Coronavirus Update 10-13-2021: Unfortunately I need to keep clarifying misconceptions about HIPAA

I came across the following information on the website of a prominent national payroll provider:

Q: In what ways can/should HR departments capture and record employee vaccination information? What are the HIPAA implications?

A: When it comes to recording this data, it's a good idea to keep it separate from other employee information on file. It should not be part of standard employee records and should be accessible to as few people as possible. Because vaccination records are covered under HIPAA regulations, businesses must ensure they're diligent about securely collecting, recording and storing this information to limit the risk of compromise.

It cuts me to the quick to see an entity that should know better getting HIPAA so very wrong. If they can't get it correct, we have little hope that the general public will stop raising HIPAA as an objection to any disclosure of their health information, including vaccination status.

So, to clear the air once and for all, this is what HIPAA covers and doesn't cover, and why it does not apply to employers gathering vaccine-related information from employees.

Coronavirus Update 10-12-21: A prior Covid infection is not a defense to an employer’s vaccine mandate

"I don't need the vaccine; I've already had Covid and have superior natural immunity" is a popular refrain from some people who've been infected with Covid and, for that reason or another, are hesitant to get the Covid vaccine.

Does that argument hold up against an employer's vaccine mandate? According to two federal courts that recently examined the issue, the answer is a clear no. Kheriaty v. Regents of the Univ. of Calif. (decided 9/29/21 by a California federal court judge) and Norris v. Stanley (decided 10/8/21 by a Michigan federal court judge) each examined whether an employee was entitled to a preliminary injunction against their employer's vaccine mandate.

In each case, the Court sided with the employer and rejected the employees' pre-existing immunity arguments.

Coronavirus Update 10-11-21: World Mental Health Day

Yesterday was World Mental Health Day. It was also day 579 of the Covid-19 pandemic. 

Covid-19 has altered all of our lives; all employees are dealing with stress, anxiety, and isolation.

19 months into the pandemic, more than 45 million Americans have been diagnosed with Covid-19, 733,000 have died, and millions more have suffered debilitating illnesses. These are actual people, not just statistics, and we all know someone this virus has impacted.

Many of us have dealt with the stress of layoffs, furloughs, lost income, closed businesses, and the stress that flows from figuring out how to pay the bills and feed our families.

Parents have balanced the second job of homeschooling (or at least assistant homeschooling) their kids against their primary job of their actual paying job.

While life has returned to some semblance of normalcy, there remain many too many of us who are unvaccinated and, thanks to Delta, we all still live with the worry of contracting this virus merely by stepping out into the world. 

As a result, some of your employees are working with and through mental health issues of varying degrees caused by all of this stress, change, and loss. Some will be dealing with the exacerbation of pre-existing mental health issues, and some will have what I am calling Covid-19 PTSD.

WIRTW #599: the “34” edition

Ask any litigant who has had the (dis)pleasure of being a party to civil litigation in the Cuyahoga County Court of Common Pleas for their opinion on the experience, and I can almost guarantee they will tell you two things — their case moved too slowly and the courthouse is gross. A proposal currently being considered will fix the latter while making the former exponentially worse.

The Cuyahoga County Court of Common Pleas has 34 presiding judges. That's currently has. According to Cleveland.com, a proposal is being considered to slash that number. Why? Because fewer judges mean fewer necessary courtrooms, which means that the new courthouse that Cuyahoga County desperately needs will be less expensive to construct.

This idea is terrible. Civil cases move slowly through our court. Yet, it's not the court's fault, it's not the judges' fault, and it's not their staff's fault. It's a systemic fault caused by a system that has the same group of 34 judges simultaneously presiding over civil and criminal dockets. Criminal cases always take precedence. That's how our system must operate because the Sixth Amendment to the United States Constitution guarantees criminal defendants "the right to a speedy … trial." If criminal cases did not take precedence, too many criminal defendants would go free prior to trial because they could not obtain a "speedy trial."

Reducing the number of judges for the sake of construction costs will not remedy this problem. In fact, it will only make it exponentially worse. Slashing the number of judges would be an unmitigated disaster for civil litigants, who already wait years to try their cases.

I implore the Cuyahoga County Commissions to reject any proposal that calls for a reduction in the number of Common Pleas judges as a means to pay for a new courthouse. Don't get me wrong; we desperately need a new courthouse. But the county should not pay for it at the expense of the civil justice the court is supposed to dispense.

Here are the best things I read online this past week that I think you should be reading, too.

Coronavirus Update 10-7-21: EEOC brings its first pandemic-related lawsuit over a denied WFH accommodation

The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship. These are fact-specific determinations.

EEOC's What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws

According to the EEOC, just because an employer previously offered remote work during the pandemic for some or all employees does not mean that remote work is an appropriate accommodation for any specific employee after it recalls employees to the physical workplace.

