WEBVTT - Can You Be Fired for Not Returning to the Office? 0:00:03.200 --> 0:00:07.960 This is Bloomberg Law with June Brussel from Bloomberg Radio. 0:00:09.960 --> 0:00:13.360 A former police officer in Minnesota, Kim Potter, is facing 0:00:13.400 --> 0:00:16.560 a second degree manslaughter charge for the shooting death of 0:00:16.600 --> 0:00:19.560 a twenty year old black man, Dante Right, on Sunday. 0:00:19.960 --> 0:00:23.200 Police say Right was pulled over for expired tags, but 0:00:23.280 --> 0:00:25.840 they tried to arrest him after discovering he had an 0:00:25.880 --> 0:00:29.600 outstanding warrant for failure to appear in court on charges 0:00:29.640 --> 0:00:32.280 that he fled from officers and possessed a gun without 0:00:32.280 --> 0:00:35.480 a permit. There have been four nights of protests over 0:00:35.520 --> 0:00:38.920 the shooting, which was captured on videotape. The city's former 0:00:38.960 --> 0:00:42.640 police chief says Potter mistakenly fired her handgun when she 0:00:42.720 --> 0:00:45.680 meant to use her taser. Both the chief and Potter 0:00:45.800 --> 0:00:50.080 resigned on Tuesday. Wright's family members and black community leaders 0:00:50.120 --> 0:00:54.680 are calling for more serious charges. Nikima Levy Armstrong, a 0:00:54.760 --> 0:00:58.720 civil rights lawyer and activist in Minneapolis, says Potter should 0:00:58.720 --> 0:01:01.480 be held to a higher stand undered. Kim Potter is 0:01:01.520 --> 0:01:03.400 a twenty six year veteran. The fact that she was 0:01:03.440 --> 0:01:06.319 a field training officer and she should have known better 0:01:06.920 --> 0:01:10.319 um in terms of distinguishing between a taser and a gun. 0:01:10.360 --> 0:01:12.880 I do not believe that it was an accident. Joining 0:01:12.920 --> 0:01:16.759 me as former federal prosecutor Eli Hoenig, what's your reaction 0:01:16.880 --> 0:01:20.280 to the filing of the charges so quickly? Everything is 0:01:20.280 --> 0:01:23.600 moving very very quickly with this case. The first of all, 0:01:23.600 --> 0:01:26.440 the police released the body camera within twenty four hours 0:01:26.440 --> 0:01:28.880 of the incident, which is faster than I've ever seen 0:01:28.920 --> 0:01:30.920 body camera footage released. I think that was a good 0:01:30.920 --> 0:01:35.000 and necessary step. Then they brought the charge just days later. 0:01:35.400 --> 0:01:38.319 The initial charge right now is a manslaughter charge under 0:01:38.360 --> 0:01:41.959 Minnesota law. It essentially charges what we call culpable negligence, 0:01:42.040 --> 0:01:46.480 meaning that the officer created a grossly unreasonable risk. Not 0:01:46.560 --> 0:01:50.880 that the officer intended necessarily to kill Mr. Wright, but 0:01:50.960 --> 0:01:54.080 that she created a grossly unreasonable risk. So that'll be 0:01:54.120 --> 0:01:56.920 an interesting question for the jury. Is there any possibility 0:01:57.000 --> 0:02:01.800 that that the prosecutors may add charges as time goes on? 0:02:02.600 --> 0:02:06.520 That absolutely is a possibility. Prosecutors frequently, especially in a 0:02:06.600 --> 0:02:09.520 high profile case, or whether there's some need or impetus 0:02:09.560 --> 0:02:13.160 to make an arrest quickly, will charge the most readily provable, 0:02:13.240 --> 0:02:16.639 sort of most easily provable, lowest charge just to get 0:02:16.639 --> 0:02:18.560 a charge on the books to make an arrest, and 0:02:18.600 --> 0:02:22.840 then as the investigation progresses, prosecutors not uncommonly will add 0:02:22.919 --> 0:02:26.600 charges or upgrade charges, or in some instances downgrade or 0:02:26.639 --> 0:02:29.880 even dismiss charges as the evidence dictates. And just as 0:02:29.919 --> 0:02:33.280 one example, this was done essentially with Derek Chulfin and 0:02:33.280 --> 0:02:35.680 the George Floyd case. He was initially charged with actually 0:02:35.680 --> 0:02:39.359 the same manslaughter charge that not charged against this officer, 0:02:39.960 --> 0:02:42.000 as well as a third degree murder charge, and then 0:02:42.160 --> 0:02:45.799 later prosecutors added a higher charge, a second degree murder charge. 