Coronavirus Update 5-6-2021: Do your employees have “Covid anxiety syndrome”?

The Telegraph recently tweeted about what is being called "Covid anxiety syndrome." The whole thread is a fascinating read, but its bottom line is that some people are reacting irrationally by continuing extreme Covid mitigation measures when they are no longer needed.

The Guardian quotes professor Marcantonio Spada London South Bank University, who first theorized this syndrome after noticing people were developing a particular set of traits in response to Covid.

Fear is normal. You and I are supposed to fear the virus because it's dangerous. The difference, however, in terms of developing a psychopathological response is whether you end up behaving in … overly safe ways that lock you into the fear. My expectation is we're going to have … chunks of the population that are avoiding re-engagement and constantly worrying about the virus for months to come, whether they are vaccinated or not.

So here's my question for you — do you have employees experiencing such behavior? Continuing to insist on remote work even after being fully vaccinated? Wearing a mask all of the time, even when alone in an office? Insisting on constantly wiping down surfaces as if they are disinfecting a crime scene? 

Coronavirus Update 5-5-2021: NFIB’s survey of small employers reveals some disturbing Covid vaccination trends

The National Federation of Independent Business just released the results of its most recent Covid-19 Small Business Survey. 546 businesses, all with fewer than 200 employees, provided their experiences on a variety of Covid related topics. The results that jumped off the page, however, were the two questions about the Covid vaccine.

An update on the Worst Employer of 2019

What did Bobby Edwards do to earn the title of the Worst Employer of 2019?

Bobby Edwards, the manager of J&J Cafeteria in Conway, South Carolina, effectively enslaved JCS (to whom we refer with the fictitious name "Jack"), forcing him to work at the restaurant over 100 hours per week without pay. …

In 1990, when Jack was 12 years old, he started working part-time at J&J Cafeteria as a dishwasher. He has an intellectual disability and an IQ of 70. After a few years of part-time work, Jack dropped out of high school and started working full-time at the restaurant. For the first 19 years of his employment, when the restaurant was owned and managed by different members of the Edwards family, Jack was always paid for his labor.

That, however, changed in September 2009, after Bobby Edwards took over the management of the restaurant. Edwards moved Jack into an apartment attached to the restaurant and forced him to work more than 100 hours per week without pay — usually 6:00 a.m. to 11:00 p.m. for 6 days and 6:00 a.m. to 2:00 p.m. on Sundays. Not only did Jack work long hours without pay, he was never given a day off. Edwards effected this forced labor by taking advantage of Jack's intellectual disability and keeping Jack isolated from his family, threatening to have him arrested, and verbally abusing him. His control over Jack also involved physical abuse. Once, when Jack failed to deliver fried chicken to the buffet as quickly as Edwards had demanded, Edwards dipped metal tongs into hot grease and pressed them to Jack's neck, resulting in a burn that fellow employees had to immediately treat. Other times, when Jack made supposed mistakes, Edwards whipped him with his belt, beat him with kitchen pans, and punched him with his fists. This treatment left Jack physically and psychologically scarred. Jack later said, "I felt like I was in prison. Most of the time I felt unsafe, like Bobby could kill me if he wanted. … I wanted to get out of that place so bad but couldn't think about how I could without being hurt."

At the time of sentencing, the judge ordered Edwards to pay Jack $272,952.96 in restitution, in addition to sentencing him to 10 years in prison. 

Last month, the court of appeals ruled that Edwards should pay liquidated damages to Jack under the FLSA in addition to the $272,952.96 of back wages. Under the FLSA, an aggrieved employee is entitled to an award of liquidated damages in an amount equal to the total amount of unpaid wages (i.e., double damages) unless the employer can show (1) that it acted in good faith; and (2) that it had reasonable grounds to believe it had complied with the FLSA. I see no way possible that Edwards could have ever hoped to have met that standard.

Thus, at the end of the day, Jack should receive a total award of $545,905.92 in restitution. Of course, how Edwards intends to make good on his substantial obligation to Jack is another story. 

Finally, my offer to Bobby Paul Edwards still stands. If the Federal Correctional Complex in Butner, North Carolina, will not allow him to collect his trophy, I’ll have it waiting for him to claim when he's released in 2029.

