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okay thank you for joining me for this webinar we're going to be talking about pre-employment screenings for 2021 more specifically the three topics that are listed at the on the screen right now starting with criminal history reform and background screening and then moving on to the legalization of marijuana and how that affects drug testing and then we'll be ending with coping vaccinations in the workplace my name is sheri tischer i'm with tci business capital we are a division of fidelity bank in minnesota since 94 we have been providing funding to support growth of businesses nationwide for our staffing clients we offer some additional hr and back office solutions i lead tci's national staffing practice i love being an industry partner but prior to joining tci i spent 15 years working directly in the staffing industry in various sales and operations and leadership goals one of our initiatives with at tci is to be a resource and share educational updates with our staffing clients which is why we've partnered with other industry experts to provide these webinars tci as well as those joining me today are all proud members of asa and or other various state and local staffing chapters we all have specific staffing practices within our organizations and have expertise and a passion for this industry alan lasky is the senior vice president of sales for universal background screening they are a top nationally accredited firm and he has been in the background screening industry for over 20 years judy prasca is franchise president and owner of fastest labs in bloomington fastest labs is a national drug alcohol and dna testing company with 55 franchise locations nationwide and then finally we have chris letty attorney with becker legal and actually this is like a stacked benefit here because chris um not only is an attorney with becker legal but he's a former in-house counsel for a staffing company so chris has significant expertise providing counsel on a wide range of issues unique to the staffing industry before jumping into the presentation just a couple of quick notes go ahead and enter any comments and questions that you have into the q a and we will either answer those questions throughout the webinar or we will address those at the end of the session um at this webinar is being recorded so within one to two business days we will be sure and send out an email to each of you attending with the link so you will have access to the slide deck and to the recording of the webinar with that let's go ahead and dig in to our first topic and i'm going to go ahead here and hand this over to alan just give me one second and you know what alan it is not letting me do we lose alan huh well this is crazy i think we lost alan judy do you see he we might want to give him a minute to log back in i don't see him yeah that something happened and we lost him there so let's give him just a second to log back in and what we'll do if he can't get logged back in here in just a minute we'll fast forward judy and we'll just do it in reverse we'll have to flip through a number of slides to get to your presentation but we'll do that and then we can go back to allen's if he doesn't get logged back in but we'll give them oh there he is hi alan hi sorry about that it got kicked out yep yep you are back in so let me give you control of the screen and i'll let you take it from here yeah sorry about that everybody yep no so today we're going to talk about just for the next 15 minutes about how to reduce hiring risk especially pertaining to staffing and so i'm going to talk first about the trends that we see wise and then go into how to reduce hiring risk and you know i thought it would be important to start off with who we report to because it's really important for the legal portion of it understanding that and so we report to the federal trade commission that's who regulates us and in 2010 they started the consumer financial protection bureau to be more specific of the regulatory agency that guides us and also reviews policies and procedures and also regulates in addition there's also the eeoc that also regulates our industry as well and those are important for what we're going to talk about right now the federal law that we're under as a consumer reporting agency is called the fcra the fair credit reporting act and it was started in 1970 by congress and why that's important to you is that as a federal law whenever you're using a consumer reporting agency or even in certain states if you're doing the background screening yourself this law you're under as well is designed to ensure accurate information is reported it also restricts certain information and provides a dispute mechanism for consumers to make sure that information is correct and we'll talk about adverse action which is the process you have to go through if there's negative information on a report you're not going to hire the potentially that person it's also important to look at the risk of the industry as a trend going back even past 2010 there wasn't that much litigation in our industry and over the last 10 plus years it has grown significantly as you can see on that chart which is just the federal litigation that goes on in our industry the consumer financial protection bureau that i just talked about also has a website and when you have these slides after we finish the presentation today you have a link here that is a useful link to show you all of the complaints which are about two million complaints now that are reported to the government so you can type in any consumer reporting agency's name to see how many complaints they have and to understand um as a consumer and as a as a client of theirs how many complaints they do have as a resource from the government but we do see this number increasing dramatically and so then the question is is why why is there so much risk and why is there so much litigation and a lot of it is due to the fact that a third of the us population has some type of criminal record and laws are now more fragmented than ever before as we see from a litigation standpoint there's not just state and federal laws there's also municipal laws quite a bit and we'll talk about ban the box in a second which relates to that in addition we see settlements by private law firms and public and government uh regulations up to 1.8 million on average a lot of it is due to the fact also as you see on the little graphic that a lot of the media helps consumers understand their rights so if someone has a case they're going to watch very carefully that the proper procedures are taking place and if they're not they're going to sue and it usually becomes a class action it's also important to know that you know a lot of questions that we get as a consumer reporting agency is well can't i just go online and do a background check on someone and the answer is you got to be careful about who you use you always want to use an accredited agency with the national association of professional background