Coronavirus Update 5-13-2021: Governor DeWine ends all Covid public health orders, and goes game show host to get more people vaccinated

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.

Coronavirus Update 5-12-2021: We are in the midst of a public mental-health crisis; how employers can help

Consider these statistics, courtesy of the National Institute of Mental Health, which recently examined mental health issues one year into the COVID-19 pandemic:

• 31% of people report symptoms of anxiety or depression​
• 13% report having started or increased substance use​
• 26% report stress-related symptoms​
• 11% report having serious thoughts of suicide in the past 30 days​

These grim numbers tell me that COVID-19 has created a national mental health crisis. At least some of your employees are struggling. Your challenge is what to do about it.

Coronavirus Update 5-11-2021: I ❤ science

Late yesterday, the FDA announced that it has authorized Pfizer's COVID-19 vaccine for 12-15-year-olds. It's the best news I've heard in 14 months. We've literally been living on pins and needles, feeling like we are daily dodging viral bullets as we wait for our high-risk 12-year-old and his 14-year-old sister to be able to get vaccinated.

Coronavirus Update 5-10-2021: EEOC Commissioner wants industry-specific Covid guidelines

Last week, the EEOC held a public meeting on the impact of the COVID-19 pandemic on civil rights in the workplace. Following up on the remarks at that meeting, EEOC Commissioner Keith Sonderling, speaking at a virtual summit held by the Institute for Workplace Equality, said that employers need guidance on whether their Covid-related decisions are legal, and that the EEOC should issue industry-specific guidance to clear up these ambiguities.

Happy birthday to me!

This weekend, the Ohio Employer Law Blog turns 14! 

May 9, 2007 — my first post ever here at the blog. 3,628 posts and three law firms later, happy birthday to me!

May 9 offers another reason to celebrate, Mothers' Day. I haven't seen my mom in 19 months, but with vaccines hopefully on the immediate horizon for my kids, I should be able to give my mom a sorely missed and needed hug really soon. This long-distance message will have to do until then.

Today also happens to be my mom's birthday, so everyone please wish her a happy one!

Next week, more legal stuff, starting with some good, and not-so-good, news from the EEOC.

* Photo by Marty Southwell on Unsplash

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?