Does President Biden have the political juice to make paid family and medical leave a reality?

For the past couple of administrations, it's a presidential rite of passage—unveiling a plan to provide paid family and medical leave to American workers. Last Wednesday night, President Biden released his proposal as part of his $1.8 trillion American Families Plan.

Coronavirus Update 4-30-2021: Today in pro se lawsuit insanity

Masks remain a key line that divides our country. The CDC just announced that the fully vaccinated safely can go maskless in small gatherings outdoors. Meanwhile, Tucker Carlson is telling his viewers to call the police when they see a child wearing a mask; the charge—child abuse.

And then there's this bonkers lawsuit—the CEO of Costco is being sued for $350 million for implementing a mandatory mask rule in his stores. The plaintiff claims an infringement of his constitutional right to go maskless in public.

The 8th nominee for the “Worst Employer of 2021” is … the vaccine vetoer

In a stunning show of ignorance, a Miami, Florida, private school has informed its staff that because the Covid-19 vaccine poses a health risk to those in close proximity to those who have been vaccinated, those who have already received the vaccine must physically distance from students and anyone vaccinated will not be permitted to return to work after the summer break. 

Biden Administration announces $15 minimum wage for all federal contractors

Yesterday, the White House announced that effective January 30, 2022, all federal contractors will be required to incorporate a $15 minimum wage in new contract solicitations, and by March 30, 2022, all federal agencies will need to implement the minimum wage into new contracts and into existing contracts with annual options to renew.

The Executive Order that implements these changes will also tie this new minimum wage to inflation and adjust accordingly annually, eliminate the tipped minimum wage for federal contractors by 2024, and extends the required $15 minimum wage to federal contract workers with disabilities.

Why would a company wait a year to implement an anti-harassment program?

McDonald's has lots of secrets. What's in its sauce? What part of the chicken do the McNuggets come from? How come every time I crave a cone the soft-serve machine is out of order? Why do their soft drinks taste better than anyone else's?

Something that's not a secret, however, is that McDonald's has a serious sexual harassment problem.

Coronavirus Update 4-26-2021: Another reason not to mandate the Covid vaccine for employees

I've not hidden my belief that employers should not be mandating that their employees receive the Covid vaccine as a condition of employment. Now, OSHA offers yet another reason why employers should recommend, but not mandate, the vaccine.

Per OSHA, if the vaccine is mandatory, then an employer must record an employee's adverse reaction or side effects on its OSHA log.

Coronavirus Update 4-22-2021: The SBA has one pandemic job, and it failed @nivassoc #saveourstages

On April 8, the Small Business Association opened its Covid relief program for concert halls and other performing arts venues. Or at least it was supposed to.

This $16 billion Shuttered Venue Operators Grant program—part of the $900 billion rescue package Congress approved nearly four months ago—is supposed to offer grants equal to 45% of a venue's gross earned revenue up to $10 million per business. The SBA had to immediately close its SVOG portal when crashed from the volume of applications. As of last Friday, the SBA said that it was still working to test the portal's functionality and that it was hoping to reopen it by the end of this week.

This failure is completely and utterly unacceptable. 

Coronavirus Update 4-21-2021, part 2: Does President Biden read my blog?

I've previously urged employers to pay employees for time off related to getting the Covid vaccine and for any time related to adverse reactions to the vaccine thereafter (here and here).

Today, President Biden made the exact same argument in urging Americans to get vaccinated as soon as possible.

CNN quotes President Biden's remarks from earlier today:

As we move into the vaccination campaign focused on working-age adults, one concern I've heard from so many Americans is that they can't afford to take the time off to get vaccinated or lose a day's work because they are feeling slightly under the weather after their shot. I'm calling on every employer, large and small, in every state to give employees the time off they need -- with pay -- to get vaccinated, and any time they need -- with pay -- to recover if they're feeling under the weather after the shot. No working American should lose a single dollar from their paycheck because they chose to fulfill their patriotic duty of getting vaccinated.

I'm not so arrogant as to think that President Biden reads my blog, but a guy can dream, right?

Coronavirus Update 4-21-2021: Most Americans that haven’t yet gotten the Covid vaccine don’t plan to … and that’s a huge problem

According to a recent Axios-Ipsos poll, vaccination efforts may have plateaued, and most people who've not yet been vaccinated don't plan to get vaccinated.

