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Speaker 1: This is Bloomberg Law with June Grassoe from Bloomberg Radio.

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Speaker 1: President elect Joe Biden calls climate change the existential threat

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Speaker 1: of our time and has proposed an aggressive climate agenda,

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Speaker 1: including a sweeping two trillion dollar plan to promote clean

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Speaker 1: energy and emissions free electric grid and an end to

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Speaker 1: carbon emissions from power plants in fifteen years. We need

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Speaker 1: to meet the moment with the urgency demands as you

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Speaker 1: would during any national emergency, and from this crisis. From

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Speaker 1: these crisis, I should say, we need to seize an

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Speaker 1: opportunity to build back and build back better than we

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Speaker 1: were before. But after four years of the Trump administration's

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Speaker 1: climate denials, reversal of climate policies, and rollback of more

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Speaker 1: than one hundred environmental regulations, Biden is starting from behind.

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Speaker 1: Joining me is environmental law professor Pat Parento of the

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Speaker 1: Vermont Law School. Pat, how would you describe President Trump's

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Speaker 1: environmental legacy? That's easy. This was the worst administration in history.

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Speaker 1: No administration comes close to the kind of attempt at

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Speaker 1: damage that the Trump administration has done to our environmental

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Speaker 1: laws and institutions, not all of which has been successful.

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Speaker 1: And we need to remind ourselves that much of what

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Speaker 1: Trump has attempted to do can be reversed by the

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Speaker 1: Biden administration, not maybe right away. Some of it's going

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Speaker 1: to take longer than we might like, you know, rulemaking

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Speaker 1: take one to two years on average, But there are

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Speaker 1: as an awful lot of things that Biden can do

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Speaker 1: very quickly, including rejoining the Paris Agreement and probably restoring

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Speaker 1: protections for places like the National Monuments and maybe the

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Speaker 1: Arctic National Wildlife Refuge in places like that. And then

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Speaker 1: in other cases, a lot of what Trump has put

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Speaker 1: into motion or even concluded in terms of rules and

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Speaker 1: policies have been challenged in court, and as we've talked before,

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Speaker 1: the Trump administration has one of the worst track records

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Speaker 1: in court of any administration, something like their cases they've

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Speaker 1: lost according to the Institute for Policy Integrity, anyway, and

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Speaker 1: so all of those cases that are still pending in court,

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Speaker 1: the Biden administration can come in and either negotiate a

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Speaker 1: settlement of the cases or simply confess that the decisions

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Speaker 1: that were made by Trump were unlawful and flawed in

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Speaker 1: a number of ways, and therefore the matter should be

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Speaker 1: remanded to the Biden administration for correction. So a lot

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Speaker 1: of the damage that Trump has left us with is

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Speaker 1: really opportunities lost. You know, we should have been making

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Speaker 1: steady progress on climate change mitigation and air and water

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Speaker 1: quality improvement and a lot of things that we've got

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Speaker 1: backwards on, or at least not made any progress on

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Speaker 1: in the last four years. So that's probably the single

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Speaker 1: biggest legacy. That plus hollowing out some of the institutions

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Speaker 1: like p A, crippling their scientific capability, stacking the advisory

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Speaker 1: boards that are supposed to be objective scientists with industry

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Speaker 1: representatives for example, demoralizing the staff of e p A

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Speaker 1: so that many of them have left, and a lot

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Speaker 1: of the institutional memory has been lost, at least for now,

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Speaker 1: So rebuilding these institutions is going to take some time.

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Speaker 1: I remember that in the Reagan years we had some

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Speaker 1: similar setbacks, and I went to work for e p

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Speaker 1: A actually during the Reagan administration when Bill Ruckles House

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Speaker 1: was restored as the administrator of e p A, and

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Speaker 1: I was enlisted to help revitalize the enforcement program at

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Speaker 1: e p A, and it took, you know, several years

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Speaker 1: to do that. So that's what we're looking at now

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Speaker 1: for the next four years is repairing, rebuilding, restoring, and

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Speaker 1: then hopefully making some serious progress. So is there anything

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Speaker 1: that the Trump administration has done that can't be undone.

