 Good afternoon everybody and thank you for joining us again today for another condo insider this week. Today we're going to talk about COVID vaccines and with condos and their employees, even their visitors like their contractors that are coming onto site. So I have with me are our guest, John Knork with Turquoise and Heather Ting, Katz and Harris and Knork. Did I get it right? No, no. Okay. He is a labor law attorney and he's very familiar with Hawaii's condo law. So some of the topics we're going to talk about is so so now that the state of Hawaii and the city and county have mandated their employees to also be vaccinated. So can condo association employees can the boards also mandate that their employees be vaccinated and so how would they implement that policy and the procedures to get that done. Yes, condo associations like any employer in Hawaii have the right to have their employees vaccinated as a condition of continued employment. Both the EEOC and the United States Justice Department have said employers can terminate employees who refuse to be vaccinated. An employee who would refuse to be vaccinated for a non religious or non medical reason would probably be denied unemployment benefits as well. The two exceptions that you have have to do with our discrimination laws. Employers have an obligation to reasonably accommodate limitations imposed by a disability and to accommodate religious practices. So if somebody has an impaired immune system that their doctor tells them would not predispose them to taking the vaccine and they shouldn't do it. Then you would have to make accommodations for that individual to reduce the risk of threat to other people sufficient that they could continue working. There wasn't a way of accommodating that person in their job duties to reduce that threat of harm to others sufficient to avoid the threat of spreading the germs. Then you could put them on a leave of absence or they may be terminated if there's no other position they could perform that job with religion with religion it's a different standard. Disability law requires employers to make an accommodation unless it creates a substantial burden in terms of operations or expense. For religion the accommodation obligation is only minimal. Any kind of a burden or expense that's more than de minimis is an undue burden and would not have to be accommodated. One of the issues a lot of employers are facing now is what do we do if people don't want to be vaccinated? Can we test them? We just have them tested every week and yeah you can do that but the science shows that testing is nowhere near as effective as a vaccine. Weekly testing only catches you on the day you're tested. The next day you could acquire the virus and pass it on to coworkers. So it's really not as effective as a means and in addition to that, unlike the city and county in the state of Hawaii, Hawaii employers are subject to a law called the payment of wages statute. The payment of wages statute prohibits employers from charging employees any part of a test that's requested or required by the employer. So while the city and county in the state can make employees pay for their weekly testing, private businesses cannot. So a condo association that might opt for testing, weekly testing in lieu of vaccination is going to incur the cost of paying for that test, including the time it takes the employee to go and get tested which is required under our wage and hour laws. So testing is not necessarily a good accommodation because it's not as effective and it could get fairly expensive and that might be an undue burden. So I think businesses including kind of mini associations have a reason not to use testing as an option, at least not in the long term. So and I also, if I remember right, Hawaii is an at will state, right? So how does that come into play when it comes to this situation? It's important to understand that at will is only a contractual concept. All at will means is that the employee has no contractual right to their job and they can quit at any time and you can fire them at any time. As long as it doesn't violate another law and one of the other laws that we have to apply even if you're at will are the discrimination laws. And that's what we're talking about here. Disability and religion discrimination in both of those categories require reasonable accommodation, but the burden that the employer has to carry is much less for accommodating religion than it would be for disability. Okay, so how would an association start the ball rolling to implement their or even to start a policy and then implement that procedurally? Well, there are plenty of ways to do it. We have a model policy we can provide you and you can share with the condominium associations. It basically gives the board of directors some options. And the idea is that you first of all want all new hires to be vaccinated or agree to get vaccinated within the first week of work. So that's part one. You can start with anybody that comes on board from the day you adopt the policy on that they have to be vaccinated. Then to deal with employees that are currently working, you have to figure out, well, who's vaccinated and who isn't. So one you might have to poll everybody and ask them. The information as to whether somebody is vaccinated or not is confidential medical information. An employer has to treat it as such and can't say, well, these