Coronavirus Update 1-27-22: Whole Foods 1 – Maskhole 0 😷

You have every right to believe that masks are a form of government control or a satanic tool. You're very wrong, but you are free to believe what you want to believe. 

What you aren't free to do, however, is to act on those beliefs when they run counter to the rules of the employer for which you work or the business you want to enter. 

Case in point: Manning v. Whole Foods Market Group.

Coronavirus Update 1-26-22: OSHA doesn’t need an ETS to go after your business’s Covid-safety deficiencies

With the Supreme Court effectively killing OSHA Covid-19 vax-or-test Emergency Temporary Standard, and OSHA now officially withdrawing it, employers might think that they are beyond the reach of OSHA for Covid safety-related issues. If you are one of those employers that thinks this way, you are very mistaken.

Consider Sanoh American, a Findley, Ohio, auto parts supplier. OSHA recently cited and fined it $26,527 for ignoring guidelines to limit Covid-19 exposure in its facility. While the company had social distancing and mask policies in place, it failed to follow or enforce them. As a result, 88 of the company's 270 Findley employees (nearly one-third of the local workforce) tested positive for Covid-19. Five of those positive employees were hospitalized and two unfortunately died. OSHA determined that one of those deaths was work-related.

Coronavirus Update 1-24-22: I’m a Covid statistic

It was a calculated risk. I've been so careful for the past 22 months. We don't socialize outside of a very small bubble. We don't eat in restaurants or go to bars unless we can be outside. We've given up concerts and traveling. I wear my KN95 mask everywhere. 

But before Omicron changed the Covid-19 narrative, I decided that my firm would sponsor the Ohio Craft Brewers Conference. I also agreed to speak at the event. And we timed the launch of our brand new Craft Beer Practice Area around the conference. 

It was a safe event. Vaccines or negative tests were required of all attendees. Masks were mandatory at the event unless eating or drinking. I wore my KN95 mask everywhere. I was still nervous about spending three days out of town. But at my request, my firm had made a substantial financial investment in the event. So I packed my KN95 masks and my hand sanitizer, and off I went.

Twenty-four hours after returning home I felt my first symptoms — a scratchy throat and a mild dry cough. That's it. But having been out and about, I decided to home test. Negative.

Accountability always starts at the top

How do you respond to an employee who states that the Covid-19 vaccine is a plot by "the Jews" to exterminate people? Does your answer change if the employee in question is the company's founder? 

The correct answers: You fire him, and no, it doesn't matter who he is.

The scenario recently played out at Entrata, a Utah technology company. David Bateman, Entrata's founder, sent an email to multiple parties, including various Utah tech leaders. Bateman's email started with the subject line, "Genocide." It went downhill from there. 

BREAKING NEWS: SCOTUS dumps OSHA vax-or-test emergency temporary standard

The Supreme Court has issued its opinion in the appeal of the 6th Circuit's decision that vacated the 5th Circuit's stay of OSHA's vaccine-or-test emergency temporary standard for employers with 100 or more employees.

In a 6-3 decision, strictly down ideological lines, the Court reinstituted the stay, blocking the ETS from taking effect. 

Coronavirus Update 1-13-22: The CDC is not updating its mask guidelines to better protect against Omicron … but it should

The CDC is not considering updating its current mask guidelines to recommend that everyone wear highly protective N95 or KN95 masks, contrary to earlier reports by the Washington Post.

In a White House briefing yesterday, Rochelle Walensky, the head of the CDC, said that any mask is better than no mask, and that the CDC would not be changing any guidance regarding the type of maks that people should be wearing. Walensky did concede that the CDC's website needs to be refreshed to include information on the "different levels of protection different masks provide."

Coronavirus Update 1-6-22: Starbucks become first employer of note to adopt OSHA vaccine-or-test emergency temporary standard

I don't know what you'll be doing tomorrow morning at 10 am. But I do know what most employment lawyers will be doing — their best to follow the Supreme Court oral arguments in the appeal related to the OSHA vaccine-or-test emergency temporary standard for employers with 100 or more employees (as well as the appeal related to the Center for Medicare & Medicaid Services healthcare worker vaccination mandate). 

Starbucks, however, is not waiting for SCOTUS to rule on the legality of the OSHA ETS. It has informed its 220,000 nationwide employees that they must disclose their vaccination status by January 10, and either be fully vaccinated against COVID-19 or be tested weekly by February 9.

Coronavirus Update 1-5-22: What the hell is the CDC doing?

Confused by the CDC's changed guidance on when employees can break isolation? I'm here to help.

Coronavirus Update 1-3-22: Happy 2020 … too 😞

As we start 2022 (HNY!) let's jump in the time machine and look ahead a couple of weeks to what I think is in our immediate pandemic future.

To catch a glimpse of what's coming here in the next 7-14 days, we need only look across the pond to Europe, which has been a great predictor thus far of what our Covid future looks like. For the whole of the pandemic, our Covid experience has trailed that of Europe by 2-3 weeks. Because of the quickened transmission and infection timeline of Omicron, we can likely shorten that to 7-10 days. 