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Speaker 1: I don't think so. You know, undoubtedly there is more

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Speaker 1: carbon dioxide in the atmosphere today than there would have been,

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Speaker 1: certainly if Hillary Clinton had been elected. So that's permanent.

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Speaker 1: The amount of emissions that could have been avoided and prevented,

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Speaker 1: we can't get those back. And some of the damage

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Speaker 1: from air pollution and water pollution, at least in the

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Speaker 1: relatively long term. That is, it's going to take a

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Speaker 1: while to undo some of the pollution that occurred. For example,

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Speaker 1: when Andrew Wheeler, the EPA administrator, declared that because of COVID,

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Speaker 1: industries were no longer going to be required to comply

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Speaker 1: with their permits. If you remember, we went through about

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Speaker 1: four months of this immunity order that he issued. You know,

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Speaker 1: that pollution that was never monitored and measured, So we

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Speaker 1: don't know actually today how much pollution went into the

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Speaker 1: air and went into the water during that period of rates,

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Speaker 1: if you want to call that that Wheeler gave the industry.

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Speaker 1: So there are some things like that where you can't

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Speaker 1: undo some of the damage. But I don't think those

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Speaker 1: kinds of impacts are as serious as the failure to

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Speaker 1: really make meaningful progress on transitioning to cleaner energy. If

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Speaker 1: to Clean Power plan that Obama had created had been

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Speaker 1: implemented and the fuel economy rules that Obama put in

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Speaker 1: place had been honored, we would be much further along

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Speaker 1: on the path of clean energy and cleaner transportation systems

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Speaker 1: than we are now. So those kinds of lost opportunities

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Speaker 1: are really hard to recapture. But but that's what we're facing.

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Speaker 1: A President Trump took action to shrink some of our

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Speaker 1: national monuments. Can that be easily reversed? Yes, we're talking

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Speaker 1: about Bears Ears and Grand Staircase Escalante, which are these

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Speaker 1: two magnificent monuments in Utah on Colorado, and they really

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Speaker 1: are spectacular. I've I've actually visited both of them, and

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Speaker 1: with dev Holland, the first Native American to be nominated

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Speaker 1: to be Secretary of Interior, assuming she's confirmed and she

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Speaker 1: is a member of Congress, so at least she has

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Speaker 1: that going for her. There's no question, but what the

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Speaker 1: original boundaries that President Obama had established for those two

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Speaker 1: monuments will be reinstated. In fact, bears Ears will probably

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Speaker 1: be the first one because she has a very close

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Speaker 1: connection to that, being a Native American herself. That one

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Speaker 1: can probably be done within the first hundred days. Grand

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Speaker 1: staircase may take a little longer. It's much bigger, and

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Speaker 1: you know, Biden is going to have to pay attention

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Speaker 1: to the politics as well as his legal authority to

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Speaker 1: restore the monuments. I think he's going to have to

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Speaker 1: reach out to some of the communities in Utah, in

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Speaker 1: Colorado that were supportive of what Trump did and reducing

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Speaker 1: the boundaries. I don't know exactly what he's going to

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Speaker 1: be able to do to mollify them, but I don't

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Speaker 1: think he can just simply ignore some of the political

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Speaker 1: fallout of reversing Trump policies because they were popular in

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Speaker 1: rural America and they still are. We have to take

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Speaker 1: account of that. You know, Trumpism is still alive. Seventy

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Speaker 1: four million people voted for it. Many of them are

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Speaker 1: in its western rural communities where these monuments are located.

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Speaker 1: So you know, Biden is going to have to figure

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Speaker 1: out how he can offer those communities some kind of

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Speaker 1: program or assistance of some kind to offset what they

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Speaker 1: think will be taking back something Trump gave them. Let's

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Speaker 1: talk about the team that Biden has put together to

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Speaker 1: handle the environment. What's your take on the team and

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Speaker 1: the new wep administrator in particular. Yeah, the very talented

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Speaker 1: group of people he's bringing into the administration. Of course,

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Speaker 1: some of them are familiar faces. The new EPA administrator,

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Speaker 1: on the other hand, is not a familiar face. Reagan,

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Speaker 1: who's the head of the North Carolina Environmental Department. I

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Speaker 1: would say it was not really on many people's radar.

