1 00:00:03,200 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio. 2 00:00:09,200 --> 00:00:11,559 Speaker 1: The European Union has been in a legal fight with 3 00:00:11,720 --> 00:00:14,880 Speaker 1: renegades Poland and Hungary over respect for the rule of 4 00:00:14,960 --> 00:00:18,480 Speaker 1: law and the independence of the judiciary. The two countries 5 00:00:18,520 --> 00:00:21,079 Speaker 1: were singled out in an EU report this week that 6 00:00:21,200 --> 00:00:24,959 Speaker 1: pointed to the widening gap between their populist regimes and 7 00:00:25,000 --> 00:00:29,400 Speaker 1: the block's democratic standards. Poland Supreme Court is considering making 8 00:00:29,400 --> 00:00:33,000 Speaker 1: a U turn and halting a controversial disciplinary regime for 9 00:00:33,120 --> 00:00:35,960 Speaker 1: judges that would comply with the ruling by the EU's 10 00:00:36,040 --> 00:00:39,600 Speaker 1: top tribunal, But the Prime Minister of Hungary is proposing 11 00:00:39,600 --> 00:00:43,640 Speaker 1: a referendum to push back against EU pressure to change 12 00:00:43,640 --> 00:00:48,000 Speaker 1: a Hungarian anti lgbt Q law that sparked a furious 13 00:00:48,040 --> 00:00:51,840 Speaker 1: reaction in the Block. Will the EU's executive arms start 14 00:00:52,000 --> 00:00:56,760 Speaker 1: using recently one sanctioning powers to freeze funding including COVID 15 00:00:56,840 --> 00:01:00,880 Speaker 1: nineteen bailouts for the errant member states? Joining me is 16 00:01:00,960 --> 00:01:05,399 Speaker 1: Ronan McCrae, Professor of Constitutional and European Law at University 17 00:01:05,480 --> 00:01:08,959 Speaker 1: College London. So let's start with some basics. In the 18 00:01:09,040 --> 00:01:12,640 Speaker 1: United States, we have federal law and state law. How 19 00:01:12,680 --> 00:01:16,880 Speaker 1: does EU law work with the law of country members. 20 00:01:16,959 --> 00:01:19,600 Speaker 1: In some ways, it's actually not that different from the 21 00:01:19,640 --> 00:01:24,400 Speaker 1: situation in the US. So like in the US the preemption, 22 00:01:24,480 --> 00:01:28,280 Speaker 1: when the EU legislates in a particular area, the member 23 00:01:28,360 --> 00:01:30,640 Speaker 1: states lose their right to legislate in that area, and 24 00:01:30,720 --> 00:01:33,959 Speaker 1: EU law takes precedents. So under EU laws there's a 25 00:01:33,959 --> 00:01:38,160 Speaker 1: clash between national law and ELA. E law takes precedence, 26 00:01:39,120 --> 00:01:43,440 Speaker 1: and EULO will also be enforced by domestic courts, so 27 00:01:43,560 --> 00:01:45,240 Speaker 1: you don't have to go to the European Court for 28 00:01:45,280 --> 00:01:49,240 Speaker 1: every case. In theory, your local court will enforce your 29 00:01:49,240 --> 00:01:52,400 Speaker 1: EU law rights. In the United States, we have common 30 00:01:52,480 --> 00:01:55,840 Speaker 1: law and then we have statutory law. Is EU law 31 00:01:55,960 --> 00:02:00,760 Speaker 1: all statutory no, so the law it's really like a 32 00:02:00,840 --> 00:02:04,120 Speaker 1: constitutional system. So there's the Treaty, which is the founding 33 00:02:04,160 --> 00:02:06,880 Speaker 1: documents that's like the constitution that sets out the powers 34 00:02:06,880 --> 00:02:09,840 Speaker 1: of the EU, but also has a lot of constitutional principles, 35 00:02:09,880 --> 00:02:13,919 Speaker 1: mainly fundamental rights principles in it. And then there's also 36 00:02:14,000 --> 00:02:17,239 Speaker 1: then the secondary legislation that's produced by the EU legislature, 37 00:02:17,320 --> 00:02:19,800 Speaker 1: which is the States and European Parliament and the European 38 00:02:19,840 --> 00:02:24,799 Speaker 1: Commission together produce legislation in various areas of law in 39 00:02:24,880 --> 00:02:29,880 Speaker 1: which the EU has competence. So then if a country's law, 40 00:02:30,080 --> 00:02:34,760 Speaker 1: let's say Italy, if Italy's laws conflict with EU laws, 41 00:02:34,840 --> 00:02:38,720 Speaker 1: then Italy has to change their laws. Yes, there's two 42 00:02:38,760 --> 00:02:41,240 Speaker 1: things that can happen. First, the Commission can take Italy 43 00:02:41,560 --> 00:02:44,560 Speaker 1: to the European Court of Justice and get the declaration 44 00:02:44,680 --> 00:02:48,359 Speaker 1: that they've violated their duties under EU law. And if 45 00:02:48,919 --> 00:02:51,639 Speaker 1: Italy doesn't bring its law into line, they can then 46 00:02:51,800 --> 00:02:57,520 Speaker 1: be subject to repeat unlimited fine from the court. The 47 00:02:57,639 --> 00:03:00,880 Speaker 1: second way, and in ways the more important a is 48 00:03:00,919 --> 00:03:04,240 Speaker 1: that an Italian individual can go to their local court, 49 00:03:04,320 --> 00:03:07,440 Speaker 1: they have a case and insist that eulaways applied in 50 00:03:07,520 --> 00:03:10,040 Speaker 1: that case. And the Court of Justice has for a 51 00:03:10,080 --> 00:03:13,040 Speaker 1: really forty years, the Court of European Court of Justice, 52 00:03:13,080 --> 00:03:16,720 Speaker 1: the Supreme Court has ruled that in the case where 53 00:03:16,720 --> 00:03:21,079 Speaker 1: there's a conflict between national law and EU law, EU 54 00:03:21,160 --> 00:03:25,040 Speaker 1: law must take precedence and in the individual local national 55 00:03:25,120 --> 00:03:27,680 Speaker 1: judge must apply EU law to the case. That's what 56 00:03:27,800 --> 00:03:30,679 Speaker 1: makes the law so different from other forms of international law. 57 00:03:30,919 --> 00:03:33,520 Speaker 1: You don't have to go to the international court. It's 58 00:03:33,600 --> 00:03:38,040 Speaker 1: directly enforceable in your local court. How many EU courts 59 00:03:38,120 --> 00:03:40,880 Speaker 1: are there well, that's a good questions. So there are 60 00:03:40,880 --> 00:03:45,200 Speaker 1: two main EU courts to the General Court, which deals 61 00:03:45,280 --> 00:03:48,880 Speaker 1: with issues about kind of when you call antitrust law, 62 00:03:49,760 --> 00:03:52,600 Speaker 1: bearious other areas, and then there it's decisions can be 63 00:03:52,600 --> 00:03:55,520 Speaker 1: appealed to the European Court of Justice, which is the 64 00:03:55,760 --> 00:03:59,240 Speaker 1: supreme court. But because the European Court of Justice has 65 00:03:59,320 --> 00:04:02,080 Speaker 1: ruled that national courts have to enforce the law in 66 00:04:02,160 --> 00:04:05,680 Speaker 1: cases before them, in theory, all of the courts of 67 00:04:05,760 --> 00:04:08,600 Speaker 1: the Member States are also EU courts. And what happens 68 00:04:08,640 --> 00:04:12,040 Speaker 1: is the Court of Justice says that any national court 69 00:04:12,200 --> 00:04:15,560 Speaker 1: that has issue of EU law before it and doesn't 70 00:04:15,600 --> 00:04:17,880 Speaker 1: know how to interpret you law in the case, they 71 00:04:17,880 --> 00:04:21,160 Speaker 1: can stop the case, make a reference to the European 72 00:04:21,200 --> 00:04:24,200 Speaker 1: Court ask how should I apply EU law in this case, 73 00:04:24,600 --> 00:04:26,160 Speaker 1: and the court will give them the answer and then 74 00:04:26,160 --> 00:04:29,520 Speaker 1: they'll apply it. So there isn't a separate system of 75 00:04:29,640 --> 00:04:33,359 Speaker 1: federal and state courts like you have in the US, 76 00:04:33,520 --> 00:04:36,200 Speaker 1: just all the Member states have their own legal systems. 