guys are vaccinated. These guys are not. It's private employers have to keep it confidential. But once the employer knows who's who's vaccinated and not, then you can approach the people that are not vaccinated and say, we've adopted a policy. And so the board would have to adopt a policy that describes when do we expect people to get vaccinated. We know that you can get free vaccinations anytime now. And then you'll move for both the Moderna and the Pfizer vaccine, you're going to have to wait 28 days to get the second shot. So policies generally say we expect you to be fully vaccinated within 40 days. Or you could stretch it out even longer 60 days. And so that's the first thing. Do you adopt a policy? It says all employees must be fully vaccinated within the next 60 days. That's part one. Step two is if you have a medical or a religious reason not to be tested, you need to fill out this form. And there's a sample form that says I have a sincerely held religious belief that prevents me from putting any form subject in my body. And you test whether that person is being sincere or not. And there are people that have that belief system and then you try to accommodate it. And you say, well, look, you know, you're working in a condominium, you're coming across owners and other coworkers all day long. I can't imagine any way of accommodating you not being vaccinated and preventing the potential spread of a deadly virus. So I'll either put you on a leave of absence or maybe you can work the midnight shift alone or something like that. But generally, you look at whether you can accommodate somebody. And if you can't, you need to put them on a leave of absence or say you're fired. With disability, you might have to make some greater accommodations, maybe think about different way of structuring the job, double masking, who knows what it might be. But it really kind of depends. It would be pretty hard for most of the positions in a condominium association to accommodate somebody who refuses to get vaccinated. And again, as I said, I don't think weekly testing does the trick. Would weekly testing combined with daily temperature checks and other kind of steps do the job? It's going to be a case by case analysis and you'd have to work with your employment council to decide what do you do with somebody who has a disability that prevents them from being vaccinated. But okay, so getting started, you adopt a policy that says everybody has to be vaccinated, unless you have a religious or medical reason not to be. Okay, so once they get vaccinated, would they report back with their employer require a copy of their vaccination card? You can. You can. And there's two thoughts on this. One, if you require a copy of the card or to look at the card, some businesses just check off. Okay, I looked at the card. You have a card. It's a valid card and leave it at that. Some businesses like to get a photocopy of the card. If you copy the card, you also have to keep that confidential as to be kept in a separate file apart from their regular personnel file. Oh, okay. Okay. Okay. So you set up your policy, you implement your procedures, you set your time limit. So it would be out like at least 60 days from the start. What about your vendors and contractors that say you have a repair job that's ongoing? Can you mandate that they be vaccinated as well? Absolutely. You have the right to contract with whoever you want to. You could just simply say send only workmen that are fully vaccinated. Okay. So the suggestion is to contact their labor, hopefully, and I'm sure it's most likely you to start implementing, get the ball rolling to implement this policy. Yeah. And it's just really a board approval type of. Yeah, I think it's, I mean, depending upon the boards giving authority to the resident manager or the site manager, most of the time an issue like this probably should be addressed by the board. So there's consensus on what you expect. But I think a resident manager could propose to the board that we adopt a policy that requires everybody to be vaccinated, get that approved and then implement it. There are, you know, some incentives too you can offer. Some businesses will say, look, if you get vaccinated in the next 30 days, we'll give you $100 bonus. And sometimes that does it. The people that are or say, if you get vaccinated before the FDA approves of the vaccines. So we know that the FDA is going to approve these vaccines sometime in the next couple of weeks. Right, right. And so if you want to expedite things, offer employees a little incentive. Okay. So your vendor contractors you treat them as if just the same way as any employee, because they're doing work on the property. You're the customer. You're the customer. I, I, Mr. Spalling Company, I only want you to send in workers out here that have been fully vaccinated. Well, I don't know if they've been vaccinated. We'll find out. And can we require proof of vaccination? I don't think you want to ask to know which employees have been vaccinated. You want the contracting company to verify whether they're vaccinated. So that would be on them. I would say it would be on them. And if they lie to you, then you can sue them. Okay. So how can this mandate be enforced with like condos? I mean, how can the condos, you know, kind of like enforce it? Well, for employees, it's simple. You ask the evidence of the vaccination if they don't