Episode 103:  Omicron’s Assault with Bob Robenalt

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This is The WealthAbility® Show with Tom Wheelwright. Way more money, way less taxes.

Tom Wheelwright:

Welcome to The WealthAbility Show. Where we’re always discovering how to make way more money and pay way less taxes. Hi, this is Tom Wheelwright, your host, founder, and CEO of WealthAbility. So Omicron is in the news every minute of every day right now. And we’re also worried about it. It’s contagious. It’s not as strong as the Delta or previous variants that appears to. Percentage wise isn’t causing as many people to go into the hospital, but at the same time, what is really causing is a lot of people not being able to come to work. And so to today, what we’re going to discover, we have my good friend, Bob Robenalt on the call with us today. Because what we’re going to discover is, what are we going to do not just now when we’ve got this big surge going on, but what are we going to do in the long term?

                Because we have a lot of issues going on. We’ve got the virus, but we also have the great resignation. We have the great migration to the middle of the country, away from the big cities and people who want to just work remotely, basically forever. So how do we deal with all this? And then on top of that, we have vaccine mandates that we’re dealing with. I have people in my office that are absolute anti-vaxxers. I have other people who won’t come into the office because they’re so pro-vaccine and not everybody’s vaccinated. And I have a small office. I only have 15 people in my office. So I can imagine if you’ve got 50, 100, 200 employees, just how much more difficult it is when you’re talking about that scale. A little easier deal with when you’re small like us and we can work remotely anyway, but how do you deal with all this? Bob, I’ll let you introduce yourself, but Bob is an attorney who specializes in this area. And so it’s just great to have you back on the show, Bob.

Bob Robenalt:

Great. Yeah. I appreciate you having me. Always good to be here, Tom. At any rate I’m Bob. I’ve been practicing for over 30 years here in Ohio. I’m based in Columbus, Ohio, but I’m with a firm that’s got a nationwide scope Fisher Phillips. We do labor and employment law. So we have everything soup to nuts labor and employment. This COVID-19 pandemic has really drawn a lot of our resources. And we’ve got a very good resource page that’s out there that I think our group does a very good job of keeping up the speed on the issues that are affecting employers throughout the country, with respect to this, including the current issues, some of the issues we’re talking about here in terms of return to work issues and what employers need to be aware of with respect to the vaccine, the mandates and all of that stuff. So again, I appreciate you having me on here and I look forward to talking to you.

Tom Wheelwright:

Thanks Bob. So let’s start with the current issues. We have two big current issues. We have the Omicron variant, which is putting a lot of people down. My stepson is down right now with Omicron and he’s been vaccinated, boosted, everything. Doesn’t seem to matter. You’re going to get it. And so you’ve got that issue going on. Plus, we’ve got this whole thing with Supreme Court and the vaccine mandates, and you’ve got different vaccine mandates. So let’s start with the current, and then we’ll go to the long term about how do we solve this long term? So starting with just… Let’s start with Omicron. All right. So how are you advising people, your employers to deal with this Omicron variant, as far as whether people come to work or don’t come to work? Doesn’t seem to matter whether you’re vaccinated or not. You’re still going to be a spreader, you’re still going to get it.

Bob Robenalt:

That’s right. And it is a situation where Omicron has changed the game much like the Delta variant did, in a different way. The good news about this Omicron variant, and I think the studies aren’t conclusive, but they’re pretty good that this variant does not cause the types of severe illness that we were seeing with Delta. So you have less hospitalizations and less deaths, obviously. I don’t know. I think they have very few deaths that have been associated with Omicron. Part of that is I think this variant’s a little milder, but I also think part of it is the fact that we do have a… You mentioned your son was vaccinated and boosted. And I think the evidence is also on that and that there is a strong protection that these vaccines provide for purposes of limiting the problems associated with the virus.

