Coronavirus Update 6-23-2021: We now live a Covid-bifurcated society — the vaccinated and the will-get-sick

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.

Coronavirus Update 6-22-2021: Workplace things Covid has not changed—you can still fire dishonest employees

Suppose an employee leaves work claiming Covid-like symptoms. He then calls off work for the next two weeks, claiming he is quarantining at home at his doctor's recommendation. Can you fire the employee during that quarantine period? Does your opinion change if you learn during the quarantine that the employee's doctor never recommended the quarantine and the employee lied about receiving that recommendation?

Those are the basic facts of O'Bryan v. Joe Taylor Restoration, and upon which a federal court jury in Southern Florida recently entered a verdict in favor of the employer.

Explaining the EEOC’s brand-new LGBTQ+ resources in three words

Yesterday, Bostock v. Clayton County—the Supreme Court decision which held that Title VII expressly covers and protects gay and transgender employees—celebrated its one-year anniversary. 

To commemorate this event, the EEOC released new resources on the issues of sexual orientation and gender identity workplace rights. These materials include a new landing page that consolidates the EEOC's information on these issues and a new technical assistance document to help explain Bostock and the EEOC's positions on it.

As sure as I believe love is love, I'm sure every BigLaw firm will be publishing detailed summaries about this new technical assistance document. 

I can summarize it, however, in three short words.

HR horror stories

If you've never experienced someone spreading 💩 all over the place, then you don’t work in employment law or HR.

For example, consider the following, which I found on the local police blotter—

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?

I posted that story on LinkedIn and asked if anyone could top it. My followers did not disappoint.

I'm omitting names and employers to protect the guilty. Happy Tuesday!

Coronavirus Update 6-14-2021: It took all of 12 days for 117 employees to learn what it feels like to lose a lawsuit in spectacular fashion

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.

Coronavirus Update 6-11-2021: OSHA’s long-awaited COVID-19 safety rule is a big bowl of … meh

Today is the 15-month anniversary of the COVID-19 pandemic. All that employers have asked of OSHA during the past year and a quarter is some clear guidance on the rules and expectations to keep employees healthy and safe. Yesterday, OSHA finally complied … sort of. 

The agency issued an emergency rule that sets workplace safety parameters for employers for the remainder of the pandemic. Critically, however, it only applies to health-care employers. (Does this apply to you? OSHA published this not-so-handy flowchart to help you out.) With a few exceptions for workplaces in which all employees are fully vaccinated and which bar anyone who may have COVID-19, health-care employers must maintain social distancing protocols, provide and ensure that workers wear appropriate face masks while at work, and give workers paid time off to get vaccinated and recover from vaccine side effects, among other provisions. OHSA even published this handy screening questionnaire, which I drafted for my clients 15 month ago.

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. 

Coronavirus Update 6-10-2021: The patients have taken over the asylum

Meet Dr. Sherri Tenpenny. She calls herself the "most knowledgeable and outspoken physician on the adverse impact that vaccines can have on health." The Center for Countering Digital Hate, on the other hand, identifies her as number four among its "Disinformation Dozen" … "twelve anti-vaxxers who play leading roles in spreading digital misinformation about Covid vaccines."

She is also one of 517 people who offered testimony earlier this week in the Health Committee of the Ohio House of Representatives in favor of Ohio House Bill 248, the Vaccine Choice and Anti-Discrimination Act. That bill would:

• Prohibit anyone from mandating, incentivizing, or otherwise requesting their employees, customers, or students get vaccinated;
• Make it illegal for anyone to require a vaccination for someone who refuses based on medical contraindication, natural immunity, religious convictions, or other reasons of conscience; and 
• Prohibit anti-vax discrimination.

This is a clip of Dr. Tenpenny's testimony, the scariest, and craziest, offered that day.

Testimony going off the rails now.

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

— Tyler Buchanan (@Tylerjoelb) June 8, 2021

Coronavirus Update 6-9-2021: No, the COVID-19 vaccine has not killed more people than mass shootings, and it’s not even close

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. 