have it or don't want to get it just because they're fearful or have some idea about, you know, there's little transistors in there that are going to track them for the rest of their life. And you say, well, I'm sorry, we don't want to employ people who have crazy notions. And so you're, you're going to be let go. So you let people go that don't get vaccinated unless they have a deeply held religious view about it and a disability and you can accommodate them. So your, so the enforcement would be similar as your employment law? Absolutely. Okay, they're acting in a way that's not in the best interest of the employer and they're being insubordinate by not getting vaccinated. And with contractors, it's the same thing. You either, you either meet our standards or we'll hire somebody else that will. Right. Okay. Here's a question that came in was how do you coordinate and compare the vaccine mandate with the mask mandate? Okay, so the vaccine is the most effective way of preventing transmission. That's what we know. And, and so we know mask work, but not as well as the vaccine. So if you compare the two, you say, well, do I want to take the most effective steps to reduce the risk of transmission and getting the disease, getting the virus in my workplace? My obligation under OSHA laws to provide a safe workplace and eliminate any known hazards. Well, we know unvaccinated people are known hazard. We keep them in the workplace knowing that they're potentially spreading and allowing the virus to mutate among the population of the unvaccinated. But I don't want to have to defend that lawsuit if you don't take the steps that CDC and every federal agency and state agency and official is advocated that we take. Right. I mean, there may be exceptions due to religion and disability. There may be ways of working around not being vaccinated given a particular job. I mean, if I'm a bookkeeper and I don't have to interact with people, I might be able to work from home. I don't have to come to the workplace. And that's another point just to make it clear. You can only require the vaccine or you can only require daily, weekly testing of people if they come to the workplace. People that are not working in the workplace, you have no legitimate reason to require that they be tested or vaccinated. So you're really talking about if they come on to your property or your place of business? On site. Right. One other question was how long would the policy have to stay in effect? So you wouldn't necessarily put a like ending date, so to speak. It's just really going to be an existing policy that can just go from year to year. Right. Yeah, the reason employers can require employees to disclose or that they've been vaccinated and to disclose whether they've been in contact with someone with COVID. And all the other things that we're doing to try to control this is because the EEOC has advised that under discrimination laws, during a pandemic, it is reasonable for employers to take these steps. When the pandemic ends, whenever it ends, then these policies are not permitted. You would not be able to ask these questions or enforce a vaccine order. So it is only because employees present a direct threat to the health and safety of other employees during a pandemic. When that direct threat defense is eliminated because there's no longer a pandemic, we won't be able to do what we're talking about today. Okay. So the verbiage will be describing that during this time period and when that time period is ended, then that policy procedure will be shelled, so to speak. Yep. Right. Okay. That would be the way it would work. What would it work in a condo when there's a unit owner that has their own contractors doing work inside their own unit? Well, associations and this is, I think you'd have to talk to your condo law attorney to verify your particular rules and bylaws of your association. But I believe most associations have the right to limit contractors who they approve to have work in the building, even within your own unit. So we could say you can only use approved contractors and unless the contractor verifies that all of their employees they're sending to us are vaccinated, they're not approved. I had some people in my house and I mean, they were all wearing masks and this was even before the vaccines came out but they were really good. They were all prepared with masks. They left them on. They're talking to me with masks. I mean, I didn't even have mine on because I was in my own house, you know, but they were straight on just keeping those masks on. I think, and again, it's really a question of how safe you want to be. Each association has to make a decision. There's a broader interest here that I think boards should take into consideration. While we have an obligation first to our employees to provide a safe workplace, second to provide to all the owners a safe place to live, the broader community safety is an issue. The governments of the state, county, United States have not had the political will to pass any laws that mandate every citizen get vaccinated. If we are going to reach herd immunity, the business community, and that I think includes condo boards has to step up and say, OK, we're going to require our employees to get vaccinated. Once you inquire your employees to be vaccinated, they have to choose between holding a job or getting vaccinated. That's going to force a lot of