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