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Speaker 1: I mean, he's a black man, so it's pretty obvious

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Speaker 1: that President elect Biden owes his election frankly to the

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Speaker 1: black community largely. I mean, it's brought it than that,

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Speaker 1: but that was that was the impetus, the big vote

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Speaker 1: turnout for him. So it's not just a matter of

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Speaker 1: paying back, if you will, the groups that put him

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Speaker 1: in in the in office, but it's also looking for

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Speaker 1: talented people in those communities, those environmental justice communities, and

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Speaker 1: I think he's picked a good one was Reagan Um

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Speaker 1: and then of course he brought GENA. McCarthy back as

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Speaker 1: climates are kind of an unfortunate term. Perhaps on the

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Speaker 1: domestic side, and of course John Kerry as the climate

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Speaker 1: envoy on the international side. That those are two of

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Speaker 1: the strongest I think possible people you could have in

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Speaker 1: your administration on climate issues. UM. And then c e Q.

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Speaker 1: He's brought in another black woman who was formally was

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Speaker 1: to and d P A m and who was with

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Speaker 1: the Sudden Environmental Law Center UH for for many years

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Speaker 1: and and UH so that's another strong edition dev Holland

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Speaker 1: and interior um is the first time UH pick for

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Speaker 1: that position, and so forth. So I think I think

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Speaker 1: the team has a lot of experience. UM. Some have

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Speaker 1: more Washington, d C. Experience and some have more outside

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Speaker 1: the Beltway experience, and that blend, that combination is is

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Speaker 1: probably a good thing. UM. I think, you know, being

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Speaker 1: in touch with what states have been doing, UM, like

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Speaker 1: North Carolina on environmental justice issues. They have a lot

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Speaker 1: of big problems in North Carolina with these massive factory farms,

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Speaker 1: these hog farms that have caused tremendous pollution in black

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Speaker 1: communities and so forth. So you know, he's being true

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Speaker 1: to what he campaign and he made environmental justice a

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Speaker 1: major focus and he's following through on that. And of

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Speaker 1: course with Kamala Harris at his side, I think we

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Speaker 1: can be sure that we're going to be seeing even

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Speaker 1: more of that kind of focus. Now we don't know

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Speaker 1: the result to the Georgia elections yet, but if the

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Speaker 1: Democrats don't gain control of the Senate, will Biden have

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Speaker 1: to achieve most of his environmental goals through executive action. Yes,

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Speaker 1: that's everybody's thinking, and I think that's true. On the

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Speaker 1: other hand, you know, with this recent COVID package which

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Speaker 1: Trump finally signed after dilly dallying and delaying and costing

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Speaker 1: people some money, there were two pieces that the Democrats

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Speaker 1: managed to slip into that bill that we're climate related,

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Speaker 1: and they were important. One is a phase out of

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Speaker 1: what we call these super pollutants hfc's. These are refrigerants

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Speaker 1: primarily and fire fighting chemicals, and there are a combination

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Speaker 1: of what we call ozone deplets. They're the kinds of

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Speaker 1: chemicals that break down the ozone layer that protects us

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Speaker 1: the multi violent radiation. But they're also very potent global

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Speaker 1: warming pollutants and thousands of times in fact, more potent

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Speaker 1: than c O two. And so that was amazing that

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Speaker 1: they have now committed the United States under what's called

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Speaker 1: the key Gali amendment to the Montreal Protocol to phasing

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Speaker 1: out these very dangerous hfc's and replacing them over a

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Speaker 1: fairly quick period of time. So that's the big deal

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Speaker 1: in terms of climate. And then in addition, an extension

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Speaker 1: of a lot of the renewable energy tax incentive, the

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Speaker 1: production tax credit for example for solar, that was also included.

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Speaker 1: So the point is, I think Biden is going to

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Speaker 1: look for those kinds of opportunities with Congress not trying

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Speaker 1: to pass a big cap and trade bill, which Obama

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Speaker 1: tried to do, probably not enough votes for that, but

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Speaker 1: using these big money bills, budget bills, defense bills, you know,

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Speaker 1: these what they call must path bills, using those as

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Speaker 1: vehicles to negotiate improvements energy and transportation systems and so forth.