• 44 percent report not yet receiving any dose of the Covid-19 vaccine.
• 66 percent of those unvaccinated say that they are either "not likely at all" or "not very likely" to get vaccinated.
• Only 14 percent of those unvaccinated say they are likely to get the vaccine.

These numbers present a huge problem.

We learn more from our failures than our successes

A couple of months ago I was approached by the That One Case podcast to record an episode. This show asks lawyers to share the story of one case that has stood out over their careers. As they pitched it, that case could be a big win that defined my career, a turning point that took my work down an unexpected path, or simply the case of which I am most proud.

How to identify and handle an employee at risk for workplace violence

It's been four days since Brandon Hole returned to the Indianapolis FedEx facility at which previously worked and killed eight people. 

I've previously written about how to spot an employee at risk for workplace violence. And while I'm not sure FedEx could have done anything to prevent what happened here, this tragedy nevertheless is a great reminder of what employers need to do when they suspect an employee presents a risk of violence.

Click here for my thoughts.

* Image by Max Kleinen on Unsplash

Coronavirus Update 4-15-2021: OSHA finally gets real about Covid safety

Consider the following Covid safety and health violations OSHA recently uncovered at a Massachusetts tax preparation business.

• Employees and customers were prohibited from wearing face coverings in the workplace despite a statewide mask order that mandated the business to require employees and customers to wear masks.
• Employees were required to work within 6 feet of each other and of customers for multiple hours while not wearing face coverings.
• Adequate means of ventilation in the workplace were not provided.
• Controls such as physical barriers, pre-shift screening of employees, enhanced cleaning, and other methods to reduce the potential for person-to-person transmission of the virus were not implemented.

What did these violations cost this employer in OSHA penalties? $5,000? $10,000? $25,000? 

DOL reopens the floodgate to liquidated damages in wage and hour investigations

The Department of Labor's breakup with liquidated damages in wage and hour investigations lasted only four years. Late last week, the agency announced that it would again seek liquidated damages (an amount equal to the unpaid wages themselves) in investigations, undoing a  policy change made by the Trump administration.

According to the DOL, it will "return to pursuing liquidated damages from employers … in its pre-litigation investigations provided that the Regional Solicitor of Labor or their designee concurs with the liquidated damages request.… Liquidated damages shall not be assessed by WHD where the employer has set forth credible evidence of a good faith defense or the where the RSOL deems the matter inappropriate for litigation."

The top 11 things you need to know about being sued by an (ex) employee

Because of the impending changes to Ohio's workplace discrimination law that take effect in two days, the filing of employment discrimination lawsuits in my state is seeing record numbers.

Do you know what to do when an employee sues your company? 

Here are the top 4 issues you to think about ASAYS (as soon as you're sued).

Coronavirus Update 4-12-2021: It’s time to end pandemic PTO hesitancy

I haven't taken a proper vacation in 25 months. We were supposed to go to Portugal last March, but then Covid happened. In the 13 months since, there's been little point in taking off from work for any length of time because I haven't been able to go anywhere. "I can't go anywhere, so I might as well work," has been a popular pandemic refrain (me included).

Americans were bad at vacations before Covid. The pandemic certainly hasn't helped our PTO hesitancy. 

Coronavirus Update 4-9-2021: Income tax season has exacerbated the ongoing Covid plague of unemployment fraud

One of the lasting lessons of the Covid-19 pandemic for businesses is our broken state unemployment systems. State governments have paid out tens of billions of dollars in bogus unemployment claims. And with claims paid comes tax forms reporting the income related to those claims.

Consider the story of just one taxpayer, as relayed by the Wall Street Journal.

Michael Baird, a 33-year-old marketing manager in Chicago, hasn't lived in Texas for several years. And yet there was a tax form from the state of Texas sitting at his parents' house in Houston, showing that the state had paid him $1,014 in unemployment benefits.

Title VII and “fringe" religions

"A pagan says she faced religious discrimination while working at Panera. Now, she’s suing." So reads the headline at the Washington Post. The plaintiff claims that after she told an assistant manager that she was pagan, her hours were cut and she was told they wouldn't be restored until she "found God" (in addition to other alleged workplace harassment). 

