Well, welcome, everybody. I'm Brian McGuire, President and CEO of AED. I'd like to welcome you to this webinar. Before I turn it over to Daniel Fisher to introduce our presenters today, I want to take a few moments to talk about what we hope to accomplish today and why we're hosting this webinar. We've received many inquiries from members, both dealer members and OEM and service provider members, about what their legal rights are as employers when it comes to vaccine mandates. Now, this webinar was planned long before the president made his executive order. And our intent here today is not to debate the president's executive order or to discuss whether or not that that is the illegal presidential order, but really to give information to those AED members who are looking for what their rights are as employers under the law. And then it is up to each and every one of the employers to make the decision of what's right for their organization. These are certainly unprecedented times, and I think everybody is trying to navigate this as best they can. And we hope that you find this, the information that's presented today very helpful as you set the course of what's best for your organization. And that's the spirit of which this webinar is being conducted. I want to thank Daniel Fisher, our Senior Vice President of External Affairs, for pulling this together. Mr. Fisher, without further ado. Thank you, Brian. Before introducing the panel, I just did want to briefly touch on that executive order that Brian mentioned and just give you a little bit about what we expect from that over the next few weeks here in D.C. As most of you know, the president announced that OSHA would issue an emergency temporary standard in the next few weeks that would mandate companies with 100 or more employees to have mandatory COVID testing, or I'm sorry, mandatory vaccinations or mandatory weekly COVID testing. Right now, we don't know much beyond that about, beyond what the president said during his press conference. So I think we're all waiting for the details. But the one thing I will tell you is that this will be almost certainly subject to legal challenge as almost as soon as it is issued, at least that's the expectation. And in the past, these emergency temporary standards have not, often not survived court scrutiny. So while I know there's a lot of press and hoopla around the president's announcement, we will kind of, we're kind of in wait and see mode to see where, what comes out of OSHA and the legal challenges that then subsequently will happen. Just a couple reminders here before I do introduce the panel. This webinar is recorded, so you can watch or rewatch at your leisure. And there is a Q&A tab at the bottom. And if you could please submit your questions as the presentation is on, is going on, and then we will, at the end, have time for Q&A. So without further ado, I'd like to introduce Joseph Good, Mark Leitner, and John Halpin, all with the law firm Milwaukee-based, Milwaukee, Wisconsin-based law firm of Laffey, Leitner, and Good. I won't go through all their biographies. I think I would actually encourage everyone to go to their website. They have one of the most interesting websites, I think, for a law firm, very hip, and very kind of up-to-date. So I'd encourage everyone to visit that if they'd like further information. But with that, I'll turn it over to the crew, and I will sit back and monitor for questions. So thanks, Pat. Thank you, Dan. This is Joe Good here, and welcome, everybody. Thank you for attending today. This is a very, very interesting and obviously timely topic, and we appreciate AED asking us to help guide you all through this particular quagmire that is facing, frankly, all U.S. employers, and frankly, employers all around the world. But today, we're going to focus on AED members and the United States, and what is and what is not legal within the context of the types of mandates that are being discussed. As Dan mentioned, we're going to get a little bit into the president's order, because it's something that actually is very relevant and obviously quite timely, given the fact that this just came out five days ago. So why are we doing this webinar? Well, win, lose, or draw, agree or disagree, COVID-19 is deemed the most significant public health crisis of this country in the last 100 years. And whether you can agree to the attribution of why, I think we can all agree that it has been calamitous with respect to the economy in this country. The global economy contracted by 3.5% in 2020, as a result primarily of COVID and pandemic-related reasons. And if you look at that in the big picture of what was being projected in terms of growth of the global economy back in the fall of 19, in the last 16 months, you've seen a 7% loss relative to that projected growth. So everybody on this webinar, and law firms like the one that I run with Mark and John, should be concerned, because win, lose, or draw, right or wrong, good or bad, whatever you think about COVID and what's happened, it is having a disastrous effect on the economy. You have seen governments across the world, and particularly in the United States, pump tons of money into the economy, $16 trillion at last count on a global scale, which says, from a policy standpoint, they're concerned about what's happening with the infrastructure and how money flows. You're seeing labor shortages, particularly in skilled labor. And you're seeing increasing difficulty across all sectors, including in the construction equipment sector, trying to manage that existing labor force that you have. So what do we do to get out of this? Well, there's a lot of, you know, questions about that, what that actually means. But the one thing I'm pretty confident of is, as demonstrated in this cartoon here, we all want to get back to normal. I don't think normal is quite there yet. I don't think summer of 2021 is necessarily going to involve burning of masks, maybe summer of 2022, but we're starting to make some progress, which is why we get into the discussions about vaccination and what impact they could have actually on the public health. John, take these guys through what we're going to talk about today. We're going to talk about a number of things over the next hour, all kind of related to some background history, the realities of COVID-19, facts, data, how it spreads, some of those things that most of us have heard and are aware that at least that's what some of the science says about what has happened, how to stop this thing from getting worse. We're going to talk a little bit about that. That's Mark's wheelhouse, that's his bailiwick, he loves talking about that stuff, so you'll hear some good details and facts from him. We're going to talk about why you should consider a vaccination policy. And policy doesn't necessarily mean a mandate. Policy means some sort