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.
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.
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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?
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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)]
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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.
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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.
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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
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"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
— Tyler Buchanan (@Tylerjoelb) March 24, 2021
"You are not good at public health," she tells maskless GOP colleagues pic.twitter.com/RYUCR1yxlx
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.
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For the past year, an astounding 44 percent of employees have been working remotely full time, and two-thirds of employees have been working remotely at least one day per week. With vaccination rates on the rise and offering a light at the end of the pandemic tunnel, employers are starting to plan for bringing employees back to the physical workplace.
These decisions involve a lot of key questions an employer needs to answer in planning for where employees will work in a post-vaccine, post-pandemic world.
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The CDC is now recommending that certain non-healthcare employers test asymptomatic employees for COVID-19. According to the CDC, this screening "may be useful to detect COVID-19 early and stop transmission quickly" and can be done in done "in addition to symptom and temperature checks, which will miss asymptomatic or presymptomatic contagious workers."
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In the early days of the COVID-19 pandemic, I asked this question: "Are employers legally responsible for paying workers for the time it takes to record their body temperatures before entering the workplace?"
My answer was a legal, "Probably," and a moral, "Definitely."
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Yesterday, the CDC released guidance permitting large employers to establish temporary sites to vaccinate employees.
The CDC says that employers should consider opting for an on-site vaccination program if they have a large number of employees with predictable schedules and enough space to set up a pop-up clinic while still allowing for COVID-appropriate social distancing.
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Full disclosure — I love Tate's Bake Shop's gluten free cookies. Prior to gluten free Oreos hitting supermarket shelves (I dare you to tell them apart from their full-glutened sibling), I bought Tate's gluten free chocolate chip cookies all of the time. The allegations raised by this story, however, gives me great pause in ever buying their cookies again.
It seems that Tate's is in the middle of a union organizing campaign and the baker is alleged to have threatened with deportation undocumented workers who support the union.
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Today brings BIG changes for my career and me. It's my first day of work at Wickens Herzer Panza after relocating my practice and joining its Board of Directors, Litigation Department, and Employment & Labor practice team (which I'll help guide).
I am beyond excited for the opportunity and platform my new home offers my practice, my clients, and me. Stay tuned for some exciting ideas about how I can better help your business proactively solve your workforce problems.
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One of the lasting lessons of the COVID-19 pandemic is that our state unemployment systems are old and broken, and desperately need to be modernized and fixed. While the $1.9 trillion Covid relief package that President Biden is expected to imminently sign provides for a $300 federal unemployment bonus for a few months, that is the tiniest of bandaids on this very large problem.
Thankfully, we have John Oliver to offer his commentary on this important issue.
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One of the new measures in this proposed extension is the inclusion of leave taken by an employee to obtain a COVID-19 vaccine or recover from any injury, disability, illness, or condition related to the vaccine.
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I just announced Texas is OPEN 100%.
— Greg Abbott (@GregAbbott_TX) March 2, 2021
EVERYTHING.
I also ended the statewide mask mandate.
With that announcement, Texas joins Mississippi (whose governor made the same announcement yesterday) and many of the other usual suspects with no rules mandating that people wear masks or other facial covering in public or at work.
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Any prayer warriors on here, please keep the roofer who just fell off one of the townhouses in your prayers. It doesn't look like he's moving. So so sad 😢.
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— Malibu StⒶsi 🏴 (@MalibuStasi) February 27, 2021
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Adaptability to change is itself a hallmark of successful education.
– Peter Hilton
2020 – 2021 has been a different school year for everyone. My kids are fortunate in that their school, Lake Ridge Academy, has been open for full-time, in-person instruction for the entire school year. There have, however, been key changes in the name of safety. For example, the school made the decision not to participate in interscholastic sports this year. My son was able to participate on the Middle School robotics team, with the competition submitted remotely. My daughter had the benefit of participating in the Upper School's fall play, which was staged outside in the warm autumn weather.
The Upper School musical, usually presented on stage in late February, presented a different set of challenges. An outdoor performance is simply not an option in the harsh winter climate of Northeast Ohio. An indoor live performance is also not an option because it simply cannot be executed safely within COVID-19's limitations.
So what did the school do? It adapted. Instead of performing a live, in-person musical, it spent the past several months filming its first-ever movie musical, which it will stream March 5, 6, and 7. And my daughter, Norah, has the lead role.
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Two machine operators … who jointly operated a press tested positive for the coronavirus just two days apart, in late August 2020. The two workers typically labored for hours at a time less than two feet apart; neither wore a protective facial mask consistently. Ten days later, two more workers operating similar presses together tested positive. On Sept. 19, 2020, one of the press operators fell victim to the virus and died.The total penalty? $15,604. For someone who died during a global pandemic because of his employer's irresponsibility
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Last year I nominated Tyson Foods for 2020's Worst Employer because some of its managers started a cash buy-in betting pool on which of its employees would fall ill with COVID-19.
This past weekend, John Oliver did a scathing indictment of Tyson Foods and others for their health and safety record during the pandemic and otherwise.
