Speaker 1: This is Bloomberg Law with June Grassoe from Bloomberg Radio.
Speaker 1: President elect Joe Biden calls climate change the existential threat
Speaker 1: of our time and has proposed an aggressive climate agenda,
Speaker 1: including a sweeping two trillion dollar plan to promote clean
Speaker 1: energy and emissions free electric grid and an end to
Speaker 1: carbon emissions from power plants in fifteen years. We need
Speaker 1: to meet the moment with the urgency demands as you
Speaker 1: would during any national emergency, and from this crisis. From
Speaker 1: these crisis, I should say, we need to seize an
Speaker 1: opportunity to build back and build back better than we
Speaker 1: were before. But after four years of the Trump administration's
Speaker 1: climate denials, reversal of climate policies, and rollback of more
Speaker 1: than one hundred environmental regulations, Biden is starting from behind.
Speaker 1: Joining me is environmental law professor Pat Parento of the
Speaker 1: Vermont Law School. Pat, how would you describe President Trump's
Speaker 1: environmental legacy? That's easy. This was the worst administration in history.
Speaker 1: No administration comes close to the kind of attempt at
Speaker 1: damage that the Trump administration has done to our environmental
Speaker 1: laws and institutions, not all of which has been successful.
Speaker 1: And we need to remind ourselves that much of what
Speaker 1: Trump has attempted to do can be reversed by the
Speaker 1: Biden administration, not maybe right away. Some of it's going
Speaker 1: to take longer than we might like, you know, rulemaking
Speaker 1: take one to two years on average, But there are
Speaker 1: as an awful lot of things that Biden can do
Speaker 1: very quickly, including rejoining the Paris Agreement and probably restoring
Speaker 1: protections for places like the National Monuments and maybe the
Speaker 1: Arctic National Wildlife Refuge in places like that. And then
Speaker 1: in other cases, a lot of what Trump has put
Speaker 1: into motion or even concluded in terms of rules and
Speaker 1: policies have been challenged in court, and as we've talked before,
Speaker 1: the Trump administration has one of the worst track records
Speaker 1: in court of any administration, something like their cases they've
Speaker 1: lost according to the Institute for Policy Integrity, anyway, and
Speaker 1: so all of those cases that are still pending in court,
Speaker 1: the Biden administration can come in and either negotiate a
Speaker 1: settlement of the cases or simply confess that the decisions
Speaker 1: that were made by Trump were unlawful and flawed in
Speaker 1: a number of ways, and therefore the matter should be
Speaker 1: remanded to the Biden administration for correction. So a lot
Speaker 1: of the damage that Trump has left us with is
Speaker 1: really opportunities lost. You know, we should have been making
Speaker 1: steady progress on climate change mitigation and air and water
Speaker 1: quality improvement and a lot of things that we've got
Speaker 1: backwards on, or at least not made any progress on
Speaker 1: in the last four years. So that's probably the single
Speaker 1: biggest legacy. That plus hollowing out some of the institutions
Speaker 1: like p A, crippling their scientific capability, stacking the advisory
Speaker 1: boards that are supposed to be objective scientists with industry
Speaker 1: representatives for example, demoralizing the staff of e p A
Speaker 1: so that many of them have left, and a lot
Speaker 1: of the institutional memory has been lost, at least for now,
Speaker 1: So rebuilding these institutions is going to take some time.
Speaker 1: I remember that in the Reagan years we had some
Speaker 1: similar setbacks, and I went to work for e p
Speaker 1: A actually during the Reagan administration when Bill Ruckles House
Speaker 1: was restored as the administrator of e p A, and
Speaker 1: I was enlisted to help revitalize the enforcement program at
Speaker 1: e p A, and it took, you know, several years
Speaker 1: to do that. So that's what we're looking at now
Speaker 1: for the next four years is repairing, rebuilding, restoring, and
Speaker 1: then hopefully making some serious progress. So is there anything
Speaker 1: that the Trump administration has done that can't be undone.