0:02:45.800 --> 0:02:49.679 So that's quite common. Does it seem though, that this 0:02:49.880 --> 0:02:54.760 charge is the appropriate one here, because looking at the footage, 0:02:55.560 --> 0:02:58.760 it seems like, however reckless it was, it was a mistake, 0:02:58.840 --> 0:03:03.080 it was an intentional on her part. So this is 0:03:03.080 --> 0:03:05.880 why I think this charge is appropriate. At the moment, 0:03:06.600 --> 0:03:12.519 an act can be both accidental and negligent. So, for example, 0:03:12.600 --> 0:03:14.240 if somebody were to get behind the wheel of a 0:03:14.240 --> 0:03:17.800 car while severely impaired and then God forbid, hit a 0:03:17.880 --> 0:03:21.440 person and kill that person, that would be an accident. 0:03:21.639 --> 0:03:25.080 The driver didn't didn't intend to hit until somebody, But 0:03:25.160 --> 0:03:28.320 it also would be culpable negligence. It would be manslaughter 0:03:28.360 --> 0:03:31.960 because by getting behind the wheel with a severe impair 0:03:32.160 --> 0:03:36.240 in severely impaired condition, you are creating and undo a 0:03:36.280 --> 0:03:40.360 gross unreasonable risk. So there is room in the law 0:03:40.440 --> 0:03:43.040 to charge somebody with a crime, even if it's an accident, 0:03:43.160 --> 0:03:47.920 if that person also acted grossly negligently. This is such 0:03:47.960 --> 0:03:52.320 a high profile case, but in other circumstances it seems 0:03:52.360 --> 0:03:55.480 like it would be a good case for a plea deal. Look, 0:03:55.520 --> 0:03:58.760 the vast majority of cases do end up pleading guilty. 0:03:58.840 --> 0:04:01.800 This case could be different, however, because the stakes are 0:04:01.840 --> 0:04:04.080 so high for both sides. I mean, on the one hand, 0:04:04.240 --> 0:04:06.400 there's a lot of value I think from the prosecutor's 0:04:06.480 --> 0:04:09.240 perspective in getting a guilty plea, because you lock in 0:04:09.280 --> 0:04:11.720 the conviction, you get the person to admit guilt. On 0:04:11.760 --> 0:04:14.360 the other hand, for the former police officer who has 0:04:14.360 --> 0:04:17.000 been charged, if she gets convicted, she's looking it up 0:04:17.040 --> 0:04:19.159 to ten years in prison, and if she sees a 0:04:19.160 --> 0:04:22.039 way to sort of cut her risk and take a 0:04:22.040 --> 0:04:24.800 plea deal and maybe limit herself to a much shorter 0:04:24.880 --> 0:04:27.360 time in prison, I think she'll have to think hard 0:04:27.360 --> 0:04:31.880 about that. There's been some reporting that Derek Chauvin tried 0:04:32.000 --> 0:04:35.000 to get a plea deal. Do you have any information 0:04:35.040 --> 0:04:38.360 about that. Well, I've seen what's been reported publicly that 0:04:38.400 --> 0:04:41.000 he was interested in pleading guilty to a ten year charge. 0:04:41.040 --> 0:04:43.360 But then William Barr, who at the time was Attorney 0:04:43.360 --> 0:04:46.760 General of the United States, said no. And for anyone 0:04:46.839 --> 0:04:49.080 wondering why would Bill barb be involved in this, this 0:04:49.160 --> 0:04:52.600 is a state charge because any defendant in that position 0:04:52.680 --> 0:04:55.080 is only going to take the charge if he knows 0:04:55.160 --> 0:04:57.200 that he won't be charged by anybody else, because the 0:04:57.240 --> 0:04:59.840 Feds still can charge Derek Schauvin. And so, in a 0:05:00.000 --> 0:05:03.120 of words, as a practical matter, the Chauvin and his 0:05:03.200 --> 0:05:05.120 lawyer would say, look, we're not taking a plea unless 0:05:05.120 --> 0:05:07.280 the state of Minnesota signs off and d o J 0:05:07.440 --> 0:05:09.160 signs off, because I don't want to plead guilty in 0:05:09.200 --> 0:05:12.080 Minnesota and then get hit with a new charge by defense. 0:05:12.160 --> 0:05:14.719 And so Bill Barr said no. Uh. And I think 0:05:14.760 --> 0:05:17.360 he probably made the right decision there, because I think 0:05:17.400 --> 0:05:21.240 ten years would have probably been widely perceived as as 0:05:21.360 --> 0:05:25.960 not justice, not not sufficient for Derek Chauvin. Coming up 0:05:26.000 --> 0:05:29.000 next on the Bloomberg Law Show, I'll continue this conversation 0:05:29.080 --> 0:05:32.240 with former federal prosecutor Elie Honig, and we'll take a 0:05:32.279 --> 0:05:35.640 look at the Derek Chauvin murder trial. The defense wrapped 0:05:35.680 --> 0:05:39.560 up its case today without putting Derek Chauvin on the stand. 