What does this look like in practice? A lawsuit the EEOC recently filed will test its limits.

Employment law lessons from “Ted Lasso” — Let’s talk about medical confidentiality

The penultimate episode of Season 2 of Ted Lasso ended with an absolute gut-punch of a cliffhanger.

(Spoiler Alert — Turn Back Now If You're Not Caught Up)

Coronavirus Update 10-5-21: Would you rather? Get fired? Or get the Covid-19 vaccine?

Last week I asked a simple question on LinkedIn: 

If your employer is mandating the Covid vaccine, would you rather get fired or get the shot?

More than 1,500 people responded, and the results shocked me. 27 percent — that's more than one out of every four respondents — say that they'd choose termination of their employment over a jab of the Covid vaccine. 

Whistleblowing and self-help discovery: lessons from Frances Haugen, the Facebook whistleblower

"Can she do that?" That was the question my wife asked me as we watched last night's interview of Frances Haugen, the Facebook whistleblower, on 60 Minutes.

The "that" was the revelation that Haugen stole a trove of confidential documents just prior to quitting her job to support her allegations against her employer.

"It depends," I told my wife, offering the stock lawyer answer to most questions.

WIRTW #598: the “Would you rather?” edition

As workplace vaccine mandates continue to dominate the headlines, employees continue to threaten to quit their jobs if forced to get jabbed as a condition of their employment.

Whether that threat is sincere or idle makes a huge difference to employers in the most difficult hiring and labor market of our lifetimes. If employees will really quit when faced with a vaccine mandate by their employers, then those employers need to think long and hard over whether to implement the mandate and risk creating job vacancies that they cannot fill.

Thus, over on my LinkedIn page, I've been running a short, one-question survey to determine employees' attitudes about vaccine mandates.

If your employer is mandating the Covid vaccine, would you rather get fired or get the shot?

Please click here to go to the survey and offer your opinion on this single, multiple-choice question. I'll share the results early next week.

Here are the best things I read online this past week that I think you should be reading, too.

Coronavirus Update 9-29-21: We need to talk about the rise in anti-Semitism and Nazi symbolism

"You're being a Nazi by mandating masks and vaccines."

"'Papers, please.' I refuse as a condition of entering a store or attending a concert."

"What's next, quarantining the unvaccinated into camps?"

"Vaccine mandates violate the Nuremberg Code." 

"Do I need to remind you of the late 1930s and into the '40s in Germany and the experiments with Josef Mengele? What was it? A shot? These were crimes against humanity."

And on, and on, and on. I've had enough.

Coronavirus Update 9-28-21: White House issues Covid vaccine mandate guidance for federal contractors and subcontractors

If your business is a federal contractor or subcontractor, you have until December 8 to ensure that your employees are fully vaccinated against Covid-19, according to guidance published late Friday by the White House's Safer Federal Workforce Task Force. There is no testing-in-lieu option available for these employees.

What exactly does this guidance mandate?

Coronavirus Update 9-27-21: Repeat after me. “A vaccine mandate is not coercive.”

Today's post is for anyone who believes that a workplace vaccine mandate is coercive or deprives employees of their free choice not to get vaccinated.

A federal court recently upheld an employer's vaccine mandate for its employees. In and of itself that holding is not earth shattering or even particularly newsworthy. In fact, it's consistent with virtually every other case in history to rule on a vaccine mandate at work.

This case stands out to me not because of what it held, but because of what the judge said about the free choice employees still maintain on whether or not to get the Covid vaccine, despite their employer's mandate:

WIRTW #597: the “Sorry Antivaxxer” edition

If you've visited me on LinkedIn or Twitter (and if we're not connected on both, please fix that immediately), you may have noticed I describe myself in my bios as the "Master of Workplace Schadenfreude." What is Schadenfreude? It's a German word that is most commonly translated as "enjoyment obtained from the troubles of others." My research, however, reveals that it has as many as four different potential philosophical underpinnings, which I've synthesized as the following: Taking joy in someone else getting what they deserve because of who they are or what they've done, and celebrating that you're not in their shoes.

No matter how you define it, today's share is dripping with Schadenfreude.

Meet sorryantivaxxer.com, a repository of stories of anti-vaxxers who, because of their own un-sound and stubborn beliefs, needlessly died or came close to dying from Covid. It's a who's who of right-wing pundits, QAnon cultists and other fanatics, religious leaders and zealots, and even health care providers, all of whom opposed, shunned, or spoke out against the Covid vaccine and paid the ultimate price as a result.

Any death is sad, but what's especially sad about these is that each was almost 100 percent preventable if they had just done the one thing that could have prevented them from dying from Covid—taking the damn shot.

Please don't end up on sorryantivaxxer.com. If you're not yet vaccinated, do as soon as possible. Serious illness and death is almost entirely preventable. But you do need to join the 182 million of us who are fully vaccinated.