Speaker 1: I don't think so. You know, undoubtedly there is more
Speaker 1: carbon dioxide in the atmosphere today than there would have been,
Speaker 1: certainly if Hillary Clinton had been elected. So that's permanent.
Speaker 1: The amount of emissions that could have been avoided and prevented,
Speaker 1: we can't get those back. And some of the damage
Speaker 1: from air pollution and water pollution, at least in the
Speaker 1: relatively long term. That is, it's going to take a
Speaker 1: while to undo some of the pollution that occurred. For example,
Speaker 1: when Andrew Wheeler, the EPA administrator, declared that because of COVID,
Speaker 1: industries were no longer going to be required to comply
Speaker 1: with their permits. If you remember, we went through about
Speaker 1: four months of this immunity order that he issued. You know,
Speaker 1: that pollution that was never monitored and measured, So we
Speaker 1: don't know actually today how much pollution went into the
Speaker 1: air and went into the water during that period of rates,
Speaker 1: if you want to call that that Wheeler gave the industry.
Speaker 1: So there are some things like that where you can't
Speaker 1: undo some of the damage. But I don't think those
Speaker 1: kinds of impacts are as serious as the failure to
Speaker 1: really make meaningful progress on transitioning to cleaner energy. If
Speaker 1: to Clean Power plan that Obama had created had been
Speaker 1: implemented and the fuel economy rules that Obama put in
Speaker 1: place had been honored, we would be much further along
Speaker 1: on the path of clean energy and cleaner transportation systems
Speaker 1: than we are now. So those kinds of lost opportunities
Speaker 1: are really hard to recapture. But but that's what we're facing.
Speaker 1: A President Trump took action to shrink some of our
Speaker 1: national monuments. Can that be easily reversed? Yes, we're talking
Speaker 1: about Bears Ears and Grand Staircase Escalante, which are these
Speaker 1: two magnificent monuments in Utah on Colorado, and they really
Speaker 1: are spectacular. I've I've actually visited both of them, and
Speaker 1: with dev Holland, the first Native American to be nominated
Speaker 1: to be Secretary of Interior, assuming she's confirmed and she
Speaker 1: is a member of Congress, so at least she has
Speaker 1: that going for her. There's no question, but what the
Speaker 1: original boundaries that President Obama had established for those two
Speaker 1: monuments will be reinstated. In fact, bears Ears will probably
Speaker 1: be the first one because she has a very close
Speaker 1: connection to that, being a Native American herself. That one
Speaker 1: can probably be done within the first hundred days. Grand
Speaker 1: staircase may take a little longer. It's much bigger, and
Speaker 1: you know, Biden is going to have to pay attention
Speaker 1: to the politics as well as his legal authority to
Speaker 1: restore the monuments. I think he's going to have to
Speaker 1: reach out to some of the communities in Utah, in
Speaker 1: Colorado that were supportive of what Trump did and reducing
Speaker 1: the boundaries. I don't know exactly what he's going to
Speaker 1: be able to do to mollify them, but I don't
Speaker 1: think he can just simply ignore some of the political
Speaker 1: fallout of reversing Trump policies because they were popular in
Speaker 1: rural America and they still are. We have to take
Speaker 1: account of that. You know, Trumpism is still alive. Seventy
Speaker 1: four million people voted for it. Many of them are
Speaker 1: in its western rural communities where these monuments are located.
Speaker 1: So you know, Biden is going to have to figure
Speaker 1: out how he can offer those communities some kind of
Speaker 1: program or assistance of some kind to offset what they
Speaker 1: think will be taking back something Trump gave them. Let's
Speaker 1: talk about the team that Biden has put together to
Speaker 1: handle the environment. What's your take on the team and
Speaker 1: the new wep administrator in particular. Yeah, the very talented
Speaker 1: group of people he's bringing into the administration. Of course,
Speaker 1: some of them are familiar faces. The new EPA administrator,
Speaker 1: on the other hand, is not a familiar face. Reagan,
Speaker 1: who's the head of the North Carolina Environmental Department. I
Speaker 1: would say it was not really on many people's radar.
