Coronavirus Update 10-13-2021: Unfortunately I need to keep clarifying misconceptions about HIPAA

I came across the following information on the website of a prominent national payroll provider:

Q: In what ways can/should HR departments capture and record employee vaccination information? What are the HIPAA implications?

A: When it comes to recording this data, it's a good idea to keep it separate from other employee information on file. It should not be part of standard employee records and should be accessible to as few people as possible. Because vaccination records are covered under HIPAA regulations, businesses must ensure they're diligent about securely collecting, recording and storing this information to limit the risk of compromise.

It cuts me to the quick to see an entity that should know better getting HIPAA so very wrong. If they can't get it correct, we have little hope that the general public will stop raising HIPAA as an objection to any disclosure of their health information, including vaccination status.

So, to clear the air once and for all, this is what HIPAA covers and doesn't cover, and why it does not apply to employers gathering vaccine-related information from employees.

Coronavirus Update 10-12-21: A prior Covid infection is not a defense to an employer’s vaccine mandate

"I don't need the vaccine; I've already had Covid and have superior natural immunity" is a popular refrain from some people who've been infected with Covid and, for that reason or another, are hesitant to get the Covid vaccine.

Does that argument hold up against an employer's vaccine mandate? According to two federal courts that recently examined the issue, the answer is a clear no. Kheriaty v. Regents of the Univ. of Calif. (decided 9/29/21 by a California federal court judge) and Norris v. Stanley (decided 10/8/21 by a Michigan federal court judge) each examined whether an employee was entitled to a preliminary injunction against their employer's vaccine mandate.

In each case, the Court sided with the employer and rejected the employees' pre-existing immunity arguments.

Coronavirus Update 10-11-21: World Mental Health Day

Yesterday was World Mental Health Day. It was also day 579 of the Covid-19 pandemic. 

Covid-19 has altered all of our lives; all employees are dealing with stress, anxiety, and isolation.

19 months into the pandemic, more than 45 million Americans have been diagnosed with Covid-19, 733,000 have died, and millions more have suffered debilitating illnesses. These are actual people, not just statistics, and we all know someone this virus has impacted.

Many of us have dealt with the stress of layoffs, furloughs, lost income, closed businesses, and the stress that flows from figuring out how to pay the bills and feed our families.

Parents have balanced the second job of homeschooling (or at least assistant homeschooling) their kids against their primary job of their actual paying job.

While life has returned to some semblance of normalcy, there remain many too many of us who are unvaccinated and, thanks to Delta, we all still live with the worry of contracting this virus merely by stepping out into the world. 

As a result, some of your employees are working with and through mental health issues of varying degrees caused by all of this stress, change, and loss. Some will be dealing with the exacerbation of pre-existing mental health issues, and some will have what I am calling Covid-19 PTSD.

WIRTW #599: the “34” edition

Ask any litigant who has had the (dis)pleasure of being a party to civil litigation in the Cuyahoga County Court of Common Pleas for their opinion on the experience, and I can almost guarantee they will tell you two things — their case moved too slowly and the courthouse is gross. A proposal currently being considered will fix the latter while making the former exponentially worse.

The Cuyahoga County Court of Common Pleas has 34 presiding judges. That's currently has. According to Cleveland.com, a proposal is being considered to slash that number. Why? Because fewer judges mean fewer necessary courtrooms, which means that the new courthouse that Cuyahoga County desperately needs will be less expensive to construct.

This idea is terrible. Civil cases move slowly through our court. Yet, it's not the court's fault, it's not the judges' fault, and it's not their staff's fault. It's a systemic fault caused by a system that has the same group of 34 judges simultaneously presiding over civil and criminal dockets. Criminal cases always take precedence. That's how our system must operate because the Sixth Amendment to the United States Constitution guarantees criminal defendants "the right to a speedy … trial." If criminal cases did not take precedence, too many criminal defendants would go free prior to trial because they could not obtain a "speedy trial."

Reducing the number of judges for the sake of construction costs will not remedy this problem. In fact, it will only make it exponentially worse. Slashing the number of judges would be an unmitigated disaster for civil litigants, who already wait years to try their cases.

I implore the Cuyahoga County Commissions to reject any proposal that calls for a reduction in the number of Common Pleas judges as a means to pay for a new courthouse. Don't get me wrong; we desperately need a new courthouse. But the county should not pay for it at the expense of the civil justice the court is supposed to dispense.

Here are the best things I read online this past week that I think you should be reading, too.

Coronavirus Update 10-7-21: EEOC brings its first pandemic-related lawsuit over a denied WFH accommodation

The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. These are fact-specific determinations.

EEOC's What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

According to the EEOC, just because an employer previously offered remote work during the pandemic for some or all employees does not mean that remote work is an appropriate accommodation for any specific employee after it recalls employees to the physical workplace.

What does this look like in practice? A lawsuit the EEOC recently filed will test its limits.

Employment law lessons from “Ted Lasso” — Let’s talk about medical confidentiality

The penultimate episode of Season 2 of Ted Lasso ended with an absolute gut-punch of a cliffhanger.

(Spoiler Alert — Turn Back Now If You're Not Caught Up)

Coronavirus Update 10-5-21: Would you rather? Get fired? Or get the Covid-19 vaccine?

Last week I asked a simple question on LinkedIn: 

If your employer is mandating the Covid vaccine, would you rather get fired or get the shot?

More than 1,500 people responded, and the results shocked me. 27 percent — that's more than one out of every four respondents — say that they'd choose termination of their employment over a jab of the Covid vaccine.