FAQs and Responding to Vaccine Roll Outs:
Mara: We do have some very specific questions that we have carefully curated they are our most frequently asked questions that we have carefully curated, they are our most frequently asked questions that, quite honestly, both Brad, Jay, our team, and I get all the time. One of the things I want to get started with is let’s dive right into employees and medical practices and the mandating of vaccines. Now that we know the majority of our clients have already been vaccinated and have received their second dose Jay, kick us off with some of the questions that we’re getting and how we’re responding when it comes to mandating that an employee gets a vaccine now that they are eligible. Let’s talk between you and Brad about how we’re responding to that.
Jay: There are a couple of components to that. The first component are essential workers and first responders. As a disclaimer, I just got my first shot of the vaccine for the 65 and older group. All right, I am thrilled to death. I’m now waiting two more weeks from today to get my second shot, which will allow me that comfort, still not becoming reckless, but the comfort to once again travel to once again do things that in the past year, I have chosen not to. I’m not passing judgment on any of you out there that don’t agree on how I’ve chosen to live.
However, the questions that we get all the time, it’s coming from three things. Number one, do I have to and should I treat a patient who has not received the vaccine. Number two, can I, or should I mandate that my employees get a vaccine? Number three, what are the existing rules behind the FMLA? We can get into the paycheck protection programs and forgiveness, later on, but I do know that in accordance with the federal government the FMLA rules, it can be optional if you want. I say don’t be discriminatory, alright, if you’re going to do it for one you do it for all and it can be tax credits, until the end of this first quarter.
When the new year came out there are new laws that weren’t the same as they were last year and every time we Brad Adatto it is, well, if you’re calling at nine o’clock I’ll give you an answer but why don’t you call me back at four o’clock and maybe the government has changed. We’ve kept pretty much abreast of the law and with the CDC, the Department of Labor, and the SBA. I even downloaded a copy of the Constitution I know boring that is because when everyone starts talking to me about article one section this article 10 I really want to know for myself. So I want to open it up to Brad, our go-to expert attorney. Let’s start off with patients. Can you refuse to see your patient if they have not had a vaccine? And then we’ll follow that up with, can I mandate that an employee gets a vaccine?
Brad: First off, yes, you can refuse to treat a patient if they have not been vaccinated as a choice that you can make, especially in the aesthetic world. If you’re in another industry where you’re in the process of continuing to treat someone so post-surgical or in a treatment process that needs three or four aspects of it to be fully completed. That’s not the time to say, “well, unless you get vaccinated I’m not allowing you to come back into my office” because there’s a lot of patient abandonment issues that you can run into. Again, the vast majority of the time especially in the aesthetic space, you have the opportunity to say no to any patient. The moment you start treating that patient and be very careful as to when and how you terminate. I would not recommend that be a policy, in the sense of, you would only treat those that vaccinate because at this time you’re going to have a very small number of people that come to your front door. However, it’s your business, and how you choose their businesses is up to you.
I think going to the part of just because someone has been vaccinated doesn’t mean that you drop all your guards, you still should be very careful because it’s, although 95% effective for some vaccines or other vaccines at different levels, you as the provider still need to make sure that you’re not violating your own medical or nursing board rules. Meaning that although the patient may have been vaccinated there may be a store rule in your state that says you as the treating provider still have to have a mask or shield, depending on your state, and depending on the procedure so be very careful.
Employees Receiving The Vaccine:
Mara: I think that that’s something that we’re honestly going to be looking at as an industry. What can we do when it comes to replacing a patient if they haven’t had the vaccine. I think that’s going to be something as an industry that we’re looking at more heavily six months, eight months from now maybe more towards the end of the year. Most people aren’t even eligible right now. So let’s talk a little bit about what happens when an employee, that is eligible to receive the vaccine chooses not to. Let’s talk about any mandates that employers can or can’t legally put into place.
Brad: For starters, this is guidance the EEOC or Equal Employment Opportunity Commission issued a long time ago in 2009, as it relates to vaccination. They lay the groundwork as far as mandating health care workers being vaccinated, which then also rolled into you as employers having certain requirements of vaccinations for somebody to work for you in general. Generally speaking on a high level as an employer you can mandate that your employees be vaccinated. If you are working in a hospital system, I know just off top of my head California, Colorado, Nebraska, Massachusetts, New Hampshire, New York, and Rhode Island, and I think Tennessee, all are states that already have that in place as a state. If you happen to be wanting to have hospital privileges, the hospital can require you to be vaccinated. So again, that goes to the next level so it’s not just the federal government that says you can mandate it, some states say you must be vaccinated.