0:05:39.880 --> 0:05:42.080 So how did the defense do? Were they able to 0:05:42.160 --> 0:05:46.080 score any points? Not? Well, I don't think the defense 0:05:46.160 --> 0:05:48.720 has done spectacularly well in any sense. First of all, 0:05:48.720 --> 0:05:50.960 we all we have to keep in mind no defendant 0:05:51.000 --> 0:05:54.360 ever has any burden of proof whatsoever. Defendants can put 0:05:54.400 --> 0:05:56.800 on no case at all and just say the prosecution 0:05:56.839 --> 0:05:59.080 hasn't met its burden of proof beyond a reasonable doubt. 0:05:59.080 --> 0:06:01.360 That actually happens. I have done trials where the defendant 0:06:01.360 --> 0:06:03.080 has said, no case, your honor, We're just going to 0:06:03.240 --> 0:06:05.840 argue they haven't proven it. So every defendant has the 0:06:05.920 --> 0:06:08.159 right to do that. That said, Chauvin has decided to 0:06:08.200 --> 0:06:11.560 try to put on a fairly robust case here. I 0:06:11.680 --> 0:06:15.240 just am not persuaded by the witnesses. I don't believe 0:06:15.320 --> 0:06:19.680 the jury will be either. You had the medical witness 0:06:20.000 --> 0:06:23.440 who testified essentially that George Floyd's death was caused by 0:06:23.520 --> 0:06:27.000 everything but Derek Chauvin up to an including carbon monoxide, which, 0:06:27.040 --> 0:06:30.680 when cross examined, he revealed he had no data, no science, 0:06:31.040 --> 0:06:34.120 no facts behind whatsoever other than the fact that George 0:06:34.120 --> 0:06:36.720 Floyd was down by a car which we don't even 0:06:36.760 --> 0:06:39.200 know if it was running. So I don't think the 0:06:39.240 --> 0:06:43.080 defense experts have been remarkably persuasive. But again, remember it's 0:06:43.080 --> 0:06:45.599 not an athletic event where you asked who has more points. 0:06:45.680 --> 0:06:48.599 All the defense has to do here is create reasonable doubt. 0:06:49.080 --> 0:06:51.440 Just didn't live up to the battles of the experts 0:06:51.440 --> 0:06:55.040 that I've seen in a lot of trials. I mean, 0:06:55.120 --> 0:06:57.080 is there a reason why it seems as if the 0:06:57.120 --> 0:07:02.600 prosecution's experts were much more qualified than the defense. Well, 0:07:02.640 --> 0:07:04.960 typically a case being high profile, I would just think 0:07:05.040 --> 0:07:08.160 logically would would attract more attention, right because experts would 0:07:08.160 --> 0:07:09.560 want to be seen and say, look at me, I 0:07:09.600 --> 0:07:11.960 testified in this famous trial that you've all heard of, 0:07:12.000 --> 0:07:14.560 So hire me in the future. If I had to guess, 0:07:14.600 --> 0:07:16.040 I would say a lot of it is probably just 0:07:16.080 --> 0:07:17.840 the merits of the case. I think it's hard to 0:07:17.880 --> 0:07:20.760 find a police officer, for example, who will come in 0:07:20.800 --> 0:07:22.720 and say I found Derek Chovin's use of force to 0:07:22.720 --> 0:07:25.720 be appropriate and necessary like that one witness broad who 0:07:25.800 --> 0:07:27.520 was his last name? Did I thought that was very 0:07:27.640 --> 0:07:30.200 dubious testimony. I think it's much much easier based on 0:07:30.240 --> 0:07:33.600 the many police officers I know personally, they all think 0:07:33.640 --> 0:07:36.080 that this was an unreasonable use of force. So I 0:07:36.080 --> 0:07:38.840 think it's it's largely a function of the fact. And 0:07:38.880 --> 0:07:42.440 one thing that's important to remember, June, expert witnesses are 0:07:42.520 --> 0:07:46.360 not magic. The jury will be told specifically, you are 0:07:46.400 --> 0:07:49.360 not to give an expert witness anymore or less credibility 0:07:49.440 --> 0:07:51.160 or credence than you would to any other way. Is 0:07:51.200 --> 0:07:54.040 simply because they're experts. It's just a label we put 0:07:54.040 --> 0:07:56.040 on them that allows them to give their opinion. But 0:07:56.480 --> 0:07:59.680 you can and must evaluate their testimony. Is it reasonable, 0:07:59.760 --> 0:08:03.040 is it logical? Is it supported by the facts as 0:08:03.040 --> 0:08:07.000 you would any other witness. So although