77 00:04:36,279 --> 00:04:38,120 Speaker 1: And then there's on top of it at the European 78 00:04:38,120 --> 00:04:42,279 Speaker 1: Court of Justice, who answers all EU law queries, but 79 00:04:42,320 --> 00:04:44,799 Speaker 1: which expect the Member of state courts then to apply 80 00:04:44,880 --> 00:04:48,760 Speaker 1: its rulings. When is it that the courts enforce laws 81 00:04:48,800 --> 00:04:53,480 Speaker 1: and when is it that the European Commission enforces laws? 82 00:04:53,520 --> 00:04:56,719 Speaker 1: So the courts will enforce the law in a concrete 83 00:04:56,760 --> 00:04:58,520 Speaker 1: case before it. So what happens is you know you 84 00:04:58,720 --> 00:05:01,360 Speaker 1: might be fired from your of work and you think 85 00:05:01,360 --> 00:05:03,080 Speaker 1: that there's a lot of the laws, a lot of 86 00:05:03,160 --> 00:05:05,919 Speaker 1: competence in labor law. You may take the case to 87 00:05:05,960 --> 00:05:08,960 Speaker 1: the court and insist that the law is applied in 88 00:05:09,000 --> 00:05:11,920 Speaker 1: that case. What the European Commission can do is where 89 00:05:11,960 --> 00:05:14,599 Speaker 1: there's no case just in period as a breach of 90 00:05:14,640 --> 00:05:17,360 Speaker 1: the EU law, they can they can then take a complaint. 91 00:05:17,600 --> 00:05:19,520 Speaker 1: So for the Commission to act, they don't need a 92 00:05:19,600 --> 00:05:23,120 Speaker 1: concrete violation in an individual case, they can follow up 93 00:05:23,160 --> 00:05:26,280 Speaker 1: any abstract one. But for national courts they would need 94 00:05:26,320 --> 00:05:28,839 Speaker 1: an actual dispute in front of it. And the Court 95 00:05:28,839 --> 00:05:31,760 Speaker 1: of Justice is rude, but they they won't rule on 96 00:05:31,839 --> 00:05:35,040 Speaker 1: theoretical disputes, and national courts they have an actual dispute 97 00:05:35,040 --> 00:05:37,839 Speaker 1: involving in the EU law issue before it before the 98 00:05:37,920 --> 00:05:40,640 Speaker 1: national court can invoke EU law. So tell me what 99 00:05:40,720 --> 00:05:44,640 Speaker 1: happened last year when the e use General Court ordered 100 00:05:44,640 --> 00:05:49,880 Speaker 1: the annoyment of the thirteen billion euro tax order against Apple. 101 00:05:50,440 --> 00:05:53,799 Speaker 1: Why did that happen? Well, what they found was because 102 00:05:53,800 --> 00:05:56,760 Speaker 1: the EU has quite limited competence in matters of tax, 103 00:05:57,120 --> 00:05:59,520 Speaker 1: but they do have a lot of power in areas 104 00:05:59,560 --> 00:06:02,679 Speaker 1: could of what's called state aid, which is where states 105 00:06:02,720 --> 00:06:08,520 Speaker 1: giving subsidies two companies, and the European Commission had argued 106 00:06:08,520 --> 00:06:13,360 Speaker 1: that Irelen's favorable treatment of Apple in relation to tax 107 00:06:13,440 --> 00:06:16,359 Speaker 1: matters was so favorable that it effects the amounted to 108 00:06:16,400 --> 00:06:19,799 Speaker 1: a subsidy state subsidy. And so because EU look Bay 109 00:06:19,839 --> 00:06:25,159 Speaker 1: prohibits state subsidies, the European Commission imposed that fine and says, 110 00:06:25,240 --> 00:06:27,400 Speaker 1: you can't do this. Apple has to pay back the 111 00:06:27,720 --> 00:06:31,080 Speaker 1: tax is amounts to a subsidy. But the general courts 112 00:06:31,120 --> 00:06:33,440 Speaker 1: that actually, no, this is a matter of tax, not 113 00:06:33,520 --> 00:06:36,559 Speaker 1: a matter of subsidy policy, and so they annulled the 114 00:06:36,600 --> 00:06:41,000 Speaker 1: imposition of that thirteen billion. So tell me how Germany's 115 00:06:41,160 --> 00:06:45,680 Speaker 1: Constitutional Court took the EU Court of Justice on in 116 00:06:46,720 --> 00:06:49,800 Speaker 1: and what happened there. As part of the kind of 117 00:06:49,839 --> 00:06:56,479 Speaker 1: economic crisis, the European Bank is not allowed to fund 118 00:06:57,360 --> 00:07:00,520 Speaker 1: to give money to states to kind of fund their spending, 119 00:07:01,440 --> 00:07:04,839 Speaker 1: but it is allowed fixed interest rates, and the European 120 00:07:04,880 --> 00:07:07,880 Speaker 1: Bank Central Bank. During the kind of economic crisis the 121 00:07:08,000 --> 00:07:11,520 Speaker 1: last ten years, the bank bank has decided that although 122 00:07:11,520 --> 00:07:16,239 Speaker 1: they're allowed directly financed governments, they can buy unlimited amounts 123 00:07:16,240 --> 00:07:19,720 Speaker 1: of state debt in order to ensure that the interest 124 00:07:19,840 --> 00:07:23,240 Speaker 1: rate states are charged is not doesn't deviate much from 125 00:07:23,240 --> 00:07:26,040 Speaker 1: the interest rates set by the European Central Bank, and 126 00:07:26,080 --> 00:07:30,720 Speaker 1: the German court says this is disguised financing of the 127 00:07:30,760 --> 00:07:34,000 Speaker 1: states by the European Central Bank and that that's something 128 00:07:34,040 --> 00:07:37,120 Speaker 1: that the EU Bank does not the power to do so. 129 00:07:37,120 --> 00:07:41,040 Speaker 1: When Drum politicians took this case, saying the European Central Bank, 130 00:07:41,400 --> 00:07:44,480 Speaker 1: by funding member states in this way buying their debt, 131 00:07:45,120 --> 00:07:49,239 Speaker 1: has gone beyond its powers. The German Constitutional Court after 132 00:07:49,320 --> 00:07:52,840 Speaker 1: the European Court of Justice, does the European Central Bank 133 00:07:52,920 --> 00:07:55,600 Speaker 1: have the power to do this under the EU treaties. 134 00:07:56,040 --> 00:07:58,920 Speaker 1: The Court of Justice said yes it does and send 135 00:07:59,000 --> 00:08:01,760 Speaker 1: the case back to the Constitutional Court. But the German 136 00:08:01,800 --> 00:08:06,280 Speaker 1: Constitutional Court said, actually, we don't think you've exercised a 137 00:08:06,440 --> 00:08:09,480 Speaker 1: strict enough review of the limits of the powers of 138 00:08:09,560 --> 00:08:13,840 Speaker 1: central bank. We disagree. Therefore, the German Central Bank, which 139 00:08:13,920 --> 00:08:16,600 Speaker 1: is part of the European central bank system, and provide 140 00:08:16,640 --> 00:08:20,040 Speaker 1: some of the money cannot participate in this project. Now, 141 00:08:20,080 --> 00:08:22,040 Speaker 1: the issue with that is it was the first time 142 00:08:22,320 --> 00:08:25,880 Speaker 1: that a national court had refused to accept the ruling 143 00:08:26,120 --> 00:08:28,560 Speaker 1: of the European Court of Justice on what were the 144 00:08:28,640 --> 00:08:31,960 Speaker 1: limits of the powers of the EU institution. European Court 145 00:08:32,040 --> 00:08:34,760 Speaker 1: Justice has always said, if we have twenty seven states, 146 00:08:35,080 --> 00:08:38,559 Speaker 1: we have to have one court, European put a justice 147 00:08:38,679 --> 00:08:41,600 Speaker 1: which provides a definitive answer to what are the powers 148 00:08:41,640 --> 00:08:44,920 Speaker 1: of the institutions. And here the German court was refusing 149 00:08:44,960 --> 00:08:47,840 Speaker 1: to accept that, and that went against fifty years of 150 00:08:47,960 --> 00:08:50,560 Speaker 1: e U k S law, where they've been saying any 151 00:08:50,600 --> 00:08:53,080 Speaker 1: conflict in national law and EU law is resolved in 152 00:08:53,120 --> 00:08:55,640 Speaker 1: favor of you law. This is a problem in itself 153 00:08:55,720 --> 00:08:59,199 Speaker 1: because they were worried about the European Central Banks bomb 154 00:08:59,240 --> 00:09:02,559 Speaker 1: buying program, but they've they've kind of faded recently. But 155 00:09:02,640 --> 00:09:07,880 Speaker 1: it's a bigger structural issue because if national constitutional courts 156 00:09:08,000 --> 00:09:11,640 Speaker 1: start refusing to accept the primacy of EU law, then 157 00:09:11,679 --> 00:09:15,640 Speaker 1: the whole system, the illegal system, begins to fall apart. 