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Speaker 1: I think we might be optimistic and thinking that Biden

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Speaker 1: is going to be able to score some fairly significant victories.

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Speaker 1: Not as much as we need. Everybody knows that we

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Speaker 1: need a lot more than we're willing to do right

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Speaker 1: now for climate, but I think he's going to be

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Speaker 1: able to get some legislative victories. But mostly what he's

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Speaker 1: going to be doing, certainly for the first two years,

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Speaker 1: is repairing the damage that Trump has done and reversing

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Speaker 1: the rollbacks as they're called that Trump put in place.

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Speaker 1: Could the new conservative majority on the Supreme Court make

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Speaker 1: it more difficult for Buying to institute some of his

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Speaker 1: environmental goals. Yes. In short, yeah, we all have to

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Speaker 1: take account now of the fact that the six to

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Speaker 1: three conservative majority on the Supreme Court is the most

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Speaker 1: conservative court that we've seen, certainly in my lifetime. And

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Speaker 1: it's a court now where Chief Justice Roberts is no

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Speaker 1: longer the swing vote. You don't need his vote in

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Speaker 1: order to reach a very conservative outcome. When it comes

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Speaker 1: to environmental cases, the issues are going to be you know,

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Speaker 1: how far can the Biden administration go in interpreting our

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Speaker 1: existing laws, like the Clean Air Act, in ways to

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Speaker 1: aggressively pursue carbon at greenhouse gas pollution. That is going

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Speaker 1: to be a real challenge. Again, We're probably not going

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Speaker 1: to be able to go as far as the Obama

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Speaker 1: administration wanted to go in using its Clean Air Act authority,

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Speaker 1: at least as regards to things like power plants, which

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Speaker 1: are integral to the way states produced their electricity, brought

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Speaker 1: their economies, and so trying to use federal laws and

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Speaker 1: regulations to control that vast electricity system in the country

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Speaker 1: is difficult, and the conservative Supreme Court is going to

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Speaker 1: be skeptical of e p A's power to really sort

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Speaker 1: of reorganize the way electricity is produced and distributed across

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Speaker 1: the country. But where it comes to things like fuel

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Speaker 1: economy standards for mobile sources for cars primarily, but also

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Speaker 1: you know, light trucks and other vehicles, passenger vehicles, you know,

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Speaker 1: that's traditionally a federal responsibility because you don't want to

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Speaker 1: have the fifty states deciding individually what kinds of fuel

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Speaker 1: economy standards to have. The industry wouldn't be able to

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Speaker 1: cope with a situation where you had fifty different standards, right,

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Speaker 1: So there's a situation where having a single uniform national

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Speaker 1: standard for fuel economy does make some sense, even I

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Speaker 1: think to some conservative justices. So what that means is

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Speaker 1: Biden is going to have picked targets and he's going

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Speaker 1: to have to decide which kinds of measures can he

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Speaker 1: take to address climate in particular, but other things as

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Speaker 1: well that have the best chance of convincing a conservative

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Speaker 1: court that his administration is not acting outside the bounds

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Speaker 1: of the laws and the authority that they've been given

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Speaker 1: from Congress. The big thing that the conservative justices are

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Speaker 1: skeptical about is the growth of the administrative state, you know,

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Speaker 1: having these quote unelected bureaucrats making up laws as they

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Speaker 1: go or overreaching the authorities that they've been given. So

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Speaker 1: the conservative justices are going to sort of police the

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Speaker 1: boundaries of administrative authority very rigorously and with sort of

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Speaker 1: a strict construction as kind of approach to things. So

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Speaker 1: Biden is just going to have to understand that and

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Speaker 1: craft the rules that he adopts with that in mind,

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Speaker 1: and then take his chances, because you know, you never

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Speaker 1: know exactly how these cases are going to come out,

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Speaker 1: because the courts are continually surprising us with decisions that

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Speaker 1: the conventional wisdom has been proven wrong over and over again.

