Coronavirus Update 11-17-2021: OSHA’s vax-or-test emergency standard is on life support

Yesterday brought two huge developments in the battle over OSHA's vaccine-or-test emergency temporary standard.  

First, the conservative 6th Circuit won the lottery to determine which circuit court of appeals will hear one consolidated challenge to OSHA's vax-or-test emergency temporary standard. 

Secondly, OSHA announced that it had suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

All in all a bad day for the pro-mandate crowd. 

I break down what it all means in this short video.

The 14th nominee for the “Worst Employer of 2021” is … the Singing Supervisor

You can tell by the smell that your girl's not doing well when the end of the month rolls along. You can tell by the stink that your girl's not in the pink when the end of the month rolls along.

That's the first verse of a song Brian Mamott, an employee in the Village of Lancaster, New York's, Department of Public Works, sang to his co-workers during a July 15, 2021, workplace meeting. And that's the least offensive part of the song. According to WGRZ (which obtained a video recording of the performance), the remainder of the two-minute ditty included verses, "about women being 'bitchy' during their period and about sex acts with women while they're menstruating."

Coronavirus Update 11-15-2021: Employers, DO NOT allow a law firm to charge you for their OSHA ETS compliant vaccine policy

The following headline in my feed reader recently caught my attention: NOW AVAILABLE: Model Employment Policy for Compliance with OSHA’s Emergency Temporary Standard. Always curious about the competition, I clicked, thinking I'd find a breakdown and analysis of the free-to-download policies OSHA has made available on its website (one sample for Vaccination or Testing and Face Covering and one for Mandatory Vaccination only).

Instead, this is what I discovered:

Our US Labor and Employment team has developed a model policy that complies with OSHA's recently announced Emergency Temporary Standards (ETS) requirements regarding vaccination and employee testing, which also includes sample forms for employees to request reasonable accommodations. This policy can be very helpful to employers as they navigate these challenges. 

BREAKING NEWS: 5th Circuit issues new order continuing its stay of the OSHA vaccine-or-test ETS

In a 22-page opinion issued last night that I can only describe as a scathing rebuke of OSHA's vaccine-or-test emergency temporary standard, the 5th Circuit Court of Appeals formally granted a stay of the ETS pending a full review of the pending motion for permanent injunction, and further ordered that "OSHA take no steps to implement or enforce the Mandate until further court order."

WIRTW #604: the “I promise I’m a real lawyer” edition

The post was not meant to be controversial. Aaron Rogers admittedly lied about his vaccination status. I merely suggested that he not get a free pass because of who he is, and should be treated like any other employee caught lying on the job. Then, LinkedIn featured my post in their Breaking News sidebar. And all hell broke loose.

More than a few people called me a Nazi (which, for the record, Linkedin does not consider a violation of its Professional Community Policies.)

Others joyfully outed their own racism by comparing Rogers to his "murdering and raping teammates" or by calling Covid-19 the "Wuhan Flu."

Still others incorrectly cited laws such as HIPAA (which they at least spelled correctly) to claim that Rogers' rights are being violated.

Some questioned my understanding of employment law. Pro tip: If you start your comment with, "I'm not a legal expert, but," then you shouldn't be offering a legal opinion. I don't tell the pilot how to fly the plane or the surgeon where to slice. Please don’t tell me I'm wrong about employment law. 

One notable commenter — a paralegal who has since blocked me — even went so far as to suggest that I shouldn't be writing about legal issues because I'm not actually an attorney.

So, today, I'm here to establish that I am, in fact, an actual, bona fide, licensed, and practicing attorney. I graduated law school in May 1997, took the bar exam that July, learned a few months later that I had passed said bar exam, was sworn in 10 days after that, and have been a licensed attorney in the State of Ohio practicing management-side labor and employment law ever since. Really. I promise.

Check out the bonkers (and frankly, scary) discussion here, if you dare.

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

Coronavirus Update 11-11-2021: Religious groups tell 5th Circuit that the OSHA vaccine mandate is a “sin against God"

In a filing made with the 5th Circuit Court of Appeals in support of the petition seeking to strike down OSHA's "vaccine or test" emergency temporary standard, the American Family Association and Word of God Fellowship (which does business as Daystar Television Network) told the court that imposing the mandate on religious employees would be a "sin against God." (For the record, the AFA also believes that climate change is a hoax because only God can control the climate and stands firm against legal protection for LGBT rights. But I digress.)

Coronavirus Update 11-10-2021: Federal judge grants injunction victory to United on its vaccine mandates, but signals that this war is far from over

A U.S. federal district court judge ruled that an employer can impose on its employees a Covid-19 vaccine mandate that provides unpaid leave as the only reasonable accommodation for medical or religious reasons.

The case, Sambrano v. United Airlines, was seen as a test case for the viability of unpaid leave as a reasonable accommodation to vaccine mandates. The order denied the plaintiffs their requested preliminary injunction. Yet, it's not that aspect of the case that's the most noteworthy. Instead, it's the critical words that the judge saved for United's apparent cavalier and callous attitude against religious accommodations as a whole to which employers should pay the most attention.