ASHLEY: Welcome to Outgrowth: A Slice of Pro Beauty with your hosts Ashley Gregory Hackett.
JAIME: And Jaime Schrabeck. Emerging for what we hope will be the last of the coronavirus pandemic, what rights do we have to either require proof of vaccination or masks in a salon environment? And how should we respond when clients ask about our status as service providers?
ASHLEY: We welcome back attorney Amy Toepper to review the latest legal implications for salons of all sizes. Let’s grow together.
JAIME: Welcome back to Outgrowth, Amy.
AMY: Thank you so much. Thanks so much for having me back. I’m happy to be here.
JAIME: Amy, it’s been months since we spoke, but in that time, the pandemic has taken a turn for the better. And as we’re coming through this and the regulations are changing around how we operate, what are you finding is happening with the businesses that you engage with?
AMY: I think a couple things. The main thing is lots of questions and maybe a little bit of confusion. I think what complicates the matters is that everybody’s operating in a different state whose governors have different levels of mandates. And I think that’s been the hardest for people, you know. I’m, I’m in this state and my governor just said, it’s okay to wear no masks. I’d still feel comfortable having people come into my store with masks. What is it that I can do? And so that really is probably one of the top questions that I have, along with, can I make employees get vaccinated if they’re coming back into work? What does that look like? Do I have to give special accommodations for people who aren’t vaccinated, and given your industry, everyone has to get back to work, right? And there’s, there’s no remote services that work. So it’s a, an important question for your industry.
ASHLEY: Well, you have touched on so many of the topics that we hope to cover today. I’m really thrilled to be able to run these questions past you because there’s just a lot of misinformation out there about what we can as beauty professionals and salon owners do and not do in order to proceed. So since we don’t really have a universal database or a secure proof of vaccination other than potentially some cards, how should we as business owners proceed with resuming our operations?
AMY: Let’s talk about the employees that are coming back onto the property, back into the salons, back working with the individuals. Employers can require proof of vaccination and if that’s just the card that you had filled out at Walgreens or CVS for now that’s okay. So employers can ask for that information and require people coming back to be vaccinated. The second piece of that is if they’re requiring people to come back, and be vaccinated, and want to provide an incentive to do that, recently the EEOC said that is okay to do so long as that incentive is not coercive. As in, I’ll give you this $50 Amazon gift card, but if you don’t take it, you will lose your job. You know, that, that kind of thing. But I think what complicates, so, so we can ask those questions. We hope that most people are getting vaccinated or will get vaccinated, but I think the large gray area lies in those people that come back and say, I haven’t been vaccinated. I don’t want to be vaccinated. Then what do we do? That’s really the hardest issue. And so here’s where employment discrimination laws kick in. If someone comes and says, I don’t believe in it. Politically, I think it’s nonsense. I don’t think COVID was anything more than, uh, you know, farce, then that’s not enough reason. That’s not enough reason for the employer to say, well, okay. I believe you. You don’t have to get vaccinated. The flip side of this if someone comes back and says, I’m not vaccinated because my religion doesn’t believe in that. So for a sincerely held religious belief, or I have a condition that my doctor says I can not get vaccinated right now due to an immune deficiency or something like that, then that triggers an ADA Americans with disabilities review. So it’s really this narrow area of discrimination where if people come back and say, this is the reason why I’m not getting vaccinated, then what the employer’s required to do is sort of engage in this interface as to, okay, what are we going to do now? What, what should we do now? Let’s have that discussion.
JAIME: Amy, what you just said, prompts so many follow-up questions. I know we’re anxious to get to them. One of mine would be that’s applicable when you have an employer/employee relationship. What about individuals who are booth renters coming back to a salon? What does the owner do in that situation?