people to make a pretty tough decision. And hopefully that will push the vaccination numbers above the threshold of herd immunity that is necessary for the community's health and safety. And just to recap, so if an employee refuses to be vaccinated and he has no exemptions, and so he's terminated. So he really will not be able to qualify for unemployment, right? We don't think so. We haven't had that case yet. But if the employer has a policy and explains to the employee that this is what you have to do, and they don't have a health or religious objection. If you're terminated because we can't reasonably accommodate you and because you have an immune disorder or a deeply held religious view about vaccinations, then you probably would get unemployment benefits. OK, OK, because you'd be terminated not because of misconduct. Whereas if you just have some notion that it's not I'm not ready to get vaccinated yet, then you're disobeying your employer's instructions acting in it, not in the interest of the employer and being in subordinate about this matter. So the Department of Health is really trying to reach out to try to get more vaccinations done. So last weekend when I was at the One Eye Bowl Harbor, I had I had helped to arrange that getting that site done. That was Queen's 103rd on site vaccination clinic. It was amazing. I mean, they're so organized. It was totally amazing. I'm going to expand it on to condos. So we have one that's going to happen later on this month. But is there any any. I know there's one person that's kind of doing a pushback on it. But is it within the rights of the condo association to do an onsite clinic and it's not like they're forcing it's it's it's going to be available to whoever wants to get done. They're not even donating the residents to get vaccinated. They're just saying, Hey, we're bringing them here to accommodate people that may not be able to drive, or, you know, it's going to be onsite rather than having to go to longs or go to the doctor or whatever. Is there anything that that is illegal or you know, I don't I don't think there's anything that prohibits it. The only thing is it comes with all the normal risks of somebody slipping and falling or getting hurt. With regard to employees any injuries to be work were compensable. I mean, there's always the potential that there's some reaction to vaccine and then employee won't be able to work for a few days. Employer right now employers have the advantage any employer of under 500 employees and take advantage of a reimbursable tax credit for any paid time off due to a reaction to the vaccine or the time that an employee takes to go get a vaccine. So if you pay an employee to go for the time they go get a vaccine you get a reimbursable tax credit for that right now. Well, it kind of serves a purpose if you have a bunch of employees that are not vaccinated you bring it onsite accommodates both employees and your residents. Yeah, you know, because you have some that are have a lot of seniors, you know, and you really don't want some elderly seniors be on the road driving. Some of them might get scared when I see them driving. Sure. And, and I believe employers and probably kind of minimum associations have been having blue shots on site for years. Yeah, right. So it's if this is to me it's no different than a flu shot every remember that the vaccinations are not the coronavirus. This you're not being injected with coronavirus we're we're being injected with this RNA kind of thing that that generates the antibodies that will attack the virus. So, let's pull up one of the PowerPoint slides and I have the pictures that of the Queens. It was at the wine I bolt Harbor, and it was awesome organized I mean they have their own little. That's a big huge pop up text. And they brought their sandbags to before the, to keep it from blowing down. You know, it was really amazing. They had tables and chairs they had their, their sanitizing wipes. All the forms are available for everybody to fill out so they're on their laptops. And then I even saw the little cooler that they use for the vaccines. That was even there. That was kind of cause looking at it go what is this they go that's the cooler for the vaccines I'm like, oh, but they had all the everything and then you know the little tent stand up sign thing that they use. They had those and even all the signage. So they come to, if they come on site to a property, they have everything that they need except for like electricity. So they might for the laptop so I'm sure they have our banks but we were at the ball for our side I'm sure they had alternative type of things. So Queens is willing to come on site. They're very well organized. They like to do a pre site visit. Just to make sure that they have everything that they need and the space is going to be be reasonable to make sure that everybody is socially distance. They were out there last weekend, Saturday and Sunday, and they did a handful of vaccinations because why not is one of the highest areas of infections. You know so we had attacked that part, but I really encourage condos to really take advantage of the Queens. And if we could pull up that one PowerPoint slide that has the Queens contact information. I'm going to keep Joe Park, PAK. He's awesome. He is really awesome. He really gets the ball rolling I mean he's like that. I mean, I was amazed. But he is the contact