So then when you start getting into people saying, “Well, what if I really don’t want to get vaccinated or I don’t believe in it and I don’t want to do it.” Or if you have an employee that is not in the hospital, they’re an administrative position for example that will never set foot in that hospital. Let me be very clear for those, we have state law issues that have to come into play, but any employer can mandate that their employees are vaccinated, period. It doesn’t matter if it’s the healthcare sector or the non-healthcare sector. We are a law firm and we wanted to make sure every single person was vaccinated, we did have a whole list and we definitely are at the point recommending people start looking over it, and if they don’t have one, developing a vaccination policy because we definitely think that’s going to be something to protect you as an employer down the road.
Jay: Let me back that up with a similar scenario. Now, as an employer, you are requesting and requiring that they get vaccinated and the person who really doesn’t want to get vaccinated doesn’t tell you they don’t want to get vaccinated they instead use the excuse that I’m in that category that I cannot receive it yet because I’m younger. How long can that go on?
Brad: The first question is obviously you can’t make some of them do something they are not going to do. I think as an employer if you’re saying you must get vaccinated and the person wouldn’t qualify, I think you’re on shaky grounds to say well I’m terminating you because you didn’t vaccinate when they physically couldn’t do it. Fast forward to May or June when at that point you can go to CVS, Walgreens, or Walmart and get the one-shot wonder. At that point, the question then goes back to, if they have that same excuse. Then let’s go to what they can do.
So, those individuals with certain disabilities and these are defined by the Americans with Disability Act, could get out of receiving it. That’s the first one in which they can say because I qualified I can’t get this vaccine. Therefore, you can’t force them to do it. The second one is a sincerely held religious belief, so I had to really remember that particular one because it’s not just that it’s against my religion, a sincerely held. So there’s been a whole bunch of case law on this particular piece, it’s not just like one day you woke up and you have a newfound religion. They have to have something behind it, they cannot just say it is against my religion. Actually, a federal court said that’s not sufficient. If you’re an individual who’s a frontline medical provider so again this is going to switch gears on you going back into the medical industry, and that you may have a particularly vulnerable population that you work with so think of your retirement communities and stuff like that, nursing homes. An employer can mandate that you would get vaccinated and if you fail to do so because of disability or religious flee and they cannot accommodate you, they can terminate.
The other follow-up question I always get when we start talking about this is, do I have to pay for it? It’s a great question because now you as an employer already have certain benefits from the benefit plan already in place so that would be paying for it so it’s not that big of a deal. Other places that don’t have significant benefits, like Dollar General or Trader Joe’s, what they said is, “Hey, if you want to get vaccinated we’d love for you do it and we will pay your time off so we’ll give you up to four hours to go and get vaccinated, or give you a stipend for doing it, but again, it’s up to you. We’re not mandating it because you’re out there in the general public and we feel like we want to protect you, our employees.”
Mara: If an employer gave that person time off, are they allowed to then turn around and say, but you must produce a photo of your vaccine card for instance?
Brad: Yes and you’re allowed to do that because it goes back to, there are certain things as a lawyer you’re allowed to request of an individual, depending on your employment. If you have a vaccination policy, just like those of us who have kids, we know that we have to every year show up and show that our kids have been vaccinated or as an employer request documents that prove you are a citizen. There’s a lot of things, or a green card, that you as an employer are allowed to ask for that do not breach privacy issues.
Guidelines For Exposure and Enforcement:
Mara: I want to actually switch gears for a second because we have another issue that has continued to come up again and again. Jay I know we’ve run into this issue quite a bit with our clients but we also see this when speaking with other colleagues. There are certain employees and it becomes more of an issue when the employees are unvaccinated or when the majority of their families are unvaccinated. When you have employees that routinely put themselves in situations where they are coming in contact with those that have COVID. It might be that the situation is out of their control, they have children that are in school for instance, and that is just the situation. We’ve also seen situations where you have an employee that every couple of weeks, they’re going to a large gathering or going to the mall or going to a wedding, etc. Jay, do you want to talk a little bit about how we handled and had some of those discussions and then have Brian discuss that as well?