these witnesses have 0:08:07.080 --> 0:08:09.320 the label expert on them, the jury is still free 0:08:09.360 --> 0:08:13.240 to disregard them. Considering the resources of the that the 0:08:13.280 --> 0:08:15.960 prosecution has put into the case and the resources that 0:08:16.000 --> 0:08:19.240 the defense has. But it seems like the prosecution has 0:08:19.280 --> 0:08:23.160 just overwhelmed the defense with the number of attorneys, the 0:08:23.200 --> 0:08:28.040 preparation of the witnesses, etcetera. Well, I agree the prosecution 0:08:28.080 --> 0:08:31.480 has put on more and better evidence than than the defense, 0:08:31.600 --> 0:08:33.719 keeping in mind that the prosecution fares that burden of 0:08:33.800 --> 0:08:36.720 proof beyond a reasonable doubt. UM. I do think it's 0:08:36.760 --> 0:08:40.320 actually interesting the numbers game here, the four prosecutors versus 0:08:40.400 --> 0:08:43.440 the one defense lawyer. I actually don't love that dynamic 0:08:43.480 --> 0:08:46.079 for prosecutors. When I was a prosecutor, we were always 0:08:46.080 --> 0:08:48.520 wary of looking like we were overdoing it on a case, 0:08:48.520 --> 0:08:51.880 and we never put more than three prosecutors on a case. 0:08:51.920 --> 0:08:55.240 And only the biggest cases, I mean, your major organized 0:08:55.280 --> 0:08:57.880 crime or terrorism cases would even have three. Typically you 0:08:57.920 --> 0:09:00.640 have two prosecutors because we didn't want to look like, well, 0:09:00.679 --> 0:09:03.000 why is half the office here doing this case. And 0:09:03.040 --> 0:09:05.520 I think it's also an interesting strategy by the defense 0:09:05.559 --> 0:09:07.920 to only have one lawyer. We've only seen Eric Nelson 0:09:08.000 --> 0:09:09.640 stand up for the defense. It looks like he has 0:09:09.679 --> 0:09:11.880 an aid or somebody there in the courtroom, but that 0:09:11.960 --> 0:09:14.240 sort of paints the picture of a man alone, you know, 0:09:14.280 --> 0:09:16.920 sort of nobly defending his charge. That said, I think 0:09:16.920 --> 0:09:19.559 we're talking about sort of your courtroom dynamic more than 0:09:19.559 --> 0:09:22.400 anything else. UM. One thing that we don't know that 0:09:22.440 --> 0:09:24.440 it would be interesting to me is what kind of 0:09:24.440 --> 0:09:27.640 resources does Derek Chauven have here? A lot of times 0:09:27.640 --> 0:09:30.240 police officers and former police officers are able to use 0:09:31.000 --> 0:09:34.760 money from unions even if they're out of the union. Now, um, 0:09:34.800 --> 0:09:37.200 it's not clear who's paying Eric Nelson's bill. It's not 0:09:37.240 --> 0:09:39.800 clear who's willing to work for free. Some of the 0:09:39.840 --> 0:09:42.800 prosecution witnesses the experts that they had volunteered to work 0:09:42.840 --> 0:09:45.440 for free because they felt strongly about this case. So 0:09:45.559 --> 0:09:47.520 I do agree though there's been a mismatch in both 0:09:47.520 --> 0:09:50.520 the quantity and quality of evidence. But again, remember it's 0:09:50.559 --> 0:09:52.679 not who has more and better evidence, it has the 0:09:52.720 --> 0:09:55.920 prosecution met its burdened beyond a reasonable doubt. Something that 0:09:56.000 --> 0:10:02.480 I found extraordinary is the testimony of George Floyd's brother 0:10:02.920 --> 0:10:07.360 in what's called this spark of life, which allows the 0:10:07.400 --> 0:10:12.959 prosecution to give life and dimension to the victim, something 0:10:12.960 --> 0:10:16.080 that you don't normally see in most cases until it's 0:10:16.280 --> 0:10:21.200 time for sentencing. That was very unusual testimony because most 0:10:21.280 --> 0:10:24.480 courts in the country would not allow it. Minnesota has 0:10:24.559 --> 0:10:27.199 this UNI or I don't know if they're the only state, 0:10:27.240 --> 0:10:30.800 but Minnesota has this unusual law statute, this spark of 0:10:30.880 --> 0:10:34.920 Life statute, which actually was passed decades ago UM in 0:10:34.960 --> 0:10:38.080 relation to a case involving a murder of a police officer, 0:10:38.520 --> 0:10:41.439 and the legislature decided that in case in murder cases, 0:10:42.040 --> 0:10:45.280 the jury should get to hear from a relative of 0:10:45.360 --> 0:10:49.520 the victim to humanize the victim. But in most jurisdictions, 0:10:49.520 --> 0:10:53.920 including federal courts, that would never be admissible because it's sympathy. Uh, 0:10:54.160 --> 0:10:56.800 it's it's it's an emotional appeal, but it has no 0:10:57.480 --> 0:11:01.080 relevance to the disputed fact. I mean, what what George 0:11:01.120 --> 0:11:04.840 Floyd's brother remembers about him, and how fond but he 0:11:04.880 --> 0:11:07.199 remembers him, and how much he loved him has no, 0:11:07.800 --> 0:11:11.720 strictly speaking, no logical connection to whether Derek Chauvin's acts 0:11:11.880 --> 0:11:14.240 constituted murder or not. But this is a law on 0:11:14.280 --> 0:11:17.040 the books in Minnesota, and I thought the prosecution used 0:11:17.080 --> 0:11:19.680 it effectively without overdoing it. I thought they were smart 0:11:19.760 --> 0:11:24.000 to call the brother felonis um because he was emotional, 0:11:24.120 --> 0:11:26.560 but he he wasn't over the top. And I think 0:11:26.559 --> 0:11:28.800 you want to be wary there as the prosecutor, of 0:11:29.640 --> 0:11:33.160 appearing too overtly to try to play on emotions, because 0:11:33.240 --> 0:11:36.959 ultimately emotion matters. But most juries, when it comes down 0:11:37.000 --> 0:11:39.199 to it, are looking pretty closely at the facts, and 0:11:39.520 --> 0:11:42.320 I think attempts to bring too much emotion into play 0:11:42.440 --> 0:11:47.600 ten ten backfire. So there was some speculation that Derek 0:11:47.720 --> 0:11:52.240 Chauvin might take the stand and considering that the defense 0:11:52.280 --> 0:11:55.079 has not been going as well as some might have fought, 0:11:55.480 --> 0:11:58.040 but he decided not to. Think there was a wise decision. 0:11:58.880 --> 0:12:02.400 I do defendants very rarely take the stand in their 0:12:02.400 --> 0:12:04.559 own trials. I know in movies and TV we always 0:12:04.559 --> 0:12:06.959 see that dramatic moment when the defendant takes the stand 0:12:06.960 --> 0:12:10.120 and has to defend himself against the prosecutor. But reality is, 0:12:10.160 --> 0:12:13.960 defendants rarely do take the stand because it's so so risky. 0:12:14.320 --> 0:12:17.960 I guess the only argument in favor of Chauvin taking 0:12:17.960 --> 0:12:20.360 the stand here is well, perhaps if he got one 0:12:20.480 --> 0:12:22.640 juror who liked him or felt sorry for him, that 0:12:22.720 --> 0:12:25.360 juror would decide uh not to vote guilty, and that 0:12:25.400 --> 0:12:28.400 could result in a hung jury. Remember, a jury verdict 0:12:28.480 --> 0:12:30.280 has to be unanimous to all the zero to convict 0:12:30.440 --> 0:12:33.360 or quit. Anything in between is a deadlock, hung jury 0:12:33.360 --> 0:12:37.000 and a mistrial, which is as a practical matter, he 0:12:37.040 --> 0:12:38.800 win for the defense. So that would be the sort 0:12:38.840 --> 0:12:41.360 of hail merry nature of this, But it would have 0:12:41.400 --> 0:12:43.280 been so risky for him to take the stand. I mean, 0:12:43.679 --> 0:12:46.160 the prosecution likely would have been able to cross examine 0:12:46.200 --> 0:12:50.000 him on prior complaints against him for force. Uh. They 0:12:50.040 --> 0:12:52.280 certainly would have played that video for him, And it 0:12:52.280 --> 0:12:54.520 would have been devastating to have to, you know, make 0:12:54.600 --> 0:12:57.520 him watch that video after George Floyd has stopped speaking 0:12:57.520 --> 0:12:59.439 and stopped moving, and so you're still on him here right. 0:12:59.640 --> 0:13:01.440 You know, you hadn't heard him speak in a minute, 0:13:01.440 --> 0:13:03.000 you hadn't heard him speak in two minutes, and you 0:13:03.320 --> 0:13:06.040 kept that knee on on his neck. It would have 0:13:06.080 --> 0:13:08.360 just been a stating class examination. I think it would 0:13:08.360 --> 0:13:10.560 have been too risky, and I think it was probably 0:13:10.640 --> 0:13:13.680 the prudent move for him not to testify. Thanks Ellie. 