Thursday, June 3, 2021

Now is as good a time as ever for a cybersecurity refresher


In light of the recent crippling Russian cyber-attacks on Colonial Pipeline and JBS, now is a perfect time for a refresher course on cybersecurity.

Here are some A+ resources I've previously provided:

Wednesday, June 2, 2021

Coronavirus Update 6-2-2021: 117 employees are about to learn what it feels like to lose a lawsuit in spectacular fashion


117 employees have sued their employer, Houston Methodist Hospital, over its requirement that all employees receive the COVID-19 vaccine. 

According to ABC News, the hospital gave its employees a June 7 deadline to get vaccinated or face suspension and termination. The employees allege that their employer is "illegally requiring its employees to be injected with an experimental vaccine as a condition of employment." The lawsuit adds that the hospital's vaccine requirement violates the "Nuremberg Code and the public policy of the state of Texas."

In a statement, hospital CEO Dr. Marc Boom said, "It is unfortunate that the few remaining employees who refuse to get vaccinated and put our patients first are responding in this way. It is legal for health care institutions to mandate vaccines, as we have done with the flu vaccine since 2009. The COVID-19 vaccines have proven through rigorous trials to be very safe and very effective and are not experimental."

Dr. Boom is 100 percent correct; the hospital's policy is legal. Here's why, and why this lawsuit will fail spectacularly.

Tuesday, June 1, 2021

Coronavirus Update 6-1-2021: EEOC says that employers legally can offer incentives to employees to get vaccinated in almost all instances


Employers have been anxiously waiting for the EEOC to publish its guidance for employers on incentives offered to employees in exchange for receiving the COVID-19 vaccine. Late last week, the EEOC finally released that guidance. The issue is whether the incentive renders the vaccine coerced and therefore non-voluntary, which would be unlawful under the ADA and GINA.

What did the EEOC say:

Friday, May 28, 2021

Yes, Karen, your boss really can fire you for being a Karen


Do you remember Amy Cooper? She was the woman who called police on a Black man (Christian Cooper, no relation) who crossed her path while she was walking her dog in Central Park. One day later, her employer, Franklin Templeton, fired her, explaining, "We do not tolerate racism of any kind at Franklin Templeton." One year late, she has filed suit against her former employer, claiming that she was wrongfully terminated based on the company's failure to investigate what actually happened in the park.

Through a spokesperson, Franklin Templeton denies any wrongdoing related to Cooper's firing. "We believe the circumstances of the situation speak for themselves and that the company responded appropriately. We will defend against these baseless claims." 

In other words, Christian Cooper's viral cell phone video speaks for itself. Franklin Templeton either fired Amy Cooper because it concluded that she's racist, because her actions brought the firm negative publicity, or both. Either way, I see no chance that Amy Cooper's lawsuit succeeds.

Thursday, May 27, 2021

Happy 15th Birthday, Norah!


Today, my rock-star daughter turns 15. 

There's lots I can say about Norah, but I've shared so much over the years that I feel like it'd just be repetitive. So instead of writing about what a sweet, smart, compassionate, talented human she is and has always been, today I'm turning this space over to her.

Norah's "final exam" for her 9th grade English class was a creative writing assignment. They were given very little direction. Just, "You have a week; write something creative." With her permission, today I'm publishing what she wrote. I found it so moving and so outstanding that I think it needs to be shared with as wide of an audience as possible. Enjoy.

And please take a moment to wish Norah a happy birthday. You'll find her on Twitter @normlmao_ or @norahmariemusic.

Wednesday, May 26, 2021

Coronavirus Update 5-26-2021: Vaccination-status harassment


"I can't believe you got vaccinated. It's an experimental drug that I'm not injecting into my body. Besides, I heard that Bill Gates and the global elites implanted 5G trackers in the vaccine. All the government wants to do is control us, and you're letting them by submitting to these shots. Sheeple!"

