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Brian Lehrer: It's the Brian Lehrer show on WNYC. Good morning, again everyone. Here we are at this next transitional moment in the COVID-19 pandemic. In this country right now, it's a hopeful, but very weird moment in a way. On a global level, a New York Times headline puts it this way this morning, "As US optimism grows, other countries have worst outbreaks yet." There's the global awareness, the global inconsistency in that and we have one eye over our shoulders in this country to watch the variants that could yet become major factors here.

They'll probably not until after the summer, if it were to happen at all, but on a domestic level, we're in this weird transitional moment. Even if we ignore the rest of the world, we've been in it for weeks now ever since the CDC guidelines came out, that said vaccinated people can go maskless indoors. Here's another New York Times headline from today, "Many workers feel vulnerable against unvaccinated customers, now that employers have begun withdrawing mask policies."

One in The Guardian this week, "Backlash expected as hundreds of US colleges introduce vaccine mandates." One from the sports pages, "If the Knicks make the second round of the playoffs, they will only admit vaccinated fans to Madison Square Garden." Sorry, fellow Knicks fans. They are probably not making their second round of the playoffs, but the vaccine policy for, if they do is still big news. Vaccinated fans only at the garden.

If you were listening to the end of yesterday show, you heard our call-in for people who did indoor things in public places during the rainy holiday weekend, and we learned how all over the map masking policies and masking choices are right now. Also proof of vaccinations in stores and arcades, jammed with kids at the Jersey Shore. There are mostly no rules and no way to tell who's who, here's one of our callers from yesterday.

Caller: Yes, I was down at the Jersey Shore [unintelligible 00:02:17], and it was quite an eye-opening experience. We had to go to a food store and then we had to go to Target initially. We both put on our masks and it was like a switch was flipped, and people weren't wearing masks. Eventually, we just stopped wearing masks.

Brian Lehrer: One of our callers from yesterday, emblematic of many. Let's take this part head-on. When can a business require masks or vaccines for employees or customers, and when should they? This is not about government mandates, this is about the choices that private employers can make when their workers and customers are involved. Joining us for this conversation is Dorit Reiss, Law Professor at the University of California Hastings Law School, and an expert on vaccination law. Professor Reiss, thanks for getting up early, California time for this. Welcome back to WNYC.

Dorit Reiss: Thanks for having me.

Brian Lehrer: Let's start with the basic, can employers make proof of vaccinations mandatory for employees or customers?

Dorit Reiss: Yes, with some caveats. Employers can set workplace rules, including health and safety rules. In this case, there's two potential pitfalls and two exceptions they may have to give. The two pitfalls are first, that these vaccines are still under an emergency use authorization, and there's legal uncertainty on whether you can mandate the vaccine under any way. It's a new area.

The other pitfall is that some states are considering laws that prohibit employers from requiring vaccines, and those laws would be valid, would limit the ability of employers to do that. Even if employers can mandate vaccines, they may have to give exceptions to people with medical problems, or sincere religious objection to vaccines.

Brian Lehrer: Yes, the state-by-state variance is interesting. I gave that example of the New York Knicks. If they make the round two of the playoffs, they will sell Madison Square Garden to its 19,000-seat capacity, but only to fans showing proof of being vaccinated. That of course is in New York State, but in Florida, they actually passed a law prohibiting private businesses from requiring customers to show vaccine cards for entry, didn't they?

Dorit Reiss: They did.

Brian Lehrer: This is state-by-state and it's political, not just based on public health. For you as a law professor, are both extremes constitutional or legally permissible?

Dorit Reiss: Yes, they're both constitutional and legally permissible. The first one has a precedent. We do have precedent of business requiring vaccines, less of business requiring vaccines from customers, but certainly from employees. The second one is a little strange in two ways.

First, while we do regulate business, we usually regulate them to increase safety, not to tell them, “You can't make your workplace safer.” Second, because interestingly, we have a Republican legislator and governor supporting a law that limits the rights of business.

Brian Lehrer: Right, it is weird in that respect too. Moving from vaccines to masks, can employers make masks mandatory for employees or customers? Is that legal in every state?

Dorit Reiss: There are, I think one or two states that have acted to prohibit employers from doing that. Oklahoma has passed the law that limits the ability of employers to require a mask. There are some states that limit it. Without a state limit, yes, employers can require a mask, and they can require a mask from customers with the same caveat. They may have to give medical exceptions to people who can't wear masks. It's under the same heading of the rule of no shirts, no shoes, no service. You can say, “no mask, no service”.

Brian Lehrer: I always say that coverage of this focus is too much on what customers are required to do, and not enough on the workers. Like the “no smoking” law in New York City restaurants wasn't passed to protect customers from themselves so they could go somewhere else, it was passed to protect workers from 8-hour shifts of other people's smoke. I'm glad to see this New York Times article today about how it's a nightmare for many workers in stores and other public indoor places, as their employers make mask-wearing optional. Is there any law that puts pressure on employers to protect their workers with vaccine or mask mandates for customers?