0:13:14.000 --> 0:13:19.719 That's former federal prosecutor Ellie Honig. After successfully transitioning to 0:13:19.800 --> 0:13:22.880 remote work for more than a year, many businesses are 0:13:22.920 --> 0:13:26.800 rethinking the future of a fully in person workforce. Twitter 0:13:26.840 --> 0:13:29.400 and Microsoft are among the tech companies that have said 0:13:29.480 --> 0:13:33.400 some employees can continue to work from remote locations permanently 0:13:33.720 --> 0:13:37.720 even after the pandemic is controlled. But suppose your employer 0:13:37.840 --> 0:13:40.640 insist that you return to the office full time, what 0:13:40.720 --> 0:13:43.640 are your options joining me as Michael Schmidt, Vice chair 0:13:43.679 --> 0:13:47.520 of the Labor and Employment Practice at Coson O'Connor. The 0:13:47.679 --> 0:13:52.480 overarching question is whether an employer can force employees to 0:13:52.600 --> 0:13:55.360 go back to work after they've been working from home 0:13:55.679 --> 0:13:59.320 due to COVID. So the general answer to that is 0:14:00.080 --> 0:14:04.160 whether you're asking about simple return to work or if 0:14:04.240 --> 0:14:07.920 you are asking about whether an employer can require that 0:14:08.000 --> 0:14:13.600 an employee be vaccinated before returning to work, the overarching 0:14:13.679 --> 0:14:17.320 answer is really the same employers at the moment are 0:14:17.440 --> 0:14:21.360 able to require employees to return to work subject to 0:14:21.560 --> 0:14:27.760 obligations to accommodate both disability issues as well as sincerely 0:14:27.800 --> 0:14:32.760 held religious objections to coming back to the offers or 0:14:32.880 --> 0:14:35.560 or getting vaccinated as a condition to coming back to 0:14:35.600 --> 0:14:39.320 the office. So, as far as disabilities are you referring 0:14:39.360 --> 0:14:44.280 to disabilities under the Americans with Disabilities Act or other 0:14:44.320 --> 0:14:47.680 disabilities that may arise because of COVID. The important thing 0:14:47.720 --> 0:14:49.920 to take away is that we're not just talking about 0:14:49.960 --> 0:14:53.000 federal law. Part of the issue is, and what makes 0:14:53.040 --> 0:14:55.960 this somewhat complicated like other areas of employment law, is 0:14:56.000 --> 0:14:59.080 that this area is so dependent on state and local 0:14:59.160 --> 0:15:02.239 law as wealth you're looking at the Americans with Disabilities 0:15:02.280 --> 0:15:05.160 Act on the federal level certainly, but you're also in 0:15:05.240 --> 0:15:08.880 states like New York or California and other states that 0:15:09.000 --> 0:15:14.240 have their own statutory schemes dealing with reasonable accommodation requirements 0:15:14.280 --> 0:15:19.240 and disability discrimination protection. So if somebody has a particular 0:15:19.320 --> 0:15:24.480 medical condition, physical or mental that for some reason precludes 0:15:24.560 --> 0:15:27.240 them from going into the office, or in case of 0:15:27.240 --> 0:15:30.920 a vaccine, precludes them from becoming vaccinated at the time. 0:15:31.400 --> 0:15:34.920 Suppose someone's a senior citizen and doesn't want to return 0:15:34.960 --> 0:15:39.359 to the office because of fears that they're more vulnerable 0:15:39.400 --> 0:15:43.960 to COVID. Would that require some kind of accommodation. Well, 0:15:44.000 --> 0:15:46.440 that's where it gets a little tricky, because you need 0:15:46.480 --> 0:15:51.880 to distinguish those who have a covered disability, a covered 0:15:51.920 --> 0:15:56.560 medical condition versus those who just have generalized fears about 0:15:56.720 --> 0:15:59.960 leaving the home or generalized fears about going to the workplace. 0:16:00.120 --> 0:16:03.920 Is simply because they have this generalized fear, or simply 0:16:04.000 --> 0:16:07.560 because they may be part of a group, uh such 0:16:07.600 --> 0:16:11.760 as of a certain age or a certain vulnerability. So 0:16:12.240 --> 0:16:14.920 you know, part of the difficulty is having to distinguish 0:16:14.960 --> 0:16:17.560 between those buckets and for those people who don't have 0:16:17.600 --> 0:16:22.800 a covered disability that entitles them to potentially an accommodation. UH. 0:16:22.840 --> 0:16:26.400 Employees are not able to necessarily just say well, I'm 0:16:26.480 --> 0:16:30.000 uncomfortable or have a generalized fear that something might happen 0:16:30.600 --> 0:16:34.760 UH and therefore be protected from UH from from