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.
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."
"I need an accommodation for your mandatory vaccination policy. The vaccine is against my religion."
As more employers roll out vaccine mandates, more will be faced with this exact scenario.
Title VII requires an employer to reasonably accommodate an employee's sincerely held religious beliefs, practices, or observances, as long as the accommodation does not impose an undue hardship.
Two, and only two, religions, however, actually support people not getting vaccinated as a tenet of the religion — Christian Scientists and the Dutch Reformed Church. There are an estimated 106,000 Christian Scientists in the United States, and 194,000 members of the Reformed Church. That's a tidy total of 300,000 potential religious objectors based on their religion's actual teachings, period (or only 0.25% of all employees). But that minuscule number does not end the inquiry.
In the past week, we have been made aware of three employees who were coming to the office unvaccinated. All three have been terminated. Let me be clear — we have a zero-tolerance policy on this. You need to be vaccinated to come to the office. And you need to be vaccinated to work in the field, with other employees, regardless of whether you enter an office or not. Period. We expect that in the weeks ahead, showing proof of vaccination may become a formal part of the WarnerMedia Passcard process. Regardless, our expectations remain in place.
According to the lawsuit the State of California is bringing against Activision Blizzard, "During a company event … [key World of Warcarft developer Alex] Afrasiabi would hit on female employees, telling [them] he wanted to marry them, attempting to kiss them, and putting his arms around them. This was in plain view of other male employees, including supervisors, who had to intervene and pull him off female employees. Afrasiabi was so known to engage in harassment of females that his suite was nicknamed the 'Cosby Suite' after alleged rapist Bill Cosby."
You've read my posts from earlier this week, listened to the newly self-appointed quarterback of Team Vaccine Mandate, and decided to require the Covid vaccine for all of your on-site employees. After you announce your mandate, an employee enters your office to present the following ultimatum: "I'll get the vaccine," the employee tells you, "as soon as you sign off on this document."
The employee then hands you the following form, which it found on a website called The Solari Report.
Form for Employees Whose Employers Are Requiring Covid-19 Injection
— The Solari Report (@solari_the) August 2, 2021
This puts employers in a box. This is a form every employee who is faced with this needs to submit to the authorized officer of their company. It is 100% legally accurate, forces them to respond to your questions ttps://t.co/stuFAl0888">pic.twitter.com/stuFAl0888
I'm not proud of this but i just made a scene in public for the first time in my life… I walked into a Starbucks and they asked me to put a mask on! I yelled this is ridiculous, so I turned around and walked out. I know what you're thinking… My first mistake was walking into a Starbucks:)
I came across the post written by the former Hercules actor a couple of nights ago while perusing my LinkedIn feed. Three things came to mind.
If you have an employee experiencing one or more of these long-haul symptoms, what are your legal obligations to that employee under ADA and FMLA?
Children nationwide are getting ready to go back to the school for the 2021 – 22 school year, the third school year students and their parents will be living and dealing with, Covid-19.
Here's what we know about what this school year will look like.
Late last week, a federal jury tagged Walmart with a verdict totaling more than $125 million in a disability discrimination lawsuit the EEOC brought on behalf of an employee with Down syndrome.
I pay a teriyaki chef $120 per day. He worked ten hours—ten hours a day. So here’s how to calculate it. He works ten hours a day at $120 a day. I divide it by hours, and it’s $10.97 per hour. If he works overtime, it will be $16.20 overtime pay. So $120 a day, I have it covered because it was way past—way beyond $7.25 minimum wage rate. So I take consideration of the industry standard, you know. So either it is for teriyaki chef, it is $120 or $120 per day.In other words, as the court correctly surmised in Walsh v. Fusion Japanese Steakhouse, the employer "works backward to calculate the hourly rate of the employees based on the day rate." That backward calculation, however, to jerry-rig an hourly rate plus and overtime rate to arrive at the agreed-upon day rate, is not legal.
On Friday, President Biden signed an Executive Order on Promoting Competition in the American Economy. According to the Order, its goal is to promote a "fair, open, and competitive marketplace" and "the welfare of workers, farmers, small businesses, startups, and consumers" through the elimination or limitation of "excessive market concentration," which "threatens basic economic liberties, democratic accountability." One of the President's targets is "companies [that] require workers to sign non-compete agreements that restrict their ability to change jobs." Indeed, according to the President, half of private-sector businesses require at least some employees to enter non-compete agreements, affecting some 36 to 60 million workers.