6th Circuit applies False Claim Act’s anti-retaliation protections to ex-employees

In the history of this blog's 3,603 posts, I've never written about the False Claim Act. If you've been waiting with bated breath for me to fix this omission, today's your lucky day, thanks to United States ex rel. David Felten, M.D., Ph.D. v. William Beaumont Hosp. (6th Cir. 3/31/21). Before diving into the Felten case, let's first take a 61-word peek at the False Claims Act and to what it applies.

The False Claims Act is a federal statute that imposes liability on people and companies that defraud the federal government, and further, relevant to Felten, permits private citizens (which the law calls "relators") to file lawsuits (known as qui tam claims) on behalf of the government and protects relators from retaliation when the lawsuit they are filing is against their employer.

At issue in Felten is whether the FCA's anti-retaliation protections only cover current employees, or whether they also extend to an employer's former employee who blows the whistle by filing a qui tam suit.

Coronavirus Update 4-6-2021: Is work from home not all it’s cracked up to be?

Three weeks ago I returned to the office. That return matched my start date at Wickens Herzer Panza. I decided that it'd be difficult, if not impossible, to learn a new firm and its systems, and build camaraderie and teamwork with my new co-workers, if I'm working remotely. Thus, I made the decision to break free of my self-imposed Covid cocoon and start working most days in person in the office. 

I thought about this decision as I read this article in the Wall Street Journal: After Covid, Should You Keep Working From Home? Here’s How to Decide. 

Coronavirus Update 4-5-2021: The Covid lawsuits are coming

Thirteen months into the pandemic, the COVID-related employment lawsuits are starting to roll into courthouses. Consider the following, all of which made headlines over the past couple of weeks.

No foolin': the most meaningful changes to Ohio's employment discrimination law take effect in two weeks

Two weeks from today, H.B. 352 takes effect and brings the most significant changes to Ohio's workplace discrimination statute since its passage decades ago. What are these changes?

• Creates a universal two-year statute of limitations for all employment discrimination claims.
• Requires individuals to file an administrative charge with the Ohio Civil Rights Commission as a prerequisite to filing a lawsuit.
• Unifies the filing of age discrimination claims to the same procedures and remedies as all other protected classes.
• Eliminates individual statutory liability for managers and supervisors.
• Caps non-economic and punitive damages based on the size of the employer.
• Establishes an affirmative defense to hostile workplace sexual harassment claims not alleging that did not result in an adverse, tangible employment action, when 1) the employer exercised reasonable care to prevent or promptly correct the alleged unlawful discriminatory practice or harassing behavior, and 2) the employee failed to take advantage of any preventive or corrective opportunities provided by the employer or to otherwise avoid the alleged harm. 

Coronavirus Update 3-31-2021: Covid-19 vaccination cards will be required to do lots of things, including possibly even working

According to the Wall Street Journal, Covid-19 vaccination cards are our only proof of vaccination status and will soon be as essential as a drivers' license or passport. With no national or statewide centralized databases of vaccination records, the piece of paper you receive with your vaccine dose is your only proof of vaccination.  

The article suggests that we'll need this record to do lots of things moving forward, such as travel. What about returning to in-person work? Can employers ask for or require that employees provide proof of vaccination?

According to the EEOC, the answer is yes as to the ask. 

Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry?

No. There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry. However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.” If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

The question then becomes what does an employer do if an employee cannot provide proof of vaccination? If the vaccine is mandatory and a condition of employment, it can deny access to the workplace or even terminate, provided that it is considering exceptions for employees' disabilities and sincerely held religious beliefs, practices, and observances. If the vaccine is not mandatory, why ask for the vaccine record in the first place?

We are entering a very interesting era of privacy, including employee privacy. If you are not mandating the vaccine, while you are within your legal right to ask about vaccination status, why would you? Do you really want to catalogue your employees' vaccination status and for what purpose?

* Photo by Marco Verch Professional Photographer on Flickr [Attribution 2.0 Generic (CC BY 2.0)]

Let's meet employees where they are on their pronouns

In Meriwether v. Hartop, the 6th Circuit recently decided that a state university cannot force a professor to use students' preferred gender pronouns, and permitted the prof to proceed with his lawsuit challenging the school's discipline for his misgendering.

