Episode 20: Vaccinations

Welcome to the Workplace, a podcast by Cal Chamber. I'm Erica Frank, Calchamber's executive vice president and general counsel, and with me today is employment law expert Jennifer Shah from the Shah Law Group. Welcome back, Jennifer.

Thank you. Happy to be here.

Oh, great. So today we're going to talk about somewhat of a unique issue. And I got this idea by reading an article in the New York Times that talked about whether business owners can require their employees to get vaccinated. And kind of the genesis of the article, of course, was in response to the measles outbreak that we've been seeing in the United States. And looking at the CDC website, there's quite a bit of information about the measles, and an outbreak is considered when there are three or more reported cases. So not really what you think. I mean, when you think of an outbreak, you think many, many individuals. But of course, there's been outbreaks in California and New York. So when these things start to happen, whether it's swine flu, flu, of course, what happens when an employee calls out sick because they have the measles?

That's such a great question. And so many employers want to go to that person and say, oh, okay, well, what do you have? Well, I want to make sure I notify everyone else in your work group so they can go get vaccinated if they need to. Oftentimes it's complicated. There might be someone who's pregnant who would need to know that something like that is going around. So it all gets very complicated. And part of of it, of course, that the folks at the CDC are trying to deal with is we pretty much eradicated the measles and now we have it.

Yeah. And so what's so interesting is what the CDC is saying is it's individuals who go and travel outside of the United States who may not have been.

Vaccinated before if they weren't vaccinated before.

Right. Will come into contact. And it is a highly contagious disease, which, of course, is where so much of the concern is. They come back home and that's where the virus is spread.

Well, and I think we need to talk about this idea, first of all, of why people have a choice not to get vaccinated. This is an issue I have at my daughter's school because a lot of families at her school don't want to get vaccinated. And I understand that people have views about that they may cause autism or something's going on, but this is really a public health issue. And I think the California Legislature has recognized that in requiring more and more students to get vaccinated, whether or not they have a religious belief or a religious practice that would preclude it, they have to jump through a lot more hoops to actually avoid the vaccination process. We have a lot of folks in the workplace these days who have not been vaccinated.

That's correct.

And a lot of these diseases are very risky to other individuals. Pregnant women is only one category. Right. Anyone who's immunocompromised because of AIDS or because of cancer treatment, there are a number of different things that can lead folks to be more susceptible to getting these kinds of conditions. So employers wanting to do the right thing sort of want to send out a memo saying, Jennifer has the measles. If you've been to lunch with her recently or you've worked with her closely or you've traveled in the car with her, you better go to the doctor. And of course, that rubs against other rights that Jennifer may have.

So let's first provide a little bit of help to some of our employers who might have that employee call out sick, or they're just concerned about it in general. Think about some of those employers that might service the public out there, or even just large workplaces. 100, 200 employees. Employees are coming into contact with each other and having just this overarching concern about the measles entering the workplace and spreading. What are some things that employers can do to educate themselves and be prepared if they get that call?

Well, one of the things that's a great idea is going to the CDC's website. Of course, we also have a lot of clients who have brought vaccinations to the workplace, making it easy for the employees to get vaccinated, and also having public health nurses and doctors explore what the risks of the vaccination actually are. So they make it as easy as possible for folks to actually get the vaccinations. Now, of course, once it's spreading, the vaccinations are of little use at that point, but they will protect folks going forward. So one of the things to do is just make sure that they're up on what they can and can't do. First of all, we can say, clearly, you cannot require a determined condition of employment for someone to be vaccinated, except in certain workplaces where they may be working with the elderly, they may be working with people in the hospital. Certainly folks in those environments can be made to get a vaccination. It's a term and condition of employment. But most Workplaces, we can't do that. So we have to come at it a little bit more from the back door in terms of making the information accessible about what the disease is, how it is actually spread. I mean, I remember my first year of law school when the AIDS epidemic was just really coming into the press. It was early 90s, and they were talking about getting new seat covers in the restroom because they didn't understand how the disease was actually transmitted. So part of it is really understanding, encouraging people to wash their hands. Just simple things that workplaces can do as part of just workplace wellness. Part of a wellness program.

