BREAKING NEWS: 5th Circuit issues new order continuing its stay of the OSHA vaccine-or-test ETS

In a 22-page opinion issued last night that I can only describe as a scathing rebuke of OSHA's vaccine-or-test emergency temporary standard, the 5th Circuit Court of Appeals formally granted a stay of the ETS pending a full review of the pending motion for permanent injunction, and further ordered that "OSHA take no steps to implement or enforce the Mandate until further court order."

WIRTW #604: the “I promise I’m a real lawyer” edition

The post was not meant to be controversial. Aaron Rogers admittedly lied about his vaccination status. I merely suggested that he not get a free pass because of who he is, and should be treated like any other employee caught lying on the job. Then, LinkedIn featured my post in their Breaking News sidebar. And all hell broke loose.

More than a few people called me a Nazi (which, for the record, Linkedin does not consider a violation of its Professional Community Policies.)

Others joyfully outed their own racism by comparing Rogers to his "murdering and raping teammates" or by calling Covid-19 the "Wuhan Flu."

Still others incorrectly cited laws such as HIPAA (which they at least spelled correctly) to claim that Rogers' rights are being violated.

Some questioned my understanding of employment law. Pro tip: If you start your comment with, "I'm not a legal expert, but," then you shouldn't be offering a legal opinion. I don't tell the pilot how to fly the plane or the surgeon where to slice. Please don’t tell me I'm wrong about employment law. 

One notable commenter — a paralegal who has since blocked me — even went so far as to suggest that I shouldn't be writing about legal issues because I'm not actually an attorney.

So, today, I'm here to establish that I am, in fact, an actual, bona fide, licensed, and practicing attorney. I graduated law school in May 1997, took the bar exam that July, learned a few months later that I had passed said bar exam, was sworn in 10 days after that, and have been a licensed attorney in the State of Ohio practicing management-side labor and employment law ever since. Really. I promise.

Check out the bonkers (and frankly, scary) discussion here, if you dare.

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

Coronavirus Update 11-11-2021: Religious groups tell 5th Circuit that the OSHA vaccine mandate is a “sin against God"

In a filing made with the 5th Circuit Court of Appeals in support of the petition seeking to strike down OSHA's "vaccine or test" emergency temporary standard, the American Family Association and Word of God Fellowship (which does business as Daystar Television Network) told the court that imposing the mandate on religious employees would be a "sin against God." (For the record, the AFA also believes that climate change is a hoax because only God can control the climate and stands firm against legal protection for LGBT rights. But I digress.)

Coronavirus Update 11-10-2021: Federal judge grants injunction victory to United on its vaccine mandates, but signals that this war is far from over

A U.S. federal district court judge ruled that an employer can impose on its employees a Covid-19 vaccine mandate that provides unpaid leave as the only reasonable accommodation for medical or religious reasons.

The case, Sambrano v. United Airlines, was seen as a test case for the viability of unpaid leave as a reasonable accommodation to vaccine mandates. The order denied the plaintiffs their requested preliminary injunction. Yet, it's not that aspect of the case that's the most noteworthy. Instead, it's the critical words that the judge saved for United's apparent cavalier and callous attitude against religious accommodations as a whole to which employers should pay the most attention.

Coronavirus Update 11-9-2021: White House tells employers to proceed with vaccine mandate despite 5th Circuit stay; I concur

People should not wait. They should continue to move forward and make sure they’re getting their workplace vaccinated.

– White House Deputy Press Secretary Karine Jean-Pierre, Nov. 8, 2021

On Saturday, the 5th Circuit Court of Appeal (which covers Texas, Louisiana, and Mississippi) entered an order staying OSHA's "vaccine or test" rule for employers with 100 or more employees.

Questions—

• Does that order only apply to employers in the three states within the 5th Circuit, or does it apply nationwide?
• What happens next?
• Most importantly, what should employers do now?

I have answers, which I offer in this short video, which I recorded yesterday. 