                We know it doesn’t prevent the virus and again, I have two in my family who have breakthrough cases, have had breakthrough cases in the past year. But it is a situation where right now what you’ve got to deal with, with Omicron is the disruption of your workplace. Because there is isolation that is required when someone tests positive. We have so many people testing positive. I’m giving you example of a case. We have a client that is complying with the OSHA vaccine mandate, or test provisions. And they chose to go testing because they had a very strong group of Anti-vaxxers within their company. So mandate was not going to work for them. What they did do with respect to the testing. They started into that process, in that protocol. In the first group of testing, I had six people come up and it turned out those six people were all in the same department and it would essentially have shut that department down to isolate all of those individuals.

                We went through that list and determined that there were things that they could do to deal with that. One of them we talked about here is isolation. Unfortunately, these jobs three or four of them were jobs that could not work in isolation. They had to be within a group. But the regulations do provide that if an individual is isolated and they can still, or they’re able to work with respect to their illness and with respect to the virus. That they can do that in isolation. And they are able to work and they don’t have to… Again, they are isolated, so they don’t have to fall under that provision of the guidance that says that you have to be removed from the workforce.

                If they can go to the workplace setting in an isolated setting, much like I think you and I are today. We would not be affected if we had the virus and we wouldn’t have to stay at home. I come to work, but I can work in isolation here. So we dealt with it that way, but the other ones had to stay at home. And the isolation standard is one that is recently changed. And I know there may be subsequent changes, but again, at the time we’re talking, the standard had gone from 10 days isolation down to the five. So that five day rule I think, has really helped people deal with this process. And again, in this case, one of the pieces of advice I gave to this employer was, if you’re going to do this testing, do it in the middle of the week, so that you have weekend days that are going to cover some of that five day period of isolation.

                So there’re things that employers can do to deal with Omicron and with this virus. And again, two factors would be one, you can still isolate and allow people to continue to work. And fortunately, this virus seems to be one that doesn’t put people down, that they can still continue to work while even though they have contracted the virus. And two, to the extent you do have to isolate, you may also take into account how you time out your testing. When someone comes in and tells you they’ve tested positive, try and work through that process as best you can, in terms of keeping them productive.

Tom Wheelwright:

You have the other obvious issue, which is you don’t want them infecting your other employees. Because you don’t want your other employees going down. To me, if you look at this from a very practical standpoint, everything pretty much solves itself. Because if you take purely the practical approach. I want my employees productive, I want them working and I want them happy and I want them comfortable. Okay. So on one hand, you’ve got a large portion of population, third of the population easily that is against vaccination, does not want to be vaccinated. So you got that group. Then you got another third that they don’t want to be around anybody who’s not vaccinated. And then you got the middle group, they just want to protect themselves. They don’t really care whether you’re vaccinated or not.

                As long as you don’t give me the virus, right. That would be the group I’m in. So the question is how do you deal from a practical standpoint with these really very different views? And it’s interesting because we think of the people are most conservative with the regard the virus we call them progressives. Right. Which I find ironic. How do you deal with those different really thought processes? Because these are very serious for people. They’re very stressful for people. I have a stepdaughter that she’s extraordinarily conservative. She won’t let her kids play with other kids that aren’t vaccinated. She’s very, very conservative about that. And I respect that. Okay.

                I have a partner and other people that they don’t want to get vaccinated. They’re not interested. They’re in the Novak Djokovic [inaudible 00:09:56].

Bob Robenalt:

That’s right.

Tom Wheelwright:

Look, I’m a healthy person. And I don’t really feel like I want to get vaccinated. And so what do you do from a practical standpoint as an employer to really just keep people healthy and happy and reduce the stress?

Bob Robenalt:

And again, this varies state by state. But in terms of the federal goverment and most large corporations are pro-vaccine. They want to get as many people vaccinated as possible. And they see that as a benefit to society that we get a large percentage vaccinated. And I think we’re up to 70% in that very state by state. So in some of the more rural states, you have legislatures that have enacted laws that are pro anti-vax for lack of a better word. That they are pushing back on this vaccination and making it clear that employers do not have to mandate. And employees cannot be discriminated against in Montana, for example, based on their vaccine status.