Thus, President Biden ordered "the Chair of the FTC … to consider working with the rest of the Commission to exercise the FTC's statutory rulemaking authority … to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility."
I've shared this story before, but it's worth re-sharing because (a) it's been a few years and I have many new readers, (b) it's really good, and (c) because it's super relevant to today's lesson.
I spent a high-school summer working on a warehouse loading dock. One of my co-workers was named Harland Jester. (I provide his name because he named his son "Court," and this context provides the necessary color for the rest of the story.)
Yesterday, I was highly critical of the ABA Journal for publishing a column that victim-blamed working moms for their lack of advancement in the legal profession. Then, ABA President Patricia Lee Refo did what she could to fix the injustice created by the journal of the organization she runs.
In her own column—Women's success in legal careers: Lack of advancement is not a 'woman' problem, it’s a 'profession' problem—Refo took apart the notion that female attorneys are to blame for their lack of upward mobility. They have not failed, Refo correct argues, their employers have failed them.
Last week I asked you, my readers, for your creative ideas to incentivize more people to get vaccinated.
Your thoughts—
Yesterday, the Supreme Court declined to hear the appeal of a school district challenging the right of a transgender student to use the bathroom that corresponded to his gender identity, leaving in place the landmark 4th Circuit opinion holding that transgender bathroom restrictions constitute illegal sex discrimination.
This decision falls in line with the EEOC's recent statement on this issue for employers.
WWJ CBS Detroit fired meteorologist April Moss after objecting on-air against her employer's COVID-19 policies. Moss paused her Father's Day weather forecast to say, "And speaking of a brand new week, I will be sitting down this week with Project Veritas to discuss the discrimination that CBS is enforcing on its employees. Tune in to Project Veritas for my full story." (Project Veritas is a controversial far-right activist group that uses hidden camera footage to attack its targets.)
Governments and employers seemingly have tried everything to get as many people vaccinated as quickly as possible.
Yet, we are failing.
I spent last weekend visiting my parents in Philadelphia. Because of the pandemic we had not seen them in 20(!) months. It was a glorious five-day visit.
During our trip to Philly we mixed in a visit to Donovan's cardiologist (whom he had also not seen in 20 months). We learned two things from that appointment.
First, Donovan's (formerly) narrow pulmonary valve responded amazingly to his October 2019 procedure.
Secondly, Covid is still spreading like wildfire among the unvaccinated, even kids. We learned that pediatric ICUs are full of unvaccinated children with serious and dangerous COVID-19 infections. According to Donovan's cardiologist, "It is now painfully clear that you will either get vaccinated or you will get COVID."
Further proof of our Covid-bifurcated society? Consider the Manatee County, Florida, IT Department, which was just ravaged by a COVID-19 outbreak. According to CNN, of the six people infected, five were hospitalized and two died. They were all unvaccinated. The only exposed employee who did not get infected happened to be the only vaccinated employee.
Ex-employee in deep doo-doo after prank: A cashier reported an employee who had given his two weeks’ notice was seen running from the restaurant restroom to his car and driving away. A check of the restroom revealed the suspect had scattered dog feces on the floor. He was arrested and charged with criminal mischief.Based on my experience, this story is quite tame. Just the floor? What about the walls? And only dog feces? Or was it really just dog feces?
Twelve days ago I predicted that the 117 hospital workers suing their employer over its mandatory COVID-19 vaccine would lose their lawsuit in spectacular fashion.
I love it when I'm very, very correct.
Over the weekend, Judge Lynn Hughes of the United States District Court for the Southern District of Texas issued a pointed five-page opinion that eviscerated the plaintiffs' arguments and dismissed their lawsuit. The losers vow to appeal and fight on. To quote one of my law school professors, I say, "Too bad, so sad, hard cheese."
Here's what I predicted about this case and the plaintiffs' arguments, and here's what Judge Hughes had to say.
For all other employers, OSHA updated its voluntary guidelines to focus primarily on protections for unvaccinated and otherwise at-risk workers. These updates largely track the CDC's updated guidelines for the fully vaccinated.
Testimony going off the rails now.