158 00:09:15,920 --> 00:09:19,080 Speaker 1: And that's particularly important because the EU is in the 159 00:09:19,200 --> 00:09:23,720 Speaker 1: midst of and very heated clashes with two members states 160 00:09:23,800 --> 00:09:27,559 Speaker 1: Hungry and Poland over the independence of their courts tell 161 00:09:27,640 --> 00:09:31,640 Speaker 1: us about the conflicts between the EU and Hungary and Poland. 162 00:09:32,520 --> 00:09:35,560 Speaker 1: So the Hungarian government and the Polish government have an 163 00:09:35,600 --> 00:09:39,800 Speaker 1: act that a series of performs, the substance of which 164 00:09:39,880 --> 00:09:42,959 Speaker 1: is to undermine the independence of the judiciary, and the 165 00:09:42,960 --> 00:09:47,400 Speaker 1: European Court of Justice has issued several rulings saying because 166 00:09:47,640 --> 00:09:51,440 Speaker 1: EU law requires national judges to implement the EU law, 167 00:09:51,840 --> 00:09:54,960 Speaker 1: the EU requires the judges are independent, so they're able 168 00:09:55,160 --> 00:09:58,720 Speaker 1: to enforce the EU law against the government. Therefore, your 169 00:09:58,800 --> 00:10:01,839 Speaker 1: measures which under find the independence of the courts in 170 00:10:02,200 --> 00:10:04,920 Speaker 1: Hungary in Poland violated U law and you have to 171 00:10:05,160 --> 00:10:07,720 Speaker 1: you have to disapply them. Now, this means when the 172 00:10:07,840 --> 00:10:10,840 Speaker 1: German Constitutional Court is kind of reasonably why you respected 173 00:10:10,840 --> 00:10:13,360 Speaker 1: in Europe, ruled that it was not accepting a Court 174 00:10:13,400 --> 00:10:16,480 Speaker 1: of Justice ruling. The Polish and Hungarian governments were delighted 175 00:10:16,520 --> 00:10:19,000 Speaker 1: because they were like brilliant. Our courts now will say 176 00:10:19,240 --> 00:10:21,360 Speaker 1: they don't have to accept Court of Justice rulings in 177 00:10:21,400 --> 00:10:25,480 Speaker 1: relation toudicial independence, which is what happens. Last week. The 178 00:10:25,520 --> 00:10:28,920 Speaker 1: Polish Supreme Court or Constitutional Court has rules that it 179 00:10:28,960 --> 00:10:32,520 Speaker 1: does not accept the European Court of Justice ruling which 180 00:10:32,640 --> 00:10:35,880 Speaker 1: said that the Disciplinary Chamber they have for judges, where 181 00:10:35,920 --> 00:10:40,080 Speaker 1: government appointees can discipline judges for ruling against it. European 182 00:10:40,080 --> 00:10:43,000 Speaker 1: Court of Justice has said that disciplinary chamber is against 183 00:10:43,040 --> 00:10:45,360 Speaker 1: the EU law and must be shut down, and Polish 184 00:10:45,400 --> 00:10:48,880 Speaker 1: Constitutional Court has now said, well, just like the Germans, 185 00:10:49,040 --> 00:10:52,559 Speaker 1: we retained the right not to accept Court of Justice 186 00:10:52,760 --> 00:10:55,120 Speaker 1: rulings if we think they go against our constitution and 187 00:10:55,160 --> 00:11:00,199 Speaker 1: therefore we don't accept this ruling. So this is a big, big, 188 00:11:00,280 --> 00:11:03,439 Speaker 1: kind of slow burned threat to the European Court adjustice 189 00:11:03,600 --> 00:11:06,880 Speaker 1: because over the years there's been some gray areas about 190 00:11:06,880 --> 00:11:10,000 Speaker 1: whether their national courts accepted that EULA always took primacy, 191 00:11:10,040 --> 00:11:13,520 Speaker 1: but by and large they have accepted the primacy of 192 00:11:13,559 --> 00:11:17,280 Speaker 1: the law, and without the primacy of you law. If 193 00:11:17,400 --> 00:11:20,880 Speaker 1: national courts are not going to follow you law and 194 00:11:20,920 --> 00:11:23,360 Speaker 1: are going to disapply it when they feel like it, 195 00:11:23,520 --> 00:11:26,440 Speaker 1: or if they think they're sufficiently important reasons to do so, 196 00:11:26,880 --> 00:11:29,880 Speaker 1: then the legal unity of the EU is really undermined. 197 00:11:30,559 --> 00:11:32,880 Speaker 1: The EU of two things. It's a sit on political 198 00:11:32,880 --> 00:11:37,280 Speaker 1: cooperation between member states and the system of shared legal rules. 199 00:11:37,840 --> 00:11:42,600 Speaker 1: Once the shared legal rules go, if national courts stopped 200 00:11:42,679 --> 00:11:46,440 Speaker 1: enforcing them, then the EU retreats doing something much more 201 00:11:46,480 --> 00:11:50,560 Speaker 1: like a classic international organization rather than what it is now, 202 00:11:50,600 --> 00:11:53,800 Speaker 1: which is something which is halfway between a state and 203 00:11:53,880 --> 00:11:57,280 Speaker 1: an international organization. So where does the situation now with 204 00:11:57,480 --> 00:12:02,800 Speaker 1: the German Constitution Court. Well, the German Constitutional Court gave 205 00:12:02,840 --> 00:12:06,240 Speaker 1: itself a kind of way out. It said that, well, 206 00:12:06,280 --> 00:12:08,839 Speaker 1: we don't accept that the European Court of Justice has 207 00:12:08,880 --> 00:12:12,400 Speaker 1: been strict enough than policing the boundaries of the powers 208 00:12:12,400 --> 00:12:16,240 Speaker 1: of European Central Bank. But if the German Bank can 209 00:12:16,280 --> 00:12:19,800 Speaker 1: provide us with various factual information about how this bond 210 00:12:19,840 --> 00:12:23,200 Speaker 1: buying program works, then we might be happy to accept 211 00:12:23,240 --> 00:12:25,840 Speaker 1: that it's within the powers of the European Central Bank. 212 00:12:26,200 --> 00:12:29,800 Speaker 1: And the europ German Central Bank did issue various clarifications 213 00:12:29,800 --> 00:12:32,600 Speaker 1: and gave the courts and factor information and the Court 214 00:12:32,840 --> 00:12:36,760 Speaker 1: has said okay, well now Germany can participate. So on 215 00:12:36,920 --> 00:12:39,600 Speaker 1: the fact the kind of danger to the bond buying 216 00:12:39,640 --> 00:12:43,920 Speaker 1: program has disappeared. But that level of principles, the damage 217 00:12:44,000 --> 00:12:47,960 Speaker 1: is done because now the threat to the authority