Jay: Sure. I call it the increased exposure array, and we’re not here to mandate whether or not and how you explain to your employees what they can and cannot do. However, when there is known exposure then we have expressed that you have to follow CDC and NIH guidelines, and I don’t really care what somebody’s opinion is because it used to be the 14-day rule, then it went to the 10-day rule and then how many days that you have post potential exposure to quarantine where there is no fever and you’re unmedicated. Brad if you could touch on that that when there is a known exposure and somebody brings it to your knowledge that they believe they were with somebody who was exposed, what the requirement is for the employer to tell the employee.
Brad: It’s strange because both the CDC, which is just guidelines, no enforcement just guidelines and many states have guidelines but no enforcement associated. You as an employer, what is your exposure? I think that’s what you’re getting at, at of the day, “I know that Sally’s been doing something she’s coming in and she may or may not have been exposed what should I do?” Again, the very first thing is I’m trying to limit my liability as an employer. Number one I don’t have somebody come in and be patient zero or my firm or my business. Now, there are a lot of states that are playing catch up to this, where they’re saying you as an employer, if you have certain things in place, social distancing and following CDC guidelines, we don’t think you should have any liability. What happens when she’s not wearing a mask and she’s visiting and sitting too close to someone else and you don’t enforce the guidelines. A lot of states are saying well that’s on you now. You don’t get the liability protection because you weren’t following the CDC guidelines and you weren’t following whatever your state guidelines are. What do I do with someone that was out of PTO and I think they potentially were exposed. What can I do with that person? Most employers are allowing those individuals, again this is heading understanding that will, to then basically take a leave of absence unpaid.
Jay: Okay, so now brings up the requirement or lack of asking and requesting that a patient, either tests or be tested before you will allow them to be treated. Hence, allow me to show an example, there was an issue with one of our clients who sent us that they received a negative review on Google. The review goes as follows, and I’m saying it as the top of my head. That the patient alleges or prospective patient alleges that they went to make an appointment and then the doctor said they need proof of a negative COVID test. Here is the name of a pharmacy that we use that is inexpensive, or you may go to the testing place of your choice. As it was the prospective patient got upset and wrote a review saying that the doctor has a kickback with the pharmacy that he’s requesting that he get this test with, although our client gave the patient the option. The other part was that the inflammatory part is he wrote that it looks like our client is a NASA astronaut. He was able to get at a military base test that was 72 hours. Four days old, the doctor refused. Could you share the requirement of refusing to treat the patient?
Brad: That’s a tough one because as you know the rapid test, there are certain places that don’t consider that to be consistent because of the testing model that goes into it. You need to treat every single patient as tho they can have it and have the same protocols, whether or not they have been tested or not tested, because the test could give you a false belief.
Jay: Now, in closing the Payroll Protection Program which is part of this new year, new president whatever we’re trying to get this all wrapped up. We have gotten our forgiveness for our first round PPP, and we just got approved today for our second round PPP and it will be funded by the end of today or tomorrow. Now, the reason for that is I was on top of this from the very beginning, and yes it did have its online hiccups I got rejected three or four times because the Department of Labor changed its rules about you having to sign your profit loss statement or whatever documentation that wasn’t in the first part of the second round. So now you have to date it and sign it and make sure your name is on it because it got rejected because out of my QuickBooks didn’t have my name. Seriously folks for free I will talk to you if you call me and say hey this is what I need, what are the things I need to prevent me from getting rejected. If it’s done too late and they run out of money you may have to wait till round three because the money will go fast. So I urge you don’t put off.
Here’s the rules, a 25% reduction in any quarter of 2020 versus 19, or an overall 25% reduction in your gross 2020 versus 19 that’s rule number one qualification. Rule number two is you have to use all your PPP round one money. If you got it. It could have been 60% for payroll and 40% for your other expenses. And then, when you’re figuring it out, it’s not as easy and simple as people think because there was a caveat that was not posted unless you dug deep. It was your gross payroll wages minus any monies that you may have taken from FMLA tax credits. So you have to deduct that from the gross and any monies in excess of $100,000 per employee. That gives you now, a gross SBA and your gross payroll minus your 100,000 per employee minus your FMLA which gives you the gross SBA. Now you can add in your 401, IRA, dental health contributions, add in your federal and state taxes that you had as an employer match that then gives you a total. Pause. Divide that by 12. Pause, multiply that by 2.5. I am more than happy to give you two spreadsheets I have created that are Excel-based and formulas. I’m not asking for anything in return, other than write us as a review as a courtesy.