Employers must assume that the OSHA ETS is taking effect as planned and stay the course. January 4, 2022, will be here before we know it, and employers that don't start planning now will be caught out of compliance.

Coronavirus Update 11-8-2021: Let’s talk about Aaron Rogers

Last Wednesday, Aaron Rodgers, future Hall of Fame quarterback for the first-place Green Bay Packers, tested positive for Covid-19. This fact, in and of itself, might be newsworthy because of who he is, but in and of itself it's not earth-shattering. That is, it's not earth-shattering news until you couple it with the fact that: (1) it appears Rogers is not fully vaccinated against Covid-19; and (2) in August, when a reporter asked if he had received the Covid-19 vaccine, Rodgers said, "Yeah, I've been immunized."

"Immunized," in this case, however, appears to mean something very different than fully vaccinated against Covid-19. 

I did not lose on Jeopardy!

The Final Jeopardy category is “Cybersecurity.”

The answer: “The reason why it was not Jeopardy! Clue Crew member assistant director Sarah Whitcomb Foss trying to sell me a PS5 over Twitter.”

The question: “What is her account was hacked?”

For anyone who followed my PS5 saga from yesterday, here’s the resolution. 

If you need to catch up, you can do so here.

I’m quite happy I wagered big on my cyber fraud Spidey sense. 

WIRTW #603: the “Did anything happen yesterday?” edition

Unless you've been living in a cave for the past 24 hours, you are well aware that OSHA released its vaccine-mandate emergency temporary standard. There are lots of resources that have since been published, including this website from OSHA itself. One of the best is this half-hour video in which the agency explains the nuts and bolts of the ETS.

Alternatively, you can just randomly pound on your keyboard and you'll end up on the website of an employment lawyer offering you his or her summary (me included).

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

BREAKING NEWS: OSHA publishes its vaccine-mandate emergency temporary standard

Write down November 4, 2021, as the Employment Lawyer Superbowl. At 8:45 am this morning, OSHA published its Covid-19 Vaccination and Testing Emergency Temporary Standard in the Federal Register. You can download and read all 490(!) pages of it here.

Most importantly, this rule takes effect immediately upon its publication in the Federal Register — i.e., today — but employers have 30 days, or until December 5, 2021, to comply with all requirements except testing for employees who are not fully vaccinated (which has a January 4, 2022, compliance date). 

This means that by no later than January 4, 2022, employers will need to ensure that their employees have received their final vaccination dose, with weekly testing required for unvaccinated employees thereafter.

I lost on Jeopardy! A cybersecurity lesson on phishing scams

It started innocently enough, with a tweet: "Please share your best strategies for finding a PS5 before Christmas that do not involve me sleeping outside of a store or paying through the nose on eBay. Thanks."

Almost too coincidentally, a few minutes later I saw this tweet from Sarah Whitcomb Foss, a member of the Jeopardy! Clue Crew and one of the show's assistant directors: "Hello Twitter family! I am proud to announce that I have partnered with #Sony to supply you guys with some brand new #PS5 consoles for retail pricing! Just RT and like this and send me a DM if you need help!"

With my curiosity piqued (and her Twitter account blue-checkmark verified and looking legitimate), I followed her instructions by retweeting and liking her tweet, and sending her this DM: "Looking to purchase a PS5. Is this legit?"

The customer isn’t always right, especially when the customer wants you to discriminate

"I'm afraid we can't hire you because you won't mix well with our customers."

That's what the EEOC alleges a northern Minnesota furniture retailer told a transgender job applicant. It's also the reason that company has agreed to pay a $60,000 settlement. "Title VII does not permit discriminatory employment decisions based on customer preference," says the EEOC.

Politics and work don’t mix: Southwest Airlines investigating pilot for “Let’s go Brandon” in-flight announcement

Southwest Airlines is investigating one of its pilots for saying "Let's go Bradon" during an in-flight announcement.  

What is "Let's go Brandon," you ask? It's a euphemism many conservatives are using in place of saying "F**k Joe Biden." The origin of the phrase stems from an Oct. 2 NASCAR race won by Brandon Brown. During his post-race interview with NBC reporter Kelli Stavast, the crowd started chanting "F**k Joe Biden." Stavast, however, said, "You can hear the chants from the crowd, 'Let's go, Brandon!'" 