of 218 00:12:48,040 --> 00:12:50,760 Speaker 1: the European Court of Justice is established when a well 219 00:12:50,800 --> 00:12:54,880 Speaker 1: respected founding Member States Supreme Court goes against the Court 220 00:12:54,920 --> 00:12:58,400 Speaker 1: of Justice. Because remember there's no national Guard in the EU. 221 00:12:58,520 --> 00:13:00,920 Speaker 1: You know when the European Court of just just rules 222 00:13:00,920 --> 00:13:03,400 Speaker 1: while their case is clear that the legal obligation to 223 00:13:03,520 --> 00:13:06,440 Speaker 1: enforce their ruling, they have no way of forcing a 224 00:13:06,520 --> 00:13:10,360 Speaker 1: national court that doesn't want to enforce a ruling to 225 00:13:10,360 --> 00:13:12,840 Speaker 1: do so. The only thing that can happen is they 226 00:13:12,840 --> 00:13:15,840 Speaker 1: can impose financial sanctions on the member states, and they 227 00:13:15,880 --> 00:13:18,960 Speaker 1: are now. The European Commission this week has said that 228 00:13:19,000 --> 00:13:21,840 Speaker 1: they're going to go for financial sanctions against Poland. But 229 00:13:21,960 --> 00:13:25,200 Speaker 1: there is no national guard. There's no way that the 230 00:13:25,240 --> 00:13:28,880 Speaker 1: European Court of Justice can enforce compliance with rulings. It's 231 00:13:28,920 --> 00:13:32,480 Speaker 1: dependent on the cooperation of national courts. So then if 232 00:13:32,520 --> 00:13:35,319 Speaker 1: Poland or Hungary says we're not going to pay the sanctions, 233 00:13:35,840 --> 00:13:37,880 Speaker 1: nothing can be done. Can they be kicked out of 234 00:13:37,880 --> 00:13:41,800 Speaker 1: the EU? No? Well, so they can. This natural sanctions 235 00:13:41,840 --> 00:13:44,319 Speaker 1: are real, and not least because Pope. Both Poland and 236 00:13:44,400 --> 00:13:48,120 Speaker 1: Hungary receive very significant substitutes in the EU. So the 237 00:13:48,160 --> 00:13:50,839 Speaker 1: EU is lucky and that the two countries that are 238 00:13:50,920 --> 00:13:53,719 Speaker 1: kind of creating the most trouble at the moment are 239 00:13:53,720 --> 00:13:56,600 Speaker 1: both big net beneficiaries of EU spending, so that they 240 00:13:56,600 --> 00:13:59,079 Speaker 1: will have to pay the fine. There is new EU 241 00:13:59,200 --> 00:14:03,520 Speaker 1: legislation says when judicial independence is not respected, if that 242 00:14:03,559 --> 00:14:06,200 Speaker 1: threatens the integrity of the EU budget, you can cut funding. 243 00:14:06,240 --> 00:14:09,080 Speaker 1: So they may lose funding, but there is no way 244 00:14:09,120 --> 00:14:11,640 Speaker 1: to expel a member states from the European Union. In fact, 245 00:14:11,640 --> 00:14:14,360 Speaker 1: in that regards to the unhelpful case came up during 246 00:14:14,360 --> 00:14:18,520 Speaker 1: the Brexit process where some pro EU British politicians took 247 00:14:18,520 --> 00:14:21,880 Speaker 1: a case to the European Court of Justice asking if 248 00:14:21,920 --> 00:14:25,920 Speaker 1: Britain could withdraw its notification that it wants to leave 249 00:14:26,000 --> 00:14:29,560 Speaker 1: the EU, and in a wider ruling in passing, the 250 00:14:29,600 --> 00:14:32,200 Speaker 1: court said, well, there's no there's no mechanism for kicking 251 00:14:32,200 --> 00:14:35,240 Speaker 1: a member state out of the European Union against its will, 252 00:14:35,560 --> 00:14:37,400 Speaker 1: so you can't kick them out of the European Union. 253 00:14:37,800 --> 00:14:40,240 Speaker 1: The one thing that can happen is, I mean the 254 00:14:40,240 --> 00:14:43,840 Speaker 1: EU because it legislates in so many areas now labor, loan, 255 00:14:43,960 --> 00:14:47,480 Speaker 1: by mental law, agriculture, economic policy. You know, there's an 256 00:14:47,480 --> 00:14:52,080 Speaker 1: awful lot of ways in which member states can make 257 00:14:52,240 --> 00:14:55,680 Speaker 1: other member states lives uncomfortable. So over the next few 258 00:14:55,680 --> 00:14:57,680 Speaker 1: months will be hundreds of issues that the E will 259 00:14:57,720 --> 00:15:00,560 Speaker 1: be deciding on. If put in the home, we really 260 00:15:00,600 --> 00:15:03,280 Speaker 1: look like they're kind of in danger of bringing down 261 00:15:03,280 --> 00:15:06,760 Speaker 1: the whole system. The other member states can extract long 262 00:15:07,000 --> 00:15:11,280 Speaker 1: low revenge by blocking every single initiative that's important to them. 263 00:15:11,320 --> 00:15:14,800 Speaker 1: So that is a possibility. It's not a very dramatic one, 264 00:15:15,360 --> 00:15:18,400 Speaker 1: but member states are aware that there is long term 265 00:15:18,760 --> 00:15:21,360 Speaker 1: cost for going against but the member states. And the 266 00:15:21,360 --> 00:15:24,200 Speaker 1: one thing we learned from the Brexit process was how 267 00:15:24,280 --> 00:15:27,600 Speaker 1: much the Union means to the political elites in Europe. 268 00:15:27,640 --> 00:15:29,640 Speaker 1: In fact, we saw this again the financial crisis to 269 00:15:29,680 --> 00:15:32,280 Speaker 1: there are a lot of commentators in the US like 270 00:15:32,320 --> 00:15:35,120 Speaker 1: Paul Krugman and Just Stiglets who are wondering why the 271 00:15:35,120 --> 00:15:37,720 Speaker 1: Eurozone didn't collapse. You know, the order doesn't really make 272 00:15:37,800 --> 00:15:41,240 Speaker 1: sense to have a single currency without a single economic policy. 273 00:15:41,480 --> 00:15:45,000 Speaker 1: But what they underestimated is the political commitment of EU 274 00:15:45,200 --> 00:15:48,160 Speaker 1: leaders to maintaining the union. They would do whatever it 275 00:15:48,240 --> 00:15:50,960 Speaker 1: takes to keep it together. And in the Brexit process, 276 00:15:51,000 --> 00:15:53,680 Speaker 1: despite all the fights between different member states, when one 277 00:15:53,760 --> 00:15:57,680 Speaker 1: member state left, the other twenty seven member states formed 278 00:15:57,760 --> 00:16:01,280 Speaker 1: kind of a block and negotiating there was no deviation. 279 00:16:01,320 --> 00:16:03,880 Speaker 1: There was no picking one member state off by the British. 280 00:16:04,240 --> 00:16:07,640 Speaker 1: So you member state governments are very committed to protecting 281 00:16:07,640 --> 00:16:10,520 Speaker 1: the union. There will be a high political price for 282 00:16:10,560 --> 00:16:13,600 Speaker 1: Poland and Hungry to pay if they're seen is threatening it, 283 00:16:13,640 --> 00:16:16,640 Speaker 1: but there is no way of expelling them even if 284 00:16:16,680 --> 00:16:19,360 Speaker 1: they reach YOU law. What may happen if courts may 285 00:16:19,400 --> 00:16:23,600 Speaker 1: start national courts may start saying that they don't recognize 286 00:16:23,680 --> 00:16:26,320 Speaker 1: Polish and Hungarian decisions. So a lot of you law 287 00:16:26,400 --> 00:16:29,080 Speaker 1: is the duty to recognize the judgments and decisions of 288 00:16:29,120 --> 00:16:32,120 Speaker 1: other member states. And what may happen is over time 289 00:16:32,160 --> 00:16:35,000 Speaker 1: other courts may start saying, well, actually, we don't think 290 00:16:35,000 --> 00:16:37,640 Speaker 1: your courts are independents, so we won't give you that benefit. 