What? I like that you mentioned workplace wellness, because what I was going to ask is setting aside the measles, this is just general cold and flu season guidance as well.

Absolutely. Wash your hands, you know, don't share forks and knives and spoons with each other. You know, just simple stuff. But, you know, if you're a buddy at lunch and somebody has, oh, taste this great paella I just made, you know, you're not always gonna say, oh, let me get my own fork.

Right, right, right.

So it's just simple stuff that our kids learn in school that is just how to keep yourself healthy. But when you get to the next step, you have to start thinking about, all right, do I have an obligation to let somebody in my workplace know that they may have been exposed? And that is where I think employers really need to focus, because there are obligations.

So let's talk about that. So, Jennifer, let's say that you call out sick because unfortunately you have been diagnosed with. Let's just keep it with the measles. But it could be the flu. It could be some other highly contagious disease. Your employer is now aware. Should the employer be letting the workforce know, hey, we have an employee that's been diagnosed. Here's information from the cdc. What should we be doing?

We should definitely be telling our employees. And the CDC has a really nice sort of step by step process. So does the Equal Employment Opportunity Commission. So even though we're here in California, we have some listeners who are across the country. And of course, the federal regs will apply in California. So the EEOC has some good information about it. The key is to not reveal the identity of the person who has the condition. Now, obviously, if I'm out and I work with a team of four, and all of a sudden an email goes out, somebody has the measles. I may have even posted it on Facebook, right?

Yes.

So sometimes this privacy issue is a little bit overplayed. Because a lot of times the employee, him or herself will reveal the condition. But I think the important thing to remember when, when the employer is trying to focus on their steps, what do my employees really need to know? They really don't need to know the identity of the person.

And I think there's also a lot of importance to how you're unveiling the information and broadcasting the information. Because if it's something like the measles, you're going to get your workforce to really freak out, right? Because A, not only are people going to be unaware of their chances of also getting the measles, but also, you know, all of a sudden you're going to have pods of people freaking out and no one's going to be working, right? Everyone's going to be so scared. So how you deliver that information. Email may not be the best way to deliver something like that. It might be. It may not be right.

You may need to do a meeting. But on the other hand, I don't want the pregnant woman on the third floor who was just in the elevator with me not to find out that she needs to make sure that she's properly vaccinated and everything's going the way it should be.

Good point.

So it's sort of like workplace violence when we talk about how do we notify employees of a potential risk in the workplace. These medical conditions and diseases really aren't that much different. You have to look at each workplace. Do I work at a large company, but most of them work in San Francisco? Well, you don't need to notify them. So we have to think strategically. Who needs to know and what do they need to know?

Now, setting aside letting folks know, we will have those employees that are just scared to come to work in general now because they're worried that it's filtering through the air system or what have you. So how do we handle those employees that are just scared to come to work because now they know that maybe the virus is circulating somewhere? Do we discipline them for not coming? Do we encourage them to use their, you know, look, we have a sick policy. We have a PTO policy. These are the things that you can use.

Well, your last point is really important. The reason we tell employers, you need to have some sort of a time off policy even before California paid sick leave.

Right.

Because you want them to feel comfortable being able to take time off with pay. Now, some employees will react to these kinds of situations by wanting to be out for two or three weeks. I think we need to be willing to have a tough conversation. Say listen, if you want to take a sick day, fine. You can use your sick time, you can use your pto. But you need to understand there is no inherent risk to you other than what we've already notified you about and there is work that needs to be done. So just like right after 911 a lot of folks were not wanting to come to work because they were afraid of some sort of a terrorist attack. I get it. But even people here in California were having that feeling and at a certain point you just got to get back to work.

Good point. That's well stated. Well Jennifer, thank you again as always. Exciting things to talk about and we will have you back again.

Thank you very much. It's always great to be here.

Thanks for joining us at the workplace. Please comment, share and subscribe to Cal chambers podcast@calchamber.com.

Sam.