screeners which is now called pbsa and here's a perfect example of one website where if you go if you went online and typed in online background check and you try to do an online background check if you look at the bottom of those uh websites you'll notice that it says it's not for consumer reporting as you see highlighted there a lot of them have gotten in trouble and in the millions of dollars due to the fact that they're not following proper procedures you can't just go online and do a background check so that's really important to always use a federally approved or an association approved background screening firm one of the biggest areas of litigation we see which i'm sure you're familiar with is ban the box the question have you ever been convicted of a felony or misdemeanor this is a very common area of litigation now there's over 150 municipalities in 36 states which changes on a monthly basis of more being added about when you can ask that question there's some references here that we're leaving you with that you can click on to actually see the updates in the laws and regulations state by state and municipality by municipality to make sure that you're following proper procedures in your state or the states you're in especially staffing with having clients you want to make sure that all of these laws and regulations are followed of when you can ask that question the majority of the laws that we find are after a conditional job offer is made you can find out more information about a felony that the candidate has in addition another area of litigation that we see is about asking about salary verifications now years ago that was fine to ask but as you see here there's quite a few states and municipalities that are starting their own laws we do believe it's a trend and we see that it's in the ninth circuit court still of having a federal law about restricting the ability to ask about a salary verification for equal pay there's also two cases that are now case law back in 2018 and 2019 where there were settlements based on the fact of equal pay and that and and uh salary verification is being asked for which it was in violation of those states so there is case law now about that so you'd always want to talk to your legal if you are collecting salary verification information now we want to get more into how to reduce risk and through a couple of the areas that are very easy and immediate to reduce risk on back in 2012 the eeoc came out with what they call guidance factors which are really restrictions that are in a lot of the laws and provisions and statutes we see in in other laws and if you follow these these are really the golden rules of following whenever you have a candidate you would always want to make sure you look at the nature and gravity is it job related if there's a case what's the severity of the offense when did it occur and is the person a repeat offender and not to use any blanket policies so don't put in an ad we don't hire you if you have a if you have a felony or two misdemeanors even if you have a policy on how you operate based on reducing risk if someone had does have a case you want to be careful about using any blanket rules in addition you just want to speak with your legal about having a program in place that you have in your policy look at each individual as a case-by-case basis even if you have a standardized program and package and just make sure that everyone's trained that is doing the hiring for the way that you do background screening and as we just mentioned about standardization you want to make sure that you have consistency in any job or position you're hiring to do it the same way for each individual of that job so best way is to create a package for each job position or for the organization and then to define why you're doing those different services of what you want to catch which is really important so you'd always want to speak with your legal and keep it consistent which is really important i want to talk about just a few forms which are the most important forms to know about this is where a lot of times when we go over with clients if they're doing this properly we find out that when they do come over to us their previous background screening firm didn't go over this the first is the disclosure and authorization form so anytime you're going to have a new hire that you're gonna do a background check you have to make sure that they sign prior to any background check the disclosure and the authorization form what's important to know is that there should be no extraneous language so your background screening firm should give you those forms with the proper state and federal language with no additional language a lot of times a organization will add an indemnification which is not to what the government wants it's it's a requirement not to do that and it ends up in in a class action so again it should only it should only have the language that's needed and also it should be signed like i said prior and the disclosure and the authorization form should be solely by themselves of us of a disclosure and then an authorization form separate even if it's electronic meaning don't bleed it into your application don't staple it to the application um it's it's because the government wants to make sure that the candidate is not confused in what they're signing what they're looking at so you'd always want to talk about that to your background screening firm to make sure the proper language is there you see in green the cases in the millions of dollars based on those organizations that didn't do that properly again so best practice would be use a compliant and separate disclosure and authorization form keep you purely of the legal language with no extraneous language and again just speak with your legal about it the second form that's important to also provide a candidate is their summary of rights documents so this has changed a few times over the years but it's a simple form that your background screening company should provide you and it is solely of the rights document of for the candidate to understand if they have identity theft or where to go if there's a credit issue or credit freeze so they understand their rights and it has to be given to them at some point if a verification is provided to them you're doing a verification on them or if you're taking adverse action that we'll talk about in a second it's just conservatively uh a good point to give it to them up front so you know they have their summary of rights which can your background company can provide you whether it's electronic or they give you the paper form for that to give to the candidate and last but not least is the adverse action process paperwork too so the the this is a form that is provided to the candidate if you're not going to potentially hire them based on negative negative information on a report in whole or in part so if any way you're influenced by that background check the law is you have to give the candidate the right to dispute that information because it could be