Supporting our AAPI employees in their time of crisis

The stats are jarring, disturbing, and scary. During the past year of the COVID-19 pandemic, there have been nearly 3,800 reported anti-Asian hate incidents, including shunning, slurs, and physical attacks. That number represents a stunning 46 percent increase over the prior year, and still just a small percentage of the actual number that has occurred. These incidents culminated last week in Robert Aaron Long shooting and killing eight people at three Atlanta-area massage parlor.

Your AAPI (Asian Americans and Pacific Islanders) employees are hurting. Here are some thoughts on how we, as their employers, can best support them. 

Coronavirus Update 3-26-2021: 5 Considerations for Drafting Your COVID-19 Vaccination Policy

At some point over the next several months, most of your employees will receive one of the various COVID-19 vaccines that the Food & Drug Administration has approved for Emergency Use Authorization. As your employees consider whether and when to obtain the vaccine, you, as their employer, have numerous issues to consider regarding the vaccination status of your employees. You should also formalize these decisions in a written Vaccination Policy that you provide to each of your employees, so that everyone is on the same page as to your requirements and expectations regarding the vaccine.

What are the five key issues every employer should be considering and incorporating into a COVID-19 Vaccination Policy? You'll have to head over to the Wickens Herzer Panza website to find out. 

* Photo by Joshua Hoehne on Unsplash

Coronavirus Update 3-25-2021: Ohio legislature foolishly and dangerously limits the authority of the governor to respond to public health crises

"I can tell, as you're smirking at me not wearing a mask, you are not good at public health. This is not your lane, you need to get out of it."

Here was House Minority Leader Emilia Strong Sykes' floor speech criticizing the override vote for Senate Bill 22

"You are not good at public health," she tells maskless GOP colleagues pic.twitter.com/RYUCR1yxlx

— Tyler Buchanan (@Tylerjoelb) March 24, 2021

That's Ohio House Minority Leader Emilia Strong Sykes chastising her Republican colleagues for their support of Senate Bill 22, which Governor DeWine vetoed on Tuesday, and the state legislature overrode that veto yesterday.

What is S.B. 22? It limits the authority of the governor, Ohio Department of Health, and local health departments to respond to a public health crisis such as the ongoing COVID-19 pandemic. 

Coronavirus Update 3-24-2021: Which of your employees should you bring back to work

For the past year, an astounding 44 percent of employees have been working remotely full time, and two-thirds of employees have been working remotely at least one day per week. With vaccination rates on the rise and offering a light at the end of the pandemic tunnel, employers are starting to plan for bringing employees back to the physical workplace.

These decisions involve a lot of key questions an employer needs to answer in planning for where employees will work in a post-vaccine, post-pandemic world.

The 7th nominee for the “Worst Employer of 2021” is … the penny pincher

The law of every state I can think of requires that an employer timely provide a departed employee with his or her last paycheck. I know of no law that says how that final payment must be paid. There should be a law, however, that prohibits an employer from doing so by dumping a pile of oily pennies in someone's driveway.

That's exactly what happened to Andreas Flatens, who quit his job at A OK Walker Luxury Auto Shop because of the toxic work environment created by its owner, Miles Walker. He claims Walker then left his final paycheck of $1,000 (that's 100,000 pennies) in front of his home in pennies covered in some oily substance.

Coronavirus Update 3-22-2021: Covidiots at Whole Foods

"I'm Jewish; I don't have to wear a mask." That's what the maskless woman (shopping with her maskless teenage daughter) in front of me in line yesterday at the Whole Food fish counter said to the employee who politely reminded her that the mask she was holding in her hand was required to be on her face while inside the store. 

Her statement was bad enough. As a Jew, I know of no tenet of my religion that says masks don't have to be worn. But it's what came next that caused my jaw to hit the floor.

Coronavirus Update 3-19-2021: CDC is now recommending COVID-19 screening tests of asymptomatic employees of certain employers

The CDC is now recommending that certain non-healthcare employers test asymptomatic employees for COVID-19. According to the CDC, this screening "may be useful to detect COVID-19 early and stop transmission quickly" and can be done in done "in addition to symptom and temperature checks, which will miss asymptomatic or presymptomatic contagious workers." 