Speaker 1: I mean, he's a black man, so it's pretty obvious
Speaker 1: that President elect Biden owes his election frankly to the
Speaker 1: black community largely. I mean, it's brought it than that,
Speaker 1: but that was that was the impetus, the big vote
Speaker 1: turnout for him. So it's not just a matter of
Speaker 1: paying back, if you will, the groups that put him
Speaker 1: in in the in office, but it's also looking for
Speaker 1: talented people in those communities, those environmental justice communities, and
Speaker 1: I think he's picked a good one was Reagan Um
Speaker 1: and then of course he brought GENA. McCarthy back as
Speaker 1: climates are kind of an unfortunate term. Perhaps on the
Speaker 1: domestic side, and of course John Kerry as the climate
Speaker 1: envoy on the international side. That those are two of
Speaker 1: the strongest I think possible people you could have in
Speaker 1: your administration on climate issues. UM. And then c e Q.
Speaker 1: He's brought in another black woman who was formally was
Speaker 1: to and d P A m and who was with
Speaker 1: the Sudden Environmental Law Center UH for for many years
Speaker 1: and and UH so that's another strong edition dev Holland
Speaker 1: and interior um is the first time UH pick for
Speaker 1: that position, and so forth. So I think I think
Speaker 1: the team has a lot of experience. UM. Some have
Speaker 1: more Washington, d C. Experience and some have more outside
Speaker 1: the Beltway experience, and that blend, that combination is is
Speaker 1: probably a good thing. UM. I think, you know, being
Speaker 1: in touch with what states have been doing, UM, like
Speaker 1: North Carolina on environmental justice issues. They have a lot
Speaker 1: of big problems in North Carolina with these massive factory farms,
Speaker 1: these hog farms that have caused tremendous pollution in black
Speaker 1: communities and so forth. So you know, he's being true
Speaker 1: to what he campaign and he made environmental justice a
Speaker 1: major focus and he's following through on that. And of
Speaker 1: course with Kamala Harris at his side, I think we
Speaker 1: can be sure that we're going to be seeing even
Speaker 1: more of that kind of focus. Now we don't know
Speaker 1: the result to the Georgia elections yet, but if the
Speaker 1: Democrats don't gain control of the Senate, will Biden have
Speaker 1: to achieve most of his environmental goals through executive action. Yes,
Speaker 1: that's everybody's thinking, and I think that's true. On the
Speaker 1: other hand, you know, with this recent COVID package which
Speaker 1: Trump finally signed after dilly dallying and delaying and costing
Speaker 1: people some money, there were two pieces that the Democrats
Speaker 1: managed to slip into that bill that we're climate related,
Speaker 1: and they were important. One is a phase out of
Speaker 1: what we call these super pollutants hfc's. These are refrigerants
Speaker 1: primarily and fire fighting chemicals, and there are a combination
Speaker 1: of what we call ozone deplets. They're the kinds of
Speaker 1: chemicals that break down the ozone layer that protects us
Speaker 1: the multi violent radiation. But they're also very potent global
Speaker 1: warming pollutants and thousands of times in fact, more potent
Speaker 1: than c O two. And so that was amazing that
Speaker 1: they have now committed the United States under what's called
Speaker 1: the key Gali amendment to the Montreal Protocol to phasing
Speaker 1: out these very dangerous hfc's and replacing them over a
Speaker 1: fairly quick period of time. So that's the big deal
Speaker 1: in terms of climate. And then in addition, an extension
Speaker 1: of a lot of the renewable energy tax incentive, the
Speaker 1: production tax credit for example for solar, that was also included.
Speaker 1: So the point is, I think Biden is going to
Speaker 1: look for those kinds of opportunities with Congress not trying
Speaker 1: to pass a big cap and trade bill, which Obama
Speaker 1: tried to do, probably not enough votes for that, but
Speaker 1: using these big money bills, budget bills, defense bills, you know,
Speaker 1: these what they call must path bills, using those as
Speaker 1: vehicles to negotiate improvements energy and transportation systems and so forth.