incorrect so um the and the end user has to give it to that candidate meaning that that's your organization now what's nice about staffing firms is that you may not be hiring them for one job but you may be hiring from end up for another client so they're still in a sense hireable with a company that's just purely not going to hire someone they have to go through this advertising process if in any way they've been influenced by the background check so it gives the opportunity to the consumer to dispute that information again courts are imperfect so it may be incorrect and false positive information which is why this this process is set up there are four easy steps and again you'll have these slides to go through but these are extremely important steps to always follow if you're not going to hire someone so you'd want to notify the candidate with an adverse action letter each your background screening firm should have these letters so they can provide them to you or they can do it on behalf of you to provide this letter and send them out they should also give a copy of the report of the candidates report and the summary of rights document that we talked about all three of those items should be sent to the candidate and then you have to wait a reasonable amount of time for them to respond which is anywhere from five to ten business days since it's been tried by law earlier and it's ended up in court five to ten business days is accepted by the government after that if they don't respond within those five or ten business days you would then do the final process which is sending out the final notice that your your background screening from can provide you a copy of their consumer rights the summary of rights document and a copy of the report then you can rescind the offer so those steps are extremely important to do if again at any time you're not going to hire someone because you they have to be given the fair right to dispute the information if they don't feel it was them i've seen for instance a uh a twin use their twins information so they disputed it and it was taken off their record because it was their twin that used their information so that that's w y that process is set up and if there is a dispute your background screening firm should get in touch with you and the candidate to to to resolve that dispute within a reasonable amount of time now the government says 30 days now we know you can't keep a requisition open for 30 days your background screening firm should really finish that within five days or less on average but by law it has to be left open for that candidate to dispute and then to solve that dispute and then you can move forward after that dispute is solved and again your background screening firm should communicate to you if there is a dispute with staffing firms again it is different because you may be hiring them for another position or another client so they're still hireable which is a little different than an organization that is just saying you flat out no we're not hiring you and we're going to put you through this process so i'm not sure if there are any questions that we'll take now or at the end but i know we're going to be moving on to drug testing now so thank you very much alan i do think that there is a question here let me pull it up i have to get through um that first part but would love to hear your guidance on whether or not background checks can or should be performed on direct hire referrals where no employment relationship exists so if if no employment if it's a subcontractor or a 1099 person then you can still conduct background screening if it's if it's for a placement in another organization that organization actually should conduct a background check themselves or at least sign some type of affidavit with you as a separate form to say that you have access and they have access so there is authorization for both of you to see that information is that again if that isn't followed as a there's also something called a uh you also have a situation with a membership or a volunteer or student where we still can do background screening um it's just not for employment and we would again the disclosure form in the authorization form would notify of what what that intent is for okay yeah when i worked for kelly services we had a straight up policy if we were doing a direct tire that our client company had to do with the that's right and that's the safest way just because of the fact that the end user is the organization that's making the influential decision to hire and not hire them to come back as a class action as long as you get authorization from the candidate that they understand who's in that hiring decision even if it's another organization and it's again a different document that they're signing assembling again as we talked about you don't want to change exclusion authorization form with any extraneous language additional language so you'd want to have a different different form for them to sign yeah okay we do have a couple of other questions alan that i'd like to maybe circle back to at the end um so if you guys you know would be patient with that i do want to at least move on to drug testing for now but but circle back on on these so yes stay tuned okay so let me um move on here to our next topic which is legalization of marijuana and the impact of drug testing judy i'm going to let you take it from here all right again i'm judy prescott with fastest labs of bloomington and the four areas i'm going to touch on today is are in drug testing or is it essential or not what's popular amongst the users what to consider when you're looking for a drug testing company and covet 19 and how that relates so essential or not workplace safety whether an employee is operating a machinery or at a manufacturing plant or driving a forklift or stocking the shelves in a grocery store being under the influence of drug and alcohol endangers the employee as well those around them so by conducting drug testing it actually employers are fostering a safe work environment for their employees and themselves so deterrence workplace testing makes the stakes of drug testing use or alcohol abuse even higher thus employees would be less likely to use drugs if they are threatened with their employment and a random drug testing program is kind of the key component to this and making truly drug testing effective according to the office of health and safety services ongoing employee drug testing lowers the number of employees who test positive because they know that they could be drug tested nx will go to liability employees who are injured on the job or fired of drug related incidents will not be entitled to compensation or be less likely to file suits against their employer again by testing for employees for drugs employers are able to protect their company from liability and potentially have lower workers comp costs and even premiums in some states that is and could be saving money in the long run and then it comes to the big question is do we really save money if we