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Hear from employment practice lawyer, Henry Perlowski, a partner at Arnall Golden Gregory LLP, as he shares his take on OSHA’s vaccine mandate and steps you can take to help prepare your organization.
The Workforce Wise™ Podcast from Equifax Workforce Solutions helps employers save time, reduce risk and increase profits. Our experts and industry leaders reveal insightful human capital solutions for HR, payroll, tax and compliance needs. Listen now and get empowered to deliver immediate value to your organization. Learn more and listen to other episodes at workforce.equifax.com
Announcer (00:00):
You're listening to the Workforce Wise Podcast from Equifax, where we help you better manage your workforce by saving time, reducing risk and focusing on increasing profits.
Jason Fry (00:16):
Hello and welcome to the Workforce Wise Podcast. Today we've got pretty exciting guest on. Henry was able to talk to our strategic cab a few weeks ago about vaccine mandates and he received glowing reviews, both from the information he was able to share and from his knowledge of the subject. So today we're going to talk a lot about the vaccine mandates, about how to plan for them and what employers need to know as we are looking at what's going to happen over the next few months, as it pertains to vaccine mandates. I'm going to introduce Henry. Henry Perlowski is a partner in the litigation practice and is chair of the employment practice. And he also helps employers solve some of their most legal dilemmas. Henry works at Arnall Golden Gregory, and he is an expert in both the vaccine mandates and overall employment law. Thank you for being with us today, Henry.
Henry Perlowski (01:13):
Thanks very much, Jason, great being with you today.
Jason Fry (01:17):
So Henry let's start at the very beginning. What are you hearing? What are employers asking you about? What's the biggest topics that you're hearing when we talk about vaccine mandates today?
Henry Perlowski (01:28):
So it's amazing. We talked to this client at strategic advisory board last week, and so much has changed since last week. President Biden and OSHA issued the emergency temporary standard, it was announced on Thursday, published on Friday, which set forth more of the rules of the game with respect to the federal government's vaccine mandate on all employers with a hundred or more employees. Well as expected, there was immediate significant litigation filed to stop the mandate. So the questions that we've been receiving since Saturday have been, now what do we do? Because we really don't know whether the mandate's going into effect or not.
Henry Perlowski (02:21):
The short answer to that question is sort of stay tuned, make plans as if it is going to go into effect, but there's a pretty decent chance that it's not. And if it's not then OSHA, probably... I wouldn't say goes back to the drawing board, but then they try to address the concerns that have been raised. What's... legally, it's a complete mess because there's litigation in four different circuits. And so certain litigation's private employers, certain litigation is a coalition of states, another lawsuit is another coalition of states. It's basically, let's try to file cases in the courts, in the circuits that we think are the best circuits to overturn the mandate, right? In terms of just playing your odds, try to get as many favorable rulings against the mandate as possible to set it up, to see if the Supreme Court is going to look at the issue and the Supreme Court is going to decide we do or don't want to get involved. And by the way, I don't think that it's a definite that the Supreme Court decides it does want to get involved, because it is such a political issue.
Henry Perlowski (03:38):
And the Supreme Court for reasons beyond the mandate may not want to step into that politics. So it's really uncertain Jason, as to where things are today because of the legal challenges which are going to move through the court system very quickly. But I think that guidance right now is make plans to comply, but you may not have to.
Jason Fry (04:07):
Yeah. And I know that as attorneys, uncertainty is good for us because it's kind of what we do. But for employers, uncertainty can be really hard, especially if it has to do with bringing on new employees and employer relations and making sure that those employees understand what's going on, kind of just from their day to day. So what would your recommendation be for employers? I know you said make a plan, but what does that look like? What does make a plan look like for employers?
Henry Perlowski (04:35):
So, I think you start with logistically. Okay, so going back to some of the key provisions of the temporary standard. Figure out, first of all, are you subject to it? Most employers are going to be subject to it. It's a hundred or more employees, it's not at the location level, it's at the company level. OSHA wasn't crystal clear whether it's goes to of a control group level and by that, I mean, let's say you have two companies that both have 55 employees but they have a common owner, do just 55 plus 55 equal over a hundred? I suspect that's how that plays out.