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Speaker 1: So that's another aspect of using your regulatory authority wisely,

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Speaker 1: but taking some chances and not knowing for sure whether

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Speaker 1: what you're doing is going to pass. Muster with five

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Speaker 1: votes on the Supreme Court, I don't think Biden can

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Speaker 1: administer effectively by worrying that maybe he's gonna lose in

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Speaker 1: the Supreme Court. He's got to take that into account

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Speaker 1: and weigh the risks of that. But in the end

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Speaker 1: he's going to have to take some actions and then

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Speaker 1: just see how it plays out. Thanks Pat. That's Pat

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Speaker 1: Parento of the Vermont Law School. As the US braces

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Speaker 1: for a new wave of COVID nineteen infections, the government's

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Speaker 1: top infectious disease Dr Anthony Fauci, says the country's vaccination

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Speaker 1: rate is lagging. The government is managing distribution of fiser

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Speaker 1: and madernash with the goal of getting twenty million doses

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Speaker 1: distributed before early January. Vaccinations in the US began December

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Speaker 1: fourteenths with healthcare workers, and so far only two point

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Speaker 1: thirteen million doses have been administered, according to a nationwide

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Speaker 1: tally from the Centers for Disease Control and Prevention. But

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Speaker 1: even if vaccines are available, there's the question of who

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Speaker 1: will refuse to get them. Gallipole published last month shows

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Speaker 1: that about four and ten Americans would not take a

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Speaker 1: vaccine approved by the US Food and Drug Administration, suggesting

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Speaker 1: the availability of shots won't guarantee that workers will take them.

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Speaker 1: Joining me as Bloomberg Law reporter robert Ia Fola, who

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Speaker 1: covers labor and employment law, There's been so much talk

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Speaker 1: about when the vaccines will be available to different groups,

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Speaker 1: but a gallop pole shows that a lot of Americans

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Speaker 1: don't want to get a vaccine. Yeah, there's been a

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Speaker 1: shift that you can see in the public calling from

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Speaker 1: the all to the point that we're at now where

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Speaker 1: the vaccine is being made available to the healthcare workers

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Speaker 1: first before they start being made available to other workers.

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Speaker 1: There was pretty pronounced resistance that was reflected in polls

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Speaker 1: again in the fall. But you're seeing that UM reduced

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Speaker 1: as time goes on. But there is still UM some

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Speaker 1: resistance to me in the population as reflected in the polls.

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Speaker 1: So can employers require their workers to get vaccinated as

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Speaker 1: a general matter? The answers. Yet, Um, there's nothing particularly

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Speaker 1: new about workplace mandates for vaccines. Let's say in the

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Speaker 1: healthcare industry. Um, you know, some hospitals will require workers

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Speaker 1: to get bactated against things like influenza, UH, meatles, months, rebella,

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Speaker 1: these sort of things. Um. The situation is slightly different

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Speaker 1: here with the COVID nineteen vaccine UM, in part because

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Speaker 1: of how it was approved. The FDA used its Emergency

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Speaker 1: Use Authorization UM authority to approve this in an expedited

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Speaker 1: fashion um, which creates some uh complications that employment lawyers

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Speaker 1: are pretty divided on whether it would give workers the

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Speaker 1: right to refuse or not. Just for a second, turning

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Speaker 1: to that emergency use authorization in that it states that

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Speaker 1: recipients have a right to refuse the vaccine, the law

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Speaker 1: is not very clear. The statute um that covers this

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Speaker 1: is not very clear, and this is a an untested

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Speaker 1: area in courts. UM. This is a unique situation here

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Speaker 1: we have UM with a vaccine UM that is been

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Speaker 1: authorized this way. The sources I've spoken to are not

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Speaker 1: aware of another situation like this UM. The rules around this,

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Speaker 1: the FDA indicates that individuals need to be notified they

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Speaker 1: have an option to refuse. Whether that creates a statutory

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Speaker 1: right to refuse that would sort of countermand in employer's

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Speaker 1: right to mandate the vaccine is very unclear UM. But

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Speaker 1: if we do see widespread mandate, it's something that's very

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Speaker 1: likely to be tested in court. Some of the people

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Speaker 1: that you've spoken to say that the best thing is

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Speaker 1: not for employers to mandate a vaccination, but to encourage

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Speaker 1: a vaccination in different ways. That's correct, That's correct. Even

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Speaker 1: setting aside this sort of unclear legal issue about the

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Speaker 1: emergency use off there is an action. UM. There are

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Speaker 1: other legal issues and simply part practical issues when it

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Speaker 1: comes to UM creating a rule that says, hey, you

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Speaker 1: have to get vaccinated or you lose your job. Um.