drug test or do we not it's a myth that drug testing costs too much it truly is the fact is the direct costs are easily to quantify but the unseen of cost of having a drug and alcohol program can be and often dramatically higher due to the loss of productivity increased insurance costs liability exposure turnover and internal conflict so it's important to understand why you want to do it all right so we gotta have a little fun because we do drug testing all day long so i threw in a little trivia here so in our chat box i would like you to put in what do you think is the second most commonly found drug in our drug tests so take a minute everybody in your little chat down there put in what is it like we should be playing like the jeopardy music we should i mean we play do that all the time for my meetings jeopardy right exactly we could have made this a poll question oh we could have that's true okay let's see what's the answer so the answer is let's see if anybody got it oh some of them got it okay so i'm gonna minimize my little chat so i can see so obviously the answer is methamphetamines amphetamines are the most popular second most popular that is so the key with methamphetamines amphetamines is if you use it just once it only stays in your system for one to four days which is crazy i mean if you're a heavy user of meth it stays in your system for only a week which is interesting again if you're gonna take a drug test you just have to stay off it for a week and go take your test again there's emotional and cognitive and physical problems by taking that as we all probably know there's toxic fumes there's a health hazard and two million americans hang on we're gonna go back one yet okay sorry two million americans oh no hold on a second judy now i'm just going up just just arrow back yep and no it's not letting me go oh there you go there you go so two million americans have used methamphetamines in the past year and the data revealed there's an upward trend of people ages uh 26 and older and again covet has been hard on a lot of different people no matter what your mental state is so just know meth is being used so now now we go okay so now what is the most commonly found drug in drug tests so again in the chat let's have everybody in what they think the most commonly used drug is we need that music see if people are getting it all right and the answer is drum roll it is marijuana so sure you can hit the next slide okay so marijuana is our most commonly used drug most of you probably already know this but the interesting part about marijuana is it stores in your fat cells so it can stay into your body even if you use it just once it can stay in your fat cells for up to 30 plus days so we get people that come and say hey i was on vacation out in colorado i just had a little and i have a pre-employment have to do i go well how long has it been because people google this all the time it can stay in your body up to 30 days and it depends on how how you eat how you exercise how much fat you have in your body it all depends on all that and the other part about marijuana it's in cbd oils so buyer beware um people come in and they test positive for us they're like what i don't smoke it i go you don't have to so if you're using a cbd oil say they get it at a tobacco store or a gas station probably not the highest quality cbd oil that you want to use i have others that have a cbdo that is has no thc in it make sure you read that label they actually did a study on this back here in january and they tested how many different cbd products some have thc and some do not some have minor ones so just buy or be aware on that one now if you're using marijuana you're 55 more likely to have industrial accidents 85 more injuries and 75 percent more absenteeism and the key to all this is guess what it's become legalized in more states that is the interesting part so we'll move forward so sherry if you can click on the link of where it's legal the top one there you go hopefully it loads for us do you see a mop map pop up for you sherry i do can you share that on the screen um it should be shared because we just see where it is legal okay maybe we should just kind of we can talk we can walk talk through this because everybody will have a link for this as well okay so i have obviously a little map of where it's legal and this map that you'll have access to is updated monthly from diesel and it's really important to know what states how it's legal you know is it illegalized completely is it just medical and decriminalized or is it fully illegal so whoops we lost the people i don't know yeah sorry um i'm having to reshare it judy because it's okay weird yep okay sorry about this that's right it's called webinar and technical glitches in between i know right if you actually slide down and hit where i am at you can actually present from that part yeah it's just not um it's blocking out yeah that's okay so anyway we can send the link here for the map of where it's legalized and where it's not yeah keep going you might be able fine yeah and i don't know what you guys are seeing right now but my screen is we see your screen we see the powerpoint and you can't hit um share up there in the top of the screen yeah it's not letting me well let me i'll just keep kind of talking kind of without there you go there's part of my presentation yay keep going a couple more yeah sorry about this you guys i don't know what's happening here but okay let's start with this then so the screen above it was where it was legal so again you'll get a map of where it's legal you just need to understand if it's fully legalized if it's medical or not i mean in minnesota medical and decriminalizes where we're at but again at a staffing company you have to be aware of does your client want to know if they're using or not and if they have a medical card so the key is kind of find out i always tell the candidates when they come to us did you let your employer know first that you have a medical card because that's important that they know that because they can disqualify like if they're trained for a dot federal test you can't use medical marijuana that's a no-no because it's not federal law but again if you're at a staffing company you might be able to allow that so i just tell people to be transparent from my side when i see them in our drug testing area so the key points that i want you to get from this is make sure you know the laws in your state that is so imperative and that's why we have legal teams here check with the ones in your state know the terms for hiring regards of marijuana and medical marijuana there's a difference make sure as an employer that you know the difference and what that pertains to some states even players can deny even with a medical card if you're a drug-free workplace they can actually deny it so again just check with your law lawyer make sure the next thing is just my end as being a drug testing center is tailor your tests we have companies that actually take out thc or marijuana they don't want to test for it