291 00:16:37,920 --> 00:16:40,680 Speaker 1: It's already in the case of Ireland years ago, where 292 00:16:40,680 --> 00:16:43,920 Speaker 1: a Polish prisoner EU law makes the transfer prisoners between 293 00:16:43,920 --> 00:16:46,840 Speaker 1: states much easier. A Polish prisoner was meant to be 294 00:16:46,880 --> 00:16:50,040 Speaker 1: sent for trial in Poland, the Irish court said, we're 295 00:16:50,040 --> 00:16:52,720 Speaker 1: not sure we can send you actually, because we don't 296 00:16:52,720 --> 00:16:55,560 Speaker 1: think the Polish courts are independent. And tell us a 297 00:16:55,640 --> 00:17:00,640 Speaker 1: little about the conflict with Hungary and it's LGBT law. 298 00:17:01,400 --> 00:17:04,200 Speaker 1: The Hungarian government has really for the last ten years 299 00:17:04,200 --> 00:17:08,760 Speaker 1: being undermining judicial independence. They've placed the wife of a 300 00:17:08,880 --> 00:17:12,280 Speaker 1: rooting party politician as head of the judiciary. They gave 301 00:17:12,400 --> 00:17:15,600 Speaker 1: her the power to promote and fire judges allocate cases. 302 00:17:15,600 --> 00:17:18,919 Speaker 1: I think variously they've suddenly dropped the retirement age of 303 00:17:19,000 --> 00:17:20,960 Speaker 1: judges by ten years to get rid of once they 304 00:17:20,960 --> 00:17:24,359 Speaker 1: didn't like. So they've been attacking the independence of judiciary 305 00:17:24,640 --> 00:17:26,840 Speaker 1: in Hungary for a while. But there's also been a 306 00:17:26,840 --> 00:17:32,280 Speaker 1: cultural clash, and recently they passed the law that would 307 00:17:32,280 --> 00:17:36,280 Speaker 1: be abandoned the provision of any information about gay more 308 00:17:36,359 --> 00:17:39,800 Speaker 1: transgender people to people under eighteen and links it by 309 00:17:39,840 --> 00:17:42,840 Speaker 1: implication to be the fedia that hast gone down very 310 00:17:42,920 --> 00:17:48,639 Speaker 1: poorly in Western European states and in the Baltic states. 311 00:17:48,680 --> 00:17:50,240 Speaker 1: So there's a real divide on this issue, and the 312 00:17:50,240 --> 00:17:53,320 Speaker 1: European Commission is trying to sue Hungry for that. The 313 00:17:53,400 --> 00:17:56,560 Speaker 1: difficulty they face is, you know, the European Union only 314 00:17:56,600 --> 00:17:59,879 Speaker 1: has competence in certain areas, and that kind of area 315 00:18:00,119 --> 00:18:04,760 Speaker 1: is something that the EU have fairly limited competence in 316 00:18:04,760 --> 00:18:09,600 Speaker 1: relation to. But they're trying to think creatively about areas 317 00:18:09,600 --> 00:18:12,640 Speaker 1: which might be touched by this law, like some elements 318 00:18:12,640 --> 00:18:14,800 Speaker 1: of broadcasting law or things like that, where the Union 319 00:18:14,840 --> 00:18:17,080 Speaker 1: does have competence and there they're going to try and 320 00:18:17,119 --> 00:18:19,960 Speaker 1: take a case on that basis. So interesting. Thanks for 321 00:18:20,000 --> 00:18:23,240 Speaker 1: being on Bloomberg Law. Ronan. That's Ronan McCrae, a professor 322 00:18:23,280 --> 00:18:29,400 Speaker 1: of Constitutional and European law at University College London. The 323 00:18:29,400 --> 00:18:33,359 Speaker 1: pandemics test of telework for office workers has reached an 324 00:18:33,400 --> 00:18:37,080 Speaker 1: inflection point as returned to work mandates are put in 325 00:18:37,160 --> 00:18:41,160 Speaker 1: place and legal battles loom over employee request to stay 326 00:18:41,160 --> 00:18:44,600 Speaker 1: at home. Joining me is Aaron mulvaney, Senior legal reporter 327 00:18:44,640 --> 00:18:48,040 Speaker 1: at Bloomberg Law. Are a lot of companies mandating that 328 00:18:48,280 --> 00:18:51,639 Speaker 1: workers returned to the office or is there a split 329 00:18:51,680 --> 00:18:56,720 Speaker 1: among major companies? There absolutely are a lot of companies 330 00:18:56,800 --> 00:19:00,760 Speaker 1: that do you want a returned to the office UM 331 00:19:00,840 --> 00:19:05,040 Speaker 1: for their workforce? UM, while they're being cautious, there's been 332 00:19:05,080 --> 00:19:07,239 Speaker 1: a there have been CEOs that have come out like 333 00:19:07,400 --> 00:19:12,679 Speaker 1: JP Morgan or UM Microsoft CEOs that have said office 334 00:19:12,680 --> 00:19:18,240 Speaker 1: culture is very important to how they operate and UM. 335 00:19:18,320 --> 00:19:20,880 Speaker 1: Then there have been other companies that have been more 336 00:19:20,880 --> 00:19:24,960 Speaker 1: flexible and our suggesting permit hybrid options. And there are 337 00:19:24,960 --> 00:19:28,320 Speaker 1: really big names in that group to like Twitter, Facebook, 338 00:19:28,840 --> 00:19:32,840 Speaker 1: City Group, UM have considered kind of more flexible options 339 00:19:32,840 --> 00:19:36,800 Speaker 1: as well. So there's definitely a divide among even major 340 00:19:36,920 --> 00:19:40,120 Speaker 1: corporations of how they're responding to kind of this new 341 00:19:40,160 --> 00:19:44,240 Speaker 1: normal which workers have to go back to work, have 342 00:19:44,280 --> 00:19:48,840 Speaker 1: no excuse, and which workers can make a legal case 343 00:19:50,240 --> 00:19:52,440 Speaker 1: right and and to be clear, since you brought this up, 344 00:19:52,840 --> 00:19:55,840 Speaker 1: we're of course talking about office workers who were kind 345 00:19:55,880 --> 00:19:59,320 Speaker 1: of teleworking during the whole the entire pandemic. And the 346 00:19:59,359 --> 00:20:01,399 Speaker 1: reason that's been important is because of course there's a 347 00:20:01,400 --> 00:20:04,440 Speaker 1: lot of workers out there that you know, we're essential 348 00:20:04,480 --> 00:20:06,280 Speaker 1: and needed to go in and there was a business 349 00:20:06,320 --> 00:20:11,399 Speaker 1: necessity to being actually in person, and so there is 350 00:20:11,440 --> 00:20:13,600 Speaker 1: a case to be made. So by and large, an 351 00:20:13,600 --> 00:20:17,119 Speaker 1: employer can fire anyone who doesn't follow a return to 352 00:20:17,200 --> 00:20:22,159 Speaker 1: office handate. Most private employers have that right, um. But 353 00:20:23,560 --> 00:20:27,120 Speaker 1: there are exceptions to that because there are protections under 354 00:20:27,119 --> 00:20:29,840 Speaker 1: the American Disabilities Act, and if you that's probably the 355 00:20:29,880 --> 00:20:34,320 Speaker 1: most powerful one. Um. If there is a legitimate reason 356 00:20:34,480 --> 00:20:37,440 Speaker 1: and a concern that a person with a disability can't 357 00:20:37,440 --> 00:20:41,080 Speaker 1: return to an office, there could potentially be an accommodation 358 00:20:41,160 --> 00:20:43,520 Speaker 1: that's made, and there's kind of a balancing test that 359 00:20:43,560 --> 00:20:46,080 Speaker 1: comes into play if that makes it up to the court. 