Coronavirus Update 3-18-2021: Employers facing lawsuits for failing to pay for pre-shift Covid screenings

In the early days of the COVID-19 pandemic, I asked this question: "Are employers legally responsible for paying workers for the time it takes to record their body temperatures before entering the workplace?" 

My answer was a legal, "Probably," and a moral, "Definitely."

Coronavirus Update 3-17-2021: CDC allows large employers to establish vaccination sites

Yesterday, the CDC released guidance permitting large employers to establish temporary sites to vaccinate employees. 

The CDC says that employers should consider opting for an on-site vaccination program if they have a large number of employees with predictable schedules and enough space to set up a pop-up clinic while still allowing for COVID-appropriate social distancing. 

The 6th nominee for the “Worst Employer of 2021” is … the deportation threatener

Full disclosure — I love Tate's Bake Shop's gluten free cookies. Prior to gluten free Oreos hitting supermarket shelves (I dare you to tell them apart from their full-glutened sibling), I bought Tate's gluten free chocolate chip cookies all of the time. The allegations raised by this story, however, gives me great pause in ever buying their cookies again. 

It seems that Tate's is in the middle of a union organizing campaign and the baker is alleged to have threatened with deportation undocumented workers who support the union.

Ch-ch-ch-ch-changes

Today brings BIG changes for my career and me. It's my first day of work at Wickens Herzer Panza after relocating my practice and joining its Board of Directors, Litigation Department, and Employment & Labor practice team (which I'll help guide).

I am beyond excited for the opportunity and platform my new home offers my practice, my clients, and me. Stay tuned for some exciting ideas about how I can better help your business proactively solve your workforce problems.

Coronavirus Update 3-12-2021: What does the American Rescue Plan mean for employers?

Yesterday, President Biden signed the American Rescue Plan Act of 2021, aka the $1.9 trillion Covid relief bill. It's the most significant economic relief bill we've seen in decades. Here are four key provisions to which employers should be paying attention.

Coronavirus Update 3-11-2021: Happy 1st Birthday COVID-19 Pandemic

It's been exactly one year since the World Health Organization declared COVID-19 a global pandemic. Tomorrow will mark the one-year anniversary of when I started working from home. (It will also mark another significant milestone, but more on that on Monday.) Wednesday is one year from the date I temporarily rebranded the Ohio Employer Law Blog as the Coronavirus Law Blog. I look forward to ending that branding soon.

Coronavirus Update 3-10-2021: John Oliver on unemployment

One of the lasting lessons of the COVID-19 pandemic is that our state unemployment systems are old and broken, and desperately need to be modernized and fixed. While the $1.9 trillion Covid relief package that President Biden is expected to imminently sign provides for a $300 federal unemployment bonus for a few months, that is the tiniest of bandaids on this very large problem. 

Thankfully, we have John Oliver to offer his commentary on this important issue.

Coronavirus Update 3-9-2021: CDC says fully vaccinated people can safely visit fully vaccinated Grandma (but still have to keep wearing masks at work)

Yesterday, the CDC issued its long-awaited guidance on how fully vaccinated people can safely visit others.

Here's who and how the CDC says can fully vaccinated people can safely visit:

• Other fully vaccinated people indoors without wearing masks or staying 6 feet apart; and
• Unvaccinated people from one other household indoors without wearing masks or staying 6 feet apart if everyone in the other household is at low risk for severe disease.

Coronavirus Update 3-8-2021: Local judge in hot water over “China Virus” comments

Rule number one of this blog has always been, "Don't criticize judges whom you might appear in front of." Rules, however, are made to be broken, and some issues are just too important to ignore.

Judge John O’Donnell of the Lake County Court of Common Pleas is in hot water over comments he made in this month's edition of his county bar association's newsletter. In an article he wrote about managing his courtroom during the pandemic, he called COVID-19 the "China Virus" three separate times.

This is simply not acceptable. I'm appalled, and you should be, too.

Coronavirus Update 3-4-2021: Please pay your employees for time off related to the Covid vaccine

Earlier this week, the House passed an extension of the FFCRA as part of its $1.9 trillion Covid stimulus bill. (I'll cover its details in a future post, but if you're curious now, head over to Jeff Nowak's FMLA Insights.) 