on certain for certain jobs so we know that they're not going to test for marijuana which is helpful okay and then there's drug-free workplaces check again check your laws this is really checking those laws make sure you know what applies to you and americans with disabilities act requires tolerance for disabilities if they are using medical marijuana you have to have a little bit of tolerance there and then i ask around with other fastest labs here throughout the country and some of them are in states where marijuana is legal they said some owners do not test at all since it is legal and then you get the same answer a different version some owners test because it is legal so again you have to do whatever your clients are demanding in that staffing world again tailor your test that's the biggest thing i can tell you is tailor your test figure out what works and what doesn't work and there's a blog i don't know if you can click on that blog we might get into trouble if we click on that yeah let's not click on the blog because no worries i'll just read a little bit of what the blog says that has proven to be problematic too okay so the blog is from from a law firm and again it's telling about staffing companies again develop policies to address the issues of marijuana and drug use and have a general policy to create awareness and educate your candidates employees so they know the landscape what's applicable to them and what they need to know again the policies should be communicated regularly to the candidates the employees and yes to your clients as well so they know what you're going to do so again good information to know and then the third part of the presentation is on just drug testing um companies when you're looking for one make sure that the company you go with that the results are easy to read and you can understand them sometimes it's a little foggy like hey what does this say is it positive or negative or is it non-negative is there a quick turnaround time hopefully you can get results quickly um i think companies i work with quite a few they want to have those answers right away they don't want to wait a couple days do they have a web-based application or an online portal it's helpful when people go out to their web portal see the results and say john smith is clear jane smith is good let's go it is cost effective again we talked about this earlier about being cost effective make sure the company you're going to go with is it cost effective check that out and you can sometimes you can negotiate you can see what they can do and again customer service you want those results if something is not going as fast as it should or it got sent off to the lab you can go back and follow up with and say hey what happened here and hopefully that company is ready to give you answers and able to help you quickly and get that person in or out whatever it may be all right and the last part is because i know chris is going to talk about covet so i thought it'd be kind of fun to throw a little bit of drug testing stats in with kovid before i throw it to chris so if you have a substance abuse disorder it means that people have they have their 1.5 more times likely to get coveted if they have an opioid disorder they're 2.4 times more likely to get covered if you have a cocaine disorder which cocaine usage is actually going down which is a good thing um alcohol disorder your 1.4 more times to have coven tobacco 1.3 but the interesting part of the bottom is patients with a lifetime substance abuse diagnosis are also experienced more severe outcomes from covet than others including hospitalization so 41 would be hospitalized and 9.6 were at the death rate which is kind of scary so anyway that is drug testing and legalization of marijuana it is very prevalent i'll just say um through covid there are a lot of people that are using marijuana we see it every day so um the staffing companies be aware it is definitely something that's on the high it's going up and then it'll get legalized more and more states as we go well thank you judy move on to the final section of our webinar today which is copit 19 vaccinations in the workplace judy and alan if you want to take a minute and look through the q a i know there's a lot going on in there maybe see if there are any quest ons that are relevant to each of your topics that we could you know we could talk about at the end of the webinar but we'll get started with chris now and vaccinations in the workplace thanks sherry and thanks everyone for attending um so we'll dive right into it the the question is can employers require employees to be vaccinated against covid19 in general yes they can you can adopt a mandatory policy that requires employees to be vaccinated upon entering the workplace however with that policy you also have to accommodate any individuals who have disabilities or sincerely held religious beliefs who decline or refuse the vaccine now the eeoc has come out and said that while mandatory policies are permitted they prefer voluntary policies so be aware of their their preference in that regard i think the most prominent question we really get is is the requirement of a vaccine a medical examination under the ada a start under the ada which triggers the ada and the eoc has come out and said no it is not the administration of the vaccine itself or by or by employer or by a third party within the employer contracts is not a medical examination for purposes of the ada now why is this a medical examination is typically a test or procedure done in a doctor's office that seeks information about an individual's physical or mental health status examples of these include vision tests blood tests cholesterol testing x-rays mris things like that if the vaccine is administrated is administered by to an employee by an employer for protection against contracting covid19 the employer is not seeking any health information they're simply providing a service and therefore it's not a medical examination under the ada likewise asking for proof of a vaccination is not a violation of apa there's many reasons why an employee may or may not have been vaccinated which may or may not be disability related so simply requesting proof is not likely to list it any pre-screening questions or medical information from the employee however to that to the end if you start asking questions as to why or why not they received the vaccine then you're going to be subject to the ada and the standard that the questions must be job related and consistent with business necessity if you require them to provide proof and they do provide proof you're going to want to warn all employees not to provide any additional medical information if they do you're opening yourself up to the aea which obviously you don't want to and then obviously what follows which is litigation and cost next slide please so this slide is really really the cautionary tale right the cdc has come out and stated that healthcare providers should be asking certain questions to make sure that they're administering the