Coronavirus Update 6-8-2021: OSHA updates employers of N95 use

OSHA recently provided employers an update on the proper use of N95 masks, including a new video, poster (in English and Spanish), and FAQ (which makes is clear that "an N95 respirator is effective in protecting workers from the virus that causes COVID-19).

Celebrating the important stuff

Donovan was diagnosed with Noonan Syndrome when he was just five months old. His gastroenterologist heard a heart murmur, which caused her to refer us to a cardiologist. She diagnosed his pulmonary valve stenosis. Since 60 percent of people with this heart defect also have Noonan Syndrome, the cardiologist referred us to a geneticist, who made the ultimate genetic diagnosis. 

Noonan Syndrome is a genetic disorder caused by one of several mutations. Our son's mutation is of the PTPN11 gene. NS is a multi-system disorder with an estimated prevalence of 1 in 1,000 – 2,500 births. In Donovan's case, he has a bleeding (platelet function) disorder, the above mentioned congenital heart defect (which doctors addressed a couple of years ago via a balloon angioplasty), feeding and gastrointestinal issues (Celiac disease), ptosis of his right eye, low-set ears, waning small stature (for which he takes daily injections of growth hormones, that are working really, really well), and ADHD. Some (although not our son) also have learning disabilities.

Donovan's diagnosis was a gut punch for my wife and me; we had no idea what life would hold for him.

This was Donovan last Friday, holding his 6th Grade Core Value Award for Scholarship.

Now is as good a time as ever for a cybersecurity refresher

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:

Coronavirus Update 6-2-2021: 117 employees are about to learn what it feels like to lose a lawsuit in spectacular fashion

117 employees have sued their employer, Houston Methodist Hospital, over its requirement that all employees receive the COVID-19 vaccine. 

According to ABC News, the hospital gave its employees a June 7 deadline to get vaccinated or face suspension and termination. The employees allege that their employer is "illegally requiring its employees to be injected with an experimental vaccine as a condition of employment." The lawsuit adds that the hospital's vaccine requirement violates the "Nuremberg Code and the public policy of the state of Texas."

In a statement, hospital CEO Dr. Marc Boom said, "It is unfortunate that the few remaining employees who refuse to get vaccinated and put our patients first are responding in this way. It is legal for health care institutions to mandate vaccines, as we have done with the flu vaccine since 2009. The COVID-19 vaccines have proven through rigorous trials to be very safe and very effective and are not experimental."

Dr. Boom is 100 percent correct; the hospital's policy is legal. Here's why, and why this lawsuit will fail spectacularly.

Coronavirus Update 6-1-2021: EEOC says that employers legally can offer incentives to employees to get vaccinated in almost all instances

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:

Yes, Karen, your boss really can fire you for being a Karen

Do you remember Amy Cooper? She was the woman who called police on a Black man (Christian Cooper, no relation) who crossed her path while she was walking her dog in Central Park. One day later, her employer, Franklin Templeton, fired her, explaining, "We do not tolerate racism of any kind at Franklin Templeton." One year late, she has filed suit against her former employer, claiming that she was wrongfully terminated based on the company's failure to investigate what actually happened in the park.

Through a spokesperson, Franklin Templeton denies any wrongdoing related to Cooper's firing. "We believe the circumstances of the situation speak for themselves and that the company responded appropriately. We will defend against these baseless claims." 

In other words, Christian Cooper's viral cell phone video speaks for itself. Franklin Templeton either fired Amy Cooper because it concluded that she's racist, because her actions brought the firm negative publicity, or both. Either way, I see no chance that Amy Cooper's lawsuit succeeds.

Happy 15th Birthday, Norah!

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.

Coronavirus Update 5-26-2021: Vaccination-status harassment

"I can't believe you got vaccinated. It's an experimental drug that I'm not injecting into my body. Besides, I heard that Bill Gates and the global elites implanted 5G trackers in the vaccine. All the government wants to do is control us, and you're letting them by submitting to these shots. Sheeple!"

-or-

"I can't believe you're not getting vaccinated. Don't you care about protecting yourself and others? This vaccine has been tested, vetted, and is safe and effective. We need to reach herd immunity if we want this pandemic to end, and you're not doing your part. Selfish!"

Some version of this drama is likely playing out in your workplace. And it has to stop, ASAP.

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?