Coronavirus Update 5-25-2021: How to enforce masks rules at work without breaching ADA confidentiality rules

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? 

Coronavirus Update 5-21-2021: We need a digital vaccine passport

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.

Coronavirus Update 5-20-2021: Fake Covid vaccine cards are a growing problem, and also a federal crime

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.

Coronavirus Update 5-19-2021: OSHA sends employers a strong signal that it intends to follow the CDC on masks

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?

The 9th nominee for the “Worst Employer of 2021” is … the enslaving employer

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.

Coronavirus Update 5-17-2021: It’s spelled HIPAA, not HIPPA … fixing some common misconceptions about the Health Insurance Portability and Accountability Act

Ever since the CDC amended its COVID-19 guidance to say that the fully vaccinated no longer need to wear masks indoors, I've read myriad variations of this tweet:

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.

They are very, very wrong. So, I thought today I'd clear up some common misconceptions about HIPAA specifically and medical privacy more generally.

Coronavirus Update 5-14-2021: CDC ends masking and social distancing for the fully vaccinated, but what does it mean?

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—

• If you are fully vaccinated, you can resume activities that you did prior to the pandemic, without wearing a mask or physically distancing. 
• If you are not fully vaccinated, you must keep wearing masks when around others indoors.

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?

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.