One of the new measures in this proposed extension is the inclusion of leave taken by an employee to obtain a COVID-19 vaccine or recover from any injury, disability, illness, or condition related to the vaccine.

Coronavirus Update 3-3-2021: As states lift mask mandates, remember that the law is always a floor and not a ceiling

I just announced Texas is OPEN 100%.

EVERYTHING.

I also ended the statewide mask mandate.

— Greg Abbott (@GregAbbott_TX) March 2, 2021

With that announcement, Texas joins Mississippi (whose governor made the same announcement yesterday) and many of the other usual suspects with no rules mandating that people wear masks or other facial covering in public or at work.

I say, "BOOOOOOO!!!!" This is the worst idea at the worst possible time. Yes, cases are falling and vaccination rates are rising. But the prevalence of the more contagious Covid variants is also rising, and we are still months or longer away from herd immunity. Now is the time to double-down on safety, not shirk our responsibility to ourselves, our families, friends, coworkers, and others. As my friend Suzanne Lucas eloquently stated in discussing this same issue, "Moral obligations don't go away."

The 5th nominee for the “Worst Employer of 2021” is … the safety ignorer

Nine days before Christmas, one of my neighbors posted the following on my community's Facebook page.

Any prayer warriors on here, please keep the roofer who just fell off one of the townhouses in your prayers. It doesn't look like he's moving. So so sad 😢.

Courtesy of OSHA, we now know exactly what happened. In addition to being completely tragic, it was also 100 percent avoidable. A local roofing company sent a 14-year-old boy up on a three-story roof with absolutely no fall protection equipment and then tried to cover it up after he fell. 

Coronavirus Update 3-1-2021: If “doing the right thing” doesn’t motivate you to take COVID-19 safety seriously, then consider the impact on your business if you don’t

The sign on the door of Platform Beer's Columbus, Ohio, taproom reads: "The entire Platform Columbus crew has quit. The taproom is closed until further notice. Thank you!"

The employees and their former(?) employer are battling it out on Twitter.

pic.twitter.com/PA2WzqVafQ

— Malibu StⒶsi 🏴 (@MalibuStasi) February 27, 2021

Coronavirus Update 2-26-2021: Adaptability

Adaptability to change is itself a hallmark of successful education.

– Peter Hilton

2020 – 2021 has been a different school year for everyone. My kids are fortunate in that their school, Lake Ridge Academy, has been open for full-time, in-person instruction for the entire school year. There have, however, been key changes in the name of safety. For example, the school made the decision not to participate in interscholastic sports this year. My son was able to participate on the Middle School robotics team, with the competition submitted remotely. My daughter had the benefit of participating in the Upper School's fall play, which was staged outside in the warm autumn weather. 

The Upper School musical, usually presented on stage in late February, presented a different set of challenges. An outdoor performance is simply not an option in the harsh winter climate of Northeast Ohio. An indoor live performance is also not an option because it simply cannot be executed safely within COVID-19's limitations. 

So what did the school do? It adapted. Instead of performing a live, in-person musical, it spent the past several months filming its first-ever movie musical, which it will stream March 5, 6, and 7. And my daughter, Norah, has the lead role. 

The 4th nominee for the “Worst Employer of 2021” is … the socially distant mass discharger

Repeat after me. Thou shalt only fire people in person, and never by phone call, email, or text message. If, because of COVID-19, you absolutely must fire someone by Zoom, at least have the decency to turn on your camera and mic.

Apparently, the Washington Football Team did not receive this memo. It just mass fired its entire staff of cheerleaders via Zoom, with the camera and mic turned off.

Coronavirus Update 2-24-2021: How much does it cost an employer for not following COVID-19 safety rules?

OSHA has cited a Missouri auto parts manufacturer for failing to implement and enforce coronavirus protections, which ultimately lead to an employee's death. The details, from OSHA's news release.

Two machine operators … who jointly operated a press tested positive for the coronavirus just two days apart, in late August 2020. The two workers typically labored for hours at a time less than two feet apart; neither wore a protective facial mask consistently. Ten days later, two more workers operating similar presses together tested positive. On Sept. 19, 2020, one of the press operators fell victim to the virus and died.