360 00:20:46,680 --> 00:20:50,239 Speaker 1: The first thing that happens is the worker says, I 361 00:20:50,320 --> 00:20:52,639 Speaker 1: don't want to go back to work because or I 362 00:20:52,680 --> 00:20:55,000 Speaker 1: can't go back to work because and is there an 363 00:20:55,040 --> 00:21:00,200 Speaker 1: internal process first? Absolutely, So the way it would work 364 00:21:00,320 --> 00:21:04,320 Speaker 1: is that if there's a mandate to return to the office, 365 00:21:04,400 --> 00:21:06,720 Speaker 1: there could be and really this is for any kind 366 00:21:06,720 --> 00:21:10,440 Speaker 1: of accommodation, like even if you want a more ergonomic desk, 367 00:21:10,560 --> 00:21:15,600 Speaker 1: like the entire interactive process happened UM first with your 368 00:21:15,640 --> 00:21:18,840 Speaker 1: company doesn't always go immediately to the court obviously, but 369 00:21:19,240 --> 00:21:21,080 Speaker 1: so this would be a pretty big request or request 370 00:21:21,119 --> 00:21:24,879 Speaker 1: for telework UM when everyone else is going back. UM 371 00:21:25,080 --> 00:21:27,600 Speaker 1: would be something that you first from to your company 372 00:21:27,640 --> 00:21:29,800 Speaker 1: and then they would go through an interactive process to 373 00:21:29,840 --> 00:21:32,240 Speaker 1: see if that's an accommodation they can make and if 374 00:21:32,240 --> 00:21:35,000 Speaker 1: that would be appropriate UM and not be an undue 375 00:21:35,040 --> 00:21:38,560 Speaker 1: burden on their business operations. What kind of workers have 376 00:21:38,760 --> 00:21:43,360 Speaker 1: brought lawsuits? A lot of these cases that do rise 377 00:21:43,400 --> 00:21:45,800 Speaker 1: to the level of courts. Of course that you know 378 00:21:45,840 --> 00:21:47,840 Speaker 1: a little early in the process, but we are already 379 00:21:47,840 --> 00:21:52,240 Speaker 1: seeing lawsuits in charges filed UM arguing that the company 380 00:21:52,320 --> 00:21:56,560 Speaker 1: should have granted a telework request. There are different categories 381 00:21:56,600 --> 00:21:59,959 Speaker 1: of them. You know. Initially when there were kind of 382 00:22:00,000 --> 00:22:03,080 Speaker 1: mandates to return to the office, some people were concerned 383 00:22:03,119 --> 00:22:06,879 Speaker 1: with the immediate if they had UM, say asthma or 384 00:22:07,080 --> 00:22:10,560 Speaker 1: a disease, that would made them more AMUNO compromised and 385 00:22:10,640 --> 00:22:15,680 Speaker 1: more vulnerable to the actual coronavirus, you know, fearing going 386 00:22:15,680 --> 00:22:18,399 Speaker 1: back while the virus is still very active and raging 387 00:22:18,400 --> 00:22:22,919 Speaker 1: and before vaccines were widely available. UM. And then there's 388 00:22:22,960 --> 00:22:28,679 Speaker 1: there's also the types of UM lawsuits were where people 389 00:22:28,720 --> 00:22:31,320 Speaker 1: say that you know, the pandemic exacerbated their mental health 390 00:22:31,800 --> 00:22:34,720 Speaker 1: and going into an office would increase the anxiety and 391 00:22:34,880 --> 00:22:38,119 Speaker 1: that capacity. UM. There are absolutely those cases as well. 392 00:22:38,480 --> 00:22:43,320 Speaker 1: And there's the other type of case where UM, somebody 393 00:22:43,400 --> 00:22:45,520 Speaker 1: might have difficulty coming to the office because of a 394 00:22:45,560 --> 00:22:50,200 Speaker 1: mobility issue or the like, and that would be something 395 00:22:50,240 --> 00:22:52,840 Speaker 1: they could request and say it would just be I 396 00:22:52,840 --> 00:22:56,359 Speaker 1: can work just as well from home because I've proven, 397 00:22:56,720 --> 00:22:58,840 Speaker 1: you know, our whole office proven proved that we can, 398 00:22:59,480 --> 00:23:01,439 Speaker 1: and trying to make that request so there, and that 399 00:23:01,440 --> 00:23:06,000 Speaker 1: would be something that might happen more in perpecuity potentially, UM. 400 00:23:06,040 --> 00:23:09,760 Speaker 1: I take it the request due to physical disability is 401 00:23:09,840 --> 00:23:14,000 Speaker 1: easier to prove than the request due to mental health disability. 402 00:23:14,359 --> 00:23:18,880 Speaker 1: I think typically a doctor would be involved in giving 403 00:23:19,080 --> 00:23:22,199 Speaker 1: the information, you know, providing a note or you know, 404 00:23:22,240 --> 00:23:25,280 Speaker 1: a recommendation for what would be an appropriate accommodation for 405 00:23:25,320 --> 00:23:28,879 Speaker 1: somebody with stahts D or an anxiety disorder or depression. 406 00:23:29,280 --> 00:23:32,919 Speaker 1: So it would be similar. And I think it's always 407 00:23:32,920 --> 00:23:36,040 Speaker 1: about the remedy. You know, what is the remedy for 408 00:23:36,359 --> 00:23:38,600 Speaker 1: making you more comfortable at work? Like what can the 409 00:23:38,640 --> 00:23:41,760 Speaker 1: employer do? They could come back and say, Okay, you 410 00:23:41,760 --> 00:23:43,640 Speaker 1: don't want to be around people, will give you your 411 00:23:43,640 --> 00:23:46,680 Speaker 1: own office away from people, as opposed to having you 412 00:23:46,800 --> 00:23:50,520 Speaker 1: telework with people with mobility issues, the issue might be 413 00:23:50,680 --> 00:23:53,359 Speaker 1: the lack of public transportation available or the risk that 414 00:23:53,440 --> 00:23:56,520 Speaker 1: there would be at this time maybe using those So 415 00:23:56,600 --> 00:23:59,360 Speaker 1: they're the A D A cases always have this kind 416 00:23:59,359 --> 00:24:03,920 Speaker 1: of interactive process where all these different factors are balanced, 417 00:24:04,040 --> 00:24:06,359 Speaker 1: and then when we're talking about when they make it 418 00:24:06,440 --> 00:24:08,840 Speaker 1: up to the court level, the court will weigh those 419 00:24:08,880 --> 00:24:11,280 Speaker 1: factors as well and kind of try to determine what 420 00:24:11,320 --> 00:24:14,480 Speaker 1: would be an undue burden on the company. Was there 421 00:24:14,480 --> 00:24:18,800 Speaker 1: a decline in productivity during the work from home during 422 00:24:18,800 --> 00:24:25,520 Speaker 1: the pandemic, A lot of companies still reported UM positive numbers, 423 00:24:25,560 --> 00:24:28,040 Speaker 1: you know, and there was even a study that Price 424 00:24:28,119 --> 00:24:32,320 Speaker 1: Waterhouse Coopers did that said productivity didn't see a decline 425 00:24:32,400 --> 00:24:35,840 Speaker 1: during the pandemic. Office workers you know, effectively worked from 426 00:24:35,880 --> 00:24:39,040 Speaker 1: home um. And I think there was kind of um 427 00:24:39,160 --> 00:24:42,600 Speaker 1: for the pandemic that built in bias or fear um 428 00:24:42,680 --> 00:24:46,240 Speaker 1: that people would slack off for be lazy if they're 429 00:24:46,280 --> 00:24:49,040 Speaker 1: at home, like it's a day off. And so many 430 00:24:49,080 --> 00:24:51,960 Speaker 1: office workers were forced all at once to work at home. 431 00:24:52,640 --> 00:24:57,879 Speaker 1: It kind of automatically removed that stigma, at least potentially. UM. 432 00:24:57,920 --> 00:25:01,800 Speaker 1: It is interesting though, because I think companies still hold 433 00:25:01,840 --> 00:25:06,640 Speaker 1: on to and say despite that office culture is important, 434 00:25:06,720 --> 00:25:09,119 Speaker 1: being around people is important. Our company is well on 435 00:25:09,200 --> 00:25:13,240 Speaker 1: about personal relationships and we can't do that over zoom 436 00:25:13,280 --> 00:25:16,439 Speaker 1: and so that's why it's kind of an interesting cultural 437 00:25:16,480 --> 00:25:21,919 Speaker 1: class right now. UM. But you know there's when we 438 00:25:21,920 --> 00:25:25,080 Speaker 1: when we talk about people with disabilities. Um, there's an 439 00:25:25,119 --> 00:25:30,679 Speaker 1: extremely low employment rate um for people with disabilities, and 440 00:25:32,080 --> 00:25:36,760 Speaker 1: some experts day that remote options and being like widely 441 00:25:36,760 --> 00:25:40,520 Speaker 1: available could potentially help that down the line. And I 442 00:25:40,600 --> 00:25:43,960 Speaker 1: suppose that now that workers can point to, look what 443 00:25:44,040 --> 00:25:47,440 Speaker 1: I did during the pandemic, everything worked out fine, that 444 00:25:47,440 --> 00:25:50,600 Speaker 1: that is you know, an added boost to their cases. 445 00:25:52,080 --> 00:25:56,359 Speaker 1: I had a lawyer teld me that it's just you know, 446 00:25:56,440 --> 00:25:58,600 Speaker 1: she doesn't know the full legal landscape yet. We'll see 447 00:25:58,640 --> 00:26:01,560 Speaker 1: how these cases turn out and or but it'll be 448 00:26:01,600 --> 00:26:03,840 Speaker 1: so much more challenging for an employer to show that 449 00:26:03,920 --> 00:26:06,960 Speaker 1: working on site is an essential function of the job 450 00:26:07,880 --> 00:26:11,080 Speaker 1: because that didn't happen for so many office workers for 451 00:26:11,240 --> 00:26:14,879 Speaker 1: you know, more than a year UM, so that that 452 00:26:14,960 --> 00:26:17,920 Speaker 1: could be a potential silver lining for you know, uh, 453 00:26:17,960 --> 00:26:21,840 Speaker 1: either people have disabilities or even people with caregiving responsibilities, 454 00:26:21,880 --> 00:26:24,480 Speaker 1: which you know, so it could be a bit of 455 00:26:24,480 --> 00:26:27,840 Speaker 1: a silver lining from the pandemic for for certain groups 456 00:26:27,880 --> 00:26:31,959 Speaker 1: that actually benefited from teleworking. Being a caregiver, that's not 457 00:26:32,000 --> 00:26:34,639 Speaker 1: what I normally think about when I think about the 458 00:26:34,680 --> 00:26:40,800 Speaker 1: Americans with Disabilities Act. Is there a provision for caregivers? No, 459 00:26:40,960 --> 00:26:43,440 Speaker 1: that's kind of a can of worms. To be honest 460 00:26:43,480 --> 00:26:47,960 Speaker 1: with you. What I would say about caregivers is we 461 00:26:48,040 --> 00:26:51,800 Speaker 1: saw an unprecedented amount of women drop from the workforce, 462 00:26:52,640 --> 00:26:57,000 Speaker 1: and many of them were mothers um according to you know, 463 00:26:57,200 --> 00:27:01,840 Speaker 1: data from the pandemic, and I think that there will 464 00:27:01,880 --> 00:27:06,240 Speaker 1: be consequences from that. And it's still really hard to 465 00:27:06,359 --> 00:27:12,160 Speaker 1: actually make a claim UM for caregiver discrimination because that's 466 00:27:12,160 --> 00:27:16,679 Speaker 1: not an inherently protected um characteristic at least under like 467 00:27:16,760 --> 00:27:20,280 Speaker 1: the main federal civil rights laws like UM. I guess 468 00:27:20,280 --> 00:27:22,879 Speaker 1: the closest claim would probably be something under Title seven 469 00:27:23,000 --> 00:27:27,280 Speaker 1: if there was a sex discrimination claim UM. But but no, UM. 470 00:27:27,320 --> 00:27:30,760 Speaker 1: Actually caregiving is not covered under the the A d A, 471 00:27:30,920 --> 00:27:33,760 Speaker 1: even if there is a UM there. There was one 472 00:27:33,800 --> 00:27:36,600 Speaker 1: case that I mean, it's also being debated in the 473 00:27:36,600 --> 00:27:41,440 Speaker 1: courts about whether UM, you you have a claim for 474 00:27:42,000 --> 00:27:44,480 Speaker 1: UM if you have an amino compromised person that is 475 00:27:44,520 --> 00:27:46,480 Speaker 1: living in your house and you didn't want to see 476 00:27:46,640 --> 00:27:50,600 Speaker 1: bringing the disease back to them. UM. And that's that's 477 00:27:50,640 --> 00:27:54,760 Speaker 1: also a very unclear area of the law. UM. The 478 00:27:54,760 --> 00:27:58,879 Speaker 1: the ADA doesn't explicitly protect UM people in your household 479 00:27:58,880 --> 00:28:02,480 Speaker 1: that may have a disability. You write that before the 480 00:28:02,520 --> 00:28:09,439 Speaker 1: COVID pandemic, employers generally one the majority of rulings about 481 00:28:09,520 --> 00:28:13,520 Speaker 1: disability accommodations tell me about that and what may be 482 00:28:13,640 --> 00:28:17,840 Speaker 1: shifting there, right, and so we don't. We do have 483 00:28:18,040 --> 00:28:21,840 Speaker 1: some indication that it's a harder case for a company 484 00:28:21,880 --> 00:28:24,280 Speaker 1: that employs a lot of office workers to make. But 485 00:28:25,040 --> 00:28:30,440 Speaker 1: we we did see generally employers won these rulings because 486 00:28:30,920 --> 00:28:35,240 Speaker 1: I think it was that idea that cords were really 487 00:28:35,240 --> 00:28:38,800 Speaker 1: sympathetic to a company's argument that work needed to happen 488 00:28:38,800 --> 00:28:41,400 Speaker 1: in person, even if it was office work and computers 489 00:28:41,400 --> 00:28:44,600 Speaker 1: can be um. You know, the the e o C 490 00:28:44,840 --> 00:28:47,280 Speaker 1: actually fought a case on that and they kind of 491 00:28:47,280 --> 00:28:50,360 Speaker 1: had an opposite point of view or and we're trying 492 00:28:50,440 --> 00:28:52,880 Speaker 1: to say that like telework should be considered, especially in 493 00:28:52,920 --> 00:28:58,760 Speaker 1: these office environments, and they lost um because and you know, 494 00:28:58,800 --> 00:29:02,320 Speaker 1: if you look at courts, they happened in person so often, 495 00:29:02,440 --> 00:29:05,200 Speaker 1: and you know, and that obviously changed during the pandemic 496 00:29:05,240 --> 00:29:09,760 Speaker 1: as well. So there's there's there's potential for a shift 497 00:29:10,720 --> 00:29:14,040 Speaker 1: on on that question and how it will be interesting 498 00:29:14,080 --> 00:29:17,719 Speaker 1: to see how courts respond to it. Um. There was 499 00:29:18,440 --> 00:29:22,200 Speaker 1: a case that happened last fall and in a Massachusetts 500 00:29:22,240 --> 00:29:26,920 Speaker 1: a Massachusetts federal court allowed and asthmatic workers telework accommodation 501 00:29:27,000 --> 00:29:30,480 Speaker 1: to move forward um, you know, siding with the worker 502 00:29:30,560 --> 00:29:32,720 Speaker 1: over the company. And a lot of attorneys were pointing 503 00:29:32,720 --> 00:29:35,800 Speaker 1: to that case and saying that's an early indication that 504 00:29:36,280 --> 00:29:39,080 Speaker 1: courts may be more sympathetic to those arguments. And you know, 505 00:29:39,120 --> 00:29:41,960 Speaker 1: in that case, there was a worker who's feared going 506 00:29:41,960 --> 00:29:45,160 Speaker 1: back into the office because it would she'd be vulnerable 507 00:29:45,400 --> 00:29:49,040 Speaker 1: to the virus and courts. You know, a court I 508 00:29:49,120 --> 00:29:52,280 Speaker 1: thought that was a reasonable request and she clearly proved 509 00:29:52,280 --> 00:29:54,320 Speaker 1: that she could work from home for a year was 510 00:29:54,360 --> 00:29:56,440 Speaker 1: something that was cited. That case did settle, so we 511 00:29:56,480 --> 00:30:00,280 Speaker 1: didn't see it moving, you know, all the way through 512 00:30:00,280 --> 00:30:04,320 Speaker 1: the process. But um, but yeah, it should be a 513 00:30:04,320 --> 00:30:08,880 Speaker 1: really interesting shift right now. Tell me about Conrad Reynoldson. 