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.

WIRTW #595: The “future of paid leave" edition

For all the negative effects that the Covid-19 pandemic has wrought, it has imparted some very positive changes to the American workplace. For example, remote work, long looked down upon by employers, is now the norm in many workplaces. Another area of constructive change surrounds the issue of paid leave for employees. 

Has Covid-19 altered our national attitude for paid sick and family leave? I believe that it has. The time has long since passed for America to embrace and adopt paid FMLA.

Presagia, the provider of cloud-based absence management solutions that enable organizations to strengthen compliance and the developer of Leave Genius Pro, recently asked me for my perspective on Covid-19 leave laws and their permanency. At their site, I share my full thoughts, including what my paid FML program would look like if Congress gave me carte blanche to design the law.

Here are 10 other things I read this week that I think you should read, too:

BREAKING NEWS: Biden to announce vaccine mandate for all employers with 100 or more employees

CNN is reporting that President Biden will announce an executive order directing the Department of Labor to draft an emergency rule requiring that all businesses with 100 or more employees ensure all of their workers are either Covid vaccinated, or Covid tested once a week. This goes along with another expected executive order requiring all government employees and employees of government contractors to be vaccinated against Covid-19, with no option of opting out through regular testing.

The legality of the last two (federal employees and federal contractor employees) is not in question. President Biden is absolutely within his authority to mandate as to both.

But as to other employers? If someone wants to explain to me how the Department of Labor can mandate Covid vaccinations or testing for employers, I'm all ears. Because unless I totally misunderstand administrative law (and I don't think I do), that type of measure needs to be enacted via a law passed by Congress and signed by the President, and not by executive order.

This is a developing story, which I will update as necessary. Stay tuned.

Coronavirus Update 9-9-21: Don’t forget about overtime laws when paying employees pandemic-related bonuses

If you pass any restaurant these days you'll almost certainly see a sign like this one: 

"Now hiring: $________ sign-on bonus."

I've seen that blank filled in with numbers as high a $1,000 to work at a fast-food restaurant.

Employers are paying these bonuses because they continue to struggle to fill job vacancies in the tightest and toughest labor market I've ever witnessed.

If you find yourself in this position, do not forget about the wage and hour implications of these bonus payments, specifically their inclusion in the "regular rate" for purposes of calculating an employee's overtime premium.

Coronavirus Update 9-8-21: Ohio court reverses itself, orders that hospital does not have to administer ivermectin to its Covid patient

Last week I reported on a trial court case out of Butler County, Ohio, in which a common pleas judge granted the wife of a hospitalized Covid patient an order requiring the hospital to administer ivermectin (a livestock de-wormer approved for human use in small doses for the very limited purpose to treat certain parasites and skin conditions) to her husband at her (and her doctor's) request.

On Labor Day, a different judge of that same court reversed the prior ruling and denied a preliminary injunction to the wife. You can read Judge Oster's full order here.

The (loaded) question the court faced was as follows:

Should an injunction be granted to force a hospital to honor the prescription of a doctor that has not seen a patient and has no privileges at said hospital thus forcing the hospital to give ivermectin to a patient when the hospital's doctors, the FDA, CDC, and the AMA do not believe ivermectin should be a recommended way to treat COVID-19?

“Ted Lasso" and the difference between illegal harassment and legal (but still wrong) bullying

If you're watching Ted Lasso, you're familiar with the story of Nathan Shelley, kit man turned coach turned Wonder Kid. Season 2 tells a fascinating story about Nate that is still unfolding. His arc has transformed him from a bullied kit man to an abusive coach, and from a loveable underdog to an insufferable a-hole. Episode 7 ended with Nate cruelly unleashing a tirade of anger on his replacement as the team's kitman, Will.

There is little doubt that Nate's mistreatment of Will and others is both uncomfortable to watch and a portrait of horrendous management. But is it illegal?

The answer is no.

WIRTW #594: the “three fests and a wine bar” edition

If you're in Northeast Ohio, let me suggest four ways for you to spend your time over the next couple of weeks — all involving my daughter and live music.

Two of our best local arts festivals are happening next weekend, and Norah is playing both — the Waterloo Arts Fest on September 11 (where she'll be in the Sculpture Garden from 3:20 - 4 pm) and the Berea Arts Fest on September 12 (where she'll be on the Acoustic Stage from 3 - 4 pm).