While it's unclear whether Stavast misheard the crowd or was merely covering up its audible on-air obscenity, the phrase "Let's go, Brandon" stuck and quickly spread among conservative groups and continues to be used in place of a direct expletive toward President Biden, even among members of Congress.

The 13th nominee for the “Worst Employer of 2021” is … the Abortion Forcer

I literally have no words for this, the 13th nominee for the Worst Employer of 2021. Here's the headline, from NBC News:

D.C. assistant police chief says she was told to

'have an abortion or be fired'

WIRTW #602: the “Where’s the beef?” edition

How'd your Wednesday go? Me? I got into a beef on Twitter with a fictional character, which ended with him telling me to go wax my head. Fun fact — I saw that last tweet come through while I was sitting in a board meeting and snort-laughed out loud.

I applaud the Ted Lasso team for running such fun accounts. I can't wait to see how Nate's character plays out in Season 3, as the stress of his new job is clearly getting to him.

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

Coronavirus Update 10-28-2021: EEOC publishes its own internal Religious Accommodation Request form

"Jon, we have so many employees asking us for religious accommodations from our workplace Covid rules, including our vaccine mandate. Do you have a form we can use to document the request?" 

I certainly do. But it's not mine. It's the EEOC's. The Agency just published the internal form it uses for its own employees' religious accommodation requests.

Paid family and medical leave reportedly DROPPED from Biden’s economic plan

I was so hopeful when I learned that Presiden Biden's economic plan included paid family and medical leave. Then we heard reports that two Democratic Senators, West Virginia's Joe Manchin and Arizona's Kyrsten Sinema, were holding up the bill over its reported $3.5 trillion price tag. That led to reports that the paid family leave allotment would be cut to only 4 weeks, still a transformational change for American employees and employers, but significantly less than that which any other industrialized nation provides its employees.

Now, it's being reported that Democrats have eliminated paid family leave from the bill entirely to appease Manchin and get a bill passed. From NBC News:

Coronavirus Update 10-27-2021: No, employers, you can’t fire employees who complain about Covid health and safety issues

An employee sends this email to all of his coworkers: "It has come to my attention that an employee has tested positive for COVID-19. I feel it is important to inform all employees of the current situation."

An hour later management fires that employee. Their reason? His job was to fix cars, not police positive Covid tests in the workplace. 

That's exactly what the Department of Labor alleges happened at an Austin, Texas, car dealership in December 2020. Earlier this month, the agency filed suit under section 11(c) of the Occupational Safety & Health Act, which protects employees from retaliation for exercising their rights under the Act.

Coronavirus Update 10-26-2021: EEOC updated Covid-19 technical guidance to address religious vaccine objections

Religious accommodations to vaccine mandates continue to be the number one issue occupying the time and energy of HR practitioners and employment lawyers. Yesterday, the EEOC updated its Covid-19 technical assistance specifically to address vaccine-related religious objections and accommodation requests.

Coronavirus Update 10-25-2021: Lawsuits challenging employer vaccine mandates are borderline frivolous

More than 130 employees of the City of Chicago have filed a lawsuit against their employer challenging its Covid-19 vaccine mandate. CNN has the details:

"The mandate, and the Executive Orders, violate the constitutional and fundamental rights of those who either choose not to be vaccinated, or choose not to disclose their vaccination status to either the state, or their employers," the lawsuit says.

The lawsuit will fail. Period.

WIRTW #601: the “What’s in your queue?” edition

Ted Lasso has no new episodes until next August. I binged Squid Game a couple of weeks ago. I need something new to fill my nights on the couch. So this is me, crowdsourcing you, my readers, for some recommendations. 

What should I watch next, and, most importantly, why? 

Make your best case in the comments below, tag me on Twitter with the hashtag #JonWatchThis, or drop a comment on LinkedIn here.

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