vaccine to people who are not not going to have an adverse reaction to it right so in one regard they're saying go ahead and do it don't ask questions you're good but they're also saying you have to ask questions so if you as the employer or a third party with whom you contract ask these type of questions you're going to be subject to the ada standards for disability related questions in order for these questions to be permitted again they're gonna have to be job related and consistent with business necessity to meet that standard you're going to have to show a reasonable belief based on objective evidence that employee does not answer the question and therefore doesn't receive the vaccine will pose a direct threat to the safety or health of himself or herself or others and we'll get into the direct threat in a second so the next slide please oh you got it thanks sherry um so by contrast there's there's two circumstances in which you can avoid the job necessity i'm sorry job relating consistent with business necessity requirement the first is going to be if you offer an all-voluntary plan right the vaccine itself is voluntary and the questions the pre-screening questions can be answered in a voluntary nature so if a person chooses a not that not to answer the questions or b chooses not to receive the vaccine that's fine it's not going to be subject to the ada but you can then not retaliate against them or take any adverse action against them for refusing to either answer the questions or have the vaccine the second circumstance is really the best circumstances really what every employer who adopts this type of policy should be imposing is having the vaccine administered by a third party with whom the employer has no relationship with right it's telling your employees to go to cvs to their own doctor that way nobody you're contracted with and you're not asking these pre-screening questions which would trigger the ada you just want to keep in mind too and have your employees keep in mind that if they receive any kind of medical information it still has to be kept confidential under the ada so keep that in the back of your mind anything anything you receive medically should be put in a separate folder and nobody and it should be kept confidential so the next thing that obviously follows is what if somebody comes and says i can't i can't receive the vaccine because i have a disability right um the ada does allow a direct threat standard or in other words a requirement that a individual should not pose a direct threat to the health or safety of the individuals in the workplace however though if your policy screens out or tends to screen out people with disabilities you're going to have to show that an unvaccinated employee would pose a direct threat to a significant risk of substantial harm to the health or safety of of the individual or others that cannot be eliminated or reduced by reasonable accommodation and we'll get into reasonable accommodations in a minute the eoc has gone further and stated that a conclusion that there is a direct threat would necessarily include a determination that an unvaccinated person will expose others to the virus at the work site so when you're making that determination um they set forth four different factors to consider it's going to be the duration of the risk the nature and severity of the potential harm which we all know is can be extremely harmful the likelihood of the potential harm will occur and the imminence of the potential harm it's really the last two factors that you're going to look at and that of course would look at it if you had a direct threat um so basically what you're going to do is you're going to look at your workforce you're going to look at your line of business um with regard to your workforce you wanna look at age medical conditions that you're aware of um are they client facing or are they just working remotely and then on the other side you want to look at if they're frontline workers then obviously that direct threat standard is going to be there because they're constantly interacting with people who could or may be exposed to it so then after you make that assessment you have to determine whether that individual who cannot be vaccinated poses a direct threat the employer can still not exclude them from the workplace unless there is no way to provide a reasonable accommodation um to that employee so you you're gonna then have to take the step to see if there's any other eeo laws or other federal state local laws that apply that would prevent you from providing an accommodation or not not require you to provide an accommodation um some accommodations that people have seen are working remotely which i think a lot of us most of us probably have been working remotely for quite some time or leave under federal state or local law right there's state laws that explicitly state that leave is a reasonable accommodation now to keep in mind leave is not a a re a reasonable accommodation if it's indefinite there should be a set time period and case law will will help you will help guide you on how long that leaves should be another example is if the workplace configuration provides ample distance between employees and customers has excellent ventilation you're complying with all cdc standards and all osha gardens and there's no record of any outbreaks at the at the work site and you're going to have a problem showing that there was a direct threat on the other hand like like we talked about if the if you have frontline workers you're at a hospital it's going to be much easier to show that there's a direct threat there basically all this is saying is make sure you enter to the interactive process to see if there's any reasonable accommodations that can be made to the person who cannot receive the vaccine due to disability right again working from home mass double mass testing social distancing non-public facing roles maybe revising their schedules all things that a lot of states have already passed so they're kind of doing your job for you that you already have to comply with but those are things that you want to keep in mind and that the next question that follows too is it's in the same regard as disabilities it's what happens with people who've sincerely held religious beliefs who can't receive the vaccine because of that so once you're on notice that they hold a sincerely held religious belief that prevents them from receiving a vaccine um you have to provide an accommodation unless there's a undue hardship and of course have defined an undue hardship as having more than a minimum cost of burden and so the efc goes on to state that because religion is so broad and there's so many different types of religion that you as the employer should generally assume that their their sincerely held belief is sincerely held unless you have an objective basis for questioning that and if you do have an objective basis for questioning that then you can request additional documentation for example a letter from clergy related to the objection