                So there are pushbacks going on there, but by and large, if you’re an employer, you have to be aware of the fact that there are these federal mandates out there that are in the background. And you also have OSHA that is going to continue to look at this from a safety perspective and believe that the mandates are the right way to go. And the higher percentage of workforce is vaccinated, the better we are as a society and the safer you are as an employer. And so-

Tom Wheelwright:

Right. Now take the employers, which is a large portion of the population, which are under a 100 employees and they’re not federal contractors and they don’t have a vaccine mandate. Okay. And they’re looking at it from a very practical standpoint of, is this even my… Some of them look at it like, is this even my business whether you’re vaccinated or not? As long as you can do the work, and as long as you’re comfortable doing the work and we can make everybody else comfortable. So what do you say to that group?

Bob Robenalt:

Well, I think that group needs to be aware that this is a case by case basis, where they need to take steps to protect their employees in these cases and provide protection. If they are not going to mandate the vaccine, and there’s a lot of small employers that just can’t go down that road for a lot of those reasons we talked about. They’ll lose their workforce.

Tom Wheelwright:

Right.

Bob Robenalt:

Or a percentage of the workforce.

Tom Wheelwright:

[crosstalk 00:12:16] it’s a tight labor market right now.

Bob Robenalt:

That’s right. So what do you do in that situation? Well, you make sure, I think that you have protocols in place. Because you want to protect the workers. Again, I think you did a good job of breaking down the dichotomy here. You’ve got a group that’s does not want to get the vaccine, doesn’t see the benefit of it. And then you’ve got a group that says, “I don’t want to be around people that are not vaccinated.” So you’ve got those two sets of workers. I think it’s prudent for employers to take steps to protect their workforce by continuing with appropriate masking protocols, distancing protocols. And again, getting to the point that you talked about earlier, isolation. Remote work is isolation. If you can provide remote work, that is a very attractive option here, because it eliminates that issue of having coworkers working together that may have differing opinions on this vaccine.

                So that certainly is one strong way to do it, if you’re able to do that with respect to that job. But if you’ve got a mechanic shop and you’re dealing with the mechanics that are working in that shop, who have differing opinions. You take steps. I think the employers, if they’re not going to mandate the vaccine or require vaccines, they can certainly encourage the vaccines. There’s nothing saying that they can’t do that. But if they’re not going to require it, they should take steps to provide appropriate protocols.

Tom Wheelwright:

Let me ask you a question. There’d been a lot of cases where people have quit their jobs because they didn’t want to be forced to get vaccinated. Right. Even the healthcare workers, which I’m not quite sure I understand that one. But it’s serious. I was driving by my local hospital here and there was a bunch of picketers out there protesting the vaccine mandate. And these were presumably healthcare workers. So you’ve got that. Have you seen any of similar issues with mask mandates? In other words, have you seen anybody saying, I’m not going to go to work because they forced me to wear a mask?

Bob Robenalt:

We do have some, and that’s, I think a small percentage of people that are in that boat.

Tom Wheelwright:

You don’t see that as a big risk for employers that they’re going to lose substantial amounts of employees if they require their employees to wear masks.

Bob Robenalt:

I don’t see that as a big risk. I think, again, it’s going to depend on the employer and it’s going to depend on their particular workforce. But we don’t see that as a huge issue in terms of the employers we face. Having said that, I think our firm does a lot of work with larger employers. And I think those employers don’t have those issues by and large and feel pretty comfortable about requiring masks in their workplace.

Tom Wheelwright:

Yeah. It just seems to me, Bob, that’s maybe a nice middle ground. Frankly, masking is a middle ground now where you can say, “Well, look, okay, that’s fine. We’re not going to require vaccine mandates. We’re not even going to require testing. We’re not required to. But we’re going to require that you come and you wear a mask and not just any mask. We’re going to provide the type of mask that you’re allowed to wear.” We know that there are a lot of masks that don’t work. The neck gaiters and things like that, don’t do you any good. And even they’re saying even the surgical mask are not real strong against this Omicron variant. But we can provide that. Right. And that’s not a very expensive solution. It seems like that’s a pretty good middle ground solution for those companies. Don’t you think?

Bob Robenalt:

I think that is. And again, I want to make sure we’re clear, we’re talking about employers who are not going to be under one of these mandates that would require some other protocol.

Tom Wheelwright:

Of course.