AMY: That’s a little more difficult because that person is working individually. However, given the fact that the independent contractor/booth renter still may be working among other people, let’s say in a group setting in a salon with lots of chairs that are being rented out. I still think it’s important to have that same conversation as if that person were an employee because the third law that gets triggered here is OSHA. And having anyone come onto your property as a business owner, whether it be an employee, whether it be a contractor, or whether it be a vendor or a visitor, you have the obligation to provide a safe working environment, okay? So again, the employer/employee relationship isn’t there, but as the individual booth renter, I think we still have to engage in those conversations as to are you vaccinated? If not, can I do anything to incentivize? And if you’re refusing to let’s have another conversation revolved around religious issues, disability issues, but then also OSHA issues. You want to provide a safe environment for your clients coming in and if that requires more mask use, face shields, then that’s the type of interface that we have to start having.
ASHLEY: You mentioned OSHA, which is something that we’re paying close attention to. In your work in this area with your clients, have you found where the federal agencies like CDC or OSHA stand on this issue, especially as it relates to coming back to work?
AMY: So as it relates to coming back to work, just as if you are owning a grocery store and there’s a big spill on aisle 7, OSHA requires certain standards to be put in place, clean up and, and, you know, put out cones, and that sort of thing. So the same general requirements are triggered here as well. And that means that the employer is under the obligation in a COVID-related setting to have these conversations with both employees or independent contractors. Provide, put in policies in place as to how they’re dealing with it. Document everyone who’s coming on who’s saying they may not have a vaccine, or they don’t believe in a vaccine. And then on a case by case scenario, determine what level of risk that unvaccinated person might present to other people in your work environment. So in other words, what OSHA is saying is employer slash business owner, you have rights because you have an obligation to provide a safe working environment and just like a big spill on aisle 7 that can pose a slip and fall risk, this risk is, likewise, as tangible.
JAIME: OSHA is one of those agencies that I think a number of individuals in our industry really have no connection to because they would say, we’re all independent in this business. No one’s in an employee relationship so we don’t really have to pay any attention to what OSHA says.
AMY: Yeah, and I think a lot of people just, when they think of OSHA, they think of construction sites, building, people who are, are using equipment, people who are using heavy machinery, but it applies in every situation where you’re bringing people into a public commercial space. And you as, as the employer, as the property owner, as the manager of the landlord, you have a duty to keep that space safe. And so that’s why we are seeing the, you know, six feet apart in stores, and the stickers on the floors, and face covering requirements depending on the state that you are in, including protecting the employees who work there.
ASHLEY: One of the largest obstacles or one of the points that’s brought up I think most frequently when this conversation is happening online or between lay people is a statement like, well, you can’t ask me my vaccine status because HIPAA exists, and I have a right to privacy, and you can’t ask my medical information. Now, the three of us here know that that’s a misapplication of HIPAA laws, but what would be a good response when someone starts saying the word HIPAA when they clearly don’t have a great understanding of how that law works?
AMY: Yeah, so HIPAA is the Health Insurance Portability Act. That’s what it stands for and what HIPAA really covers is three main topics. It covers privacy of protected health information, security of that protected health information, and then if there’s a breach, what you tell people that, you know, you’ve been trying to protect their health information and what happens there. So what it requires employers to do, or hospitals, anyone to do, is to take your private health information, keep it safe, not have it be openly accessible to everyone in the organization, maintained in separate files other than a personnel file, and secured in such a way that it’s a reasonable person would say in your industry this is secured. So don’t, don’t leave out a bunch of files or papers on the desk. Keep it as secure as possible. What HIPAA does not say is you can’t ask people their vaccination status. That is not what HIPAA requires. So the EEOC just recently stated that not only can employers order their employees to receive a shot, provided they comply with the ADA, religious exemptions, and the other laws we’re talking about, but they can also ask for proof of vaccination. And as long as that information is kept private and secure, and there is no breach, HIPAA is not violated. And so what I try to tell people is that it’s a sort of scale, you know. On one end of the scale, you have the protection of your health information, right? And that if it’s not widely known and people should have asked about it because you can be discriminated about it. And on the other side of it, you have this kind of the seesaw, of protect, other protectable interests. So it’s, it’s sort of this seesaw of, of course, we want to protect your health information, but what other obligations, what other risks might outweigh or make that teeter-totter flip in the other direction. And the ability for people to ask about vaccines to provide a safe working environment tilts that seesaw in the other direction. So it’s this balance of keeping things private, of course, but being okay to ask the questions.
