Coronavirus Update 4-22-2021: The SBA has one pandemic job, and it failed @nivassoc #saveourstages

On April 8, the Small Business Association opened its Covid relief program for concert halls and other performing arts venues. Or at least it was supposed to.

This $16 billion Shuttered Venue Operators Grant program—part of the $900 billion rescue package Congress approved nearly four months ago—is supposed to offer grants equal to 45% of a venue's gross earned revenue up to $10 million per business. The SBA had to immediately close its SVOG portal when crashed from the volume of applications. As of last Friday, the SBA said that it was still working to test the portal's functionality and that it was hoping to reopen it by the end of this week.

This failure is completely and utterly unacceptable. 

Coronavirus Update 4-21-2021, part 2: Does President Biden read my blog?

I've previously urged employers to pay employees for time off related to getting the Covid vaccine and for any time related to adverse reactions to the vaccine thereafter (here and here).

Today, President Biden made the exact same argument in urging Americans to get vaccinated as soon as possible.

CNN quotes President Biden's remarks from earlier today:

As we move into the vaccination campaign focused on working-age adults, one concern I've heard from so many Americans is that they can't afford to take the time off to get vaccinated or lose a day's work because they are feeling slightly under the weather after their shot. I'm calling on every employer, large and small, in every state to give employees the time off they need -- with pay -- to get vaccinated, and any time they need -- with pay -- to recover if they're feeling under the weather after the shot. No working American should lose a single dollar from their paycheck because they chose to fulfill their patriotic duty of getting vaccinated.

I'm not so arrogant as to think that President Biden reads my blog, but a guy can dream, right?

Coronavirus Update 4-21-2021: Most Americans that haven’t yet gotten the Covid vaccine don’t plan to … and that’s a huge problem

According to a recent Axios-Ipsos poll, vaccination efforts may have plateaued, and most people who've not yet been vaccinated don't plan to get vaccinated.

• 44 percent report not yet receiving any dose of the Covid-19 vaccine.
• 66 percent of those unvaccinated say that they are either "not likely at all" or "not very likely" to get vaccinated.
• Only 14 percent of those unvaccinated say they are likely to get the vaccine.

These numbers present a huge problem.

We learn more from our failures than our successes

A couple of months ago I was approached by the That One Case podcast to record an episode. This show asks lawyers to share the story of one case that has stood out over their careers. As they pitched it, that case could be a big win that defined my career, a turning point that took my work down an unexpected path, or simply the case of which I am most proud.

How to identify and handle an employee at risk for workplace violence

It's been four days since Brandon Hole returned to the Indianapolis FedEx facility at which previously worked and killed eight people. 

I've previously written about how to spot an employee at risk for workplace violence. And while I'm not sure FedEx could have done anything to prevent what happened here, this tragedy nevertheless is a great reminder of what employers need to do when they suspect an employee presents a risk of violence.

Click here for my thoughts.

* Image by Max Kleinen on Unsplash

Coronavirus Update 4-15-2021: OSHA finally gets real about Covid safety

Consider the following Covid safety and health violations OSHA recently uncovered at a Massachusetts tax preparation business.

• Employees and customers were prohibited from wearing face coverings in the workplace despite a statewide mask order that mandated the business to require employees and customers to wear masks.
• Employees were required to work within 6 feet of each other and of customers for multiple hours while not wearing face coverings.
• Adequate means of ventilation in the workplace were not provided.
• Controls such as physical barriers, pre-shift screening of employees, enhanced cleaning, and other methods to reduce the potential for person-to-person transmission of the virus were not implemented.

What did these violations cost this employer in OSHA penalties? $5,000? $10,000? $25,000? 

DOL reopens the floodgate to liquidated damages in wage and hour investigations

The Department of Labor's breakup with liquidated damages in wage and hour investigations lasted only four years. Late last week, the agency announced that it would again seek liquidated damages (an amount equal to the unpaid wages themselves) in investigations, undoing a  policy change made by the Trump administration.

According to the DOL, it will "return to pursuing liquidated damages from employers … in its pre-litigation investigations provided that the Regional Solicitor of Labor or their designee concurs with the liquidated damages request.… Liquidated damages shall not be assessed by WHD where the employer has set forth credible evidence of a good faith defense or the where the RSOL deems the matter inappropriate for litigation."

The top 11 things you need to know about being sued by an (ex) employee

Because of the impending changes to Ohio's workplace discrimination law that take effect in two days, the filing of employment discrimination lawsuits in my state is seeing record numbers.

Do you know what to do when an employee sues your company? 

Here are the top 4 issues you to think about ASAYS (as soon as you're sued).

Coronavirus Update 4-12-2021: It’s time to end pandemic PTO hesitancy

I haven't taken a proper vacation in 25 months. We were supposed to go to Portugal last March, but then Covid happened. In the 13 months since, there's been little point in taking off from work for any length of time because I haven't been able to go anywhere. "I can't go anywhere, so I might as well work," has been a popular pandemic refrain (me included).

Americans were bad at vacations before Covid. The pandemic certainly hasn't helped our PTO hesitancy. 

Coronavirus Update 4-9-2021: Income tax season has exacerbated the ongoing Covid plague of unemployment fraud

One of the lasting lessons of the Covid-19 pandemic for businesses is our broken state unemployment systems. State governments have paid out tens of billions of dollars in bogus unemployment claims. And with claims paid comes tax forms reporting the income related to those claims.

Consider the story of just one taxpayer, as relayed by the Wall Street Journal.

Michael Baird, a 33-year-old marketing manager in Chicago, hasn't lived in Texas for several years. And yet there was a tax form from the state of Texas sitting at his parents' house in Houston, showing that the state had paid him $1,014 in unemployment benefits.

Title VII and “fringe" religions

"A pagan says she faced religious discrimination while working at Panera. Now, she’s suing." So reads the headline at the Washington Post. The plaintiff claims that after she told an assistant manager that she was pagan, her hours were cut and she was told they wouldn't be restored until she "found God" (in addition to other alleged workplace harassment). 

6th Circuit applies False Claim Act’s anti-retaliation protections to ex-employees

In the history of this blog's 3,603 posts, I've never written about the False Claim Act. If you've been waiting with bated breath for me to fix this omission, today's your lucky day, thanks to United States ex rel. David Felten, M.D., Ph.D. v. William Beaumont Hosp. (6th Cir. 3/31/21). Before diving into the Felten case, let's first take a 61-word peek at the False Claims Act and to what it applies.

The False Claims Act is a federal statute that imposes liability on people and companies that defraud the federal government, and further, relevant to Felten, permits private citizens (which the law calls "relators") to file lawsuits (known as qui tam claims) on behalf of the government and protects relators from retaliation when the lawsuit they are filing is against their employer.

At issue in Felten is whether the FCA's anti-retaliation protections only cover current employees, or whether they also extend to an employer's former employee who blows the whistle by filing a qui tam suit.

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.