Henry Perlowski (05:21):
So first of all, figure out coverage. Then you figure out, do I have excluded segments of the workforce? An excluded segments of the workforce, people who work remotely, people who work exclusively outdoors, people who are otherwise... If you're otherwise covered. So by the kind of the company level, are you otherwise covered by another mandate, because if you are, then this mandate doesn't apply to you. So just figure out coverage, both as a company and as at the employee level, then you have the option. And by the way, as I told the strategic advisory board last week, I thought that the testing alternative, which is clearly picked up in the ETS standard, was going to be what the government tried to rely upon. And basically say... Because the arguments that are being raised right now is that OSHA is really going beyond protection of the workforce and is delving into broader health issues that are beyond the scope of its authority.
Henry Perlowski (06:25):
OSHA said, look, we're not telling anybody that they have to have their workers be vaccinated. They can do a weekly testing as an alternative and that suffices, and you can even mix and match. You can say you vaccinated for some segments of the workforce, weekly testing for others. So in terms of planning, what we would also recommend employers do is figure out, okay, assuming it goes forward as drafted, what are we going to do with respect to segments of the workforce? If you're customer facing, are we going to make you be vaccinated? And you may make that decision based on what your customers are mandating to you. We have certainly clients who literally, by virtue of their business, they have to go into places where they're not going to open the door unless you're vaccinated. So you have to factor what you're going to do, understanding that employee retention is such a challenge right now on the flip side.
Henry Perlowski (07:29):
So you have to tactically make those decisions of, do I think by mandating, I'm going to lose a critical, massive employees where I'm not going to be able to make widgets anymore? And so those conversations, you should basically recommend that businesses be going forward with those conversations period, because you may have to do this... I doubt that it'll still be by early January, but who knows right now? Going to the uncertainty question, and I'm a lawyer, in this case, I don't like uncertainty, because I mean we're certainly a business that would be covered by it. And I don't like telling clients, your guest is as good as mine. That's typically not what clients want to hear, but it is frustrating in the sense that there is so much uncertainty about it. But you can at least get down to, if I have to do this, what decisions am I going to make with respect to what aspects am my workforce? Have those conversations now.
Henry Perlowski (08:40):
The compliance aspects in terms of getting policies in place, that can be done pretty quickly, that can be done on pretty short notice. How are you going to, with respect to tests, start thinking about how you're going to monitor and implement and testing requirements for where you're going to for where you're going to give the testing option instead? Figure out does your state mandate that you pay for the testing, because the ETS does not mandate that employers pay for the testing. So think about, does just does my state or where I have locations or is that state law going to mandate that I pay for the testing? If employees have to pay for the testing, is anyone going to get dropped below minimum wage as a result of having to pay for the testing and is that going to create issues? So there's some satellite things that you can start thinking about in that discussion.
Jason Fry (09:43):
So it was interesting to me too that you talked a little bit about states may require something different. Can you talk a little bit outside of the federal mandate? We'll come back to that a little bit too, but our states to any different viewpoints? Are they doing anything on their own? It seems like we may end up with a patchwork, at least in the meantime, before we kind of see the end of the federal piece.
Henry Perlowski (10:06):
So the one thing the federal, the ETS specifically, said that it preempts any contradictory state law. So if a state, and there are more and more of them are popping up every day now, are issuing prohibitions on mandates. So you have the states that are saying, we're going to mandate. And the states that are mandating, it's typically more limited, it's not employers at large it's if you work in certain segments of the economy. If you're a state government employee, if you work in healthcare, if you work in education, it's more in industry.
Jason Fry (10:52):
So, and I think that that brings up an interesting conversation for employers too, not just if their state, or the state where they're headquartered in might have a differing opinion or a different set of legislation. But also, one thing that we've seen more and more, especially over the past 21 months is, employers who end up with employees in all different states where they've never done business before, because they're now able to hire remote. Or an entire piece of their workforce may have been remote and moved to a different state while they were either shut down or not able to come to work every day. So can you talk a little bit about other things that employers need to think about when they think about just from state to state and where they may have employees?