In between, Norah is making her return engagement at my wife's and my home away from home, the Olde Wine Cellar in Olmsted Falls. She'll be playing out front from 6 - 9 pm. Stop by for a glass of wine (or two) or to enjoy the night's tasting, which is merlot themed. Reservations are strongly suggested for the tasting. Otherwise, just come on down.

Finally, on September 16, Norah will be back at Vermillion's 3rd Thursday, again set up on the steps of Granny Joe's Ice Creamatorium and playing music from 5:30 - 8 pm.

All shows are free to attend. For all of the information about Norah's music (she performs as norah marie), visit norahmariemusic.com.

Here's the 11 things I read this week that I think you should read, too:

The 12th nominee for the “Worst Employer of 2021” is … the Pregnancy Prognosticator

If I know one thing, and only one thing, as a man (okay, two things) it's these: NEVER joke about a woman's weight and never ask a woman if she's pregnant. The former will never end well. The latter may end with a lovely conversation about her impending bouncing bundle of joy and the perils of newfound parenthood. But it's also just as likely, if not more so, to end in tears and embarrassment.

An employer in the UK just learned these lessons the hard way, and earned my 12th nomination as the Worst Employer of 2021.

Shredding documents during litigation is a bad, bad idea (a “Worst Employer" nominee update)

Activision Blizzard was my 11th nominee for the Worst Employer of 2021. Among the alleged sins that earned its nomination — a key software developer named the hotel suite he'd use to groom female subordinates "The Cosby Suite."

The hits for this employer just keep on coming. The State of California's Department of Fair Employment and Housing, which is actively investigating Activision Blizzard for having a pervasive culture of harassment and abuse toward its female employees, now accuses the company of shredding documents relevant to the investigation.

Coronavirus Update 8-31-21: Despite FDA and CDC warnings to the contrary, Ohio court orders hospital to administer Ivermectin to Covid patient

Ivermectin is a high potency medication used to prevent or treat parasites in livestock. It's FDA-approved for limited use in humans, such as in specific doses for some parasitic worms, and there are topical (on the skin) formulations for head lice and certain skin conditions. It is not an anti-viral medication. 

Yet, the drug has grown in popularity among conservatives, fueled by endorsements from people like Senator Ron Johnson and Fox News personalities Laura Ingraham and Sean Hannity. It is not approved to treat COVID-19 infections, and both the FDA and CDC have issued strong warnings against its use for that purpose. Nevertheless, reports of poisoning related to the use of Ivermectin have increased threefold this year, spiking in July, and feed stores in states with low vaccines rates selling out of the drug.

Courts are now wading into the issue, but not how you'd expect. 

Coronavirus Update 8-30-21: Vaccine mandates and unemployment compensation

DO NOT QUIT YOUR JOB

As the mandates are increasing and the “deadlines” fast approach, YOU SHOULD NOT QUIT YOUR JOB. Do not be fooled if your boss says you must resign. Make your boss fire you and do not sign anything or agree to anything that says otherwise. Do not agree with “voluntary resignation.” If you are fired, you are eligible for unemployment. Anything else and you are not.

–americasfrontlinedoctors.org

This statement, variations of which are making the rounds on social media and elsewhere online, is very, very wrong (at least in Ohio).

An employee fired for declining a vaccine mandate (for a reason other than a bona fide medical or religious excuse) is not eligible for unemployment.

WIRTW #593 (the “18 and life” edition)

17 years and 363 days ago, I married the love of my life. In two days, we'll celebrate our 18th anniversary.

The number 18 is significant. In Hebrew, each letter has a numerical value. The number 10 is the letter Yod, and the number 8 is the letter Het. Het-Yod spells the word Chai (חי), which translates in English to "life." 

Chai is a perfect allegory for marriage. Life is not perfect, and neither is a marriage. Both have their ups and their downs. But, if you can find that someone with whom you not only enjoy the ups but can ride out the downs and come out the other side, you've done well. 

I've done very, very well. Happy 18 Colleen.

Here's what I read this week:

Coronavirus Update 8-26-21: Incentivizing Covid vaccinations through insurance-premium penalties for the unvaccinated

Delta Air Lines has decided to try a different approach to get as many of its employees vaccinated as possible. It's imposing a $200 charge for any unvaccinated employees on its health plan. Think of it as a smokers' penalty, but for the Covid vaccine.

NPR has the details:

Delta Air Lines will charge employees on the company health plan $200 a month if they fail to get vaccinated against COVID-19, a policy the airline's top executive says is necessary because the average hospital stay for the virus costs the airline $40,000.