of organized plan that you're going to disseminate to your employees and to customers and third parties and the folks that you interact with regularly to tell them how you're dealing with this pandemic. Like Joe said, regardless of whether you believe, you know, what's one party saying or the other or one scientist versus another scientist, there are people out there that do, and you have to be respective of those beliefs, whether they are differing beliefs from your employees or from customers or vendors that you deal with on a regular basis. And having some sort of policy, whatever it is, having it written down and defined so that everybody knows it and everybody can follow along, not only helps ensure the safety of your employees and your third parties that you're dealing with, but gives them some reassurance. They at least know what they're getting into, and they can choose how to prepare or respond in whatever way they feel best. It also allows us, I was reading an article the other day in response to the, an opinion piece in response to the Biden mandate saying that some companies are looking forward to this because it allows them to provide, to return to business as usual, and even provides them with some cover for doing it. They can say, hey, my hands are tied. This is what the executive order says, and they don't personally have to take the flak for making that decision. We're going to talk about vaccination mandates. Both the Biden mandate and what a mandate would look like if you wanted to adopt one in your office, including the reasonable accommodations. You, the mandate is not a blanket mandate. You have to provide exceptions in certain circumstances to certain people who meet certain criteria under the law. Otherwise, we wind up going afoul of that law and getting pushback from the other side. We're going to talk a little bit about customers and third-party interactions, how to manage that when you don't know necessarily the other person's vaccination status or their comfort level with being around someone who is not vaccinated, what their comfort level is with masks, or any of the precautions that a lot of people are taking during this pandemic. We're going to talk about requiring proof of vaccination. Can you do it? Who can you require to show you their proof? Do you want to know? Some people don't want to know because they don't want people asking about their own vaccination. Some people consider that it's protected medical information. We will talk about all of that. We will talk about if you do mandate a vaccine or if you want to reward employees who get vaccines, how to do that. What can you do it? Should you do it? Are there any rules to how you do it? Any recommendations from the lawyers, even if there aren't rules, on how best to go about that process? We will talk about the CDC guidelines for after vaccination or if you decide not to go with a mandate, what rules you should be following just as a basic baseline for safety for your customers and your employees. And we'll talk about legal exposure on either path because, as we all know, when it comes to lawyers, you're damned if you do and you're damned if you don't. Someone will have a complaint about whatever path you choose, and someone will threaten you with a lawyer, even if they can't find a lawyer to take that case. So, we will talk about potential exposure and the risk on either side. Let's talk a little bit about the pandemic effect. This is a little historical perspective here. We've got a picture of children from many years ago during the Spanish flu being asked to wear masks in the same way that they are today in schools and other places. 2,977 Americans died on September 11. 116,000 died in World War I. 418,000 died in World War II. And approximately 675,000 Americans died of the Spanish flu, which is the closest analogy we have to what's going on now. The reality of COVID is that, according to Johns Hopkins, at least, we're almost at those numbers. And I apologize, our data is a little out of date here. We have it as of the 10th, last Friday. As of today at noon, I checked again. We have 25,545,060 global cases worldwide, 4,644,078 global deaths. Reported American cases, according to Johns Hopkins, 41,267,077 cases reported. And as of noon today, 662,577 deaths in America that have been attributed to COVID-19. That's quite a difference, looking at even just the death number. 662,000 as of noon today versus 654,000 as of Friday. That's, according to Johns Hopkins, at least, an average of 2,000 people dying in the U.S. per day due to COVID-19. And it's gotten worse, obviously, because of the variants. So we've got this slide up here for, and for anyone who doesn't know their Greek mythology. Sisyphus was the king of Corinth back in ancient days and cheated death twice, including by messing around with the gods to do it. And the legend has it that he is damned for eternity to roll a giant boulder up a hill in Hades, and only when he gets very close to the top does the boulder break loose and fall all the way down, and he has to start over all again. That's kind of what it seems like for some of us with this COVID-19. It's been a long, hard slog over the last year and a half. We thought we were almost clear, and then here come the variants. And so Mark's going to talk a little bit more about the specifics of COVID-19, how it's transmitted, what the background facts are on it, and how it can affect your workplace. Hey, COVID-19 is a viral infectious disease. First, it is a respiratory illness in the sense that it is transmitted through the people who have it, expel the virus when they exhale. And the only way to take it in, in general, is through breathing it in, in some form or another. There is a possibility, as we know it, about surface transmission, and you may recall that in the early days before there was a whole lot of data developed, people spent a lot of time washing their hands, washing surfaces, even washing groceries. We have learned that in the time since then that that is not a significant way of transmitting the virus, but it still, viruses can remain alive on surfaces, and you can touch the live virus, and then if you put it in your mouth, you can catch it that way. However, that is, those numbers are exceedingly small. Again, most of the time, it is through exhaling and inhaling. Droplets or aerosols, very, very tiny particles that come out when you breathe out or cough, and when people who breathe in absorb those particles and then can get the virus, the disease after the virus enters their system in that way. Most of the transmission is airborne. The particles that contain the viral material can linger for up to three hours in the air. Obviously, the greatest danger is when you are in the immediate vicinity of an infected person, and that is the, one of the things that makes this virus so