The MSBA is happy to announce it recently released the third episode of its Insightful Voices podcast. The podcast covers numerous issues that impact the legal profession, addresses current events, offers a retrospective of the last 125 years of the MSBA, and delivers conversations with thought leaders around access to justice and our future.
In this episode, MSBA Director of Advocacy Initiatives and Member Engagement Shaoli Katana spoke with Scott Mirsky, a principal with Paley Rothman who has over 20 years of experience in labor and employment law. They discussed navigating mask and vaccine issues in the workplace as the pandemic continues.
In 2020, when employers were first contemplating vaccines, Mirsky stated that if employers issued vaccine mandates, they would face an issue as to how they would police them. He noted that the landscape has changed since then, however, partially due to the three-prong approach employed by the Biden administration to attempt to compel employers to require their employees to be vaccinated: an OSHA regulation mandate, federal contractor mandates, and a mandate through CMS. All of those measures failed, though, except for the CMS mandate in the healthcare arena, and at this time, there is no across-the-board vaccine mandate.
While vaccine regulations were making their way through the court systems, employers started to think about what measures they would take if the mandates went into effect and many employers voluntarily began to comply with them. The Supreme Court looked at the OSHA and CMS mandates, ultimately allowing only the CMS mandate to remain in effect.
Mirsky explained that the Supreme Court’s rulings solely dealt with federal mandates; they did not address states issuing mandates or prevent private employers from requiring their employees to be vaccinated. Many employers attempting to navigate the issue of whether to require employee vaccinations turn to the CDC for guidance. The CDC guidelines have evolved, and Mirsky believes they are a good resource.
The discussion then turned to mask bias and how it has impacted the return to work. Mirsky cautioned that while masks have become a politically charged issue, employers cannot allow anyone to be treated differently in the workplace because they are choosing to wear a mask, and while Maryland no longer requires masks in public places, many employers require their employees to wear masks in the office. People with mask biases tend to judge why others choose to wear masks without asking questions.
Mirsky reported that employers had to make the difficult decision whether to require, encourage, or take no position on vaccines about a year ago, but at this point, most employers are moving their vaccine policies forward rather than changing them. Many choose to track whether people have vaccines or boosters, but it can be difficult.
Turning to remote work, Mirsky noted there employers face challenges from both a legal perspective, as the laws may vary between where the person lives and works, and from a management standpoint, as it can be challenging to direct someone who is not physically in the office.
He explained that if an employee’s base is no longer in your office, you have to make sure that you comply with the jurisdiction’s local laws where the person is working. Remote work also raises confidentiality and productivity issues, and he suggested that employers review their policies to make sure they meet their current situation.
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