Henry Perlowski (11:35):
Absolutely. You need to have your footprint covered and make the assumption that where the employees based, the law is going to apply. So if you have people in Kentucky, Kentucky law is going to apply. If you've got people in Montana, Montana's prohibition is going to apply. And it's not crystal clear in Montana what that prohibition practically means. For example, can an employee bring a lawsuit because you're putting them on unpaid leave of absence because they're not vaccinated? They very well may. And so you have to have your entire footprint covered and you make the excellent point, where people tend to forget that people working remotely are in a different state.
Henry Perlowski (12:20):
It's easier to think, okay, I've got buildings in Arkansas, okay, I'm in Arkansas, but here this is the... Our law firm has two physical locations, one in Georgia and in Washington, D.C. We have people working in other states right now, so wherever we have people working, we better darn well pay attention to those state laws. And that tends to slip through the cracks when you're talking about micro planning. So if you're in HR or if you're in legal, you have to factor, if I have someone in a location, I have to pay attention to that state's law. And again, at the federal level, again, ETS applies company wide, it's not, you have a hundred employees in a specific state, it's a hundred employees total. So ETS may apply even if you have two people in a given state and that state laws mandate, or prohibition against the mandate, it's going to apply too. So you have to just figure out how that gets reconciled.
Jason Fry (13:20):
And so when we talk about policies... And we'll talk a little bit about managing policies too and what employers need to think about when kind of they go through, but one thing that we are seeing is employers, more and more, may not know where those employees are. Because, quite frankly, employees' first action, when they move, isn't necessarily telling their employer they've moved, especially if they're working remote, and with more and more people working remote. So we always kind of tell our employer clients that one of the most important things that they can do is make sure that the home address is correct for those work at home employees, not just for something like this, but also for wages and making sure that the W-2s, and all those notices get sent to the right place. But that's one of the things that we usually start with, with our employers, especially in the onboarding world, we need to make sure we keep up to date where those employees are actually living and working. So we can make sure that we know what to do when something like this happens.
Henry Perlowski (14:17):
It's a really good time to send out that one-question survey to your entire workforce and process the information that you receive with in response to that survey. That's an easy way to get the information. We need everybody to apply, to respond to this survey by Friday. What is your current address? Where do you currently reside? Because by the way, address and residents... That's where you get all sorts of issues because, look, let's say someone has an address in Florida because they don't want to pay state income taxes but they're really working in another location, so it's like where are you working out of right now? That's almost a relevant question, not where do you have an address?
Jason Fry (15:10):
Right. Just so you know, and again, we're seeing more and more employers just not know where they may have employees.
Henry Perlowski (15:16):
I think that's exactly right.
Jason Fry (15:18):
Yeah. So it's becoming increasingly difficult to know, not just for something like this, but also notices and annual notifications that those states may require. So it's always a good practice to at least once a year to send out, it's like you said, that survey to say, "Hey, we want to make sure we understand where you're at"
Henry Perlowski (15:39):
And especially now because I think while businesses have been accustomed to dealing with certain aspects of the remote workforce, I mean, you're not accustomed to drinking from a fire hose typically, and that's what everybody's been doing since COVID. And now sort of the legal issues associated with it are starting to catch up. The lay of the land is kind of been set and on the plaintiff side lawyers are thinking, I know where the traps are and now I'm going to take advantage of those traps, if companies have fallen into them. And that's starting to materialize significantly on every front, on the wage and hour front, as you mentioned, on notices, on employee counts. Now you're going to have issues with mandates and whether they can be enforced or not. Because I do know clearly, there has been so much litigation, including litigation that candidly had virtually no chance of succeeding, but it's such a political issue that it's going to be really easy to find somebody to bring cases. Because its-
Jason Fry (16:48):
You're never going to run out of plaintiffs.
Henry Perlowski (16:50):
You're not. You're not going to run out of plaintiffs. You're not going to run out of plaintiffs' attorneys who want to make a statement for the cause because they think it's going to, in the long term, inure to their benefit.
Announcer (17:02):
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Jason Fry (17:14):
Employers, and I know that we talk a lot, especially when we're talking about compliance and some of the more heavily regulated pieces of compliance on onboarding. We talk a lot with our employer clients about having a good set of policies and that a good set of policies cannot only help them make sure that they're doing things correctly, but it can also help them if anything ever happens down the road, to be able to document what those policies were, even if someone went astray of the policies. So can you talk a little bit about what you're recommending when we talk specifically about policies around COVID mandates for the vaccine? And what should employers think about, not just with the policies, but how to update those and keep them updated going?