difficult is that there is a great deal of asymptomatic and pre-symptomatic transmission. There are people who get COVID who never know that they have it, and yet they can transmit the disease because they are asymptomatic. They don't take precautions because they don't know they're sick, and nobody else around them knows to be careful. Another category is pre-symptomatic, and there is a latency period for the disease that is significant in the sense that you can have it for up to 14 days before symptoms manifest themselves. And that means that you can walk around while you are infected, and you will at some point have symptoms, but you are capable of transmitting the virus to others in your vicinity, even though you have no idea that you yourself are sick. And then finally is symptomatic transmission, which is where people who are sick still inevitably almost have to have at least some human contact. In milder cases, it's people who are around close friends, family members who are helping care for the sick person, or in a more acute situation, the medical professionals and family members who are exposed to the person who's got a symptomatic case of COVID can also get the virus in that way. The concern with any infectious disease is how fast does it spread through the population? And for that, we use a number, we use R to refer to the reproduction number of an infectious disease. A number that you hear an awful lot is R naught, which is R with a zero right next to it. And that is the reproduction number of a disease in a population that doesn't have any exposure to that disease. We are well beyond the range, the time period where R naught is relevant because so much of the United States, again, as you saw in our data, more than 40 million people have caught COVID that we know of because of the possibility of asymptomatic cases of the disease. There are doubtless many more people than that who have had the disease. And the fact that at least in some significant number of cases, the disease itself does seem to confer strong natural immunity on many, many people who've had it. So the reproduction number of COVID is affected by the number of people who have already had it. Obviously, you can get it again once you've had it, particularly given the variants that have come out that the mutations that create new variants of the disease are obviously ongoing at all times. The R number, reproduction number, refers to the average number of people that one person will go on to affect. And it is simple mathematics. An infectious disease will continue to spread while R exceeds one because each person who has it is infecting more than one other person, even if it's only a fraction. A 1.1 R means that the disease will spread quite slowly but will not go away because more people are getting it than have it at any given moment. The goal, obviously, is to drive R below one because over time, that will mean that the disease diminishes to zero. Again, you run the mathematics of that in an equation. And if the number is 0.8 or 0.9 or even better in situations where it's near elimination, 0.3 or 0.2, that moves exponentially as well. When you have a high reproduction number, like measles, which has an R of 15, that spreads exponentially. And when you have measles exposure in an unvaccinated population, it will not take long for everybody who has close contacts in that population to get the disease because it has such a high number. Again, growth is exponential. At level one, you have 15 people. At one person, at level two, 15. At level three, each of those 15 people has infected 15 more. So it's well over 200 people at the third level. And each of those people goes on to infect 15 more people. You can see how quickly it takes. These, something with a reproduction number that high is extremely dangerous. Spanish flu, we saw the numbers for those. Those are some of the more notorious diseases and had 1.4 and 2.8 and chickenpox is between 10 and 12. Again, anything over one is going to continue to reproduce. COVID-19, as best as we can estimate worldwide, is between about 3.3 and about 2.8. Worldwide figures, again, the only really meaningful reproduction numbers are for localities because if you live in a locality, if your country, for example, your state has an R of less than one and the disease is being eliminated, everybody's doing a great job, social distancing, vaccinations, et cetera, et cetera. But nevertheless, you live in a hotbed, your situation is the one that matters. If your area has an R of 3.5, your area has problems that it's going to have to deal with. The concept of reproduction numbers, again, is designed to try to help epidemiologists and medical personnel to get a handle on what sorts of measures need to be implemented, vaccination, activity restrictions, social distancing measures that can be mandated, that can be voluntary. Obviously, everyone in the United States is aware of a very broad mix of situations where there are ways to drive that R number down and the point to remember is that the virus is a virus. It is impervious to politics. It's impervious in many ways to socioeconomics, gender, race, although, you know, men seem to have worse cases of the virus, people who are, who have lower income people because they are more likely to have to circulate despite high reproduction numbers are more likely to contract the virus, so there are some correlations with some of those things, but the virus is, in the end, it is a biological entity like any other biological entity and it is engineered by nature to try to survive and reproduce just like every other biological entity. And that's the bottom line in dealing with COVID is to remember that it's a biological entity that's trying to keep itself alive. Okay. So, John, thanks for the next slide. So, with that cheery news and the realities that we are facing in the United States and elsewhere, let's talk in general about workplace safety, which has already been referenced by Dan and by Brian, but you all know this, particularly in the kind of industries that you're working in, you know, you have a general duty of care under the law to ensure that you have a safe workplace. OSHA regulations are imposed upon you, including, by the way, the new guidelines that are out there, and we're going to be talking in a little bit about the Biden mandate and what it means because Biden is going to use, President Biden is going to use OSHA as the means by which to implement that executive order. And Dan's 100% right. There's going to be some challenges. Mark's going to touch on that in a bit. And there's a variety of other factors. Here in Wisconsin, for example, and other states, there are things called safe place statutes. There are duties that each of you have as employers to maintain a workplace that is safe. And so that is just a reality, whether or not somebody