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Speaker 1: There are other exceptions when it comes to vaccines. Generally, UM,

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Speaker 1: exceptions need to be made for people who have health problems.

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Speaker 1: UM you know that if they're, for example, have compromised

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Speaker 1: immune systems and their doctors saying they shouldn't take a vaccine.

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Speaker 1: There's also uh some legal issues around religious objections to

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Speaker 1: taking vaccines. UM. And again there's some practical implications that

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Speaker 1: come with this sort of thing. You may have a

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Speaker 1: workforce where um, you know, you have workers that are

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Speaker 1: very valuable and that are difficult to replace. And if

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Speaker 1: you have a rule that says you have to take

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Speaker 1: the vaccine, uh, than an employer might be spaced with

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Speaker 1: the situation where that act let go workers. They really

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Speaker 1: don't want to let go of. UM. So you take

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Speaker 1: all these things into consideration, you add into it's the

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Speaker 1: complication of the emergency use authorization and uh yeah, that

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Speaker 1: leads to attorneys to Council employers to suggest that encouraging

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Speaker 1: and facilitating us in the vaccine is uh just overall

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Speaker 1: the better ideas than mandating it. So even an at

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Speaker 1: will employment situations, can workers raise specific objections to getting

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Speaker 1: the vaccine, that's correct. The Americans with Disabilities Act provides

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Speaker 1: the right to seek a health related exception, and Title

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Speaker 1: seven of the Civil Rights Act, which Title seven covers

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Speaker 1: workplace discrimination, including discrimination based on religion, that provides for

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Speaker 1: the opportunity for people to seek a religious exception to

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Speaker 1: affect the mandate. And it's notable that the way that

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Speaker 1: the Equal Employment Opportunity Commission defines religion, it's not exclusively

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Speaker 1: belief enough God or membership and established church. The way

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Speaker 1: they define it is firmly and sincerely held moral or

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Speaker 1: ethical belief. So again that can extend beyond traditional religions.

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Speaker 1: So let's say a worker raises an objection to getting vaccinated.

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Speaker 1: What does an employer have to do at that point?

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Speaker 1: So at that point they need to consider the objection

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Speaker 1: and they may need to provide an accommodation. But employers

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Speaker 1: do have um some very friendly UM case laws from

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Speaker 1: the U. S. Supreme Court that basically, if they can

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Speaker 1: show that it would be an undue bird to allow

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Speaker 1: a worker out of a vaccine mandate, then they can

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Speaker 1: refuse that objection and the way to the screen court

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Speaker 1: case law defines. It's a very low bar what's called

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Speaker 1: in legal circles that dominimus standards, you know, so it's

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Speaker 1: basically anything more than a trifling burden, uh, that can

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Speaker 1: be considered an undue burden. So you have a lot

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Speaker 1: of businesses, let's say, restaurants and stores, where there's interaction

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Speaker 1: of the employees with the public. Are legal experts saying

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Speaker 1: that that would be enough to raise an undue burden?

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Speaker 1: These are going to be very case by case situation,

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Speaker 1: very sack specific situation. It's hard to say exactly. There

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Speaker 1: may be a situation in which, UM, the worker can

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Speaker 1: be shifted to another position, uh, you know, back in

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Speaker 1: the stockroom or something where they're not going to have

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Speaker 1: that UM interaction with the public, and that could be

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Speaker 1: a sort of a reasonable accommodation UM to the employer

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Speaker 1: requirement to take a vaccine. UM. In another situation, it

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Speaker 1: may be that the only job that that worker can do,

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Speaker 1: it's going to be in the public, in contact of

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Speaker 1: the public. And um that to give an exception, that

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Speaker 1: would be an undue bird. So, like I said, it's

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Speaker 1: always going to be a very case by case and

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Speaker 1: very fact specific. Does it depend on the state that

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Speaker 1: you're in. Is this a state law question or is

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Speaker 1: this federal law question? Show The authority for business, a

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Speaker 1: private business to impose something like a vaccine mandate flows

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Speaker 1: primarily from what's known as the at will employment doctrine UH,

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Speaker 1: and that is what's in effect in every state except

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Speaker 1: for Montana. And that basically says that an employment relationship

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Speaker 1: is presumed to be at will, which means an employer

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Speaker 1: can fire a worker for any legal reason. So it

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Speaker 1: can't be uh because you know they're of a certain

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Speaker 1: racial group or a certain religion. You can't discriminate against somebody.