Coronavirus Update 8-25-21: Inside the Five responds to John Mandel, and they are not happy

An update on Monday's post, about a Toledo-area brewery that got canceled over a tweet by Senate candidate John Mandel congratulating a sick employee for reporting to work. The restaurant is none too happy with ol' Joshy.

One of its owners made their position on sick employees very clear to Toledo's WTVG:

It is our policy for employees to inform all management before coming to work. As soon as we found out, we sent our employee home.

The correct response. Sick employees don't work, period, especially during a global pandemic of an airborne virus.

Coronavirus Update 8-24-21: FDA grants full approval to Pfizer Covid vaccine … but will it make any difference

Yesterday, the FDA granted full and final approval of the Pfizer-BioNTech Covid-19 vaccine.

Calling the agency's approval "a pivotal moment" in the battle against Covid, FDA Acting Commissioner Dr. Janet Woodcock said:

While this and other vaccines have met the FDA's rigorous scientific standards for emergency use authorization, as the first FDA approved Covid-19 vaccine, the public can be confident that this vaccine meets the FDA's gold standard for safety, effectiveness and manufacturing quality that we require for an approved product.

Coronavirus Update 8-23-21: I’ll have a side of Covid with my burger, please

PERRYSBURG, OH — @InsideTheFive is a cool brewery started by two NFL vets. Great food and spirited waitresses!

Even though Brianne was sick today, she came to work because she knew they were short servers.

These are the type of American workers that make our country strong. pic.twitter.com/o0VFkDkjuo

— Josh Mandel (@JoshMandelOhio) August 20, 2021

That is perennial political loser and 2022 Senatorial candidate Josh Mandel tweeting in support of a local restaurant. 

WIRTW #592 (the “welcome back” edition)

Covid has taken a lot from us. One of the things it robbed from this space is its weekly "What I'm Reading This Week" ("WIRTW") feature. For 591 pre-Covid Fridays, I published a list of the best workplace-related things I read on the Internet that past week.

Today (and hopefully for every Friday from this point forward), I am delighted to bring this feature back from its pandemic slumber.

Here is the 592nd edition of What I Read This Week. 

Coronavirus Update 8-19-2021: The (Un)Healthy American, along with other more reputable organizations, help Americans dodge vaccine mandates

Meet Peggy Hall. She runs a website called The Healthy American. 

What is The Healthy American? For starters, it's a website that NewsGuard ranks 22.5/100 (a failing grade no matter how you slice it), for, among other sins and errors, publishing false and irresponsible misinformation about the Covid vaccine. 

Coronavirus Update 8-18-2021: Back to school presents fresh challenges for working parents and employers

Today my kids go back to school. 10th grade for Norah and 7th grade for Donovan. I am so thankful that their school is requiring universal masking regardless of vaccination status. Not all students, however, are so lucky. Only 10 states currently require masks in schools, while eight states outright prohibit schools and school districts from mandating them. That means that 32 states leave this decision up to individuals school districts and parents.

This presents a major problem. Just look at these headlines from schools that are already back in session.

• Florida school district calls emergency meeting after 5,500+ students forced to quarantine over COVID-19 outbreak
• Virus outbreaks temporarily close 4 Texas school districts
• Second George County school closes due to COVID-19 outbreaks
• Ash Fork Schools Close Temporarily After COVID-19 Outbreak

And that's just the tip of the Covid outbreak iceberg. This will be an absolute crisis in a matter of weeks unless all schools and school districts mandate universal masking regardless of vaccination status and get as many vaccinated as possible. 

Coronavirus Update 8-17-2021: Are your work-from-home employees working more one job from home?

This headline in the Wall Street Journal caught my eye: These People Who Work From Home Have a Secret: They Have Two Jobs.

A small, dedicated group of white-collar workers, in industries from tech to banking to insurance, say they have found a way to double their pay: Work two full-time remote jobs, don’t tell anyone and, for the most part, don’t do too much work, either.

Alone in their home offices, they toggle between two laptops. 

Coronavirus Update 8-16-2021: With more businesses implementing vaccine mandates, more people turn to illegal fake vaccine cards

With more employers mandating vaccines for their employees, and businesses, cities, and schools doing the same for customers and other non-employee visitors, more people who resist the vaccine are turning to fake vaccine cards to remain employed or otherwise gain access.

As I wrote a few months ago, using a fake vaccine card is a federal crime. 18 U.S.C. sec. 1017 criminalizes the fraudulent or wrongful use of a government seal (in this case, that of the CDC). It is punishable by imprisonment of up to five years. 