feels unsafe in the workplace or gets infected at a work environment that you are running, and they can establish causally that it is your fault, that's a totally different question, but permeating all of this is the general concept that employers have a duty to keep the workplace safe. John, if you'd go to the next slide. So that naturally brings us to the question about vaccines because one way to try to curb the concerns that Mark was talking about in terms of the reproduction and the ability of the virus to continue to replicate and come up with new variants and new ways to survive under the host is through the use of vaccine technology. So the slide lays out that there are an estimated 50 million people who died of the bubonic plague back in the 14th century, long before modern medicine, long before the existence of vaccines. Now, of course, nobody was around back then. That's historians correlating data and information and reading and trying to come up with a number, but let's agree that 50 million, if that's even remotely accurate, is a lot of people, okay? We've come a long way since then. The measles, mumps, rubella vaccine, which I would dare say probably everybody in this webinar has had, is deemed to be 97% effective if you've had both shots. Ninety-nine out of 100 kids who are vaccinated against polio never contract polio. And smallpox, which was a thing at the beginning of the 20th century, doesn't exist anymore because of the smallpox vaccination, pushing those numbers that Mark was talking down to literally down to zero. But that raises the thorny issue, right, that you probably have friends, colleagues, coworkers, employees, supervisors, and everybody else asking the question, is the COVID-19 vaccine protocols safe? It kind of reminds me, for those who are fans of the movie Marathon Man, if you remember the dentist scene, is it safe, is it safe? Well, I guess we're going to leave all of you to your own opinion about that, but there does seem to be some pretty established data that overall the vaccine technology seems to work. So you all know this because you read the newspapers. If you could go to the next slide, John. We've got three different options here in the United States presently. Two are using this newer technology, this mRNA technology, under a two-shot regime through Pfizer or Moderna. The mRNA technology is not something that came about in 2020. This is something that has been in progress for about, I think, 11 or 12 years. The ability of these two companies to figure out a way to vaccinate against COVID using mRNA technology is, I think, a testament to science and really smart people. And then you have the one-shot regime using a more traditional vaccine technology where they use disabled adenovirus to thwart COVID-19, and that's in the Johnson & Johnson shot. And they all have different efficacies, and the data continues to get collected. I mean, the reality is that there are people who complain about the quality of testing and the experimental use authorizations that were originally given by the FDA. But if you think about the number of people who have now been vaccinated in the data set, there are, of course, people who are affected by these vaccines, no doubt about it. But as a process by which we are attempting to address the severe illness that COVID-19 brings about, they seem to work pretty well. John, could you go to the next slide? I'm going to jump ahead a slide at Dan's suggestion to get to some of the legal stuff just to make sure we get it all covered in time, okay? Okay, move on. Good. So let's talk a little bit about vaccine mandates. Whether or not, you know, absent the recent directive from the Biden administration, the order that Dan started off summarizing for us, whether or not to mandate the COVID-19 vaccination in your workplace is up to you. The EEOC has offered the opinion that employers can mandate the vaccination with two exceptions. You have to accommodate those with a sincerely held religious belief pursuant to the Civil Rights Act, and you have to provide medical accommodations under the Americans with Disabilities Act. Of course, your state may have other rules, either at the state level or sometimes bigger cities, or local health departments may have other rules about who should be vaccinated and when and what the people who are not vaccinated can do and how they can interact with other folks who may be vaccinated. Now, one thing that is important to note is that most state employment law regimes have, because a lot of the federal laws apply only to employers of certain size and above, you know, 50 employers in some situations, the Biden mandate, if it does go into effect, if it does defeat legal challenges, will apply to only employers of 100 or more. If your company is smaller than that, you still have to be aware of obligations under local and state laws, which apply at much, much lower thresholds than the laws. But they are, they generally affect those two same areas, namely religious beliefs have to be accommodated, as do medical conditions. And pretty much every state law, every state that does have laws like that, contains provisions similar or identical to those in the federal law. Thanks, Mark. Legally speaking, the history of mandates goes all the way back to a 1905 case before the Supreme Court. And this involved, it was the case, the original case on the ability of state and local governments to mandate vaccines. This involved a rule implemented by the Cambridge Board of Health in 1902 with regard to the smallpox epidemic. They put in a rule, a law mandating the vaccine and providing it free to anyone who was required to get it under that law. The plaintiff in this case, Mr. Jacobson, was refused to get it and was arrested and charged criminally for his failure to comply. And in response, he filed a constitutional challenge. It was based on the preamble of the Constitution and the spirit of the Constitution. Didn't get into any of the actual mandates of the Constitution and the the binding part of the Constitution that folks have to follow. Just the preamble and the spirit. And the Supreme Court considered it, went all the way up, and decided that the test was whether the municipalities mandate had a real and substantial relation to the protection of public health and safety. In this case, they decided that it did, and therefore the police power of the state must be held to embrace at least reasonable regulations that were established by legislative enactment to protect public health and safety. So that's the first case, that's the one that will probably be cited in any of the challenges that we've seen or are seeing on these mandates. There's other historical foundation for mandates. Obviously, most of us on this webinar, and probably most of us with children on the webinar, have had to deal with school vaccination