right um saying that it is a truthful statement on that part so at the end if you can't provide an accommodation then and and you have to still exclude them from the workplace and they can't work remotely then yes you can you can take action however you want to be very careful on the action you take it's like we said it in the in the powerpoint it is a minefield um the reason i say that is because there's a thing called temporal proximity which means the data the action and the date of the protected activity so the date of the action being termination and the date that they requested protected activity if they're close in time the court's going to find at least get them let them get through a summary judgment motion and they're going to make you go through discovery which is going to cost you tens of thousands of dollars so that is the one drawback here and then the next one is the genetic information on discrimination act or otherwise known as gina uh it's basically the same thing that we just covered uh this is implicated when an employer administrator administers a vaccine or requires proof of vaccine be or it's not implicated because it doesn't involve the use of genetic information to make employment decisions however if you're asking pre-screening questions about maybe uh family members about their family members medical histories then you're probably going to violate gina and you're going to be subject to a lawsuit under that for discrimination then we get into legal ramifications so the first part is the eoc has put out all this guidance and which is great and we we all we could all use some guidance for sure but it's not low meaning courts do look to it for guidance in some circumstances but they're not bound by it this is not a law um they could of course they're still free to choose to interpret laws how they see fit and they look at it just as that potentially guidance so don't hang your hat on the eoc um well it may be a defense it may not be a great defense the other to me what the biggest issue here is is the emergency use authorization versus a fully authorized vaccine under law the fda has the obligation to ensure that recipients of the vaccine under an eua are informed to the extent practical under the applicable circumstances that the fda has authorized the emergency use of the vaccine of the known and potential benefits and risks the extent to which i'm sorry yeah that and the extent to which the benefits and risks are known and this very importantly that they have the option to accept or receive or refuse the vaccine and any of the available alternatives to products so that part that they have the option to accept or refuse the vaccine under law gives them a public policy claim and a protected activity so if you then terminate someone for refusing the vaccine they could bring a lawsuit based on engaging in a protected activity and you retaliating against them so i think that's going to be one of the bigger ones that we see coming forward then on osha osha's oh she's kind of a tricky one um osha has hasn't provided a mandate yet that for mandatory vaccinations but osha has indicated that you may institute mandatory vaccine policies uh section 11c of osha protects employees who refuse or may protect employees who refuse a vaccine under the belief that there is a health or safety concern um so basically what 11c says it prohibits employers from retaliating against employees for exercising a variety of rights guaranteed under the act including raising a health and safety concern with their employers but on the flip side under section 5 a 1 employees can allege that if employers do not have a vaccine program that they're not providing a safe work environment as required by that section so it's kind of a double-edged sword it kind of dams if you do damned if you don't they've also recently osha has also recently issued new guidance for 16 steps to an effective plan to prevent the spread of coping which includes making a coping 19 vaccine or series available at no cost to eligible employees so basically they're promoting the vaccine so it's interest it'll be interesting to see if lawsuits are filed with this and how these two sections um are interpreted and which section actually probably wins then you have state laws um state laws in the past year a lot of legislation has been passed or tried to be passed um for example in louisiana they were trying to exempt employees from vaccine requirements in rhode island they were trying to prohibit employment discrimination against the individuals who did not receive a vaccine so you have really especially in the staffing industry since you're all over the country you have to pay attention to your state's laws where you are located and where you have employees located to make sure that you're compliant and you're not impermissibly putting a vaccine program in one state and permissibly in another state and then finally we're just going to look at the practical considerations right the availability of the vaccine is just it's not there um i think there i mean where i am there's two million people signed up that aren't even haven't been called having to call the schedule so it's it's just not readily available so how can you expect your employees to do that right just just one consideration also the vaccine itself we don't know whether it protects the carrier or if the carrot i'm sorry the carrier being the carrier being the person who's vaccinated or if that person could still carry the virus and spread it to other people there's still no data out there so that's one consideration to have too also you have the public policy that's in place as well um i think 27 to 40 percent of people polled in december said that they would decline receiving the vaccine so 27 to 40 percent that's obviously going to affect your your workforce in some way also if you're requiring the vaccine you want to keep in mind too that you're going to have wage and hour issues so if you're requiring someone to go get a vaccine you're going to have to pay them for that travel time and there may be workers comp that flows from right if they have some kind of adverse reaction to it that could fall in your workers comp and you want to make sure that your workers comp carrier is going to protect you against that um and then also finally there's not finally one more after this but you're gonna have to provide time off to recover uh a ot of everybody i've known who's received the vaccine has been down for at least a day it's usually i think 14 to 16 hours after they received the second dose they have chills they have fevers and it's not a pleasant experience for them so there will be will have to be some kind of leave provided and finally a lot of companies are offering incentives right and the monetary symptoms which which are not which may or may not be legal under the eoc wellness programs modest value is allowed so that's typically a water bottle they said or a gift card of modest value um but if the the incentive is deemed to coerce an employee into getting the