JAIME: So, so far we’ve been discussing primarily the relationship between the salon owner and individuals who work in the salon. What about that relationship with clients, those who are coming into the salon to receive services?
AMY: As far as whether or not you require them to use a mask or show proof of vaccine, do you mean?
AMY: Yeah. So the mask issue, this is the advice that I give. Number one, take a look at what the individual mandates are in your state, and how they’ve changed, and what exactly the language means. I’m in Illinois, for example, and no masks are okay outside and for most places indoors with the exception of public transportation. That’s sort of the general rule. But if there is a situation in a salon where it’s an extremely enclosed space, someone doesn’t feel comfortable without a mask, requires the employee or chair renter to wear a mask, that’s okay. And I think that’s a matter of good business practice and a good customer experience. The flip side is a customer comes in and says, nope, I’m not wearing a mask and I haven’t been vaccinated. Then what you do? Then that I think is an individual assessment as to the person, you know, the employee or the independent contractor who’s doing the services to say, what’s my risk assessment here? And am I at risk for someone who doesn’t wear a mask and isn’t vaccinated. Am I okay cause I’ve been vaccinated? Should I wear a mask or can I simply refuse service to this individual? And as of right now, there is no law against refusing service to an individual who refuses to wear a mask, regardless of what your state mandates right now, depending on where you are. So it’s a tricky situation. There’s not a fast and hard line answer. It’s a little bit up in the air. It’s a very gray space even in, you know, large, big box stores now what you’re seeing is not instead of face masks required, you’re seeing face masks and encouraged. And so if we get into those situations where it’s a one-off, I think that individual just has to assess the risk and if they feel like they really cannot give service to that individual who’s not vaccinated and is not wearing a mask, there is nothing right now in the law that says that that is illegal to do.
ASHLEY: I’ve seen some of the videos as I’m sure you have that have been circulating where a private business has said, you need to wear a mask. I just was in Michigan this past weekend, stopped at several Starbucks along the way, and each one was requiring in three different states that you wear a mask regardless of status and it was posted on the door. But I’ve seen as well that the, the common retort is this is discrimination. You’re discriminating against me because I have not been vaccinated and there is no law that says I have to wear a mask. We’d love to arm our listeners with a couple quick phrases that they could use or something they could cite to say, actually, because you’re in our private business, we have the ability to require these things.
AMY: Yeah, absolutely. Because it’s a private business in this instance, you can require the person to wear a mask coming into your private business. And when people say this is discrimination, it’s simply not. It just is not a valid claim for discrimination. Discrimination occurs when you treat customers, employees, vendors, anyone else differently due to what they call immutable characteristics, characteristics about that individual that cannot be changed. So we’re talking about gender. We’re talking about race. We’re talking about national origin. We’re talking about disability. In some states, we’re talking about military service and marital status. So these are all grounds on which it is illegal to discriminate. Not wearing a mask is not a protected category, and you can refuse service to someone who is not wearing a mask if that is what you require in your business.
JAIME: Don’t give any governors ideas, Amy. I mean, as we’ve seen in certain states governors banning vaccine passports, or any sort of official proof of vaccination status, which would go a long way in proving through some third-party, government operated application that you did, in fact, have a vaccination that was valid, as opposed to as we see these paper cards.
AMY: You hear a lot of people talking about that even for international travel. If you’re looking to go to Europe, the paper card you got from Walgreens is not going to do it. There has to be some other kind of formatted proof of vaccination. So we’re still in the infancy of trying to figure out what works and what’s going to work. And it’s sort of taken the world by storm and different people have dealt with it successfully, and some people unsuccessfully. And it’s, unfortunately, there is certainly a big part of it that’s become politicized. I would just say to business owners that are listening is that if you prefer to have people wear masks, regardless of your state mandate, on your private property, you still can require that. And are quite frankly almost obligated to if there are people within your facility that might be immunocompromised, that might be older, that might be very young infants or babies. I know in a salon setting that probably doesn’t apply too much, but I would say 97% of the time, people are being compliant and understanding, but it is 3% of the time that is where the challenges come. What I would also say is certainly don’t have a wrestling match with anyone. All these crazy videos that we’ve seen where people being pulled out of stores, people throwing things. If push comes to shove, don’t engage in that kind of behavior. Don’t get yourself hurt. Don’t get yourself in trouble. You can always call the police to have them work it out. You do not have to give service to someone who’s not wearing a mask if based on your individual circumstances, you believe a mask is necessary. Salons are close spaces too, and someone is right on top of you or over you cutting your hair, blow drying, or nails. So it’s a particularly unique situation here. This is different than going to a big box store. Most of the spaces your listeners are working within are small.