The illegality, however, hasn't stopped people, and the market is growing.

What Would Ted Do? #WWTD

First, there was my Golden Rule of Employee Relations: Treat your employees as you would want to be treated (or as you would want your wife, kids, parents, etc., to be treated).

Next there was my Platinum Rule of Employee Relations: Treat your employees as they would want to be treated.

Finally came my Eight Word Meaning of Life and its Corollary: Be kind to others and do good things … and do all you do with [mucho mucho] joy.

Today, I'm going to sum all of this up in one tidy four-word question.

What would Ted do?

Coronavirus Update 8–12–2021: Justice Department confirms that ADA applies to Covid “long-haulers"

A few weeks ago I opined that the ADA likely covers Covid long-haul symptoms as protected disabilities that employers must accommodate.

In recently published policy guidance, the Department of Justice agrees. 

Coronavirus Update 8–11–2021: Mad as hell

How are you? Delta is spiking Covid infection rates to their highest levels since last winter. Hospitals are again facing a crisis of space. Breakthrough infections are a grim reality. Masks are again becoming part of our daily lives. How am I? I'm mad.

How mad? Mad enough to voice my resentment to WebMD.

"I am angry, I am resentful, and I think it’s a fair and appropriate response," says Jonathan Hyman, a Berea, OH, attorney who blames the unvaccinated for the backslide in pandemic progress.

Hyman has been following the difficult guidelines health experts have been urging from the beginning. He has been masking up, avoiding large gatherings, postponing travel, and he signed up to receive the vaccine as soon as it was available.

"We have been responsible, I did everything I was supposed to do," says Hyman, 48, who didn't visit his parents for 18 months to keep them safe. "Yet here we are, 16, 17 months later, and it feels like we're in the exact same place we were last summer, and it’s all because some people refuse to do the responsible things they were told to do."

Coronavirus Update 8–10–2021: Vaccines and religions accommodation requests

"I need an accommodation for your mandatory vaccination policy. The vaccine is against my religion."

As more employers roll out vaccine mandates, more will be faced with this exact scenario.

Title VII requires an employer to reasonably accommodate an employee's sincerely held religious beliefs, practices, or observances, as long as the accommodation does not impose an undue hardship. 

Two, and only two, religions, however, actually support people not getting vaccinated as a tenet of the religion — Christian Scientists and the Dutch Reformed Church. There are an estimated 106,000 Christian Scientists in the United States, and 194,000 members of the Reformed Church. That's a tidy total of 300,000 potential religious objectors based on their religion's actual teachings, period (or only 0.25% of all employees). But that minuscule number does not end the inquiry.

Coronavirus Update 8–9–2021: CNN fires three employees for lying about vaccine status

CNN — which is requiring all in-person employees to be fully vaccinated — has fired three employees for going into the office unvaccinated.

In an email to staff (as reported by Deadline), CNN president Jeff Zucker wrote:

In the past week, we have been made aware of three employees who were coming to the office unvaccinated. All three have been terminated. Let me be clear — we have a zero-tolerance policy on this. You need to be vaccinated to come to the office. And you need to be vaccinated to work in the field, with other employees, regardless of whether you enter an office or not. Period. We expect that in the weeks ahead, showing proof of vaccination may become a formal part of the WarnerMedia Passcard process. Regardless, our expectations remain in place.

The 11th nominee for the “Worst Employer of 2021” is … the Cosby Suite

If you're my age, when you hear the name Activision you think of games like Kaboom!, Pitfall!, and the Atari 2600. If you're younger you might think of Tony Hawk's Pro Skater or Call of Duty. No matter your age, after you read this lawsuit, you'll only be able to think, "OMG, what the hell is wrong with them?!"

According to the lawsuit the State of California is bringing against Activision Blizzard, "During a company event … [key World of Warcarft developer Alex] Afrasiabi would hit on female employees, telling [them] he wanted to marry them, attempting to kiss them, and putting his arms around them. This was in plain view of other male employees, including supervisors, who had to intervene and pull him off female employees. Afrasiabi was so known to engage in harassment of females that his suite was nicknamed the 'Cosby Suite' after alleged rapist Bill Cosby."

Coronavirus Update 8–5–2021: Debunking dangerous anti-vax theories and organizations like The Solari Report

You've read my posts from earlier this week, listened to the newly self-appointed quarterback of Team Vaccine Mandate, and decided to require the Covid vaccine for all of your on-site employees. After you announce your mandate, an employee enters your office to present the following ultimatum: "I'll get the vaccine," the employee tells you, "as soon as you sign off on this document." 