complying 0:16:34.760 --> 0:16:36.240 with a rule that they need to come back to 0:16:36.280 --> 0:16:41.400 the office. Suppose they believe that their workplace is not safe, 0:16:41.440 --> 0:16:47.280 that the workplace is not taking enough for cautions against COVID, Well, 0:16:47.320 --> 0:16:49.720 certainly we're gonna see a lot of that. Um. You know, 0:16:50.120 --> 0:16:52.440 they're gonna be a lot of employees who either return 0:16:52.480 --> 0:16:54.880 to the office or don't return to the office. And 0:16:55.120 --> 0:16:58.600 based on what they see or hear or understand, they're 0:16:58.600 --> 0:17:02.400 gonna be raising issues regarding protocols and safety. People may 0:17:02.400 --> 0:17:05.520 not be wearing masks, or the company is not enforcing 0:17:05.600 --> 0:17:09.959 social distancing requirements or other protocols UH. So much of 0:17:10.000 --> 0:17:15.080 this is about balancing UH, communication and the psychology of 0:17:15.119 --> 0:17:17.200 all this. It's not just about what is the law 0:17:17.320 --> 0:17:21.440 technically require one side to do or not do. There 0:17:21.520 --> 0:17:24.320 is a psychology that comes along with the workforce that 0:17:24.359 --> 0:17:27.199 employers need to accept, and there also has to be 0:17:27.240 --> 0:17:31.760 some understanding that employees those uncomfortable or not are gonna 0:17:31.800 --> 0:17:34.439 be raising issues like you just mentioned, and has to 0:17:34.440 --> 0:17:38.080 be a means for addressing them, for taking them seriously. UH. 0:17:38.119 --> 0:17:40.760 And that's what employers should do. They should have an 0:17:40.760 --> 0:17:44.480 avenue for people to raise concerns or raise complaints about 0:17:44.520 --> 0:17:48.320 protocols and other safety issues. At the end of the day, 0:17:48.359 --> 0:17:52.200 if the employer does look into those issues and does 0:17:52.320 --> 0:17:56.560 follow best practices and available guidance, and again, it just 0:17:56.680 --> 0:17:59.480 becomes a situation where the employee is saying, I'm just 0:17:59.560 --> 0:18:01.760 not come sorta will come into the workplace, I'm just 0:18:01.840 --> 0:18:05.879 not comfortable leaving the home and working UM and no 0:18:06.040 --> 0:18:09.840 accommodation is needed and there really is no UM particular 0:18:09.920 --> 0:18:14.520 protocol or issue that is challenging the safety and health 0:18:14.560 --> 0:18:17.840 of the workplace. UM, the employee may not be protected 0:18:17.880 --> 0:18:22.199 in those situations. What about the employee reporting the conditions 0:18:22.240 --> 0:18:27.000 to OSHA, that's certainly another avenue. UH. It's all about communication. 0:18:27.320 --> 0:18:31.440 I find that many issues can be addressed and resolved 0:18:31.480 --> 0:18:34.440 between employer and employee. But there's no question that there 0:18:34.480 --> 0:18:39.240 are government agencies out there, including OSHA, who are there 0:18:39.280 --> 0:18:45.720 to receive complaints that employees may have about unsafe workplace conditions, UH, 0:18:45.760 --> 0:18:49.359 And that's certainly an opportunity for employees to raise it 0:18:49.400 --> 0:18:52.040 externally if that's what they want to do, in which case, 0:18:52.160 --> 0:18:55.480 you know, OSHA or whatever the federal or state agency 0:18:55.960 --> 0:18:59.439 UH will be will likely contact the employer and do 0:18:59.520 --> 0:19:02.840 its own and investigation into the issue. Suppose an employer 0:19:02.960 --> 0:19:06.480 fires an employee because they won't return to the workplace. 0:19:07.119 --> 0:19:10.280 Are they entitled to unemployment? I know that President Biden 0:19:10.359 --> 0:19:14.159 said something about this. Are they entitled to unemployment or 0:19:14.240 --> 0:19:19.480 there's certain parameters. Well, that's the unemployment issue. Notwithstanding the 0:19:19.720 --> 0:19:22.920 discussion on the federal level, the unemployment issue is also 0:19:23.080 --> 0:19:26.240 very much a state by state concerns, So UH the 0:19:26.400 --> 0:19:29.719 rules will vary depending on the particular state you're in 0:19:29.720 --> 0:19:32.280 in the state unemployment scheme you're talking about. But from 0:19:32.320 --> 0:19:36.240 a general rule standpoint, as we know, typically if somebody 0:19:36.440 --> 0:19:41.879 resigns and resigns without reason uh refuses to work, UM, 0:19:41.920 --> 0:19:44.840 they're not going to be entitled necessarily to unemployment insurance. 