requirements. They are present in every state, they're present in the District of Columbia. You have to take your kid, or if you were that kid, you had to go and get your shots before school started and carry around that little card that you can present to the school nurse to show everybody that you were vaccinated. Many states require healthcare workers to be vaccinated, and there are public health orders. In the past, there's a history of public health orders mandating vaccination during public health emergencies. Those have been upheld. We all know that the US military traditionally requires all their new recruits in bootcamp to line up, roll up a sleeve, and walk through the gauntlet, walk down the line, and get jabbed with a whole bunch of needles. That is required. That's part of joining the military. You have to do it. The DOD recently came out with a mandate. They added COVID-19 vaccination. I believe the Pfizer one, because it was the first to get fully approved, to the list of required vaccinations for its recruits. And there is some talk, I don't know where it is, but there's some talk about whether or not soldiers can be dishonorably discharged if they refuse to accept the vaccination. Obviously, we've all heard or probably seen a meme on Facebook somewhere about George Washington mandating smallpox vaccinations, or actually, inoculations, not vaccinations, back for the Continental Army back in the Revolutionary War. It's got a long history, a lot of background that the folks who want to issue these mandates can hang their hats on. That said, like Daniel said at the beginning, they will be challenged. We will talk to Mark a little bit more in a minute about what he thinks of those challenges and where they'll go. But you do need accommodations if you mandate, as we saw from the prior slide about the EEOC. You must provide an exemption for a sincerely held religious belief. Now, that is one of those legal terms of art that is very fact-dependent and sort of wishy-washy so that guys like Joe and Mark and I can make our money arguing the gray areas. It will depend on a... It will go ultimately, if challenged by an individual, to the credibility of that individual and whether or not they can establish or there are reasons to doubt, more likely, if they say they have a sincerely held religious belief, that's the standard and you kind of have to tear it down from there by attacking their credibility or producing evidence to the contrary. Medical needs under the ADA is a little more definitive. You will actually need a doctor's note in that case that links that specific employee's health to the doctor's conclusions that a vaccination would undermine that specific employee's health. It has to be specific to the employee. It can't just be, oh, my patient, who I saw for all of five minutes in a virtual consult, is old and old people don't do well with this vaccination. There has to be something specific about that patient's, that employee's medical condition that ties into the reasons why the doctor believes that particular employee should not get the vaccination. Mark's gonna talk a little bit more about the wider federal parameters under federal law. The EEOC back in December of 2020 started issuing preliminary opinions about vaccination, updated those in May. And again, the EEOC has said that it does not violate anti-discrimination laws or general principles of employment law for employers to require their employees to be vaccinated. If the employee has a need for medical accommodation, the first step, and there is a possibility of accommodating that employee. Some people need to work in the workplace and they can't work remotely. Often the accommodation that is easiest to provide is to allow that employee who cannot or will not get vaccinated because of a medical condition to work from home. If that's not, or to work in some other remote capacity where there is no interaction. If that cannot happen, the employer does have the right to terminate that employee's employment. The EEOC guidance allows employers a lot of latitude because there is a direct threat often of transmission in the workplace when there is a personal interaction. The first major case, many people have heard about this. It got a lot of coverage in the media. A large group of employees at a big Houston hospital system sued to block a vaccination requirement. The decision was issued by a federal judge who was appointed a long time ago in his 80s who still is not on senior status. Amazingly he's hearing cases in the regular judge rotation appointed by Reagan in 85. He dismissed it, wrote a five-page opinion. The termination wasn't wrongful under Texas law because Texas law requires an unlawful act and rejected their public policy arguments and dismissed the case. There are a number of other pieces of litigation. The another one that got a lot of attention recently, the ones that there are one offs and single employees who file suits but the ones that have gotten the most publicity are the ones brought by groups of employees in medical situations. And this one came up just last week, the Henry Ford Health System case in Detroit where 50 plus employees filed a lawsuit saying that the vaccination requirement imposed by the system was unconstitutional because it infringed their autonomy, their right to reject medical treatment. As we have seen Jacobson, although it is a federalism case did recognize that governments have great power to mandate things that are seen to be in the best interest of health. And the same thing is true for employer powers. And right in the wake of the Biden announcement and the mandate, these plaintiffs just voluntarily dismissed their claim on the morning of their injunction hearing. Let's talk just for a bit about the Biden mandate. The most controversial part, there are certain requirements that'll be imposed on federal employees and on companies that contract with the federal government and its power is much more well-established in those areas. The part that has drawn a lot of heat is the application of a choice, mandating a choice to employers of more than 100 people that either they require vaccination or weekly COVID testing. And this is gonna be done under OSHA's power to make temporary emergency rules rather than the regular rulemaking process. By the time that rulemaking process was over, hopefully COVID will be too, which is why they are using the emergency process. That emergency process has two main requirements. Number one, employees must be exposed to grave danger from exposure in the workplace to physically harmful substances. And the emergency safety rule must be necessary, not just reasonable or helpful to protect employees from that danger. The two biggest, the main issues, the main potential vulnerabilities based on recent decisions that have struck down OSHA's ability to take