-or-

"I can't believe you're not getting vaccinated. Don't you care about protecting yourself and others? This vaccine has been tested, vetted, and is safe and effective. We need to reach herd immunity if we want this pandemic to end, and you're not doing your part. Selfish!"

Some version of this drama is likely playing out in your workplace. And it has to stop, ASAP.

Tuesday, May 25, 2021

Coronavirus Update 5-25-2021: How to enforce masks rules at work without breaching ADA confidentiality rules


If an employer is supposed to keep an employee's vaccination status as a confidential medical record, how is an employer supposed to enforce the CDC's most recent guidance that permits fully vaccinated individuals to unmask? 

Friday, May 21, 2021

Coronavirus Update 5-21-2021: We need a digital vaccine passport


Yesterday's post about COVID-19 vaccine-card fraud got me thinking about what we need to do to combat it (other than trying to spot fakes when we can and diligently enforcing the criminal laws that already prohibit this fraud). My answer:

A national digital vaccine passport.

But it's complicated.

Thursday, May 20, 2021

Coronavirus Update 5-20-2021: Fake Covid vaccine cards are a growing problem, and also a federal crime


Fraudulent COVID-19 vaccine cards are readily available online, and their prevalence will only grow with the CDC's loosening of its mitigation guidelines for the fully vaccinated.

The problem has gotten so bad that the FBI is now warning people that making or buying a fake COVID-19 vaccination record card is a federal crime.

Wednesday, May 19, 2021

Coronavirus Update 5-19-2021: OSHA sends employers a strong signal that it intends to follow the CDC on masks


One open issue stemming from the CDC's about-face on masking for the fully vaccinated is how OSHA would address these new guidelines. When OSHA published its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace in late January, it made it clear that one's vaccination status had zero impact on an employer's obligation to require masks in all cases. 

Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person. 

In the world of Covid, three and half months is an eternity, so here we are just three and a half months later living in a country without facial coverings for the fully vaccinated. So what says OSHA?

Tuesday, May 18, 2021

The 9th nominee for the “Worst Employer of 2021” is … the enslaving employer


Today, a break from talking about the CDC and masks (but more tomorrow) to bring you a truly awful nominee for the Worst Employer of 2021.

For the past two years, a human trafficker or enslaver hoisted the "Worst Employer" trophy at year's end. Will 2021 bring us a threepeat?

NBC News reports on a strong contender:

The FBI was at a massive Hindu temple in New Jersey on Tuesday that has been accused in a lawsuit of luring Indian men from marginalized communities to the U.S. and forcing them to work nearly 90 hours a week for around $1 an hour.

Monday, May 17, 2021

Coronavirus Update 5-17-2021: It’s spelled HIPAA, not HIPPA … fixing some common misconceptions about the Health Insurance Portability and Accountability Act


Ever since the CDC amended its COVID-19 guidance to say that the fully vaccinated no longer need to wear masks indoors, I've read myriad variations of this tweet:
Friendly reminder that under HIPPA, your vaccination status is private.

Or this tweet:

The rule is simple, HIPAA protects EVERY American from disclosing ANY of their health records to ANYONE.
Their point? That medical privacy laws protect their vaccination status, and it's illegal for any business to ask as a condition of anything.

They are very, very wrong. So, I thought today I'd clear up some common misconceptions about HIPAA specifically and medical privacy more generally.

Friday, May 14, 2021

Coronavirus Update 5-14-2021: CDC ends masking and social distancing for the fully vaccinated, but what does it mean?


Yesterday, the CDC updated its Covid guidance to remove all masking and social distancing guidance for those of us who are fully vaccinated. According to the CDC—

  • If you are fully vaccinated, you can resume activities that you did prior to the pandemic, without wearing a mask or physically distancing. 
  • If you are not fully vaccinated, you must keep wearing masks when around others indoors.

But what does this really mean? And, more to the point, how you know who's vaccinated and who's not so that you can permit them to remove their masks inside your business?

But what does it really mean? And, more to the point, how do you know who's vaccinated and who's not so as to allow anyone to be unmasked?