Here are the best things I read online this past week that I think you should be reading, too.

Coronavirus Update 9-23-21: If you’re tired of reading what I have to say about workplace vaccine mandates, now you can listen to what I have to say

A huge thank you to the producing team at WCPN's The Sound of Ideas and host Rick Jackson for inviting me on to yesterday's program to discuss President Biden's workplace vaccine mandate. It was a fun and engaging 17 minutes of conversation, and I always enjoy doing live radio. (Also, thanks, Rick, for plugging the blog.)

If you missed it live, The Sound of Ideas archives all of its shows on its website, and you can (re)listen to yesterday's here.

Here's a quick preview, a clip of me laying out the pros and cons of the vaccine mandate from an employer's perspective.

Coronavirus Update 9-21-21: Covid-19 has now killed as many Americans as the Spanish flu

Covid-19 just passed a grim, sad, and preventable milestone. It has killed as many Americans, 675,000, as the last pandemic we suffered, the 1917 Spanish flu. That's more than 226 9/11s.

What makes Covid-19 so much worse than the 1917 pandemic is that we know so much more and we should have been able to end this long before reaching this point.

More than anything else, we have a virus-slowing, life-saving vaccine that 45 percent of the country has failed to fully take. Before the vaccine, we had face masks that a similar percentage of our country railed and rallied against. 

As a nation, many too many of us have chosen politics over science, and fiction over reality. As a result, too many have died, and more have fallen ill and suffered.

Coronavirus Update 9-20-21: Fetal stem cells and vaccine-mandate religious exemptions

As the debate over religious exemptions to workplace Covid vaccine mandates, one hospital has taken a unique approach to verify the sincerity of its employees' anti-vax religious beliefs.

The issue stems from the misconception that Pfizer-BioNTech's and Moderna's mRNA vaccines contain aborted fetal cells, and certain people's religious objections to abortion.

In reality, the vaccines do not contain aborted fetal cells, although Pfizer and Moderna did use fetal cell lines — cells grown in a laboratory that are based on aborted fetal cells collected generations ago — in testing during research and development of the mRNA vaccines.

WIRTW #596: the “Waterloo" edition

It was a busy week in the Hyman house last week, with middle school soccer games and rock 'n' roll gigs all over town for my kids. I'm happy to report that Donovan led his team to a hard-fought 3-3 tie in his first-ever sports event of any kind (which he followed up with a 13-0 romp). Okay, led might be a tad strong. He played, and that’s all that matters. 

As for Norah, she played not one, not two, not three, but four gigs in six days, with the first three all happening within 24 hours of each other. I love watching Norah perform any time she's on stage, but her set at the Waterloo Arts Fest might be my favorite that she's ever played because it was 40 minutes of all original songs. To do that at 15 years old is pretty impressive, at least in this proud dad's opinion. Here's the best nine minutes from her set (the best because I actually think they are her three strongest songs), captured and posted by someone who wandered through.

Here are the best things I read online this past week that I think you should be reading, too.

Coronavirus Update 9-15-21: Do mandatory vaccination policies have an adverse impact on minority employees?

With President Biden's announcement of his plan to vaccinate all employees of employers with 100 or more employees, the nation is keenly focused on workplace mandatory vaccination policies. This has led some to question whether the President's plan unlawfully discriminates against minority employees.

There is little doubt that vaccination rates among Blacks and Hispanics lags behind that of Whites (which isn't that great to begin with). At the latest count, only 43% of Black Americans and 48% of Hispanic Americans are vaccinated, compared with 52% of White Americans. The reason for this greater vaccine hesitancy within minority communities is understandable and well documented, particularly when the government is promoting or flat-out requiring the vaccine. See the Tuskegee Experiment (one of our nation's greatest embarrassments … and that's saying a lot).

All of this begs the question — is a mandatory vaccination policy discriminatory against Blacks and Hispanics. Or, more technically speaking, does such a policy adversely impact them?

Employment law lessons from “Ted Lasso” – dating the boss

If you've not yet watched episode 8 (Man City) of the current second season of Apple TV+'s Ted Lasso and you don't want to be spoiled, now would be a good time to click the back button on your browser or close your email. Good? Okay. No grumbling; you've been warned.

Coronavirus Update 9-11-21: Here is why the vaccination ETS that Biden has directed OSHA to issue is likely illegal

President Biden has directed OSHA to issue an Emergency Temporary Standard (ETS) mandating that all employers with 100 or more employees mandate the Covid vaccine for its employees or mandate weekly Covid testing.

Will this ETS pass the certain judicial challenges it will quickly face?

TL;DR: (As much as it pains me to have to write this) OSHA’s Covid vaccine mandate ETS is almost certainly illegal. Here’s why.