Bob Robenalt:

But to me, I think that with respect to those employers masking, social distancing or distancing, I don’t like that word social distancing, but making some space requirements there so that you limit the transmission is I think the appropriate way to go in those circumstances. And then adopting the appropriate protocols for purposes of people reporting symptoms and not coming to work, if they do feel like they have symptoms.

Tom Wheelwright:

Right, right, right.

Bob Robenalt:

Or in some case, even if they test. We know that people who are asymptomatic often test for these problems, and they may not even know they have the variant. But if they do test for it and they have to report that to you and you have to take appropriate steps to isolate them. Because again, even though they may not have symptoms, they can spread it to someone who does have symptoms.

Tom Wheelwright:

Right.

Bob Robenalt:

I think too, one of the arguments that an employer can make in terms of this process too, when they have reluctant workers, is we need to consider this from not the perspective of you who think you have individual rights and you’re healthy. We need to think about this from the perspective of our other coworkers, who you may not know has some underlying condition that makes them vulnerable. So I think that’s a reasonable thing for employers to do and to require. And there are a number of states which are going to require mask mandates as we go through this process. And as we get different levels of infection in the society. So we’re not over with this yet. So I think that people need to continue with those protocols. I think that’s a smart thing for employers to do.

Tom Wheelwright:

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                We’re not over with this yet. Seems pretty clear to me that we’re never going to be over with this. Okay. So COVID is here to stay. Just like the flu’s here to stay. It seems to be getting less powerful. The Omicron seems to be more like the flu, the unlike the Delta, which was very serious. But this seems to be more like flu and it seems like that’s what the scientists believe is going to happen is it’s going to get more endemic and less pandemic. So let’s talk about the long term here, because one of the things that I think we’re going to have to come to grips with is this is here to stay. So does that mean that we’re going to require masking for the rest of our lives? Does that mean we’re going to require testing?

                The reality is if you’re going to test for Omicron, you ought be testing for flu too. You ought be testing for streptococcus. You ought be testing for a common cold, frankly, because you’re talking about transmitting a disease that will keep you out of the office. So when you look at it from that standpoint, where do you think this goes?

Bob Robenalt:

Well, I think two things. One is, we’re getting into an area where it’s hard for me to speculate as a legally trained person. I hate to jump into an arena that I’m not well versed in, but I would suggest that in the employment setting, we are going to have to come to grips with the fact that what you’re saying is true. That this is something that’s going to be with us for some time. And we’re going to have protocols that are going to be based on public health mandates down on the road for foreseeable future. Where do I see that going with respect to in what employers should do in this case?

                And I think an employer should be adopting appropriate protocols to keep their workforce safe and healthy. Which includes trying to limit transmission of viruses and other diseases, whether it’s Omicron or like you’re saying the flu virus. So the starting point would be, I think employers regardless of this pandemic, this may have raised the stakes for this, but they should always keep that in mind. That one of the policies they should clearly adopt is if you’re sick, stay home.

Tom Wheelwright:

Right.

Bob Robenalt:

Don’t come in and infect other people.

Tom Wheelwright:

I totally agree. In fact, I almost wonder if at some point it’s not going to change employment practices when it comes to pay time off. My first full-time job was with Ernst & Young, the large accounting firm. And I asked, I said, “What’s the sick leave policy?” And my HR is a partner who’s in charge of HR. And he said, “Here’s the rule. If you’re sick, stay home. If you’re not, come to work.” And that’s it. That was the policy. There was no set number of days, sick days, et cetera. Which in that environment worked fine because people were going to come to work. This wasn’t a place where people were going to fake being sick. That wasn’t going to happen because they were more concerned about keeping their jobs. So do you see that that’s the type of things that are going to change?

                And on top of that, now we have the great resignation. We have the great migration. Are you seeing that we’re going to actually have more of this isolation where we actually do work more remotely and we set up our company so that the people who are office workers, who don’t have to be, I get the mechanics have to be there with the cars. I get that the healthcare workers have to be there with the patients. But there are millions and millions of people that are office workers and they support the rest of the economy. And those who actually create, manufacturer, et cetera. So do you see that as being something that employers just really need to pay close attention to be planning that this is the foreseeable future here?