The employee then hands you the following form, which it found on a website called The Solari Report.

Form for Employees Whose Employers Are Requiring Covid-19 Injection
This puts employers in a box. This is a form every employee who is faced with this needs to submit to the authorized officer of their company. It is 100% legally accurate, forces them to respond to your questions ttps://t.co/stuFAl0888">pic.twitter.com/stuFAl0888

— The Solari Report (@solari_the) August 2, 2021

Coronavirus Update 8–4–2021: The dam is breaking on mandatory Covid vaccines, and the flood is coming

The news on mandated Covid vaccinations is coming fast and furious, from courts, governments, and private businesses.

Coronavirus Update 8–3–2021: What the CDC’s new mask guidance actually says and means

Since there was so much confusion that resulted from the last time the CDC updated its mask guidance for the fully vaccinated, I thought it best to take a look at its most recent pronouncement, explain exactly what it means, and detail whom the CDC recommends should now be masking up indoors.

According to the CDC, the fully vaccinated should wear a mask in public indoor settings in areas of substantial or high transmission, meaning 50 or more cases per 100,000 people. For the unvaccinated, the guidance remains as it always has been—mask up indoors and in most cases outdoors.

What is an "area of substantial or high transmission? As of today, any county colored orange or red on this map. 

Nearly 80 percent of all counties in the United States meet this definition.

Coronavirus Update 8–2–2021: Employers, now is the time to mandate Covid vaccines

As short as a few weeks ago, I'd have told you that the choice to get vaccinated is a personal one, and that employers that mandated the Covid vaccine for their employees were over-stepping into their employees' medical privacy.

That was before last week's news that the Delta variant has taken hold and taken off. As we now know that Delta is more transmissible than the chickenpox or the common flu, impacting younger people, and likely more dangerous than prior variants, our country is in a dark place with this virus, and it's rapidly getting darker.

Coronavirus Update 7–23–2021: We talkin’ bout masks! We ain’t talkin’ bout the vaccine, we talkin’ bout masks.

I'm not proud of this but i just made a scene in public for the first time in my life… I walked into a Starbucks and they asked me to put a mask on! I yelled this is ridiculous, so I turned around and walked out. I know what you're thinking… My first mistake was walking into a Starbucks:)

– Actor Kevin Sorbo, on LinkedIn, 7/20/21

I came across the post written by the former Hercules actor a couple of nights ago while perusing my LinkedIn feed. Three things came to mind.

Coronavirus Update 7–22–2021: How the ADA and FMLA apply to Covid long haulers

The risks associated with Covid-19 aren't limited to the 625,000 Americans this virus has killed or the 2.3 million hospitalizations. One of the greatest risks comes from the fact that nearly one-third of Covid-19 patients will develop long-haul symptoms that long outlast the actual infection, and further that nearly one-third of all Covid long haulers had asymptomatic Covid cases. These long-haul symptoms can include fatigue, respiratory problems, "brain fog," body aches and muscle pain, abdominal issues, and loss of smell and taste. They can be quite debilitating and last for months or longer.

If you have an employee experiencing one or more of these long-haul symptoms, what are your legal obligations to that employee under ADA and FMLA?

Coronavirus Update 7–21–2021: Employers, now is the time to ready your back-to-school plans

Children nationwide are getting ready to go back to the school for the 2021 – 22 school year, the third school year students and their parents will be living and dealing with, Covid-19.

Here's what we know about what this school year will look like.

When protected concerted activity isn’t protected

Netflix has fired three marketing executives for criticizing their co-workers over Slack. According to The Hollywood Reporter, "the executives in question thought the messages were private. An insider says an employee stumbled across several months’ worth of these messages and reported it."

An adverse jury verdict is just a number on a piece of paper

Late last week, a federal jury tagged Walmart with a verdict totaling more than $125 million in a disability discrimination lawsuit the EEOC brought on behalf of an employee with Down syndrome.

The facts were not great for Walmart. 

Coronavirus Update 7–16–2021: Ohio prohibits schools from mandating the Covid vaccine

Ohio currently requires that students receive each of the following vaccines (subject to medical or religious exceptions) as a condition of attending school: diphtheria, tetanus, pertussis, polio, measles, mumps, rubella, hepatitis B, chickenpox, and meningococcal.

