As we start 2022 (HNY!) let's jump in the time machine and look ahead a couple of weeks to what I think is in our immediate pandemic future.
To catch a glimpse of what's coming here in the next 7-14 days, we need only look across the pond to Europe, which has been a great predictor thus far of what our Covid future looks like. For the whole of the pandemic, our Covid experience has trailed that of Europe by 2-3 weeks. Because of the quickened transmission and infection timeline of Omicron, we can likely shorten that to 7-10 days.
In what has become an annual tradition for my final post of the year, I bring you the holiday classic, 'Twas the Employment Law Night Before Christmas, tweaked for 2021.
As has been the case in years past, you can read my tale below. This year, however, you also get the holiday present of me reading it for everyone.
To all of my readers, new and legacy, thank you all for reading, commenting, and sharing throughout the year, and please have a happy and, most importantly these days, safe holiday season. I'll see everyone on January 3, 2022, with fresh content to kick off the new year.
'Twas the night before Christmas, when all through the office Not a creature was stirring … well, just one of the bosses; The bonuses were paid by the company with care, In hopes that no ungrateful employees would swear.
The workers were home all snug on their thrones; While visions of deadlines danced on their iPhones; And I at my desk, alone to deal with the crap, For the one who's in charge gets no holiday nap.
When out in the lot there arose such a clatter, I sprang from my desk to see what was the matter; Away to the door I flew in a hurried jolt, Tore open the shutters and threw open the bolt.
The moon on the breast of the new-fallen snow, Gave a lustre of midday to objects below, When what to my wondering eyes did acquaint, A process server holding a seven-count complaint.
Count One alleged that we had discriminated, On the basis of race by one irritated; A denied promotion, gone to someone who's white, Said the lawsuit I read in the glow of the night.
Count Two, racial harassment, words she had o'erheard, Does she know the ruckus she's about to have stirred? Oh, how she had pulled that nasty, evil trigger. I'd never heard supervisors rhyme something with bigger.
Count Three, it's not just racism she alleged, Also sexism, to which management pledged. The boys, she said, we paid so much more than the girls Yet they do the same work as each workday unfurls.
Count Four, uh oh, sexual harassment; It's true her manager hoped to be her gent. But the touching and groping, alleged quid pro quo, Never did anyone coerce being her beau.
Count Five targeted our vaccine direction. We denied her ask for a moral exemption. "Conspiracy," she yelled. "You're part of the elite." You'll care when Omicron our employees deplete.
Count Six, firing a COVID rule breaker. Masks she refused, even those made of paper. Social distancing of six feet or more, Enforcement can be such an insufferable chore.
Count Seven, wage and hour class action, oh crap! Did we fall into an FLSA lawsuit trap? Mis-classifications, non-exempt for exempt, And off-the-clock work too, my butt cheeks were then clenched.
Not just a lawsuit was waiting, I see.
An election petition from the NLRB.
Ungrateful employees want more pay and respect.
Should I have treated them better, I reflect?
I spoke not a single word, went back to my desk, And yelled, with none to hear, "Do I ever get to rest?!" I emailed our lawyer, thru my phone I exclaimed, "How much trouble are we in? To me please explain!"
He sprang to his phone, gave to me this rejoinder. "A lot; I'll need a $20,000 retainer." But I also heard him proclaim, so as not to slight— "Happy Christmas to all, and to all a good night!"
Last week marked the one-year anniversary of the Covid-19 vaccine being administered in the United States. Yet, here are some headlines from last week:
While we wait for the Biden administration's vaccine mandates to work their way through the courts (this past weekend's 6th Circuit pronouncement notwithstanding), employers are taking matters into their own hands. Fueled by the exponential surge in Delta-related Covid cases, and the real and palpable threat of a more contagious Omicron variant looming and starting to wreak havoc, many employers have simply run out of patience with unvaccinated employees.
OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.
To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.
In a 2-1 decision, the 6th Circuit has dissolved the 5th Circuit’s prior stay of the OSHA vax-or-test emergency temporary standard. The opinion is available here.
In sum, Judge Stranch, writing with reason and common sense for the majority, concluded that the petitioners are unlikely to succeed on the merits of their claim that the ETS exceeded OSHA’s authority.
Before we get to the links of others that you might have missed this past week, I thought it best to look back on my own links that you also might have missed in the hustle and bustle of your workweek.
1/ Voting is open for the Worst Employer of 2021, and will remain open until 11:45 pm on Monday. If you don't vote, you forfeit your right to complain about the results. Vote here.
3/ Episode 4 of The Norah and Dad Show is live on Apple Podcasts, Spotify, or wherever you get your podcasts. Please consider subscribing to our show in your app of choice so that you never miss an episode, and, as Norah says every week, we'd love your 5-star reviews on Apple Podcasts and 5-star ratings on Spotify (which just launched its podcast ratings).
Here's the plan for the remainder of the year. After regular posts on Monday and Tuesday, on Wednesday I'll announce the winner of the Worst of Employer of 2021. Finally, on Thursday I'll wrap up the year with my annual reading of 'Twas the Employment Law Night Before Christmas, which will have a companion video if I get my stuff together over the next few days.
Have a great, safe, and healthy weekend. Here's this year's final list of the best things I read online over the past week that I think you should be reading, too.
