Coronavirus Update 9-28-21: White House issues Covid vaccine mandate guidance for federal contractors and subcontractors

If your business is a federal contractor or subcontractor, you have until December 8 to ensure that your employees are fully vaccinated against Covid-19, according to guidance published late Friday by the White House's Safer Federal Workforce Task Force. There is no testing-in-lieu option available for these employees.

What exactly does this guidance mandate?

Coronavirus Update 9-27-21: Repeat after me. “A vaccine mandate is not coercive.”

Today's post is for anyone who believes that a workplace vaccine mandate is coercive or deprives employees of their free choice not to get vaccinated.

A federal court recently upheld an employer's vaccine mandate for its employees. In and of itself that holding is not earth shattering or even particularly newsworthy. In fact, it's consistent with virtually every other case in history to rule on a vaccine mandate at work.

This case stands out to me not because of what it held, but because of what the judge said about the free choice employees still maintain on whether or not to get the Covid vaccine, despite their employer's mandate:

Coronavirus Update 9-23-21: If you’re tired of reading what I have to say about workplace vaccine mandates, now you can listen to what I have to say

A huge thank you to the producing team at WCPN's The Sound of Ideas and host Rick Jackson for inviting me on to yesterday's program to discuss President Biden's workplace vaccine mandate. It was a fun and engaging 17 minutes of conversation, and I always enjoy doing live radio. (Also, thanks, Rick, for plugging the blog.)

If you missed it live, The Sound of Ideas archives all of its shows on its website, and you can (re)listen to yesterday's here.

Here's a quick preview, a clip of me laying out the pros and cons of the vaccine mandate from an employer's perspective.

Coronavirus Update 9-21-21: Covid-19 has now killed as many Americans as the Spanish flu

Covid-19 just passed a grim, sad, and preventable milestone. It has killed as many Americans, 675,000, as the last pandemic we suffered, the 1917 Spanish flu. That's more than 226 9/11s.

What makes Covid-19 so much worse than the 1917 pandemic is that we know so much more and we should have been able to end this long before reaching this point.

More than anything else, we have a virus-slowing, life-saving vaccine that 45 percent of the country has failed to fully take. Before the vaccine, we had face masks that a similar percentage of our country railed and rallied against. 

As a nation, many too many of us have chosen politics over science, and fiction over reality. As a result, too many have died, and more have fallen ill and suffered.

Coronavirus Update 9-20-21: Fetal stem cells and vaccine-mandate religious exemptions

As the debate over religious exemptions to workplace Covid vaccine mandates, one hospital has taken a unique approach to verify the sincerity of its employees' anti-vax religious beliefs.

The issue stems from the misconception that Pfizer-BioNTech's and Moderna's mRNA vaccines contain aborted fetal cells, and certain people's religious objections to abortion.

In reality, the vaccines do not contain aborted fetal cells, although Pfizer and Moderna did use fetal cell lines — cells grown in a laboratory that are based on aborted fetal cells collected generations ago — in testing during research and development of the mRNA vaccines.

Coronavirus Update 9-15-21: Do mandatory vaccination policies have an adverse impact on minority employees?

With President Biden's announcement of his plan to vaccinate all employees of employers with 100 or more employees, the nation is keenly focused on workplace mandatory vaccination policies. This has led some to question whether the President's plan unlawfully discriminates against minority employees.

There is little doubt that vaccination rates among Blacks and Hispanics lags behind that of Whites (which isn't that great to begin with). At the latest count, only 43% of Black Americans and 48% of Hispanic Americans are vaccinated, compared with 52% of White Americans. The reason for this greater vaccine hesitancy within minority communities is understandable and well documented, particularly when the government is promoting or flat-out requiring the vaccine. See the Tuskegee Experiment (one of our nation's greatest embarrassments … and that's saying a lot).

All of this begs the question — is a mandatory vaccination policy discriminatory against Blacks and Hispanics. Or, more technically speaking, does such a policy adversely impact them?

BREAKING NEWS: Biden to announce vaccine mandate for all employers with 100 or more employees

CNN is reporting that President Biden will announce an executive order directing the Department of Labor to draft an emergency rule requiring that all businesses with 100 or more employees ensure all of their workers are either Covid vaccinated, or Covid tested once a week. This goes along with another expected executive order requiring all government employees and employees of government contractors to be vaccinated against Covid-19, with no option of opting out through regular testing.

