BREAKING NEWS: 5th Circuit issues new order continuing its stay of the OSHA vaccine-or-test ETS

In a 22-page opinion issued last night that I can only describe as a scathing rebuke of OSHA's vaccine-or-test emergency temporary standard, the 5th Circuit Court of Appeals formally granted a stay of the ETS pending a full review of the pending motion for permanent injunction, and further ordered that "OSHA take no steps to implement or enforce the Mandate until further court order."

Coronavirus Update 11-11-2021: Religious groups tell 5th Circuit that the OSHA vaccine mandate is a “sin against God"

In a filing made with the 5th Circuit Court of Appeals in support of the petition seeking to strike down OSHA's "vaccine or test" emergency temporary standard, the American Family Association and Word of God Fellowship (which does business as Daystar Television Network) told the court that imposing the mandate on religious employees would be a "sin against God." (For the record, the AFA also believes that climate change is a hoax because only God can control the climate and stands firm against legal protection for LGBT rights. But I digress.)

Coronavirus Update 11-10-2021: Federal judge grants injunction victory to United on its vaccine mandates, but signals that this war is far from over

A U.S. federal district court judge ruled that an employer can impose on its employees a Covid-19 vaccine mandate that provides unpaid leave as the only reasonable accommodation for medical or religious reasons.

The case, Sambrano v. United Airlines, was seen as a test case for the viability of unpaid leave as a reasonable accommodation to vaccine mandates. The order denied the plaintiffs their requested preliminary injunction. Yet, it's not that aspect of the case that's the most noteworthy. Instead, it's the critical words that the judge saved for United's apparent cavalier and callous attitude against religious accommodations as a whole to which employers should pay the most attention.

Coronavirus Update 11-9-2021: White House tells employers to proceed with vaccine mandate despite 5th Circuit stay; I concur

People should not wait. They should continue to move forward and make sure they’re getting their workplace vaccinated.

– White House Deputy Press Secretary Karine Jean-Pierre, Nov. 8, 2021

On Saturday, the 5th Circuit Court of Appeal (which covers Texas, Louisiana, and Mississippi) entered an order staying OSHA's "vaccine or test" rule for employers with 100 or more employees.

Questions—

• Does that order only apply to employers in the three states within the 5th Circuit, or does it apply nationwide?
• What happens next?
• Most importantly, what should employers do now?

I have answers, which I offer in this short video, which I recorded yesterday. 

Employers must assume that the OSHA ETS is taking effect as planned and stay the course. January 4, 2022, will be here before we know it, and employers that don't start planning now will be caught out of compliance.

Coronavirus Update 11-8-2021: Let’s talk about Aaron Rogers

Last Wednesday, Aaron Rodgers, future Hall of Fame quarterback for the first-place Green Bay Packers, tested positive for Covid-19. This fact, in and of itself, might be newsworthy because of who he is, but in and of itself it's not earth-shattering. That is, it's not earth-shattering news until you couple it with the fact that: (1) it appears Rogers is not fully vaccinated against Covid-19; and (2) in August, when a reporter asked if he had received the Covid-19 vaccine, Rodgers said, "Yeah, I've been immunized."

"Immunized," in this case, however, appears to mean something very different than fully vaccinated against Covid-19. 

BREAKING NEWS: OSHA publishes its vaccine-mandate emergency temporary standard

Write down November 4, 2021, as the Employment Lawyer Superbowl. At 8:45 am this morning, OSHA published its Covid-19 Vaccination and Testing Emergency Temporary Standard in the Federal Register. You can download and read all 490(!) pages of it here.

Most importantly, this rule takes effect immediately upon its publication in the Federal Register — i.e., today — but employers have 30 days, or until December 5, 2021, to comply with all requirements except testing for employees who are not fully vaccinated (which has a January 4, 2022, compliance date). 

This means that by no later than January 4, 2022, employers will need to ensure that their employees have received their final vaccination dose, with weekly testing required for unvaccinated employees thereafter.

