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

Coronavirus Update 3-25-2021: Ohio legislature foolishly and dangerously limits the authority of the governor to respond to public health crises

"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

"You are not good at public health," she tells maskless GOP colleagues pic.twitter.com/RYUCR1yxlx

— Tyler Buchanan (@Tylerjoelb) March 24, 2021

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. 

Coronavirus Update 3-24-2021: Which of your employees should you bring back to work

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.

The 7th nominee for the “Worst Employer of 2021” is … the penny pincher

The law of every state I can think of requires that an employer timely provide a departed employee with his or her last paycheck. I know of no law that says how that final payment must be paid. There should be a law, however, that prohibits an employer from doing so by dumping a pile of oily pennies in someone's driveway.

That's exactly what happened to Andreas Flatens, who quit his job at A OK Walker Luxury Auto Shop because of the toxic work environment created by its owner, Miles Walker. He claims Walker then left his final paycheck of $1,000 (that's 100,000 pennies) in front of his home in pennies covered in some oily substance.

Coronavirus Update 3-22-2021: Covidiots at Whole Foods

"I'm Jewish; I don't have to wear a mask." That's what the maskless woman (shopping with her maskless teenage daughter) in front of me in line yesterday at the Whole Food fish counter said to the employee who politely reminded her that the mask she was holding in her hand was required to be on her face while inside the store. 

Her statement was bad enough. As a Jew, I know of no tenet of my religion that says masks don't have to be worn. But it's what came next that caused my jaw to hit the floor.

Coronavirus Update 3-19-2021: CDC is now recommending COVID-19 screening tests of asymptomatic employees of certain employers

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." 

Coronavirus Update 3-18-2021: Employers facing lawsuits for failing to pay for pre-shift Covid screenings

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."

Coronavirus Update 3-17-2021: CDC allows large employers to establish vaccination sites

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. 

The 6th nominee for the “Worst Employer of 2021” is … the deportation threatener

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.

Ch-ch-ch-ch-changes

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.

Coronavirus Update 3-12-2021: What does the American Rescue Plan mean for employers?

Yesterday, President Biden signed the American Rescue Plan Act of 2021, aka the $1.9 trillion Covid relief bill. It's the most significant economic relief bill we've seen in decades. Here are four key provisions to which employers should be paying attention.

Coronavirus Update 3-11-2021: Happy 1st Birthday COVID-19 Pandemic

It's been exactly one year since the World Health Organization declared COVID-19 a global pandemic. Tomorrow will mark the one-year anniversary of when I started working from home. (It will also mark another significant milestone, but more on that on Monday.) Wednesday is one year from the date I temporarily rebranded the Ohio Employer Law Blog as the Coronavirus Law Blog. I look forward to ending that branding soon.

Coronavirus Update 3-10-2021: John Oliver on unemployment

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.

Coronavirus Update 3-9-2021: CDC says fully vaccinated people can safely visit fully vaccinated Grandma (but still have to keep wearing masks at work)

Yesterday, the CDC issued its long-awaited guidance on how fully vaccinated people can safely visit others.

Here's who and how the CDC says can fully vaccinated people can safely visit:

• Other fully vaccinated people indoors without wearing masks or staying 6 feet apart; and
• Unvaccinated people from one other household indoors without wearing masks or staying 6 feet apart if everyone in the other household is at low risk for severe disease.