The total penalty? $15,604. For someone who died during a global pandemic because of his employer's irresponsibility

Coronavirus Update 2-23-2021: John Oliver tackles Covid and other safety issues in the meat packing industry

Last year I nominated Tyson Foods for 2020's Worst Employer because some of its managers started a cash buy-in betting pool on which of its employees would fall ill with COVID-19.

This past weekend, John Oliver did a scathing indictment of Tyson Foods and others for their health and safety record during the pandemic and otherwise.

If doing the right thing by your employees isn't enough for you to take health and safety seriously during the ongoing pandemic and beyond, and if staying off my Worst Employer list also isn't enough, then maybe staying off of John Oliver's show will push you in that direction.

Coronavirus Update 2-22-2021: Get ready for the glut of Covid whistleblower tag-along claims

The headline reads, "Ex-Manager Sues Ample Hills in Lawsuit Alleging Harassment and Unsafe COVID-19 Protocols" (emphasis mine).

Here's the lede:

Bryce Mottram, a former general manager at one of quirky ice cream purveyor Ample Hills' scoop shops, has filed a lawsuit in New York Eastern District Court alleging that he was fired from the company in retaliation for speaking up about instances of sexual harassment and unsafe COVID-19 workplace protocols at the company.

I firmly believe that for the next year-plus, just about every employment-related lawsuit will contain a COVID-19 whistleblower tag-along claim. 

The number one reason not to have a labor union

You would think that an employee who purposely defecates on the workplace floor in an act of revenge against his boss and then brags about it is worthy of termination. And you'd be correct 100 percent of the time … unless that employee is a member of a labor union. An arbitration board cited the employee's lengthy, faithful service record to the company and other mitigating circumstances in reinstating him. 

How do you define success?

This week I had the pleasure of guesting on Pat Perry's Success Wave podcast. During our half-hour-plus conversation, Pat and I discussed a variety of topics, including lawyering in the time of COVID-19 and the key issues I see employers facing in 2021. We also talked about some general business questions, such as this one: How do I define "success." Here's my answer.

You can listen to the full episode on Apple Podcasts or wherever you get your podcasts.

Pop culture as a means to break down inherent biases and prejudiced divides

Think about it. If you want to know where the American public is, look at the money being spent on advertising. Did you ever five years ago think every second or third ad out of five or six you turn on would be biracial couples. [Applause] No, I'm not being facetious. The reason I'm so hopeful is this new generation. They're not like us. They're thinking differently. They're more open. And we have to take advantage of it.

Those were the words of President Biden last night, speaking about race relations during his CNN Town Hall. 

He's 100 percent correct. 

Coronavirus Update 2-16-2021: Are you monitoring your remote employees?

According to this article at Wirecutter.com, employers are using the COVID-19 pandemic as a justification to enhance their monitoring of employees' activities, specifically remote employees.

As COVID-19's spread has prompted an expansion of work-from-home policies across various industries, the use of more-pervasive monitoring software, also known as "tattleware" or "bossware," has increased. The New York Times demonstrated how this software works, but the idea is simple: Once the software is installed, an employer has deeper access and even live monitoring tools for everything you do on your computer, including which applications you open, what websites you visit, and how much time you spend doing different activities. Employers can use this data to track your attendance or periodically snap screenshots of your screen. Some software can even monitor the music you listen to, your facial expressions, your tone of voice, or your writing tone throughout the day. To what purpose depends on the type of work you do—and whom you do it for.

According to Brian Kropp, VP of Research for Gartner, the number of companies that use this "tattleware" has increased from 10 percent pre-COVID to 30 percent currently. It's an epidemic all on its own.

Coronavirus Update 2-15-2021: CDC updates quarantine guidelines for vaccinated individuals

Must individuals who are fully vaccinated (i.e., have received both vaccine doses) against COVID-19 quarantine if they have been in close contact with someone who has a confirmed case of the virus?

According to guidance recently updated by the CDC, the answer is no (assuming certain criteria are met).

Coronavirus Update 2-12-2021: Doctor wrongly fired for doing the right thing with expiring COVID vaccine dose

"Ten doses of the Covid-19 vaccine would expire within hours, so a Houston doctor gave it to people with medical conditions, including his wife." So reads the lede in this New York Times story. 

What happened next? He was fired.