Speaker 1: I think we might be optimistic and thinking that Biden
Speaker 1: is going to be able to score some fairly significant victories.
Speaker 1: Not as much as we need. Everybody knows that we
Speaker 1: need a lot more than we're willing to do right
Speaker 1: now for climate, but I think he's going to be
Speaker 1: able to get some legislative victories. But mostly what he's
Speaker 1: going to be doing, certainly for the first two years,
Speaker 1: is repairing the damage that Trump has done and reversing
Speaker 1: the rollbacks as they're called that Trump put in place.
Speaker 1: Could the new conservative majority on the Supreme Court make
Speaker 1: it more difficult for Buying to institute some of his
Speaker 1: environmental goals. Yes. In short, yeah, we all have to
Speaker 1: take account now of the fact that the six to
Speaker 1: three conservative majority on the Supreme Court is the most
Speaker 1: conservative court that we've seen, certainly in my lifetime. And
Speaker 1: it's a court now where Chief Justice Roberts is no
Speaker 1: longer the swing vote. You don't need his vote in
Speaker 1: order to reach a very conservative outcome. When it comes
Speaker 1: to environmental cases, the issues are going to be you know,
Speaker 1: how far can the Biden administration go in interpreting our
Speaker 1: existing laws, like the Clean Air Act, in ways to
Speaker 1: aggressively pursue carbon at greenhouse gas pollution. That is going
Speaker 1: to be a real challenge. Again, We're probably not going
Speaker 1: to be able to go as far as the Obama
Speaker 1: administration wanted to go in using its Clean Air Act authority,
Speaker 1: at least as regards to things like power plants, which
Speaker 1: are integral to the way states produced their electricity, brought
Speaker 1: their economies, and so trying to use federal laws and
Speaker 1: regulations to control that vast electricity system in the country
Speaker 1: is difficult, and the conservative Supreme Court is going to
Speaker 1: be skeptical of e p A's power to really sort
Speaker 1: of reorganize the way electricity is produced and distributed across
Speaker 1: the country. But where it comes to things like fuel
Speaker 1: economy standards for mobile sources for cars primarily, but also
Speaker 1: you know, light trucks and other vehicles, passenger vehicles, you know,
Speaker 1: that's traditionally a federal responsibility because you don't want to
Speaker 1: have the fifty states deciding individually what kinds of fuel
Speaker 1: economy standards to have. The industry wouldn't be able to
Speaker 1: cope with a situation where you had fifty different standards, right,
Speaker 1: So there's a situation where having a single uniform national
Speaker 1: standard for fuel economy does make some sense, even I
Speaker 1: think to some conservative justices. So what that means is
Speaker 1: Biden is going to have picked targets and he's going
Speaker 1: to have to decide which kinds of measures can he
Speaker 1: take to address climate in particular, but other things as
Speaker 1: well that have the best chance of convincing a conservative
Speaker 1: court that his administration is not acting outside the bounds
Speaker 1: of the laws and the authority that they've been given
Speaker 1: from Congress. The big thing that the conservative justices are
Speaker 1: skeptical about is the growth of the administrative state, you know,
Speaker 1: having these quote unelected bureaucrats making up laws as they
Speaker 1: go or overreaching the authorities that they've been given. So
Speaker 1: the conservative justices are going to sort of police the
Speaker 1: boundaries of administrative authority very rigorously and with sort of
Speaker 1: a strict construction as kind of approach to things. So
Speaker 1: Biden is just going to have to understand that and
Speaker 1: craft the rules that he adopts with that in mind,
Speaker 1: and then take his chances, because you know, you never
Speaker 1: know exactly how these cases are going to come out,
Speaker 1: because the courts are continually surprising us with decisions that
Speaker 1: the conventional wisdom has been proven wrong over and over again.