Henry Perlowski (17:53):
Sure. So OSHA has issued some templates, so it did issue templates for the vaccine mandate policies. Given that OSHA's blessed them, that's pretty darn good place to start. You want to have customized forms for accommodation requests, both religious and disability. We have templates of those Jason, I'm happy to share them with you and you can disseminate them. But I also think that, for example, if you're going to make distinctions between mandate vaccine versus testing, have some justification behind that, right? This is why we're doing it. You want to have a communication going out to your workforce that explains to them what you're doing and why. And I kind of, as much legal, I think it's really important to be a good communicator right now about why you're doing what you're doing, because you also have to deal with the retention aspect of your workforce.
Henry Perlowski (18:58):
And being transparent in doing the best you can to explain why you're doing what you're doing, and being willing to listen, even if you don't agree, you have to listen. And I think that's really important. And so it goes into the whole communication aspect of being a good employer and the better a communicator you are, the less likely you're going to come into problems with your workforce. So you want to have a communications plan and justification behind the decisions that you're making, whether it be mandate or testing.
Henry Perlowski (19:33):
And I will tell you, if you're going to mandate, also, you want to get out in front of, okay this is why we believe that if our employees are not vaccinated there's some kind of direct threat to the health of either employees, patients, customers, because that's going to also help you deal with some disability accommodation requests that may come in. So you have to start thinking about that from a process and documentation standpoint, in addition to getting all of your templates out your. Your communications, whether it be a town hall or what, your communications plan, your accommodation forms and getting that all lined up.
Jason Fry (20:18):
Yeah. And anytime you're working with employees, it's important to know that, again, you're meeting those employees where they are not necessarily where you are. And keeping in mind that they may not be a monolithic group. So also have their own viewpoints and views of the world. So that communications piece, I think, is of upmost importance. But let's say you do come kind of up with a group of employees who just absolutely refuse to comply. What are you telling your clients to plan for, to think about, if they actually just have a group of employees that say, "Nope, not going to comply"?
Henry Perlowski (20:58):
Sure. So first of all, going back to the policy thing, you want clearly state what the ramifications of non-compliance will be. We also recommend that you don't immediately go to termination. This is the using the monopoly analogy, this is not the, do not pass Go, do not collect 200, you may actually need to spend some time in the jail and hope you roll doubles. So what you do then instead, what we're telling clients to do is put people on unpaid leave for a period of time. Because, if you are not being paid for 30 days, and I'm just saying this as objective fact, it's a large segment of the workforce that cannot afford to be unpaid for 30 days. So you are really putting the principle or the philosophical political objection to the monetary test of, am I willing to put my money where my proverbial mouth is?
Henry Perlowski (22:04):
And you've seen the statistic from large employers, the United airlines, the Novants, who have put in mandatory policies. It takes some time, but the numbers go way up as you put more pressure on the workforce to get vaccinated. So consider your unpaid leave option, 30 days, and use that before you are then going to say, "okay, you're still not vaccinated or you're not submitting to testing, understand after this 30 days it's over". And by the way, unemployment should be jeopardized in that, because you're not complying with a company policy, which is typically a reason why a company can succeed in an unemployment claim if they choose to contest it.
Jason Fry (22:56):
Right. And we actually had an entire segment on UC claims and what to think about with the vaccine mandates, and one around the ACA impacts that there may be for vaccine mandates and testing alternatives. So a lot of really interesting information and things that HR might think about but doesn't generally think about from day to day. And I think that's probably what makes it both so interesting for us and maybe so confusing for HR, because it is something that maybe they're not dealing with all the time. So, I mean, you talked a little bit about exceptions in the exception process. I've seen a couple of different types of exceptions that are allowed, especially under the federal piece. What are you seeing kind of as the biggest groupings of exceptions?