Thursday, May 13, 2021

Coronavirus Update 5-13-2021: Governor DeWine ends all Covid public health orders, and goes game show host to get more people vaccinated


Last evening, Governor DeWine held a statewide address to announce the availability of the Pfizer vaccine for Ohioans ages 12 - 15. That news was not shocking. The rest of what he had to say, however, was.

Wednesday, May 12, 2021

Coronavirus Update 5-12-2021: We are in the midst of a public mental-health crisis; how employers can help


Consider these statistics, courtesy of the National Institute of Mental Health, which recently examined mental health issues one year into the COVID-19 pandemic:

  • 31% of people report symptoms of anxiety or depression​
  • 13% report having started or increased substance use​
  • 26% report stress-related symptoms​
  • 11% report having serious thoughts of suicide in the past 30 days​

These grim numbers tell me that COVID-19 has created a national mental health crisis. At least some of your employees are struggling. Your challenge is what to do about it.

Tuesday, May 11, 2021

Coronavirus Update 5-11-2021: I ❤ science


Late yesterday, the FDA announced that it has authorized Pfizer's COVID-19 vaccine for 12-15-year-olds. It's the best news I've heard in 14 months. We've literally been living on pins and needles, feeling like we are daily dodging viral bullets as we wait for our high-risk 12-year-old and his 14-year-old sister to be able to get vaccinated.

Monday, May 10, 2021

Coronavirus Update 5-10-2021: EEOC Commissioner wants industry-specific Covid guidelines


Last week, the EEOC held a public meeting on the impact of the COVID-19 pandemic on civil rights in the workplace. Following up on the remarks at that meeting, EEOC Commissioner Keith Sonderling, speaking at a virtual summit held by the Institute for Workplace Equality, said that employers need guidance on whether their Covid-related decisions are legal, and that the EEOC should issue industry-specific guidance to clear up these ambiguities.

Friday, May 7, 2021

Happy birthday to me!


This weekend, the Ohio Employer Law Blog turns 14! 

May 9, 2007 — my first post ever here at the blog. 3,628 posts and three law firms later, happy birthday to me!

May 9 offers another reason to celebrate, Mothers' Day. I haven't seen my mom in 19 months, but with vaccines hopefully on the immediate horizon for my kids, I should be able to give my mom a sorely missed and needed hug really soon. This long-distance message will have to do until then.

Today also happens to be my mom's birthday, so everyone please wish her a happy one!

Next week, more legal stuff, starting with some good, and not-so-good, news from the EEOC.

* Photo by Marty Southwell on Unsplash

Thursday, May 6, 2021

Coronavirus Update 5-6-2021: Do your employees have “Covid anxiety syndrome”?


The Telegraph recently tweeted about what is being called "Covid anxiety syndrome." The whole thread is a fascinating read, but its bottom line is that some people are reacting irrationally by continuing extreme Covid mitigation measures when they are no longer needed.

The Guardian quotes professor Marcantonio Spada London South Bank University, who first theorized this syndrome after noticing people were developing a particular set of traits in response to Covid.
Fear is normal. You and I are supposed to fear the virus because it's dangerous. The difference, however, in terms of developing a psychopathological response is whether you end up behaving in … overly safe ways that lock you into the fear. My expectation is we're going to have … chunks of the population that are avoiding re-engagement and constantly worrying about the virus for months to come, whether they are vaccinated or not.

So here's my question for you — do you have employees experiencing such behavior? Continuing to insist on remote work even after being fully vaccinated? Wearing a mask all of the time, even when alone in an office? Insisting on constantly wiping down surfaces as if they are disinfecting a crime scene? 

Wednesday, May 5, 2021

Coronavirus Update 5-5-2021: NFIB’s survey of small employers reveals some disturbing Covid vaccination trends


The National Federation of Independent Business just released the results of its most recent Covid-19 Small Business Survey. 546 businesses, all with fewer than 200 employees, provided their experiences on a variety of Covid related topics. The results that jumped off the page, however, were the two questions about the Covid vaccine.