Speaker 1: So that's another aspect of using your regulatory authority wisely,
Speaker 1: but taking some chances and not knowing for sure whether
Speaker 1: what you're doing is going to pass. Muster with five
Speaker 1: votes on the Supreme Court, I don't think Biden can
Speaker 1: administer effectively by worrying that maybe he's gonna lose in
Speaker 1: the Supreme Court. He's got to take that into account
Speaker 1: and weigh the risks of that. But in the end
Speaker 1: he's going to have to take some actions and then
Speaker 1: just see how it plays out. Thanks Pat. That's Pat
Speaker 1: Parento of the Vermont Law School. As the US braces
Speaker 1: for a new wave of COVID nineteen infections, the government's
Speaker 1: top infectious disease Dr Anthony Fauci, says the country's vaccination
Speaker 1: rate is lagging. The government is managing distribution of fiser
Speaker 1: and madernash with the goal of getting twenty million doses
Speaker 1: distributed before early January. Vaccinations in the US began December
Speaker 1: fourteenths with healthcare workers, and so far only two point
Speaker 1: thirteen million doses have been administered, according to a nationwide
Speaker 1: tally from the Centers for Disease Control and Prevention. But
Speaker 1: even if vaccines are available, there's the question of who
Speaker 1: will refuse to get them. Gallipole published last month shows
Speaker 1: that about four and ten Americans would not take a
Speaker 1: vaccine approved by the US Food and Drug Administration, suggesting
Speaker 1: the availability of shots won't guarantee that workers will take them.
Speaker 1: Joining me as Bloomberg Law reporter robert Ia Fola, who
Speaker 1: covers labor and employment law, There's been so much talk
Speaker 1: about when the vaccines will be available to different groups,
Speaker 1: but a gallop pole shows that a lot of Americans
Speaker 1: don't want to get a vaccine. Yeah, there's been a
Speaker 1: shift that you can see in the public calling from
Speaker 1: the all to the point that we're at now where
Speaker 1: the vaccine is being made available to the healthcare workers
Speaker 1: first before they start being made available to other workers.
Speaker 1: There was pretty pronounced resistance that was reflected in polls
Speaker 1: again in the fall. But you're seeing that UM reduced
Speaker 1: as time goes on. But there is still UM some
Speaker 1: resistance to me in the population as reflected in the polls.
Speaker 1: So can employers require their workers to get vaccinated as
Speaker 1: a general matter? The answers. Yet, Um, there's nothing particularly
Speaker 1: new about workplace mandates for vaccines. Let's say in the
Speaker 1: healthcare industry. Um, you know, some hospitals will require workers
Speaker 1: to get bactated against things like influenza, UH, meatles, months, rebella,
Speaker 1: these sort of things. Um. The situation is slightly different
Speaker 1: here with the COVID nineteen vaccine UM, in part because
Speaker 1: of how it was approved. The FDA used its Emergency
Speaker 1: Use Authorization UM authority to approve this in an expedited
Speaker 1: fashion um, which creates some uh complications that employment lawyers
Speaker 1: are pretty divided on whether it would give workers the
Speaker 1: right to refuse or not. Just for a second, turning
Speaker 1: to that emergency use authorization in that it states that
Speaker 1: recipients have a right to refuse the vaccine, the law
Speaker 1: is not very clear. The statute um that covers this
Speaker 1: is not very clear, and this is a an untested
Speaker 1: area in courts. UM. This is a unique situation here
Speaker 1: we have UM with a vaccine UM that is been
Speaker 1: authorized this way. The sources I've spoken to are not
Speaker 1: aware of another situation like this UM. The rules around this,
Speaker 1: the FDA indicates that individuals need to be notified they
Speaker 1: have an option to refuse. Whether that creates a statutory
Speaker 1: right to refuse that would sort of countermand in employer's
Speaker 1: right to mandate the vaccine is very unclear UM. But
Speaker 1: if we do see widespread mandate, it's something that's very
Speaker 1: likely to be tested in court. Some of the people
Speaker 1: that you've spoken to say that the best thing is
Speaker 1: not for employers to mandate a vaccination, but to encourage
Speaker 1: a vaccination in different ways. That's correct, That's correct. Even
Speaker 1: setting aside this sort of unclear legal issue about the
Speaker 1: emergency use off there is an action. UM. There are
Speaker 1: other legal issues and simply part practical issues when it
Speaker 1: comes to UM creating a rule that says, hey, you
Speaker 1: have to get vaccinated or you lose your job. Um.