Henry Perlowski (23:46):
So the disability exception request should be pretty straightforward. Does an employee have a health condition that prevents the employee from taking the vaccine? And if that's the case, that should be fairly objective data to evaluate. If the information is coming from a remotely credible source, you accept it and you look at what your other alternatives will be, which be testing, or like in the ETS, there's the mask mandates associated with unvaccinated employees. So you look to that, and by the way, companies have been doing that already in large part. The religious requests are... That's the area, as I mentioned earlier, that companies are really struggling with, because what you're getting is a lot of philosophical requests that are in effect...
Henry Perlowski (24:37):
I don't mean to use this as derogatory as it's going to sound, but the philosophical request being masked as religious objections. And the presumption is generally that you should believe it, although the EEOC has recently come out and said, "employers have at it", in terms of questioning these requests. Because the current administration wants as many people to be vaccinated as possible so they're giving employers leverage to question the validity of these requests. The problem is employers have to have systems and time to do so. And that's what the real struggle has been, which is why you have companies looking to say, my hands are up, I got to send this to somebody else to do it for me.
Jason Fry (25:22):
Right [crosstalk 00:25:23].
Jason Fry (25:22):
I'm in the business of being in business, not in the business of monitoring these exception requests and seeing what they all say.
Henry Perlowski (25:31):
Exactly. How am I supposed to vet whether a religion I've never heard of is anti-vaccine?
Henry Perlowski (25:41):
[crosstalk 00:25:41]
Jason Fry (25:42):
HR departments are not staff for that. It's-
Henry Perlowski (25:45):
No.
Jason Fry (25:45):
Anything they hate more than then uncertainty is a company wide unplanned work. And this is the epitome of company wide unplanned work. When we're talking about something like, how to deal with the exception process, especially if you're getting hundreds of them or thousands of them at a time.
Henry Perlowski (26:07):
Right. And I think that's the unfortunate reality of what we're dealing with, is look, you can understand, even if you don't agree, why there's a push to mandates, because candidly the administration is thinking it's the only way I'm going to get the economy on clearly stable grounds. I don't need to deal with the next version, whatever the next variant is that puts us into a swoon again. I mean, look, I get all that, but businesses are not staffed to deal with this and that's just the reality of it. Especially when you factor how much businesses are struggling just to keep themselves staffed. And that's what human resources and management needs to be focused on. How do I have enough people who are qualified to make the widget? And to have this additional layer on top of it, it's very difficult right now.
Jason Fry (27:06):
Yeah. And honestly, I do quite a bit of work in product and product management for our company. So I spent an inordinate amount of time talking to HR, generalists and HR practitioners in general. And I have not met one yet that said, I joined HR because I wanted to deal in federal mandates or wanted to make sure that we stayed compliant with a new set of rules. They want to make sure people are in the right jobs and enjoying their jobs and getting paid for the jobs they're doing. Not necessarily every day figuring out exactly how to comply or how to be compliant with a new set of regulations that may change over and over again. Harry, I know you mentioned too, some pretty stiff penalties for employers who may run a file of, especially the federal mandates. Can you talk a little bit about the penalties that might be associated with it, both at the federal, and if there any state penalties, that employees might need to think about?
Henry Perlowski (28:04):
There's not a lot of clarity yet on the federal, on the penalty side. I mean, the administration announced an intention to fine up to $14,000 per violation. And look, when I saw that number, I wasn't surprised on the one sense, because they want to send an aggressive message of, we expect compliance and there's going to be ramification. But per violation, if you think about that, if you have a significant workforce size, that's a pretty stiff number, especially when OSHA was issuing violation of fines that paled in comparison to that number when you were dealing with fatality cases last year, following COVID. I mean, so when you think about it from a proportionality standpoint, it's pretty diffi... And I would expect that there'll be challenges on the fines as well about arbitrary capricious, et cetera.
Jason Fry (28:55):
Yeah. And again, anytime there's uncertainty, it's difficult, not just for the business, but especially for HR. We've talked about a lot and we've talked a lot of very specific things, some general things, what have we missed? What are you thinking about that we haven't talked about yet? Is there anything else that employers just need to be thinking about as more and more information starts coming out?