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Speaker 1: That's that's not okay under the at will employment doctrine.

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Speaker 1: But under the at will employment doctrine, you can impose

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Speaker 1: a workplace rule and if a worker violates that rule,

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Speaker 1: as long as you're enforcing that rule in a nondiscriminatory fashion,

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Speaker 1: it can be fired for that. So in this instance,

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Speaker 1: if Hope employer requires workers to take a vaccine and

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Speaker 1: they won't do it, then again, generally speaking, they would

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Speaker 1: have the authority to fire that work. So are legal

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Speaker 1: experts expecting lawsuits over this? I mean, are they already

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Speaker 1: gearing up for that. Yeah, I've spoken to folks who

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Speaker 1: do expect some of these questions to be tested in court. Um.

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Speaker 1: The soope of how many lawsuits are filed UM will

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Speaker 1: have a lot to do with how many employers end

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Speaker 1: up actually UM imposing vaccine mandates. It's unclear to me

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Speaker 1: at this point how popular these are going to be.

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Speaker 1: There's a few corporations, UM, they's been through those reports.

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Speaker 1: For example, Chipotle has said that they're not going to

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Speaker 1: impose a workplace vaccine mandates if they end up being

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Speaker 1: If there ends up being a lot of these UH mandates,

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Speaker 1: then there will be you know, a fair amount of litigation.

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Speaker 1: If they mandates end up being a pretty rare thing, UM,

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Speaker 1: then there just won't be the opportunity for that many

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Speaker 1: terminations to be challenged in court. So one of the

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Speaker 1: lawyers you spoke to said, the laws aren't prepared to

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Speaker 1: give complete legal advice on this matter. What what did

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Speaker 1: he mean? Yes, So at this point, um, as I said,

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Speaker 1: the law is very unclear. Uh, it's a very novel situation. UM,

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Speaker 1: have pandemic to have a vaccine that's been authorized using

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Speaker 1: the FDA's emergency Use authorization process. UM. The laws themselves

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Speaker 1: are not exactly the model of clarity how they're written. UM,

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Speaker 1: so we probably won't get answers until these questions get litigated.

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Speaker 1: Another complication is because this is a largely a matter

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Speaker 1: of state law about how each state will evaluate if

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Speaker 1: that will employment doctrine, and what they think about the

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Speaker 1: emergency use authorization whether that creates a statutory right to refuse.

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Speaker 1: That could be different in different states. Courts in California

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Speaker 1: could look at the question and say one thing. Courts

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Speaker 1: in Mississippi could look at the question and say the opposite.

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Speaker 1: This seems to be a unique situation where you have

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Speaker 1: vaccines that are desperately needed by the whole population of

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Speaker 1: the country, and yet the FDA allowing them under this

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Speaker 1: emergency use authorization. I think that's right. UM. The folks

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Speaker 1: that I spoke with, we're not aware of another situation

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Speaker 1: in which the day approved vaccine on this basis and

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Speaker 1: then that vaccine is being in wide circulation. It does

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Speaker 1: warrant mentioning that flu vaccines are a little bit different.

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Speaker 1: Are often a little bit different each year because there's

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Speaker 1: different strains of the flu going around. Um, to my knowledge,

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Speaker 1: those flu vaccines are not being approved on the emergency

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Speaker 1: use authorization basis, so it is a different legal question.

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Speaker 1: Thanks for being on the Bloomberg Law Show. That's Robert Diafola,

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Speaker 1: Bloomberg Law reporter covering labor and employment law. And that's

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Speaker 1: it for this edition of the Bloomberg Law Show. I'm

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Speaker 1: June Grasso. Thanks so much for listening. Please tune into

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Speaker 1: the Bloomberg Law Show every week now. Attend them Eastern

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Speaker 1: right here on Bloomberg Radio.