Speaker 1: There are other exceptions when it comes to vaccines. Generally, UM,
Speaker 1: exceptions need to be made for people who have health problems.
Speaker 1: UM you know that if they're, for example, have compromised
Speaker 1: immune systems and their doctors saying they shouldn't take a vaccine.
Speaker 1: There's also uh some legal issues around religious objections to
Speaker 1: taking vaccines. UM. And again there's some practical implications that
Speaker 1: come with this sort of thing. You may have a
Speaker 1: workforce where um, you know, you have workers that are
Speaker 1: very valuable and that are difficult to replace. And if
Speaker 1: you have a rule that says you have to take
Speaker 1: the vaccine, uh, than an employer might be spaced with
Speaker 1: the situation where that act let go workers. They really
Speaker 1: don't want to let go of. UM. So you take
Speaker 1: all these things into consideration, you add into it's the
Speaker 1: complication of the emergency use authorization and uh yeah, that
Speaker 1: leads to attorneys to Council employers to suggest that encouraging
Speaker 1: and facilitating us in the vaccine is uh just overall
Speaker 1: the better ideas than mandating it. So even an at
Speaker 1: will employment situations, can workers raise specific objections to getting
Speaker 1: the vaccine, that's correct. The Americans with Disabilities Act provides
Speaker 1: the right to seek a health related exception, and Title
Speaker 1: seven of the Civil Rights Act, which Title seven covers
Speaker 1: workplace discrimination, including discrimination based on religion, that provides for
Speaker 1: the opportunity for people to seek a religious exception to
Speaker 1: affect the mandate. And it's notable that the way that
Speaker 1: the Equal Employment Opportunity Commission defines religion, it's not exclusively
Speaker 1: belief enough God or membership and established church. The way
Speaker 1: they define it is firmly and sincerely held moral or
Speaker 1: ethical belief. So again that can extend beyond traditional religions.
Speaker 1: So let's say a worker raises an objection to getting vaccinated.
Speaker 1: What does an employer have to do at that point?
Speaker 1: So at that point they need to consider the objection
Speaker 1: and they may need to provide an accommodation. But employers
Speaker 1: do have um some very friendly UM case laws from
Speaker 1: the U. S. Supreme Court that basically, if they can
Speaker 1: show that it would be an undue bird to allow
Speaker 1: a worker out of a vaccine mandate, then they can
Speaker 1: refuse that objection and the way to the screen court
Speaker 1: case law defines. It's a very low bar what's called
Speaker 1: in legal circles that dominimus standards, you know, so it's
Speaker 1: basically anything more than a trifling burden, uh, that can
Speaker 1: be considered an undue burden. So you have a lot
Speaker 1: of businesses, let's say, restaurants and stores, where there's interaction
Speaker 1: of the employees with the public. Are legal experts saying
Speaker 1: that that would be enough to raise an undue burden?
Speaker 1: These are going to be very case by case situation,
Speaker 1: very sack specific situation. It's hard to say exactly. There
Speaker 1: may be a situation in which, UM, the worker can
Speaker 1: be shifted to another position, uh, you know, back in
Speaker 1: the stockroom or something where they're not going to have
Speaker 1: that UM interaction with the public, and that could be
Speaker 1: a sort of a reasonable accommodation UM to the employer
Speaker 1: requirement to take a vaccine. UM. In another situation, it
Speaker 1: may be that the only job that that worker can do,
Speaker 1: it's going to be in the public, in contact of
Speaker 1: the public. And um that to give an exception, that
Speaker 1: would be an undue bird. So, like I said, it's
Speaker 1: always going to be a very case by case and
Speaker 1: very fact specific. Does it depend on the state that
Speaker 1: you're in. Is this a state law question or is
Speaker 1: this federal law question? Show The authority for business, a
Speaker 1: private business to impose something like a vaccine mandate flows
Speaker 1: primarily from what's known as the at will employment doctrine UH,
Speaker 1: and that is what's in effect in every state except
Speaker 1: for Montana. And that basically says that an employment relationship
Speaker 1: is presumed to be at will, which means an employer
Speaker 1: can fire a worker for any legal reason. So it
Speaker 1: can't be uh because you know they're of a certain
Speaker 1: racial group or a certain religion. You can't discriminate against somebody.