JAIME: For full disclosure, Amy, you and I worked together on a waiver that I’ve been using for my salon so I’ve been able to avoid those uncomfortable conversations around what’s required when you come visit my business, because I’ve directed anyone new or returning to the salon since last June, actually, to complete this waiver. Do you feel that waivers are still necessary perhaps in a revised format to reinforce what it is that you’re still requiring as we make this transition?
AMY: I don’t think it’s a bad idea for one major reason, not necessarily that you’re going to have litigation over this waiver. And we’re going to go to court and a judge is going to decide whether or not it’s entirely enforceable. What I think it does is that it has the effect of putting people on notice that this is where you stand with your business. And I would guess that for, like I said, 97% of people, that would put their mind at ease as to how you’re managing the risk, that the risk is identified, that there is a set of procedures and policies in place as to how we manage that risk for you, the customer. And I can’t imagine that a customer would sort of balk at that as being ridiculous. So I think the waivers work in the sense that it, it lets your client know that you care. You’re aware of it and that you’re taking steps to protect them.
ASHLEY: All right. So let’s flip the coin a little bit here and there are some beauty service providers, of course, just because we reflect the general population, that are resistant to the idea of getting a vaccine themselves. When the client asks us as the provider what our vaccine status is, what is our burden of having to provide that information or not?
AMY: Nobody has an obligation to say anything, right? So when the tables are turned, and someone comes into you, and a customer is asking that question, nobody can force you to disclose anything. And then even if you disclose something that says, yes, I’ve got a vaccine. Can that person ask to take out your vaccination card? No. So now the burden’s on the customer to decide, well, if you’re not vaccinated, or I don’t think you’re vaccinated, or you don’t believe in being vaccinated, I have a choice to go somewhere else. And it’s then that becomes the customer’s decision as to whether or not, based on their circumstance, if they should take their business elsewhere.
ASHLEY: I think that makes total sense to put it back on the customer. And I don’t anticipate those conversations happening very frequently, but I do think they will and I think maybe we should just prepare ourselves for that conversation so we’re not taken aback when it does happen. But that’s really good to know that we don’t have to disclose anything if we don’t want to.
AMY: No, you certainly don’t have to and if that makes the customer feel uncomfortable, then they can certainly go to service somewhere else.
JAIME: So what I’m hearing is be prepared to lose business either way.
AMY: Yes, but maybe that’s okay business to lose.
JAIME: Well, I definitely agree with that.
AMY: Yeah. Yeah. I mean, if, unfortunately, there is this gray area that people are dealing with and it has become unfortunately politicized a bit where people have sort of, some people on the fringes, have sort of dug their heels in as to what’s right and what’s not right, and what should be done and what shouldn’t be done. Even in my own extended family, there are people with a wide range and variety of risk tolerance, you know, so people who have been vaccinated, have no underlying health conditions, but are, are still very scared to go anywhere without a mask. And so I think most importantly is that you have to give people a lot of grace and a lot of freedom to get on board with stopping wearing masks because it took us forever to get on board with wearing masks in the first place. And realize that it’s going to be a very slow process to turn the ship around and to deal with it on an individual basis knowing what your rights are and the rights are is you don’t have to tell anybody anything. You can have people sign waivers. You can tell them everyone in this salon has been vaccinated if you want, and people are okay with that, and you can turn away service as well. So the legal obligations that you have are just not to discriminate against anyone based on immutable characteristics, and COVID is not one of them, but you do have an obligation to provide a safe environment.