Henry Perlowski (29:18):
Well, I think... And look, there's a lot of sources of information out there. You've got... This is a real time things evolve, things have been evolving faster than I can candidly remember it. Literally on Thursday it gets published, reading up on it on Thursday, legal challenge on Friday, injunction on Saturday, briefing Monday and Tuesday. I mean, that's the kind of world we're living in right now. I just think you... And this is especially challenging for the smaller employers that don't necessarily have the infrastructure, for example, that an Equifax has. So if you are infrastructure challenge, you don't have an in-house legal department, or you have a legal in-house legal department of one, or you have only a couple of people in HR, you got to keep abreast of this stuff. So having a really reliable source of information that you can count on as being good information, is more important than ever right now.
Henry Perlowski (30:24):
And I continue to go back to being really sensitive to how you're communicating to your employees about this, because in the world we live in, 45% of the population is going to disagree with you. Maybe there's 10% that may be swayed either way on an issue, but 45% of your workforce is going to disagree with you. So understanding your workforce and how aggressive you're going to be, given your workforce is probably more important than ever. Because you don't want to strictly comply with the ETS if it's going to be enforced and find out that you have 20% less people a month from now than you had today. I think that's as important as anything, is just being attuned-
Jason Fry (31:16):
Especially when it's getting harder and harder to find people, much less 20% of your staff, right?
Henry Perlowski (31:26):
Right.
Jason Fry (31:27):
It's interesting times for employers to say the least. I do have actually another question about record keeping, especially when we're talking about some very specific medical information for these employees, in a world where employers may not have been keeping this type of information on their employees in the past. Is there anything that employers need to think about since this is considered medical information of the employees?
Henry Perlowski (31:54):
Sure. And this is true, irrespective of the ETS, this is true in the existing body of case law. If you have information... For example, my law firm has records of vaccination status because it's a factor in your health insurance analysis. So we look at a number of issues and you get a point if your blood pressure is at a certain level or not, if you've been vaccinated or not. So we keep the information irrespective of any of the OSHA issues. That information needs to be segregated. It needs to be in human resources, in segregated files because it contains medical information. And The ETS is specific about this, about what you have to do from a record keeping perspective.
Henry Perlowski (32:41):
It's also specific as to what kind, if you're going to do the testing option, what kind of tests are approved, not your home self tests, unless they're administered by a telehealth provider or on site supervi... You can't just have somebody say, "I took the rapid test this morning. I'm good". For vaccination status, you have to have... If you don't have proof of the vaccination status, then there's a way to get an employee attestation. But all that information should be segregated in confidential files, maintained by human resources, and not be accessible except with the people who specifically have a need to know.
Jason Fry (33:24):
Yeah. And I think that's important for, especially HR practitioners to realize that this may sit outside of the other HR files that they've got. Henry, one more time, anything that we're not thinking about, anything we haven't talked about that employees might need to know about?
Henry Perlowski (33:42):
I think we've hit a good overview of the topics and the challenges that businesses are facing right now. I'm sure after we get off this call, Jason, that 10 minutes later, I'm going to think of something else, but I think we've done... I think we've hit a lot of the high points.
Jason Fry (33:58):
Yeah.
Henry Perlowski (33:58):
And the challenges.
Jason Fry (33:59):
I think too. And I think that... Especially the challenges. I think that our clients and the folk who listen to the podcast will really appreciate your point of view and your expertise on this subject. So I wanted to take a minute just to thank you for co-hosting today with us and sharing a lot of really great information for our listeners. And I hope for our listeners that they have heard something that they can put into practice at their organizations. And again, just thank you Henry.
Henry Perlowski (34:29):
Oh, thanks very much for having me. It's been a pleasure. Really appreciate it.
Announcer (34:36):
Thanks for listening. If you like what you heard today, be sure to subscribe to the Workforce Wise Podcast. And don't forget to download your free tools at equifax.com/wise. While you're there, check out our other episodes and sign up for a live tech demo to see our solutions in action. And to keep our lawyers happy, you should know the information provided on the Workforce Wise Podcast is intended as general guidance and not intended to give a specific tax or legal advice. For tax or legal information pertaining to your company and its specific facts and needs, please consult your own tax advisor or legal counsel. The views expressed are those of the discussion leaders and do not necessarily reflect official positions of Equifax. Investor analysts should direct inquiries using the contact us box on the investor relations section @equifax.com.