person for the Department of Health, and he can get the condo in connected with either Queens or with Kaiser or Hawaii Pacific Health, because all three of them are doing. Pacific Health and Queens are doing on site. I'm not really sure about Kaiser because on their website it says you have to walk into their clinics. So I'm not sure if they're willing to do on site visits but he will get everybody connected up. Certificates on liabilities are available. I know Queens has been doing it. They've been turning it around in a matter of like three days, you know getting certificates and liabilities. So it can be easily done. I was out there and I think when I was talking with Queens when I was out there. So we're talking about why people are resistant. And people go well they can just go to Longs. And I had mentioned that to somebody else he goes, I would never go to Longs to get a shot. You know, so I'm like, okay. I got my second shot at Longs. And I'm still here. I'm still okay. But you know if you're not willing to go to Longs, go to these sites. I mean I went to the one that was at the pier way back when, you know, and it was very well organized then too. I was more concerned about how long I'm going to have to walk, you know, just to get there, because I have an issue with my ankle. I'm like, oh that's going to be painful walking that distance. But I was able to get in closer closer to a parking stall. So it is so organized, you know they have people directing traffic, because they weren't they weren't really aware of how much traffic was going to be at one night but they had already pre planned to have police there to route traffic if it was necessary, you know. So, you know, I think every condo community needs to try to do make best efforts to do an onsite COVID vaccine clinic. It doesn't take that much effort at all. Because Queens brings everything tables chairs. You know, they have their bad that big van out there's kind of helps to advertise the. Yeah, I mean they bring everything. So, any last words that you want to offer to to everybody. Yeah, one more one two other categories pregnancy and unions. Pregnant females sometimes I have a hesitancy to do so and if their doctor tells them not to get vaccinated even though CDC is recommending pregnant females get vaccinated I would make accommodations for pregnant females as well. And the other thing is unions in order to implement this policy in a union workforce you'd have to negotiate with the union. So if you have a unionized operation, you're going to have to negotiate with the union over vaccinating current employees. On the other hand, you can still require new hires to be fully vaccinated without bargaining with the union. Do you have any thoughts about, because there was a question that came in about people are being very resistant because the government is kind of like requiring this strongly urging it to be done. And to the point where the state and city in Hawaii has mandated their voice. Do you have any words about that. Well, I just that all the sciences behind vaccinations as the most effective way of stopping this virus and getting back to normal. The fact that the government is supporting it is really great because the vaccines are free. Imagine if we had to pay for them. You know, one by one or separately company so we've got it made right now because the science and the government are working as one, finally to, you know, provide the vaccine and the world needs it. Until the world gets vaccinated, there's going to be the chance that variants will develop and infect us so we have to lead the world by getting fully vaccinated and going outside. I don't see any reasonable end to this the Spanish flu lasted five years. And, you know, that was influenza. This is a virus that mutates the expectation is it could be three to five years to. So if we don't get it get to herd immunity quickly with vaccinations, we're going to be facing this and the other thing people are talking about now is, Oh, now they're saying you need a booster shot. Well, we get a flu shot every year. Yeah, these don't last forever. Right. And one of the things that was originally designed was they said you get your second shot in 28 days. Well, that was to get everybody highly immunized. It's kind of like if you get a single shot, you get the single shot and then like six months later you get the second one. That's kind of what they probably should have done with this vaccine, but everybody was so anxious to roll it out quickly they did the second shot pretty quickly, and that jacked up everybody's immunity really quick. So, I think we can expect to get a booster shot every year, because there's going to be variants of this, this virus going around for the next several years, if not longer. So, this is just part of what you're going to be needing to do in this fast paced world where people travel and viruses spread like wildfire. Right. Okay, so we're at the end of our show. I really want to thank you, John. And I really want to encourage everybody out there in the condo community to arrange for an onsite vaccine clinic. It's going to be a lot more convenient to your residents and to your employees also so you don't have to have them travel somewhere to get their vaccine done. So thank you again, John. And I hope you have a really nice time on your vacation. Thank you. Thank you. Thank you everybody. Thank you everybody.