JAIME: Amy, as individuals may be finding new places to work, have you seen any booth rental contracts, independent contractor arrangements, where these kinds of issues are being written out?
AMY: Yeah, I’ve seen a few sort of COVID addendums to a variety of different fields that sort of outline here’s what we require. Here’s what we require of you. Hiring people that can show us and demonstrate that they’ve had a vaccine absent any other conditions or they’re not able to, disability or religious reasons. So yeah, we are seeing that extra protection in contracts that just list out what the employer wants from the employee.
JAIME: And that would be different, as you mentioned previously, you can ask about vaccination status during an interview, but otherwise, during an employment interview, there are questions that you would not be able to ask.
AMY: Right. So, I mean, you know, COVID vaccinations would be the end of it. I mean that would be the end of any kind of question that you can ask, unless there was, and this lives in a different type of business, but if there was a weight lifting requirement, or you have to be able to say, can you lift over 40 pounds, that sort of thing. And those are the types of physical assessment questions that have to be directly related to the job. In this industry, that’s probably not the case. One thing I did want to say is that if you wind up asking that question and then the conversation turns into, well, I’m Christian Scientist, and we don’t believe in that, and so therefore I am not vaccinated. Then now that triggers, well, what’s the interface that we have to go through now for religious accommodations. And is there a religious accommodation that’s reasonable in my particular work setting where someone says, my physician told me to wait for the vaccine because I’m currently on chemotherapy and it essentially wouldn’t be effective. And I don’t know if that’s true, that’s just kind of a scenario that I’m making up. Then now what we trigger is a possible disability conversation, and so to have this conversation and then it’s okay to ask additional questions about it. Keep those questions private. That now becomes personal health information that just needs to be kept in a different place with need to know access to people in the company or that can look at it, and not not everyone should have access to that.
ASHLEY: Well, that’s the question and I was going to ask you because, so you covered it for me. Thank you. It was when you, when you referred to sincerely held religious beliefs, and I was wondering how that would be investigated because it’s a situation as a supervisor I’ve run into just with when people can work based on when sunset is and things like that. And that was something, obviously, that was above my pay grade, but if I’m the business owner, is that something the EEOC gets involved in or? Only because I’m kicking this can down the road and I’m foreseeing people who are staunchly anti-vax who are going to cause a problem, whether that be someone who comes in as a booth renter, or as an employee, and now will claim this religious exemption. I obviously want to default to believing someone when they say this is my sincerely held religious belief and therefore I cannot. But if you know, they’ve converted to Christian Science yesterday, I don’t really know what kind of recourse I would have as a business owner in that situation or who I would consult. My guess is I would have to call you.
AMY: It would definitely be best at that point to consult an attorney because now we’ve gone into protected areas of the law. And interestingly about religious discrimination is the US Supreme Court says that as long as that individual has a sincerely held belief that their religion is what they live by and what they believe in, we cannot question or comment on that at all. So it doesn’t matter whether or not they’re a Christian Scientist, or Jewish, or I had a case once as a young associate, where someone claimed the Church of Rastafarianism when he got into an accident at work and was high. So we cannot question the underlying religious beliefs. That’s what the US Supreme Court says. If that person believes in it, then we cannot say what one religion is valid and another is not, right? So then we have to go into analysis of the balance, sort of the scale, teeter-totter analysis. Okay. You’re, you have a right to have your religious beliefs and practice them freely. However, in my work setting, are there ways that I can accommodate you and not have it be an undue hardship on me? So in the case where someone needs to leave before sunset for religious purposes, yeah, is in your business, is it okay if that person leaves at 3:30 or 4:00 PM in the winter time? Or, you know, whatever way before the sun sets and if yes, then that’s an accommodation that does not cause an undue hardship on the employer, and therefore that person should be accommodated accordingly. In the case of COVID, it’s against my, you know, religious belief to get vaccinated. The same assessment has to be done. Is there a reasonable accommodation I can give this person based on their religious belief that would still protect and not cause an undue hardship for my business? And that’s really where I think you should talk to an attorney or your HR professional is what that interface looks like. And I, quite frankly, I’m, I think that’s a hard, a hard thing to accommodate because in your industry, you are working around people all the time of all ages. And we have to kind of make that decision whether or not that would be an undue hardship for someone coming on with, with religious beliefs who didn’t believe in vaccines. Cause I, I don’t think we’ve got to a point of herd immunity yet, right? And maybe six months down the road, or nine months down the road, we can say, okay, 80% of the people are vaccinated. It’s not a risk anymore, but it’s still a risk. You know, It’s still a risk.