— Tyler Buchanan (@Tylerjoelb) June 8, 2021
Tenpenny is claiming there is metal in the vaccine that causes forks to stick to your forehead. She saw videos of it on the internet, you see
Also promoting the 5G cell phone network vaccine theory. This is the anti-vaccine "expert witness" pic.twitter.com/sPpuAqmHba
In Miller v. Bonata, a federal district court held that California's 30-plus-year ban on assault weapons violates the Second Amendment. In support of his holding, Judge Roger Benitez made the following analogy, in arguing in support of the lack of harm assault weapons pose: "More people have died from the Covid-19 vaccine than mass shootings in California."
Judge Benitez is wrong, and it's not even a close case.
In light of the recent crippling Russian cyber-attacks on Colonial Pipeline and JBS, now is a perfect time for a refresher course on cybersecurity.
Here are some A+ resources I've previously provided:
Employers have been anxiously waiting for the EEOC to publish its guidance for employers on incentives offered to employees in exchange for receiving the COVID-19 vaccine. Late last week, the EEOC finally released that guidance. The issue is whether the incentive renders the vaccine coerced and therefore non-voluntary, which would be unlawful under the ADA and GINA.
What did the EEOC say:
Today, my rock-star daughter turns 15.
There's lots I can say about Norah, but I've shared so much over the years that I feel like it'd just be repetitive. So instead of writing about what a sweet, smart, compassionate, talented human she is and has always been, today I'm turning this space over to her.
Norah's "final exam" for her 9th grade English class was a creative writing assignment. They were given very little direction. Just, "You have a week; write something creative." With her permission, today I'm publishing what she wrote. I found it so moving and so outstanding that I think it needs to be shared with as wide of an audience as possible. Enjoy.
And please take a moment to wish Norah a happy birthday. You'll find her on Twitter @normlmao_ or @norahmariemusic.
If an employer is supposed to keep an employee's vaccination status as a confidential medical record, how is an employer supposed to enforce the CDC's most recent guidance that permits fully vaccinated individuals to unmask?
Yesterday's post about COVID-19 vaccine-card fraud got me thinking about what we need to do to combat it (other than trying to spot fakes when we can and diligently enforcing the criminal laws that already prohibit this fraud). My answer:
A national digital vaccine passport.
But it's complicated.
Fraudulent COVID-19 vaccine cards are readily available online, and their prevalence will only grow with the CDC's loosening of its mitigation guidelines for the fully vaccinated.
The problem has gotten so bad that the FBI is now warning people that making or buying a fake COVID-19 vaccination record card is a federal crime.
One open issue stemming from the CDC's about-face on masking for the fully vaccinated is how OSHA would address these new guidelines. When OSHA published its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace in late January, it made it clear that one's vaccination status had zero impact on an employer's obligation to require masks in all cases.
Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person.
In the world of Covid, three and half months is an eternity, so here we are just three and a half months later living in a country without facial coverings for the fully vaccinated. So what says OSHA?
Today, a break from talking about the CDC and masks (but more tomorrow) to bring you a truly awful nominee for the Worst Employer of 2021.
For the past two years, a human trafficker or enslaver hoisted the "Worst Employer" trophy at year's end. Will 2021 bring us a threepeat?
NBC News reports on a strong contender:
The FBI was at a massive Hindu temple in New Jersey on Tuesday that has been accused in a lawsuit of luring Indian men from marginalized communities to the U.S. and forcing them to work nearly 90 hours a week for around $1 an hour.
Friendly reminder that under HIPPA, your vaccination status is private.
Or this tweet:
The rule is simple, HIPAA protects EVERY American from disclosing ANY of their health records to ANYONE.Their point? That medical privacy laws protect their vaccination status, and it's illegal for any business to ask as a condition of anything.
Yesterday, the CDC updated its Covid guidance to remove all masking and social distancing guidance for those of us who are fully vaccinated. According to the CDC—
But what does this really mean? And, more to the point, how you know who's vaccinated and who's not so that you can permit them to remove their masks inside your business?
But what does it really mean? And, more to the point, how do you know who's vaccinated and who's not so as to allow anyone to be unmasked?
Last evening, Governor DeWine held a statewide address to announce the availability of the Pfizer vaccine for Ohioans ages 12 - 15. That news was not shocking. The rest of what he had to say, however, was.