The legality of the last two (federal employees and federal contractor employees) is not in question. President Biden is absolutely within his authority to mandate as to both.

But as to other employers? If someone wants to explain to me how the Department of Labor can mandate Covid vaccinations or testing for employers, I'm all ears. Because unless I totally misunderstand administrative law (and I don't think I do), that type of measure needs to be enacted via a law passed by Congress and signed by the President, and not by executive order.

This is a developing story, which I will update as necessary. Stay tuned.

Coronavirus Update 9-9-21: Don’t forget about overtime laws when paying employees pandemic-related bonuses

If you pass any restaurant these days you'll almost certainly see a sign like this one: 

"Now hiring: $________ sign-on bonus."

I've seen that blank filled in with numbers as high a $1,000 to work at a fast-food restaurant.

Employers are paying these bonuses because they continue to struggle to fill job vacancies in the tightest and toughest labor market I've ever witnessed.

If you find yourself in this position, do not forget about the wage and hour implications of these bonus payments, specifically their inclusion in the "regular rate" for purposes of calculating an employee's overtime premium.

Coronavirus Update 8-31-21: Despite FDA and CDC warnings to the contrary, Ohio court orders hospital to administer Ivermectin to Covid patient

Ivermectin is a high potency medication used to prevent or treat parasites in livestock. It's FDA-approved for limited use in humans, such as in specific doses for some parasitic worms, and there are topical (on the skin) formulations for head lice and certain skin conditions. It is not an anti-viral medication. 

Yet, the drug has grown in popularity among conservatives, fueled by endorsements from people like Senator Ron Johnson and Fox News personalities Laura Ingraham and Sean Hannity. It is not approved to treat COVID-19 infections, and both the FDA and CDC have issued strong warnings against its use for that purpose. Nevertheless, reports of poisoning related to the use of Ivermectin have increased threefold this year, spiking in July, and feed stores in states with low vaccines rates selling out of the drug.

Courts are now wading into the issue, but not how you'd expect. 

Coronavirus Update 8-30-21: Vaccine mandates and unemployment compensation

DO NOT QUIT YOUR JOB

As the mandates are increasing and the “deadlines” fast approach, YOU SHOULD NOT QUIT YOUR JOB. Do not be fooled if your boss says you must resign. Make your boss fire you and do not sign anything or agree to anything that says otherwise. Do not agree with “voluntary resignation.” If you are fired, you are eligible for unemployment. Anything else and you are not.

–americasfrontlinedoctors.org

This statement, variations of which are making the rounds on social media and elsewhere online, is very, very wrong (at least in Ohio).

An employee fired for declining a vaccine mandate (for a reason other than a bona fide medical or religious excuse) is not eligible for unemployment.

Coronavirus Update 8-26-21: Incentivizing Covid vaccinations through insurance-premium penalties for the unvaccinated

Delta Air Lines has decided to try a different approach to get as many of its employees vaccinated as possible. It's imposing a $200 charge for any unvaccinated employees on its health plan. Think of it as a smokers' penalty, but for the Covid vaccine.

NPR has the details:

Delta Air Lines will charge employees on the company health plan $200 a month if they fail to get vaccinated against COVID-19, a policy the airline's top executive says is necessary because the average hospital stay for the virus costs the airline $40,000.

Coronavirus Update 8-25-21: Inside the Five responds to John Mandel, and they are not happy

An update on Monday's post, about a Toledo-area brewery that got canceled over a tweet by Senate candidate John Mandel congratulating a sick employee for reporting to work. The restaurant is none too happy with ol' Joshy.

One of its owners made their position on sick employees very clear to Toledo's WTVG:

It is our policy for employees to inform all management before coming to work. As soon as we found out, we sent our employee home.

The correct response. Sick employees don't work, period, especially during a global pandemic of an airborne virus.

Coronavirus Update 8-24-21: FDA grants full approval to Pfizer Covid vaccine … but will it make any difference

Yesterday, the FDA granted full and final approval of the Pfizer-BioNTech Covid-19 vaccine.

Calling the agency's approval "a pivotal moment" in the battle against Covid, FDA Acting Commissioner Dr. Janet Woodcock said:

While this and other vaccines have met the FDA's rigorous scientific standards for emergency use authorization, as the first FDA approved Covid-19 vaccine, the public can be confident that this vaccine meets the FDA's gold standard for safety, effectiveness and manufacturing quality that we require for an approved product.