JAIME: Herd immunity is something to look forward to and six months from now, I would hope that we would have done what was necessary. And I think the fact that you’re using the phrase reasonable is something that I’d like to reinforce in that we just need to communicate with each other and with our clients, and make sure that everyone feels comfortable, and is being reasonable about this.
AMY: Yeah, and I know that’s sometimes kind of a tall order for some people, especially with the way that this topic has kind of been addressed, and in the news and everybody’s constitutional scholar and knows all their rights about stuff all of a sudden. But you have to be reasonable, and deal with it on a case by case basis. How best do we mitigate the risk? And we mitigate the risk by having policies in place that tell people at the outset how we operate as a business. And if there’s a situation where someone’s claiming something that could possibly trigger discrimination laws, then let’s have a policy and procedures in place as to how we deal with that. Let’s have a meeting. Let’s write it down. Let’s interface with the person. Let’s have them provide us, as the employer, we’re not in a position to have to come up with reasonable accommodations on our own. The individual employee or applicant is required to say, here’s what I think we can do. And here’s how I think it could work. And then it’s the employer’s job to say, okay, does this work for me? Is this going to cause an undue hardship? Well, if you have someone who’s not vaccinated, and refuses to wear a mask, and is working with 65 plus clients, I would say I would not want that person working in my salon. That would be an undue hardship because she is posing a risk to my clients.
ASHLEY: I love how you’ve laid this out because it’s very easy to follow. It’s very concise. And I hope that our listeners are taking away from this something that they can apply to their businesses and their conversations with other beauty professionals. Amy, if someone wanted to consult you about any of these topics, how can they get in touch with you?
AMY: Absolutely. You can find me all over social media and message me through there. AMT law group.com is my website. You can contact me there, or through Facebook, or through the email listed on the website and I’d be happy to have a conversation with you as to best practices for, for your business.
ASHLEY: Perfect. Well, we will link that in the show notes of course, and make sure that we can connect you with anybody who needs some great legal advice very easily.
AMY: Thank you.
JAIME: Thank you, Amy, for the excellent summation and your examples are spot on because I truly believe that you understand how our business functions.
AMY: Absolutely. Yeah, it’s a, it’s a very unique setting. It is, like I said, it’s, it’s a no way work from home type of job where that accommodation is available to you. But if there’s any message that I want to send to the listeners, it really is to try not too much to get mired into what the law is, and I don’t know the details of the law, and take a step back and say, what’s reasonable here. And if I get to a point where I don’t know what I should do, then just give me a call. But at best write everything down, have a policy because that’s, that’s your best defense and hope that, you know, you never have to deal with it quite frankly.
ASHLEY: Ah, love that. Excellent. Well, thanks again, Amy, for your time. We really appreciate it. If you are looking to get in touch with Amy, of course, we have all that information in the show notes and I’m looking forward to further conversation on this.
JAIME: Thank you, Amy.
ASHLEY: Well, Jaime, another fabulous episode with the great expertise of Amy Toepper.
JAIME: I appreciate that we were able to connect with her last year and we just find more and more reasons to have her back.
ASHLEY: And it’s always such great information. I really appreciate her time, of course, and encourage anyone with any legal questions to head over to AMT Law Group or Legal In A Box. If you are enjoying Outgrowth, please feel free to let us know by leaving a review on Apple podcasts. You can do that now with just one click. Visit bit.ly/outgrowthpodcast.
JAIME: As always, you can follow us and comment on Instagram at @outgrowthpodcast.
ASHLEY: Excellent. Well until next week, everybody, be smart.
JAIME: Be safe.