steps like this are number one, showing that vaccination or testing is necessary when there may be necessary for all employees of all companies over 100 people when in fact there is quite likely significant difference between the likelihood of transmission in the millions of different kinds of companies that have that many employees in the United States of America and also demonstrating that all employees, all employers of 100 people, their employees are exposed to grave danger based on those workplace situations. Again, that is quite a, that's a lot to bite off and chew for the government in this case. But the one thing to keep in mind is that this will not be strictly speaking a test of the legal viability of a vaccination requirement because the administration has given employers an option of either requiring vaccination or weekly testing. And the one thing that is unclear and that will sure to be litigated as a potential taking of property or excessive regulation is if employers, can the government require the employer to bear the cost of testing if it doesn't want to mandate vaccination or can it pass those on to its employees? Okay, so to sum up, I'm gonna give you a couple of personal anecdotes from our law firm. We're not a 100 employee place, we're a 19 employee place, but a couple of personal anecdotes to demonstrate the points that John and Mark just made. I'm gonna talk a little bit about my own personal health history. I'm 54 years old, when I was 32, I was diagnosed with a very serious neurological condition called Guillain-Barre syndrome. Last November, I was listening to Anthony Fauci on one of the talking head shows, CNN or something like that. And he said, anybody who had Guillain-Barre should not get the vaccine. I immediately went to Leitner and my partner, Jack Laffey, who owned this firm with me and said, I don't think I can get vaccinated and if we're going to think about any kind of mandatory vaccination policy, you need to know that because I will be asking for what? A reasonable accommodation because I probably couldn't get it. Turns out with a little bit more of research with my neurologist and some other people, turns out that I could get vaccinated and I ended up being vaccinated. So that's one takeaway. You need to give that accommodation to those who have a specific medical problem in their background that's going to prohibit, at least in the eyes of their physician or be concerned about the injection of the vaccine. The second point which John made is you got to avoid associations with class. Somebody who's 32 and capable of being pregnant as part of a class of 32 year old women who can get pregnant. That alone, even if there is concerns with vaccine is not enough to grant the accommodation. It has to be something specific to that individual. And finally, the point that Mark made which comes out of the EEOC guidelines is you need to show a direct threat. So it is very fact intensive. And so as you begin to grapple with this, smaller firms are going to have an easier time with it because you know your employees, you know generally what their health conditions are. You might know family members that have exposed immune compromised systems or whatever the case may be. You can make some choices there. Very difficult to do when you start to get to large numbers of people that are working for you. But the analysis, the analysis is whether the presentation of COVID in the workplace is going to constitute a direct threat to other employees. Let me just jump in here, Joe, if I may address something that's come up. Then there's a question that's arisen as to whether there are potential HIPAA or other medical privacy implications that are raised by the doctor's note. And the short answer to that question is that they are not because the employee is consenting to the release of the information. Essentially, the employee is requesting accommodation based on a medical condition. And to do that, the employee is voluntarily because the employee is seeking to invoke that particular protection afforded under the law, the employee must voluntarily disclose that medical information. And ordinarily, obviously, a person can prohibit, at least a person can't necessarily prohibit it, but a medical provider who possesses information like that is not normally obligated or allowed to disclose it. But when the employee authorizes it and the doctor should not disclose it without such an authorization, then as part of an employee's effort to obtain an exemption, then there is no potential violation of those parts of the law. So let's talk a little bit about some practical considerations. We talked about workplace safety. If you're going to mandate the vaccine or you're going to choose to make vaccination voluntary, write a plan down and follow it and stick to it and apply it uniformly in a way that is consistent with the things that we've been talking about here. It goes without saying that you're going to have, especially in a larger organization, people who are all over the map on this issue. And you want to be messaging that you care about all your employees, not a subset of your employees. So, you know, right now we're in an environment where masks, no masks, social distancing, no social distancing, hand sanitizer doesn't work, all this kind of stuff. Bottom line is what you want to do is create an environment that is conceptually safe for everybody and try to write down some written rules that work, even if you choose not to mandate the vaccine. John, go to the next slide. We'll talk about whether you can require a proof of vaccination. The answer, the simple answer is you can, okay? You can ask your employers to provide, your employees to provide proof of vaccination and there's nothing illegal about it. Obviously, a person does not need to get vaccinated for the reasons we said before, if you decide to mandate it. Can you mandate that vendors, customers, people who are coming onto your premises, can you mandate that they be vaccinated? Nope. But can you mandate that they require proof of vaccination before they engage with your people? You can, you can make that business decision. What we've done at our firm and what a lot of employers have done is they've not asked for a vaccination card, but they have simply done some simple contract tracing. When people come into our office, they fill out a form and they answer a few questions. That way, if there is any kind of outbreak, we at least have an ability to try to track it back. But again, that is a very, very specific employer-based business decision. That's what worked for us. It's not what's gonna work for everybody. John, why don't you take these guys through some third-party interactions and the other practical considerations they're dealing with. So we touched on a lot of these. How do you address third-party interactions, customers, vendors, people