Coronavirus Update 10-28-2021: EEOC publishes its own internal Religious Accommodation Request form

"Jon, we have so many employees asking us for religious accommodations from our workplace Covid rules, including our vaccine mandate. Do you have a form we can use to document the request?" 

I certainly do. But it's not mine. It's the EEOC's. The Agency just published the internal form it uses for its own employees' religious accommodation requests.

Coronavirus Update 10-27-2021: No, employers, you can’t fire employees who complain about Covid health and safety issues

An employee sends this email to all of his coworkers: "It has come to my attention that an employee has tested positive for COVID-19. I feel it is important to inform all employees of the current situation."

An hour later management fires that employee. Their reason? His job was to fix cars, not police positive Covid tests in the workplace. 

That's exactly what the Department of Labor alleges happened at an Austin, Texas, car dealership in December 2020. Earlier this month, the agency filed suit under section 11(c) of the Occupational Safety & Health Act, which protects employees from retaliation for exercising their rights under the Act.

Coronavirus Update 10-26-2021: EEOC updated Covid-19 technical guidance to address religious vaccine objections

Religious accommodations to vaccine mandates continue to be the number one issue occupying the time and energy of HR practitioners and employment lawyers. Yesterday, the EEOC updated its Covid-19 technical assistance specifically to address vaccine-related religious objections and accommodation requests.

Coronavirus Update 10-25-2021: Lawsuits challenging employer vaccine mandates are borderline frivolous

More than 130 employees of the City of Chicago have filed a lawsuit against their employer challenging its Covid-19 vaccine mandate. CNN has the details:

"The mandate, and the Executive Orders, violate the constitutional and fundamental rights of those who either choose not to be vaccinated, or choose not to disclose their vaccination status to either the state, or their employers," the lawsuit says.

The lawsuit will fail. Period.

Coronavirus Update 10-21-2021: Nick Rolovich v. Pope Francis

Compare the following two statements, and then let's talk.

1. "It is a tragic and damning commentary on our culture … that Coach Rolovich has been derided, demonized, and ultimately fired from his job, merely for being devout in his Catholic faith."

2. "Being vaccinated with vaccines authorized by the competent authorities is an act of love. And contributing to ensure the majority of people are vaccinated is an act of love."

Statement number one: the lawyer for Nick Rolovich, the former head football coach at Washington State University, who the University just terminated for refusing to get vaccinated pursuant to its mandate.

Statement number two: Pope Francis.

Coronavirus Update 10-20-2021: How to spot a fake vaccine card

The NHL has suspended San Jose Sharks forward Evander Kane 21 games for violating the League's Covid-19 protocol. His offense: supplying a fake vaccination card. 

Fake vaccine cards are out in the world, easy to find, and easy to use. Their use is also a federal crime punishable by up to 5 years in prison and grounds for termination of employment. Yet, as workplace vaccine mandates become more prevalent (and soon federally mandated), more anti-vax and vaccine-hesitant employees will take the risk instead of losing their jobs.

Do you know how to spot a fake vaccine card? Here are some telltale signs.

UPDATE: HIPAA (mis)information and the Covid vaccine

Earlier this week I wrote about a national payroll provider that shared some very incorrect information about an employer’s HIPAA responsibilities on its website.

That company, ADP, saw my post and reached out to me to let me know that they updated their article.

“I saw your blog that highlighted an oversight from one of our writers on our Spark Blog. It was good to see in that we were able to correct it immediately.”

(Sadly, the Oxford comma omission persists, but I’ll take my victories where I can get them.)

You can find their updated article here. 

Well played, ADP. 👏 

Coronavirus Update 10-14-2021: We still don’t know what OSHA’s vaccine standard says … but we’re getting closer

Late Tuesday, news broke that OSHA had submitted in vaccine mandate Emergency Temporary Standard to the White House’s Office of Information and Regulatory Affairs for its review. What does this mean? It means that OSHA has taken the first important step towards publishing the ETS and implementing its vaccine mandate for employers with 100 or more employees.

But that's it.

