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.
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.
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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?
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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)]
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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.
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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.
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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
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"I can tell, as you're smirking at me not wearing a mask, you are not good at public health. This is not your lane, you need to get out of it."
Here was House Minority Leader Emilia Strong Sykes' floor speech criticizing the override vote for Senate Bill 22
— Tyler Buchanan (@Tylerjoelb) March 24, 2021
"You are not good at public health," she tells maskless GOP colleagues pic.twitter.com/RYUCR1yxlx
That's Ohio House Minority Leader Emilia Strong Sykes chastising her Republican colleagues for their support of Senate Bill 22, which Governor DeWine vetoed on Tuesday, and the state legislature overrode that veto yesterday.
What is S.B. 22? It limits the authority of the governor, Ohio Department of Health, and local health departments to respond to a public health crisis such as the ongoing COVID-19 pandemic.
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For the past year, an astounding 44 percent of employees have been working remotely full time, and two-thirds of employees have been working remotely at least one day per week. With vaccination rates on the rise and offering a light at the end of the pandemic tunnel, employers are starting to plan for bringing employees back to the physical workplace.
These decisions involve a lot of key questions an employer needs to answer in planning for where employees will work in a post-vaccine, post-pandemic world.
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The CDC is now recommending that certain non-healthcare employers test asymptomatic employees for COVID-19. According to the CDC, this screening "may be useful to detect COVID-19 early and stop transmission quickly" and can be done in done "in addition to symptom and temperature checks, which will miss asymptomatic or presymptomatic contagious workers."
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In the early days of the COVID-19 pandemic, I asked this question: "Are employers legally responsible for paying workers for the time it takes to record their body temperatures before entering the workplace?"
My answer was a legal, "Probably," and a moral, "Definitely."
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Yesterday, the CDC released guidance permitting large employers to establish temporary sites to vaccinate employees.
The CDC says that employers should consider opting for an on-site vaccination program if they have a large number of employees with predictable schedules and enough space to set up a pop-up clinic while still allowing for COVID-appropriate social distancing.
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Full disclosure — I love Tate's Bake Shop's gluten free cookies. Prior to gluten free Oreos hitting supermarket shelves (I dare you to tell them apart from their full-glutened sibling), I bought Tate's gluten free chocolate chip cookies all of the time. The allegations raised by this story, however, gives me great pause in ever buying their cookies again.
It seems that Tate's is in the middle of a union organizing campaign and the baker is alleged to have threatened with deportation undocumented workers who support the union.
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Today brings BIG changes for my career and me. It's my first day of work at Wickens Herzer Panza after relocating my practice and joining its Board of Directors, Litigation Department, and Employment & Labor practice team (which I'll help guide).
I am beyond excited for the opportunity and platform my new home offers my practice, my clients, and me. Stay tuned for some exciting ideas about how I can better help your business proactively solve your workforce problems.
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One of the lasting lessons of the COVID-19 pandemic is that our state unemployment systems are old and broken, and desperately need to be modernized and fixed. While the $1.9 trillion Covid relief package that President Biden is expected to imminently sign provides for a $300 federal unemployment bonus for a few months, that is the tiniest of bandaids on this very large problem.
Thankfully, we have John Oliver to offer his commentary on this important issue.
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