coming to your office, the postman, the UPS guy? And you have to recognize that you can only control your part of the universe. You can't mandate that these folks get vaccinated or even wear masks. However, you can prevent them from coming onto your premises if that doesn't meet with your plan you're concerned about the safety of your own workers. You can create an island in your workplace where you limit the access to only people who meet the parameters you've set for your particular workplace based on the direct threat to your employees and or their spouses or family members that you're aware of. Should follow CDC guidelines. Obviously, any local guidelines, city, state, local boards of health, those sorts of things you should follow just so you don't run afoul of those and get fines or criminal complaints or any of those sorts of things that might be imposed in your local area. But generally speaking, they're a good idea. These things are a good idea because they put everybody at ease. At least everyone knows where they stand. They know whether they're gonna have to wear a mask or not, be vaccinated or not, who they can talk to, how far away they need to be. If you've got a great relationship with a customer that you normally greet with a handshake or a hug, the rule will be set ahead of time as to how you can interact with that person. So you won't offend anybody. Everybody can adjust to their own comfort level. Wanna talk a little bit about incentives. Can you pay your employees? Can you compensate them? Can you incentivize them to get vaccinated? You don't have to certainly, but you certainly can. We recommend as lawyers, obviously, that you apply the program the same way across the board so that it's non-discriminatory. Everybody gets the same thing. We've seen gift cards, cash, tickets to shows or a sporting event. This obviously, this cartoon riffs a little bit on the idea of some of the lotteries that states like California were considering or some of the state-sponsored awards. But you might have a prize drawing in your own office for a bigger prize that folks can enter by showing their vaccination card. You certainly can do all of these things. It's obviously a business decision that we leave to you on whether or not it makes sense to, whether or not it's something you wanna promote in that fashion. Can you reimburse them in addition to compensating them? Or before you even get to compensating them, can you reimburse them? There is no cost to be vaccinated. You don't have to worry about that. But there are incidental costs. You could pay travel costs or parking costs at wherever they're going to get the shot. You could give them a PTO for the time that they take out of work to go get the shot or the time that they may need to recover. These shots for some people puts you down for the count for a day, kind of recovering. You're sleepy, you're achy, you're not doing well. Can you reimburse or compensate your employees for that? You can. You can also disincentivize employees if that's the path you choose. And Delta Airlines has done this. Delta was going to impose a surcharge because of the likelihood of increased illnesses, workplace disruption, et cetera, caused by people who were not vaccinated. And before that mandate went into effect, Delta decided, Delta experienced a great increase in the number of people in its workforce who were getting vaccinated. I have noted that there are a number of questions that are coming in, and I wanna address a few of those. One question has to do with potential employer fines and liability. The outlines of the OSHA rule that we have seen so far provide for fines up to $14,000. Obviously, that is a maximum, and who knows how likely that is to make it into the final rule. The rules have not yet been promulgated, and there's a lot of noise about, we don't really wanna fine people, we just wanna get people vaccinated. You can guess where that'll end up. In terms of ways to count your employees, the general rule, at least for purposes of other employment laws, such as the Equal Employment Opportunity Act and state fair employment laws, is that all locations of a company are aggregated. And in fact, under federal employment laws, there are even some decisions that allow the government to aggregate affiliate companies, let alone locations. So the tendency of the courts is to interpret these statutes in ways that expand the coverage that they provide. In terms of, let's see, there's a question here about mandating visitors or contractors to get vaccinated. If you cannot require anybody who's an employee of another company or another company that's doing business with yours, you can't impose any legal requirements on them, what can happen is that somebody will say, well, if you are not vaccinated, you have to be vaccinated to come on our property and we can't do business with you unless you follow that protocol. And the problem there is that there may be already existing contracts, agreements, arrangements in place that make these situations very problematic in terms of mandating vaccines for people outside the company. A company that does that may be exposed to breaches of contract, for example. In term, the ability of, and if any of my colleagues wanna jump in and answer some of these questions, let's do that so we can provide more value by addressing things people wanna know about. If the vaccine causes an injury to someone who is getting vaccinated because of an employer mandate, someone who is objecting to being vaccinated, if that person has an adverse reaction, in general, the most that could be done, assuming that the liability protection that is enacted in the federal law that authorizes and allows these vaccines to be distributed for free, you can't sue the manufacturer, you can't sue the federal government. I am not aware off the top of my head whether there is also an immunity for employers who mandate vaccines that may well be addressed in the Biden order when it comes out, but the maximum that would be available would be a worker's compensation. The natural immunity issue is a very, very interesting one because there is, from my understanding, there is mounting evidence that natural immunity, at least with respect to the variants that have been circulating so far is at least as good as vaccinated immunity. That's a wide open issue and it's a wide open issue scientifically because one thing that is true of any infectious disease is that there are a lot of changes biologically, medically, et cetera, along the way to going from epidemic to endemic. But Mark, let me interject there. I mean, the question is, if they've already had COVID and they have some built up immune response because of that, how do you deal with them in the context of the mandate? If you decide to mandate, I would think you'd treat it in the same way as