Coronavirus Update 8-23-21: I’ll have a side of Covid with my burger, please

PERRYSBURG, OH — @InsideTheFive is a cool brewery started by two NFL vets. Great food and spirited waitresses!

Even though Brianne was sick today, she came to work because she knew they were short servers.

These are the type of American workers that make our country strong. pic.twitter.com/o0VFkDkjuo

— Josh Mandel (@JoshMandelOhio) August 20, 2021

That is perennial political loser and 2022 Senatorial candidate Josh Mandel tweeting in support of a local restaurant. 

Coronavirus Update 8-19-2021: The (Un)Healthy American, along with other more reputable organizations, help Americans dodge vaccine mandates

Meet Peggy Hall. She runs a website called The Healthy American. 

What is The Healthy American? For starters, it's a website that NewsGuard ranks 22.5/100 (a failing grade no matter how you slice it), for, among other sins and errors, publishing false and irresponsible misinformation about the Covid vaccine. 

Coronavirus Update 8-18-2021: Back to school presents fresh challenges for working parents and employers

Today my kids go back to school. 10th grade for Norah and 7th grade for Donovan. I am so thankful that their school is requiring universal masking regardless of vaccination status. Not all students, however, are so lucky. Only 10 states currently require masks in schools, while eight states outright prohibit schools and school districts from mandating them. That means that 32 states leave this decision up to individuals school districts and parents.

This presents a major problem. Just look at these headlines from schools that are already back in session.

• Florida school district calls emergency meeting after 5,500+ students forced to quarantine over COVID-19 outbreak
• Virus outbreaks temporarily close 4 Texas school districts
• Second George County school closes due to COVID-19 outbreaks
• Ash Fork Schools Close Temporarily After COVID-19 Outbreak

And that's just the tip of the Covid outbreak iceberg. This will be an absolute crisis in a matter of weeks unless all schools and school districts mandate universal masking regardless of vaccination status and get as many vaccinated as possible. 

Coronavirus Update 8-17-2021: Are your work-from-home employees working more one job from home?

This headline in the Wall Street Journal caught my eye: These People Who Work From Home Have a Secret: They Have Two Jobs.

A small, dedicated group of white-collar workers, in industries from tech to banking to insurance, say they have found a way to double their pay: Work two full-time remote jobs, don’t tell anyone and, for the most part, don’t do too much work, either.

Alone in their home offices, they toggle between two laptops. 

Coronavirus Update 8-16-2021: With more businesses implementing vaccine mandates, more people turn to illegal fake vaccine cards

With more employers mandating vaccines for their employees, and businesses, cities, and schools doing the same for customers and other non-employee visitors, more people who resist the vaccine are turning to fake vaccine cards to remain employed or otherwise gain access.

As I wrote a few months ago, using a fake vaccine card is a federal crime. 18 U.S.C. sec. 1017 criminalizes the fraudulent or wrongful use of a government seal (in this case, that of the CDC). It is punishable by imprisonment of up to five years. 

The illegality, however, hasn't stopped people, and the market is growing.

Coronavirus Update 8–12–2021: Justice Department confirms that ADA applies to Covid “long-haulers"

A few weeks ago I opined that the ADA likely covers Covid long-haul symptoms as protected disabilities that employers must accommodate.

In recently published policy guidance, the Department of Justice agrees. 

Coronavirus Update 8–11–2021: Mad as hell

How are you? Delta is spiking Covid infection rates to their highest levels since last winter. Hospitals are again facing a crisis of space. Breakthrough infections are a grim reality. Masks are again becoming part of our daily lives. How am I? I'm mad.

How mad? Mad enough to voice my resentment to WebMD.

"I am angry, I am resentful, and I think it’s a fair and appropriate response," says Jonathan Hyman, a Berea, OH, attorney who blames the unvaccinated for the backslide in pandemic progress.

Hyman has been following the difficult guidelines health experts have been urging from the beginning. He has been masking up, avoiding large gatherings, postponing travel, and he signed up to receive the vaccine as soon as it was available.

"We have been responsible, I did everything I was supposed to do," says Hyman, 48, who didn't visit his parents for 18 months to keep them safe. "Yet here we are, 16, 17 months later, and it feels like we're in the exact same place we were last summer, and it’s all because some people refuse to do the responsible things they were told to do."