The one vaccine that Ohio schools can no longer mandate as a condition of attendance or participation in activities? The Covid-19 vaccine.

There’s nothing illegal about paying employees a “day rate,” as long as you also pay an overtime premium for overtime hours

Here's how the president of Fusion Japanese Steakhouse describes the manner in which his company (unlawfully) pays its kitchen staff:

I pay a teriyaki chef $120 per day. He worked ten hours—ten hours a day. So here’s how to calculate it. He works ten hours a day at $120 a day. I divide it by hours, and it’s $10.97 per hour. If he works overtime, it will be $16.20 overtime pay. So $120 a day, I have it covered because it was way past—way beyond $7.25 minimum wage rate. So I take consideration of the industry standard, you know. So either it is for teriyaki chef, it is $120 or $120 per day.

In other words, as the court correctly surmised in Walsh v. Fusion Japanese Steakhouse, the employer "works backward to calculate the hourly rate of the employees based on the day rate." That backward calculation, however, to jerry-rig an hourly rate plus and overtime rate to arrive at the agreed-upon day rate, is not legal.

The 10th nominee for the “Worst Employer of 2021” is … the transphobic terminator

Kimberly Grinage was born male but identifies as a transgender woman. That fact presented a huge problem for her during her employment at an Extended Stay America property, as she alleges in her lawsuit. She claims that her Christian manager fired her specifically because he did not want a transgender woman working for him.

Coronavirus Update 7–13–2021: The 3 reasons why it matters that you get vaccinated (even if I’m vaccinated)

"If you're vaccinated, and the vaccines work, why do you care if I get vaccinated? Let me live my life. My body, my choice." This sentiment echoes a popular refrain of those who are anti-vax or otherwise not getting the Covid vaccine.

It's also very, very wrong. Here are the top three reasons that it matters that you get vaccinated (even if I'm vaccinated).  

You don’t need to wait for President Biden to fix what’s wrong with non-compete agreements

On Friday, President Biden signed an Executive Order on Promoting Competition in the American Economy. According to the Order, its goal is to promote a "fair, open, and competitive marketplace" and "the welfare of workers, farmers, small businesses, startups, and consumers" through the elimination or limitation of "excessive market concentration," which "threatens basic economic liberties, democratic accountability." One of the President's targets is "companies [that] require workers to sign non-compete agreements that restrict their ability to change jobs." Indeed, according to the President, half of private-sector businesses require at least some employees to enter non-compete agreements, affecting some 36 to 60 million workers.

Thus, President Biden ordered "the Chair of the FTC … to consider working with the rest of the Commission to exercise the FTC's statutory rulemaking authority … to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility."

WorldatWork’s Work in Progress podcast—Episode 118: A Conversation with Employment/Labor Attorney Jon Hyman

This week marks my record-setting third appearance on WorkatWork's Work in Progress podcast. Tune in to listen to me talk about employer vaccination policies, transgender bathroom rights, workplace drug testing, and an assortment of other controversial issues in between. We also started our conversation with a bonus chat on the latest RRHOF inductees. Which one am I most excited about? You'll have to listen to find out.

A huge thank you to Charles Epstein and Tom Alexander for inviting me back on. Tom, I'm anxiously awaiting receipt of a Popeye's chicken sandwich as my "three-timer" award. I'm just hoping it's delivered in the form of a value-appropriate gift card and not an actual sandwich. 

You can listen below, or wherever you get your podcasts.

Religious accommodations shouldn’t flummox employers, yet they still do

I've shared this story before, but it's worth re-sharing because (a) it's been a few years and I have many new readers, (b) it's really good, and (c) because it's super relevant to today's lesson.

I spent a high-school summer working on a warehouse loading dock. One of my co-workers was named Harland Jester. (I provide his name because he named his son "Court," and this context provides the necessary color for the rest of the story.)

Four days into my summer job, a co-worker pulled me aside and asked, "Did Harland get a hold of you yet?"

ABA President fixes the victim-blaming problem the ABA Journal created for working moms

Yesterday, I was highly critical of the ABA Journal for publishing a column that victim-blamed working moms for their lack of advancement in the legal profession. Then, ABA President Patricia Lee Refo did what she could to fix the injustice created by the journal of the organization she runs.

In her own column—Women's success in legal careers: Lack of advancement is not a 'woman' problem, it’s a 'profession' problem—Refo took apart the notion that female attorneys are to blame for their lack of upward mobility. They have not failed, Refo correct argues, their employers have failed them.