Dorit Reiss: Yes and no. The first part is at least ethically, employers are supposed to provide a safe workplace, and there is some regulation of that. OSHA, for example, could act to put in place some requirements about masks, but they have so far chosen not to. When I said yes, the legal protection is that, if there's a COVID outbreak on the workplace, and then a worker contracts COVID on the workplace, that's a work-related injury and they may be eligible for workers' compensation. The employer may face liability for not taking enough precaution to protect the employees.

Brian Lehrer: What about liability? If an employer has a laxed masking policy for customers, and an employee gets COVID from a customer, is the employer liable, or is there a tort law experience on this yet?

Dorit Reiss: Workers' compensation limits ability of workers to go to the tort system for problems in the workplace, which means that if you get COVID in the workplace, you do have compensation, but it usually won't be through the tort system unless you fit into a number of exceptions, such as intentional conduct or knowing violation of the law and there's a number of other exceptions.

Brian Lehrer: Listeners, we want your phone calls on this, help us report this story. If you own a business, where the public meets your employees indoors face-to-face, what's your masking policy now and what's your proof of vaccination policy, if any? 646-435-7280, and how did you decide on what your masking or proof of vaccination policy is for your place of business? 646-435-7280. We're talking now just about places, where customers from the public meet you or your employees. 646-435-7280. If you are an employee, you're welcome to call too.

If you work at a place where you meet the public face-to-face indoors, what choices are you making for yourself? What choices is your employer allowing you to make? What's the policy for the public at your place of business, and how's that working out? 646-435-7280, for University of California Law Professor, Dorit Reiss who's an expert on all of this. Professor Reiss, do you know of cases where employers are forbidding their workers from wearing masks? A friend of mine at the shore this weekend described, I think it was an ice cream place where my friend was surprised to see the young employees dishing scoops unmasked, and wondered, “Did the boss require that unmasking because they didn't think masks are a good luck?” but we don't know. Can an employer do that?

Dorit Reiss: I've heard of one of two places. Yes, unless OSHA steps in and they pass a standard that requires masks related to COVID in the workplace, an employer can decide to set that rule. Employers actually have quite a bit of leeway to regulate the workplace, and it doesn't necessarily have to be rational. If the employer wants everybody to come in with a red nose, that can be a work rule. You can put in rules that are a bad idea, again, the price might be liability, if something happens.

Brian Lehrer: Let's take a phone call. Josh in Washington Heights you're on WNYC. Hi, Josh.

Josh: Hi, good morning to you both. I had measles when I was a kid. No one is preventing me from going into a daycare center, because I haven't had a measles vaccine since. The analogy is, I probably had a very, very serious case of COVID a year-and-a-half ago. I have twice been shown to have antibodies, and my immunity has lasted longer than that of people who had vaccines more recently.

Why will I be barred from going to a Broadway show or going to a sporting event, because I can't show that I've been vaccinated since I have not taken a vaccination, which has not been demonstrated to be safe and effective for those who have previous antibodies, and also have a serious underlying condition? It doesn't make no sense to me. It seems very discriminatory.

Brian Lehrer: I don't think you stated the science correctly about being shown not safe and effective for people who've previously had COVID, but if you have a certain underlying condition that would really counter-indicate a vaccine, then you would be an exception in almost all of these cases, but why shouldn't you have to be-- Go ahead.

Josh: It has not been studied as to whether, or not this is safe and effective for people who have antibodies. You [inaudible 00:12:57] science behind that. Now, I could be specific as to what my underlying condition is, it is not one that necessarily is going to be recognized, but I'm facing, in the next month the need for a heart transplant-

Brian Lehrer: I'm sorry, Josh.

Josh: -because what happened to me a year ago was a case of COVID, which knocked me on my butt for a solid week and then six months later, perhaps related, perhaps unrelated, my heart went kablooey.

Brian Lehrer: Josh, I'm so sorry for what you have to go through and have been going through, and we really appreciate your call. Professor Reiss, it does raise for you as a law professor legal questions.

Dorit Reiss: It does.

Brian Lehrer: What about somebody in a situation like that, who doesn't want to risk a vaccination that's his personal choice? It doesn't sound like he's some ideological anti-vaxxer, he's in an extreme circumstance.

Dorit Reiss: It does. First of all, I want to echo your point that it's an extremely hard situation and I'm sorry he went through it. A couple of things. He correctly pointed out that for measles, we do acknowledge having the disease is conferring immunity. I think at some point when we have more data, we may get to a situation where having the disease would be a substitute for vaccination in these cases.

The problem right now, and the reason the CDC still recommend that people who got the disease be vaccinated, is that we're still early in the pandemic. It feels like forever, but it's only been a year and we're still learning the effect of the disease compared to the effect of the vaccine. We don't know whether the disease confers as long-lasting immunity as a vaccine, although data has been growing on that.