anybody and they'd have to either get a reasonable accommodation- That's an issue that's being litigated right now and there's a college in California that imposed a vaccine mandate. One of the professors at that college has had COVID and had natural immunity, came in with antibody tests and said, I shouldn't have to comply with this and took them to court. Unfortunately, the legal theory is equal protection and that's a weak legal theory to use in that context but there have been no decisions in that case. So that's certain to be an issue that's gonna get some attention from the courts. Dan, do you wanna interject here and take any other questions or would you like to- Yeah, so I think a lot of the questions are coming in are based on a regulation or an order from the administration that we just don't have all the details on yet and as far as locations and how they're gonna aggregate that, as far as fines, as far as all that stuff, we should know in the next few weeks when the order actually comes out and then at that point, we will almost certainly at AAD have another webinar to go through that as well. One of the questions I did wanna get to here though before we're running out of time is there was a question regarding the clarification of whether you can require those, so you can mandate visitor contractors be vaccinated, I thought you said you could not but we have had customers mandating that for us to come on their sites. So is that something you guys can clarify there? I think the issue is with the word mandate. You cannot require someone coming onto your premises to get vaccinated. You can't force them to get a shot but you can limit access to your premises to people who are not vaccinated. You can control your own area. You can't control them, their autonomy, their ability to, or their desire to get a shot but you can certainly control your own private space and say, these are our rules. If you don't have it, you can't come. Right. And then interesting question here is as far as dealing with a union, if you're gonna impose a vaccine mandate, do you have any insights on that? Well, there's a potential conflict between obligations under a collective bargaining agreement and then things that are being imposed from above by the federal government. And that's an area that is rife with conflict. And again, something that I'm not aware of any precedent hanging around out there as to how that would be resolved because there are employers got its hands tied in a sense. And I'm sure that the administration is gonna say, well, this is an emergency rule. And the response on the other side is gonna be, well, now all that means is that the rule is going to be enforced only for a limited period of time. The action that I have to take, I have to get vaccinated. I can't undo that vaccination. And if the union contract doesn't allow it, I'm caught between a rock and a hard place. All right. And then the, and I think you guys touched on this, but just to reiterate in terms of the legal liability, if there's an adverse reaction to the vaccine and you mandate that, there was another question. And the answer is that there are broad exemptions, broad waivers or negations of any liability for these particular vaccines that were written into the law when the federal government agreed to buy them from the manufacturers and distribute them for free. Among them is that you can't waive, you can't sue the federal government. You can't sue the manufacturers. There will probably be some kind of claims process set up the way there is for other vaccine immunity, the vaccine requirements that have legal immunity regimes attached to them. And with respect to employers, I do not know whether the laws that, the authorization laws that the federal government passed to buy these vaccines and then distribute them, whether they extended immunity to employers, but there certainly is a, there is good reason to believe that liability would not, that any claims by an employee against an employer would fall within workers' comp liability. I did see that there is a consensus, at least among the commentators that I have seen that employees who refuse a vaccine and are terminated or quit because they don't want the vaccine are not eligible for unemployment in most states. Obviously that's a state by state thing. You, an employer could always decide, well, we're not gonna contest it in this case, but you know, the viability of that depends on how quickly this person would find another job. And one other point I would make just on the issue of liability for a mandated vaccine. And I think someone asked about potential employee loss due to mandates. I don't know that we have data on that yet. I think it's still kind of early in that process, but especially with regard to the Biden mandate, the federal government mandate, I think it does provide some cover. If it's something you are required to do by law as an employer, not only does it give you, at least some arguments if you get sued for liability due to an adverse reaction, it also could potentially limit your employee loss because where are they gonna go if their skillset is such that they would go to a similar company that has the same mandate? What's the point in moving? All right, well, we are about 10 minutes over time. So do you wanna be mindful of that? There are a couple of questions coming in about whether the slides will be circulated. They will be circulated. And there, I was gonna say contact information for Joe, Mark, and John is right there. And I'm sure they will happily answer your questions at a reduced hourly rate, maybe, I don't know. But- How about free? Free, okay, there we go. If people have follow-up questions, the email is in that last slide and feel free to shoot us an email. And to the extent we can answer it, we'll answer it. And again, we will circulate these slides with that contact info as well. Thank you everyone for joining. Thank you, Mark, Joe, and John. This has been very informative. And I do just wanna let everyone know, obviously we're awaiting this Biden administration order in the next few weeks. And once that is out, stay tuned to AAD for further information, further compliance information on that. And also I would like to just say that we do have a public policy webinar on September 21st at 2.30 p.m. Central Time, where we're gonna discuss the infrastructure bill as well as the reconciliation bill with related tax increases and such that's gonna be going through Congress here over the next few weeks. So again, thank you everyone for joining. Thank you, Mark, Joe, and John. And we will be in touch. Thank you. Thanks everyone. Thank everybody. Bye-bye.

vaccine mandates

employer rights

executive order

mandatory vaccinations

workplace safety

proof of vaccination

employee incentives

CDC guidelines

employee accommodations

legal liability