vaccine then it could be deemed a violation the ada and on the flip side too if you have somebody who has a disability who can't get the vaccine and then thus can't get the incentive you're it could be it could be said that you're discriminating against that person but not providing that incentive um the ufc has been asked for further clarifications on this and we're still waiting to hear on that and that's it on mine okay thank you so much chris we've got between five and ten minutes left so let's do this let's circle back to alan and i know you were glancing through some of the questions and let's go back and if there are any that you're able to answer right now in a couple of minutes sure yeah yeah there are two questions that i saw posted and i can answer both really quickly one was about summer rights document and when you should give that document and can you give it up front and the answer is you can give that summary of rights document right up front the only time that you'd also want to give it is if you're going to be doing that adverse action process you'd want to give it back again to them for the pre-letter and the final letter so just as a process that's what you'd want to do but absolutely you can give it right up front as the document so you know conservatively that they have it already there's no restriction that you that you cannot give it earlier so you can give it when you give the disclosure the authorization form as a separate form the other question was about ban the box in texas the answer is that texas state does not have a state law for ban the box but as we were talking about all the municipalities that have laws there are four municipalities which are austin dallas county san antonio and travis that all have laws but they're all for public sector jobs not for private and all of them kind of relate to later in the hiring process or after conditional job offers made san antonio has to remove the question altogether from the application completely but again that's for public um republic jobs the other thing that was brought up was salary history again we'll provide you information about which states uh which are which is in that slide and i'm more than happy to answer any questions after about specific salary exemptions um in any of the states judy do you have there were a couple of questions i think for you as well yes so um one question was um how do they qualify for a medical card in minnesota and actually if you just go to the department of health i actually googled it there's a registration process so i put the link in the chat for how you register in minnesota for a medical card again you have to qualify in conditions contact your health provider and then you have to have a visit and then you can have a this healthcare person has to certify that you are able to get it and then you have to register online and then you have to visit a cannabis patient center so it's pretty self-explanatory if you just google how to register for a medical marijuana card in minnesota that was one and my second question that someone asked was what are the pros and cons of removing thc from your drug test in a state where it's still illegal the pros are actually you'd be able to hire a lot more people i'm just telling you that from my end we see a lot of people that fail because of marijuana the cons are depending on what type of work they do if they are in safety sensitive jobs i would be very careful of what you do because that could be a huge liability so um again i just say types of accidents that's just from my perspective i'm sure chris may have another idea too of why you should not do it when it's not legal you know it's equally illegal in your state but again staffing companies you know have that program to change things if they need to so hope that helps chris there are a couple of questions for you in in the chat box one is can you mandate just a certain group of your employees you know that they must get vaccinated for example a group of my employees have direct contact with our clients so can i put a policy in place that employees who work on production lines with clients have to be vaccinated when the vaccine becomes available yes you can um as long as your policy legitimate non-discriminatory policy on its face and that that's what this would be because obviously you're trying to protect your your workers who are out there every day as opposed to people who may not who might just be in the office or working remotely that would be legitimate non-discriminatory reason the draw only thing that you could say is what's called a disparate impact so if you have um if those workers are predominantly one race whereas everybody else who's not being mandated is another race or color creed religion whatever protective car characteristic that you may come up with um then overall even though it may be officially neutral policy it could still have a disparate impact and be considered be discrimination as long as it's a good mix then you're fine okay one other question here for new hires will employers be able to pay more for vaccinated employees than a non-vaccinated employee will they be able to pay more so i'm guessing like the actual pay rate of so yeah and that you're going to get in you could but then you're going to get into disability the whole disability right because then you if somebody didn't receive a vaccine because they're disabled and you're paying someone more because they did receive the vaccine then people with disabilities are going to say well i'm being discriminated against because i couldn't receive the vaccine so that's that's your one drawback right there okay and then one other question if an employee doesn't want to take a vaccine due to medical reasons do they have to provide proof of that or does that open up the company to the ada yeah at that point you're going to be open to the ada if you're gonna if you're gonna push the issue because it's just like any other any other interactive process where you're providing a reasonable accommodation um i mean some some people's disabilities you know right off the bat you really don't need documentation if it's not that is prevalent you don't know um then asking for documentation is is reasonable to support their request for accommodation but again it's all going to come down to the interactive process knowing what kind of cannot be done typically in circumstances like these you're going to want the doctor's input anyway or the healthcare provider's input to see what kind of accommodation can be made to allow the person to perform the essential functions of his or her job okay thank you so much that appears to be all the the questions so and we are i think coming right up on the hour so thank you everybody for joining and for the presenters i have um slides of each of our contact information here that i will include at the very end of the deck so when you guys get a recording of the video you'll have this slide deck as well um stay warm stay safe have a great 2021 thanks for joining thank you thank you