The concern is that his immunity may not be as strong. Now, as you point out, he has a medical condition and it may well be as you're saying that he would be in the category of people, who would qualify for a medical exemption from all these laws. That said, the question is, there's going to be cases that are tricky and on the line, and the question is, “How do the law handle them?”

There's two ways to do that. One is to say, “Until we know more, we're going to give the people in unusual situations the benefit of the doubt, and give them an exemption until we figure it out.” The other is to say, “We can sympathize, but we're also concerned about the risk to others, and therefore we won't give that.” I can see places going both ways.

Brian Lehrer: Thank you for that answer. Nora, a small business owner in Melville, you're on WNYC. Hi, Nora.

Nora: Oh, thank you so much, Brian. I was wondering if the Professor might give us some insight as to her interpretation of the New York Heroes Act. As a private business owner, we have a small office, all our staff has been working remotely. We're looking to bring them back in, but it's from my understanding of the Heroes Act, we are waiting on guidance from the Department of Labor to issue guidance per industry, as to what the safety precautions could be.

It's also important because it's also my understanding that the Heroes Act gives employees a private right-of-action to sue employers beyond what they would be able to be entitled to under workers' comp. In the absence of guidance, which I understand we're waiting for on June 4th, many law periodicals are just saying, “Just take the most precautious route,” as in if you were to have shields, fully masking as in from the beginning of COVID.

Brian Lehrer: Nora, thank you. I realize, Professor Reiss that you're a law professor in the California State University system, so you may or may not know about this New York State particular act, but it does set standards which are yet to be announced and directed as the caller correctly says. It directed the State Health Department and Labor Department to come up with specific workplace standards to protect employees from COVID going forward, and those standards are soon to be announced. If you can answer her question directly, that's great. If not, is this a model that states around the country are setting up, and are there standards going forward that are becoming common?

Dorit Reiss: A number of things. First of all, it's clear that Nora has done extensive research on this and looked pretty much everywhere. I don't have much to add to what she's already found, which is in the absence of authoritative standards, the recommendation of doing more rather than doing less is probably a safer one, but it does have costs. I don't really have much to add to what she's already found out.

As to whether this is a model, it's certainly a way to encourage self-regulation, encourage action that will reduce disease. I don't know of a lot of states that are going that way, but employers considering how to make the workplace are certainly thinking about that and may independently adopt some of these measures.

Brian Lehrer: Here's David who owns a liquor store in Brooklyn. David, you're on WNYC. Thank you so much for calling in.

David: Good morning, Brian. Thank you for taking my call. I'm not the owner, I am one of the buyers here. Our employees, we are all vaccinated. We are not trying to beat people up to come into the store, our signage is “mask appreciated”. In this section of the south slope, maybe 98% of the people that come in the store are wearing their masks, and all of the employees are wearing their masks.

Brian Lehrer: For that other few percent who aren't, you just figure, “Well, safe enough because most people are, or--,” Why is it optional?

David: We have made the decision with the open-mask policy that has happened in New York, that we're not going to beat people up. We appreciate everybody wearing a mask, and so far, I have to say the vast majority have been very respectful of that.

Brian Lehrer: David, give me an impression, just an impression by you of people who are coming into the store. Because given the CDC guidelines now, if we see unmasked people, maybe we're supposed to assume they're vaccinated so they're safe to be around, because that's who's supposed to be allowed to go around indoors in public unmasked now.

I'll be honest, I tend to assume the opposite. When I see unmasked people in public indoor places, I assume those are the people who shrug off the idea of getting vaccinated, and who would tend to be the same people who shrug off the courtesy of wearing masks in public indoor places, while I assume the ones wearing masks are the more cautious ones who actually got their shots. My instinct is to think the CDC unleashed exactly the opposite effect of what they were aiming for. Do you think I'm being too cynical about this based on your observations in your store?

David: Well, also based on my lifestyle, I'm wearing my mask even though I have been vaccinated. I'm in the same position you are with that.

Brian Lehrer: David, thank you for your call. We really appreciate it. Professor Reiss, we just got 30 seconds left in the segment for anything you want to say, maybe about my cynical assumption or anything else.

Dorit Reiss: I wanted to say two things after hearing you and David discuss this. A, notice that David is highlighting the fact that behavior isn't always dependent on mandates. People may mask or vaccinate regardless of what the requirements are. B, I agree with you that the CDC's guidance may have been scientifically sound, but wasn't very good public communication or public policy in that it created a lot of doubt for many of us, and many businesses and a state that may have faced pressure to relax mask requirements before they were ready.

Brian Lehrer: Dorit Reiss, Professor of Law at the University of California at Hastings. Thank you so much for joining us again.

Dorit Reiss: Thank you.

Brian Lehrer: Brian Lehrer on WNYC, more to come.

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