Coronavirus Update 12-21-2021: Employers are starting to get real about vaccinated workforces

Last week marked the one-year anniversary of the Covid-19 vaccine being administered in the United States. Yet, here are some headlines from last week:

• U.S. employers lean toward required COVID-19 vaccinations
• Google is threatening to fire unvaccinated employees
• Kroger to end some Covid-19 benefits for unvaccinated workers
• From mandates to masks, how some big companies are adjusting to Omicron

While we wait for the Biden administration's vaccine mandates to work their way through the courts (this past weekend's 6th Circuit pronouncement notwithstanding), employers are taking matters into their own hands. Fueled by the exponential surge in Delta-related Covid cases, and the real and palpable threat of a more contagious Omicron variant looming and starting to wreak havoc, many employers have simply run out of patience with unvaccinated employees.

Coronavirus Update 12-20-21: OSHA’s “vax or test" mandate is back on … for now

OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.

That's what OSHA posted on the heels of the 6th Circuit's decision dissolving the 5th Circuit's stay of the agency's "vax or test" emergency temporary standard. 

BREAKING NEWS: 6th Circuit dissolves stay and re-starts OSHA’s vax-or-test emergency standard

In a 2-1 decision, the 6th Circuit has dissolved the 5th Circuit’s prior stay of the OSHA vax-or-test emergency temporary standard. The opinion is available here. 

In sum, Judge Stranch, writing with reason and common sense for the majority, concluded that the petitioners are unlikely to succeed on the merits of their claim that the ETS exceeded OSHA’s authority. 

Coronavirus Update 12-16-2021: Who peed in the 6th Circuit’s cornflakes?

Yesterday, the 6th Circuit issued its first substantive opinion in the consolidated case that will determine the legality of OSHA vax-or-test emergency temporary standard. The opinion didn't determine any matters related to the substance of the mandate itself; it only addressed the procedural issue of whether the case would initially be heard by a three-judge panel of the 6th Circuit or an en banc panel comprised of the entire court. The answer — a three-judge panel initially will hear the case. 

Coronavirus Update 12-14-2021: 800,000 Covid deaths and rising, and many have stopped caring

"Where I Live, No One Cares About COVID," reads the headline in The Atlantic. 

Outside the world inhabited by the professional and managerial classes in a handful of major metropolitan areas, many, if not most, Americans are leading their lives as if COVID is over, and they have been for a long while. …

Coronavirus Update 12-9-2021: The current state of vaccine mandate litigation

What is the current state of the Biden Administration's three separate federal Covid-19 vaccination mandates, and how should employers be responding. In this short video update, I discuss where things stand and what it means.

Coronavirus Update 12-6-2021: Masks — the results

On Friday, I asked three simple questions — Do you still wear a maks? If yes, when? If not, why?

Here are the results (and thank you to the nearly 300 of you that took the time to respond).

Coronavirus Update 12-2-2021: Repeat after me — anti-vax legislation WILL NOT fix workforce shortages

Meet Rep. Al Cutrona, a first-term member of Ohio's House of Representatives, and a Republican who describes himself as "Pro-Constitution." He's also the primary sponsor of HB 218, a bill that would prohibit any employer or school from mandating any non-approved vaccine that uses mRNA technology, and would further require employers and schools to grant exceptions to vaccine mandates for reasons of medical contraindication, natural immunity, religious convictions, or personal conscience.

According to Rep. Cultrona, this law is needed "to address the crisis that the workforce is struggling," to fix workforce "shortages," and to "bring back jobs."

The problem, however, is that vaccine mandates are not causing The Great Resignation. There are lots of reasons why workers are quitting their jobs in record numbers, but vaccine mandates are not one of them, according to the World Economic Forum.

Coronavirus Update 12-1-2021: Other federal vaccine mandates fall (for now)

In the past several days, two federal vaccine mandates have been preliminarily enjoined, joining the OSHA Emergency Temporary Standard on the sidelines.

First, the Eastern District of Missouri entered a preliminary injunction against the Centers for Medicare and Medicaid Services' federal vaccine mandate for healthcare facilities. That injunction applies to covered employees in Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming. The Western District of Louisiana issued a similar ruling late yesterday, but expanded the scope of the preliminary injunction nationally.

Then, also late yesterday, the Eastern District of Kentucky issued its own preliminary injunction against President Biden's mandatory vaccination rules for the employees of federal contractors and subcontractors. That injunction applies to covered employees in Ohio, Kentucky, and Tennessee.

Coronavirus Update 11-29-2021: What we do know and don’t know about Omicron

While we digested our Thanksgiving turkey, news broke about a new COVID-19 variant making its way around the world — B.1.1.529, now officially named the Omicron variant. 

Here's what we know about Omicron, what we think we know, what we don't yet know, and, perhaps most importantly, what employers should be doing in response. 

Coronavirus Update 11-17-2021: OSHA’s vax-or-test emergency standard is on life support

Yesterday brought two huge developments in the battle over OSHA's vaccine-or-test emergency temporary standard.  

First, the conservative 6th Circuit won the lottery to determine which circuit court of appeals will hear one consolidated challenge to OSHA's vax-or-test emergency temporary standard. 

Secondly, OSHA announced that it had suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

All in all a bad day for the pro-mandate crowd. 

I break down what it all means in this short video.