Speaker 1: That's that's not okay under the at will employment doctrine.
Speaker 1: But under the at will employment doctrine, you can impose
Speaker 1: a workplace rule and if a worker violates that rule,
Speaker 1: as long as you're enforcing that rule in a nondiscriminatory fashion,
Speaker 1: it can be fired for that. So in this instance,
Speaker 1: if Hope employer requires workers to take a vaccine and
Speaker 1: they won't do it, then again, generally speaking, they would
Speaker 1: have the authority to fire that work. So are legal
Speaker 1: experts expecting lawsuits over this? I mean, are they already
Speaker 1: gearing up for that. Yeah, I've spoken to folks who
Speaker 1: do expect some of these questions to be tested in court. Um.
Speaker 1: The soope of how many lawsuits are filed UM will
Speaker 1: have a lot to do with how many employers end
Speaker 1: up actually UM imposing vaccine mandates. It's unclear to me
Speaker 1: at this point how popular these are going to be.
Speaker 1: There's a few corporations, UM, they's been through those reports.
Speaker 1: For example, Chipotle has said that they're not going to
Speaker 1: impose a workplace vaccine mandates if they end up being
Speaker 1: If there ends up being a lot of these UH mandates,
Speaker 1: then there will be you know, a fair amount of litigation.
Speaker 1: If they mandates end up being a pretty rare thing, UM,
Speaker 1: then there just won't be the opportunity for that many
Speaker 1: terminations to be challenged in court. So one of the
Speaker 1: lawyers you spoke to said, the laws aren't prepared to
Speaker 1: give complete legal advice on this matter. What what did
Speaker 1: he mean? Yes, So at this point, um, as I said,
Speaker 1: the law is very unclear. Uh, it's a very novel situation. UM,
Speaker 1: have pandemic to have a vaccine that's been authorized using
Speaker 1: the FDA's emergency Use authorization process. UM. The laws themselves
Speaker 1: are not exactly the model of clarity how they're written. UM,
Speaker 1: so we probably won't get answers until these questions get litigated.
Speaker 1: Another complication is because this is a largely a matter
Speaker 1: of state law about how each state will evaluate if
Speaker 1: that will employment doctrine, and what they think about the
Speaker 1: emergency use authorization whether that creates a statutory right to refuse.
Speaker 1: That could be different in different states. Courts in California
Speaker 1: could look at the question and say one thing. Courts
Speaker 1: in Mississippi could look at the question and say the opposite.
Speaker 1: This seems to be a unique situation where you have
Speaker 1: vaccines that are desperately needed by the whole population of
Speaker 1: the country, and yet the FDA allowing them under this
Speaker 1: emergency use authorization. I think that's right. UM. The folks
Speaker 1: that I spoke with, we're not aware of another situation
Speaker 1: in which the day approved vaccine on this basis and
Speaker 1: then that vaccine is being in wide circulation. It does
Speaker 1: warrant mentioning that flu vaccines are a little bit different.
Speaker 1: Are often a little bit different each year because there's
Speaker 1: different strains of the flu going around. Um, to my knowledge,
Speaker 1: those flu vaccines are not being approved on the emergency
Speaker 1: use authorization basis, so it is a different legal question.
Speaker 1: Thanks for being on the Bloomberg Law Show. That's Robert Diafola,
Speaker 1: Bloomberg Law reporter covering labor and employment law. And that's
Speaker 1: it for this edition of the Bloomberg Law Show. I'm
Speaker 1: June Grasso. Thanks so much for listening. Please tune into
Speaker 1: the Bloomberg Law Show every week now. Attend them Eastern
Speaker 1: right here on Bloomberg Radio.