it's important to remember that, um, and to think about how your approach oversees or approach elsewhere North America might affect your approach for us people. And then, uh, also think about, we were talking today primarily about employees, but think about what you are going to do with independent contractors, especially if you're someone in the healthcare space that has physician groups or specialist providers you contract with on a regular basis, but you don't consider to be true employees. The law will address them in dramatically different ways, um, especially with regard to your liability protections for health and safety issues. If you have a group of physicians who both sides of asserted or not employees, then you might not have worker's comp protection against, um, any injuries that they sustain, either because they did not receive a vaccine or maybe because they did receive a vaccine. So that's an important concept to keep in mind. And also if, if you have a contractor, you usually have a contract, and that might, might include terms and conditions that otherwise affect your rights and your potential obligations relating to those people may, maybe they're helpful to you because maybe they, um, include broad indemnification that further reduces your risk, but maybe they impose limits on what you can do. So it, it's always a good idea to think about what your, um, agreements say with vendors, contractors, other third parties that you do business with on a regular basis and understand how those could affect the analysis. Chris and I, I think we've given people a lot to digest. Do you have any further comments or any, uh, parting words to wisdom?

Speaker 1:

No, I, I think this has been a, um, you know, a great conversation will. I enjoyed participating in it with you, and I think it gives folks a lot to think about. We're, you know, very eager to be part of the conversation moving forward, and we anticipate that the, the sands will shift again. Um, but we've gotten very agile in this crazy year and, um, you know, we look forward to bringing additional guidance, um, to employers through this, A H L a, uh, podcast and, um, and other publications that, um, that we each have provided to, to the organization. But thanks for your time today, uh, appreciate a H l a allowing us to be, uh, involved here and, um, wishing everyone a very happy, uh, and joyful 2021.

Speaker 2:

Yeah. And thanks to you, Kristen, it was a pleasure speaking with you. Thanks to everyone in the audience for listening and, uh, we, we appreciate having the opportunity to speak with you.

Speaker 1:

Take care all.