0:19:44.880 --> 0:19:48.320 But what many jurisdictions are doing, and what the federal 0:19:48.440 --> 0:19:51.240 government is talking about doing is making an exception there 0:19:51.280 --> 0:19:53.879 if the reason that you are not coming back to 0:19:53.960 --> 0:19:59.040 work is due to a good faith belief, good faith 0:19:59.080 --> 0:20:02.840 objective belief UH that there is something about the workplace 0:20:02.880 --> 0:20:05.399 you're being asked to return to that is not safe 0:20:05.400 --> 0:20:07.479 and is not healthy for you to do so. In 0:20:07.520 --> 0:20:10.320 those cases, if you refuse to return to that kind 0:20:10.359 --> 0:20:13.919 of workplace UH, in many situations, you will not be 0:20:14.040 --> 0:20:17.960 denied the opportunity to obtain unemployment insurance. Going back to 0:20:18.080 --> 0:20:21.720 vaccinations which you mentioned, Let's say an employer says all 0:20:21.760 --> 0:20:26.040 employees have to be vaccinated before returning to work. If 0:20:26.080 --> 0:20:29.800 an employee has a religious objection, what happens The e 0:20:29.960 --> 0:20:33.360 o C, which is a federal government agency that handles 0:20:33.920 --> 0:20:38.960 disability related UH Title seven related issues and accommodations. The 0:20:39.000 --> 0:20:42.159 e o C put out guidances past December on this 0:20:42.359 --> 0:20:46.320 very issue mandatory vaccine policies and putting aside the disability 0:20:46.359 --> 0:20:49.119 issue we just talked about. If an employee has a 0:20:49.160 --> 0:20:53.160 sincerely held religious belief or practice that prevents them from 0:20:53.160 --> 0:20:56.879 being vaccinated, the employer is required to engage in in 0:20:56.920 --> 0:21:00.320 an interactive process to see if an accommodation and be 0:21:00.760 --> 0:21:04.520 given without there being an undue hardship or without there 0:21:04.520 --> 0:21:08.639 being a direct threat by not being vaccinated. This is 0:21:08.720 --> 0:21:12.960 very much an individualized assessment. An employer should not be 0:21:13.160 --> 0:21:15.879 simply knee jerk in its reaction to that kind of 0:21:15.920 --> 0:21:18.919 objection being raised, which also means that they can't just 0:21:19.000 --> 0:21:23.800 automatically fire them or discipline them for refusing to be vaccinated. 0:21:23.840 --> 0:21:26.280 They'll have to go through this process of well, what's 0:21:26.320 --> 0:21:29.199 the nature of the position. Can the position continue to 0:21:29.280 --> 0:21:33.160 be worked at remotely? Um? What are the essential functions 0:21:33.200 --> 0:21:35.400 of the job. So the bottom line is there needs 0:21:35.440 --> 0:21:38.600 to be an interactive process in response to any religious 0:21:38.640 --> 0:21:43.480 objection being raised, and only after that process is exhausted 0:21:43.920 --> 0:21:47.400 UH and the the appropriate boxes are checked by the company, 0:21:47.760 --> 0:21:51.720 can an employer perhaps discipline up to an including termination. 0:21:52.160 --> 0:21:55.600 UH terminate an employee based on a religious objection to 0:21:55.800 --> 0:22:00.760 getting vaccinated. Suppose it's not a religious objection. Suppose an 0:22:00.800 --> 0:22:06.480 employee just has a generalized objection to vaccinations. Do they 0:22:06.480 --> 0:22:09.000 also have to be treated in the same way? Well, 0:22:09.200 --> 0:22:12.800 very much the same answer as with the disability issues. 0:22:12.880 --> 0:22:15.479 And I can tell you there is this lingering issue 0:22:15.520 --> 0:22:18.400 out there that a lot of people are necessarily talking about, 0:22:18.480 --> 0:22:21.400 and that has to do with the whole emergency use 0:22:21.480 --> 0:22:26.200 authorization process that these vaccines were approved by the FDA 0:22:26.280 --> 0:22:28.639 in the first place, and as part of that process, 0:22:28.680 --> 0:22:32.119 the f d A rules suggests that recipients of a 0:22:32.200 --> 0:22:35.800 vaccine UH must be told that they have the right 0:22:35.880 --> 0:22:39.199