Coronavirus Update 10-13-2021: Unfortunately I need to keep clarifying misconceptions about HIPAA

I came across the following information on the website of a prominent national payroll provider:

Q: In what ways can/should HR departments capture and record employee vaccination information? What are the HIPAA implications?

A: When it comes to recording this data, it's a good idea to keep it separate from other employee information on file. It should not be part of standard employee records and should be accessible to as few people as possible. Because vaccination records are covered under HIPAA regulations, businesses must ensure they're diligent about securely collecting, recording and storing this information to limit the risk of compromise.

It cuts me to the quick to see an entity that should know better getting HIPAA so very wrong. If they can't get it correct, we have little hope that the general public will stop raising HIPAA as an objection to any disclosure of their health information, including vaccination status.

So, to clear the air once and for all, this is what HIPAA covers and doesn't cover, and why it does not apply to employers gathering vaccine-related information from employees.

Coronavirus Update 10-12-21: A prior Covid infection is not a defense to an employer’s vaccine mandate

"I don't need the vaccine; I've already had Covid and have superior natural immunity" is a popular refrain from some people who've been infected with Covid and, for that reason or another, are hesitant to get the Covid vaccine.

Does that argument hold up against an employer's vaccine mandate? According to two federal courts that recently examined the issue, the answer is a clear no. Kheriaty v. Regents of the Univ. of Calif. (decided 9/29/21 by a California federal court judge) and Norris v. Stanley (decided 10/8/21 by a Michigan federal court judge) each examined whether an employee was entitled to a preliminary injunction against their employer's vaccine mandate.

In each case, the Court sided with the employer and rejected the employees' pre-existing immunity arguments.

Coronavirus Update 10-11-21: World Mental Health Day

Yesterday was World Mental Health Day. It was also day 579 of the Covid-19 pandemic. 

Covid-19 has altered all of our lives; all employees are dealing with stress, anxiety, and isolation.

19 months into the pandemic, more than 45 million Americans have been diagnosed with Covid-19, 733,000 have died, and millions more have suffered debilitating illnesses. These are actual people, not just statistics, and we all know someone this virus has impacted.

Many of us have dealt with the stress of layoffs, furloughs, lost income, closed businesses, and the stress that flows from figuring out how to pay the bills and feed our families.

Parents have balanced the second job of homeschooling (or at least assistant homeschooling) their kids against their primary job of their actual paying job.

While life has returned to some semblance of normalcy, there remain many too many of us who are unvaccinated and, thanks to Delta, we all still live with the worry of contracting this virus merely by stepping out into the world. 

As a result, some of your employees are working with and through mental health issues of varying degrees caused by all of this stress, change, and loss. Some will be dealing with the exacerbation of pre-existing mental health issues, and some will have what I am calling Covid-19 PTSD.

Coronavirus Update 10-7-21: EEOC brings its first pandemic-related lawsuit over a denied WFH accommodation

The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. These are fact-specific determinations.

EEOC's What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

According to the EEOC, just because an employer previously offered remote work during the pandemic for some or all employees does not mean that remote work is an appropriate accommodation for any specific employee after it recalls employees to the physical workplace.

What does this look like in practice? A lawsuit the EEOC recently filed will test its limits.

Coronavirus Update 10-5-21: Would you rather? Get fired? Or get the Covid-19 vaccine?

Last week I asked a simple question on LinkedIn: 

If your employer is mandating the Covid vaccine, would you rather get fired or get the shot?

More than 1,500 people responded, and the results shocked me. 27 percent — that's more than one out of every four respondents — say that they'd choose termination of their employment over a jab of the Covid vaccine. 

Coronavirus Update 9-29-21: We need to talk about the rise in anti-Semitism and Nazi symbolism

"You're being a Nazi by mandating masks and vaccines."

"'Papers, please.' I refuse as a condition of entering a store or attending a concert."

"What's next, quarantining the unvaccinated into camps?"

"Vaccine mandates violate the Nuremberg Code." 

"Do I need to remind you of the late 1930s and into the '40s in Germany and the experiments with Josef Mengele? What was it? A shot? These were crimes against humanity."

And on, and on, and on. I've had enough.