Bob Robenalt:

I think that’s right. I think they should plan on that. And again, to me, we’re going to get to a point where we can do lessons learned. I think we’re probably still a little too early to do that, but I do think there is a definite takeaway here. In terms of this, what we’ve just gone through, most workforces that are not manufacturing or restaurants or healthcare have taken steps to have their workers be able to work remotely. So it’s no longer a situation where, oh, we’re going to send Johnny home. Now we got to set him up with… We don’t want you to come work. And if you work remotely, here’s what you need to do. Well, they know what to do. They know what to do because we’ve been through this and employers have set up those processes. And a lot of this was IT.

Tom Wheelwright:

Right.

Bob Robenalt:

We’re talking on a Zoom call. These Zoom meetings are providing some way for remote work to happen. So we have got that. I think in the future, that’s going to be the future that we see taking hold. And I think, again, it is going to beg the question. Employers are going to say, “If I’ve been able to do this remotely, why do I need to come back to work?” And that’s going to be a fight that’s going to happen. You have some… This is probably beyond the scope of this podcast, but that is a fight that I think is going to take place and there are some really strong advocates that believe, I think one of the big banks has pushed for this. And that is, I want people back into the office because I want to know what they’re doing.

                And I think they’re not as productive when they’re remote. And you have others who are taking just the opposite position that, Hey, look, my workforce is going to continue being remote in the future because it works. So that’s one lesson. The other lesson I would suggest we have getting back to your point is that as viruses and other health issues become predominant in a community. That community and those employers now should take proactive steps to protect their employees through masking and through some of the other techniques we’ve learned through this pandemic. And I think, again, those things are going to continue on. Even if you’re right, and this is an endemic, and this is not going to be nothing more than a flu. The lost time associated with spreading of a virus is something that employers should continue to be mindful of.

Tom Wheelwright:

It’s not just that. I think it goes beyond that. I think you really made the point is, is that we need to keep our employees safe. This isn’t just about the business, right? We want our employees to be healthy. I look at this and I’m going, “I’m not a high risk. I’m not a particularly high risk person here, but I honestly just don’t want to get sick.” I’ve been healthy without any kind of virus for two years. I love it. This is a really good thing to me. So I really am actually taking a lot of precautions, not just because I am married to somebody who is at risk, but because I don’t want to get sick.

Bob Robenalt:

Yeah.

Tom Wheelwright:

And I don’t want my employees to get sick and to be uncomfortable and be unhealthy. I think this has actually raised the consciousness of employers that this is really about taking care of our people as much as anything. And actually, and also of being aware of they do have different views. Some are very concerned and some are not concerned and some are very much about protecting themselves and others about protecting others. There’s just a lot that has come up here. I actually think it’s very good to have the discussion as long as we can have the discussion, as long as we can be open to what it comes right down to is how do we take care of our employees and our customers and our business? Bob, remind us again, your website, because I think it has a tremendous amount of information and such a great resource and we really appreciate you having this website.

Bob Robenalt:

Yeah, no, it’s great. www.fisherphillips F-I-S-H-E-R P-H-I-L-L-I-P-S.com. And again, if you type Fisher Phillips in Google, you’ll come up with some good background. We’ve got a vaccine or a COVID-19 landing page and a vaccine landing page as well.

Tom Wheelwright:

Awesome.

Bob Robenalt:

So if anybody needs any background and certainly they can feel free to reach out to me at rrobenalt@fisherphillips.com. If they have any follow up questions that they might want to have me address, or have someone in our firm address. Again, we’re a nationwide firm, so we’ve got offices in, I think, 35 communities throughout the country.

Tom Wheelwright:

And we have Zoom. So there you go.

Bob Robenalt:

[inaudible 00:27:48].

Tom Wheelwright:

And in any case, thank you so much, Bob, for joining us today. Thank you everybody for joining us. This is not just an emerging issue, this is a long term issue. And just remember that when we focus on keeping our employees happy and healthy, our customers happy and healthy. Really what it does is it actually serves us as the business owner, serves us as the investor. And we’re always going to end up with way more money and way less tax. Thanks everyone. We’ll see you next time.

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