514 00:30:09,000 --> 00:30:15,360 Speaker 1: It's he's got an interesting case. Yeah. So Conrad Um 515 00:30:15,840 --> 00:30:24,120 Speaker 1: is a disabilities rights attorney in Seattle and he um 516 00:30:24,200 --> 00:30:30,560 Speaker 1: he is someone who has a disability and a mobility disability. 517 00:30:30,600 --> 00:30:33,560 Speaker 1: And he actually said he really likes going into the 518 00:30:33,600 --> 00:30:37,080 Speaker 1: office and he's really looking forward to the return um. 519 00:30:37,360 --> 00:30:41,000 Speaker 1: And he said his staff wants to return Um. He 520 00:30:41,280 --> 00:30:44,000 Speaker 1: currently can't for his health because he needs the US 521 00:30:44,080 --> 00:30:47,000 Speaker 1: to reach a higher level of immunity according to his doctors, 522 00:30:47,040 --> 00:30:49,600 Speaker 1: and he's currently allowing his staff to have the option. 523 00:30:50,000 --> 00:30:53,200 Speaker 1: But he made a really interesting point. He said, you know, 524 00:30:53,320 --> 00:30:57,080 Speaker 1: he was able to do a full argument before a 525 00:30:57,120 --> 00:31:00,240 Speaker 1: federal appeals court um during the pandemic, and that I'm 526 00:31:00,280 --> 00:31:04,720 Speaker 1: previously possible. And he said that right now, is the 527 00:31:04,760 --> 00:31:07,880 Speaker 1: courts all shut off and refused to go remote, he 528 00:31:07,880 --> 00:31:12,720 Speaker 1: wouldn't be able to really argue anymore. And she said, 529 00:31:12,720 --> 00:31:16,960 Speaker 1: but that's clearly clearly the argument against being remote and 530 00:31:17,000 --> 00:31:19,600 Speaker 1: being flexible in that way or being undermined. And he 531 00:31:19,680 --> 00:31:21,360 Speaker 1: was kind of interesting because he was a person who said, 532 00:31:21,400 --> 00:31:23,120 Speaker 1: I totally get it, I want to be in an office, 533 00:31:23,200 --> 00:31:26,800 Speaker 1: but he's not the right time. UM. So I think 534 00:31:27,640 --> 00:31:31,960 Speaker 1: I think he did have a really interesting point. And UM, 535 00:31:32,000 --> 00:31:35,240 Speaker 1: it'll be interesting to see if how how things change 536 00:31:35,280 --> 00:31:39,240 Speaker 1: moving forward. In the April hearing of the e o 537 00:31:39,360 --> 00:31:43,160 Speaker 1: C on COVID discrimination issues, did anything come out at 538 00:31:43,200 --> 00:31:47,080 Speaker 1: that hearing? That's that was you know important. At the 539 00:31:47,120 --> 00:31:53,800 Speaker 1: April hearing, there were stakeholders, there were attorneys and experts, um, 540 00:31:54,040 --> 00:31:56,480 Speaker 1: kind of talking about this clash that we're talking about 541 00:31:56,560 --> 00:32:00,239 Speaker 1: right now, and UM, they definitely did focus a lot 542 00:32:00,240 --> 00:32:02,440 Speaker 1: of the themes that we've been talking about today about 543 00:32:03,040 --> 00:32:05,800 Speaker 1: the disabilities and the A d A and the legal 544 00:32:05,840 --> 00:32:09,360 Speaker 1: cases that would come up moving forward, and what the 545 00:32:09,400 --> 00:32:11,960 Speaker 1: pandemic would mean for the future of these civil rights 546 00:32:12,400 --> 00:32:16,520 Speaker 1: UM cases and courts. UM. You know, we I there 547 00:32:16,560 --> 00:32:19,080 Speaker 1: was an attorney who talked about what we were talking 548 00:32:19,080 --> 00:32:21,800 Speaker 1: about about how sixty percent of the cases that he 549 00:32:21,880 --> 00:32:24,480 Speaker 1: has coming in from the last year related to the pandemic, 550 00:32:24,560 --> 00:32:28,280 Speaker 1: or about an employer rejecting telework accommodation. I think a 551 00:32:28,360 --> 00:32:34,280 Speaker 1: lot of the attorneys on both sides were we're saying 552 00:32:34,280 --> 00:32:36,600 Speaker 1: that there's kind of an inflection point right now for 553 00:32:36,680 --> 00:32:39,000 Speaker 1: employers making these decisions, but what they're going to do 554 00:32:39,080 --> 00:32:42,360 Speaker 1: for a return to office keeping all of the the 555 00:32:42,400 --> 00:32:47,160 Speaker 1: civil rights issues in their minds moving forward? And UM, 556 00:32:47,280 --> 00:32:50,600 Speaker 1: the e e O C S. You know, guidance has 557 00:32:50,640 --> 00:32:54,200 Speaker 1: been slowly kind of evolving as the pandemic UM has 558 00:32:54,400 --> 00:32:59,720 Speaker 1: has gone forward, and UM they've acknowledged that UM this 559 00:32:59,840 --> 00:33:03,680 Speaker 1: time could serve as a trial period UM to show 560 00:33:03,720 --> 00:33:06,400 Speaker 1: whether or not an employee the disability could perform all 561 00:33:06,440 --> 00:33:10,880 Speaker 1: their essential functions while working remotely. UM, and employers should 562 00:33:10,880 --> 00:33:13,480 Speaker 1: consider all new requests in light of disinformation. So it's, 563 00:33:14,280 --> 00:33:17,560 Speaker 1: you know, it's somewhat vague what they're what they're recommending, 564 00:33:17,560 --> 00:33:20,640 Speaker 1: and their guidance is only guidance, But a lot of 565 00:33:20,760 --> 00:33:23,400 Speaker 1: employment attorneys pay really close attention to how the e 566 00:33:23,600 --> 00:33:28,400 Speaker 1: O s UM advises on these issues. So UM, some 567 00:33:28,480 --> 00:33:33,760 Speaker 1: of them even asked for clearer guidance and more definitive 568 00:33:34,080 --> 00:33:38,880 Speaker 1: UM point of view. But UM, we'll see, you know, 569 00:33:38,920 --> 00:33:41,160 Speaker 1: the EOC is also the one who can bring lawsuits, 570 00:33:41,400 --> 00:33:43,400 Speaker 1: so I think that's one reason they pay attention to them. 571 00:33:43,440 --> 00:33:47,080 Speaker 1: But guidance is just guidance um from from that agency. 572 00:33:47,400 --> 00:33:51,200 Speaker 1: Thanks Sarah. That's Aaron mulvany of Bloomberg Law and that's 573 00:33:51,240 --> 00:33:54,040 Speaker 1: it for the Bloomberg Law Show today. Remember you can 574 00:33:54,080 --> 00:33:57,080 Speaker 1: always at the latest legal news on our Bloomberg Law Podcast. 575 00:33:57,280 --> 00:34:01,160 Speaker 1: You can find them on Apple Podcasts, Spotify, and www 576 00:34:01,360 --> 00:34:05,760 Speaker 1: dot Bloomberg dot com slash podcast Slash Law. I'm June Grasso. 577 00:34:05,960 --> 00:34:08,200 Speaker 1: Thanks so much for listening, and please tune into The 578 00:34:08,200 --> 00:34:11,480 Speaker 1: Bloomberg Law Show every weeknight at ten pm Eastern right 579 00:34:11,480 --> 00:34:12,760 Speaker 1: here on Bloomberg Radio.