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Here's the lede:
Bryce Mottram, a former general manager at one of quirky ice cream purveyor Ample Hills' scoop shops, has filed a lawsuit in New York Eastern District Court alleging that he was fired from the company in retaliation for speaking up about instances of sexual harassment and unsafe COVID-19 workplace protocols at the company.
I firmly believe that for the next year-plus, just about every employment-related lawsuit will contain a COVID-19 whistleblower tag-along claim.
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This week I had the pleasure of guesting on Pat Perry's Success Wave podcast. During our half-hour-plus conversation, Pat and I discussed a variety of topics, including lawyering in the time of COVID-19 and the key issues I see employers facing in 2021. We also talked about some general business questions, such as this one: How do I define "success." Here's my answer.
You can listen to the full episode on Apple Podcasts or wherever you get your podcasts.
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Think about it. If you want to know where the American public is, look at the money being spent on advertising. Did you ever five years ago think every second or third ad out of five or six you turn on would be biracial couples. [Applause] No, I'm not being facetious. The reason I'm so hopeful is this new generation. They're not like us. They're thinking differently. They're more open. And we have to take advantage of it.
Those were the words of President Biden last night, speaking about race relations during his CNN Town Hall.
He's 100 percent correct.Do you like what you read? Receive updates two different ways:
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As COVID-19's spread has prompted an expansion of work-from-home policies across various industries, the use of more-pervasive monitoring software, also known as "tattleware" or "bossware," has increased. The New York Times demonstrated how this software works, but the idea is simple: Once the software is installed, an employer has deeper access and even live monitoring tools for everything you do on your computer, including which applications you open, what websites you visit, and how much time you spend doing different activities. Employers can use this data to track your attendance or periodically snap screenshots of your screen. Some software can even monitor the music you listen to, your facial expressions, your tone of voice, or your writing tone throughout the day. To what purpose depends on the type of work you do—and whom you do it for.
According to Brian Kropp, VP of Research for Gartner, the number of companies that use this "tattleware" has increased from 10 percent pre-COVID to 30 percent currently. It's an epidemic all on its own.
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"Ten doses of the Covid-19 vaccine would expire within hours, so a Houston doctor gave it to people with medical conditions, including his wife." So reads the lede in this New York Times story.
What happened next? He was fired.
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Should you be recommending or requiring the same for your business, both for employees and visitors?
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“I’m here live, I’m not a cat,” says lawyer after Zoom filter mishap
— Lawrence Hurley (@lawrencehurley) February 9, 2021
“I can see that,” responds judge pic.twitter.com/HclKlAUwbM
While this story provided everyone a much-needed laugh, it does offer two important points: one about a lawyer's ethical duty of technological competence, and another about the importance of a sense of humor and empathy.
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[A] number of ex-Trump political officials … lost their parental leave when Joe Biden was sworn into office. It's a byproduct of the field they're in: Their boss (the president) may have been the one let go, but his departure has meant that they, too, lose their jobs and benefits. Still, they argue that the Biden administration should have honored their leave by keeping them on payroll until the end of it — a request that … the Biden transition did not grant.
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"I just fired up photoshop and changed the date," wrote one man who had doctored results for an entire group of friends to Motherboard. "Fun fact, the document [test result] was in French whereas they were in Sweden the day it was supposedly made, but they didn't see a problem in that."
The other person took a slightly less sophisticated route and changed the date of an old test with Microsoft Paint for his vacation to Southern Europe.
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Not distinguishing between workers who are vaccinated and those who are not: 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. The CDC explains that experts need to understand more about the protection that COVID-19 vaccines provide before deciding to change recommendations on steps everyone should take to slow the spread of the virus that causes COVID-19.
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- Whether an employee's exposure to the N-word in the workplace is severe enough to send his Title VII hostile-work-environment claim to a trier of fact.
- Whether and in what circumstances racial epithets in the workplace are "extremely serious" incidents sufficient to create a hostile work environment under Title VII, rather than nonactionable "mere utterances."
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Goya Foods CEO Bob Unanue tells Maria Bartiromo how coronavirus was used for “ushering in the dawn of a new world order, this Great Reset, with an unverified election,” falsely claims 80 million people voted for Trump. “There is a war coming.”
— Eric Kleefeld (@EricKleefeld) January 20, 2021
Maybe rename the company “MyBeans”? pic.twitter.com/Kw8WXoTBLg
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To a nation waiting for action, let me be clearest on this point: Help is on the way.
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Meet Awon Phie LLC, which operates a Holiday Inn Express in Corpus Chrisi, Texas, our third nominee for the "Worst Employer of 2021." How did it earn its nomination? According to a lawsuit the EEOC filed against it, three weeks after hiring an employee to work as a housekeeper, the company's operations manager, noticing her stomach, told her she was a "liability" because of her pregnancy, that she couldn't employ a pregnant woman, and fired her.
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One of the great benefits of this blog is the opportunities it has opened for me to network with others. One of the great benefits of that networking is the ability to sometimes have my voice heard on other platforms. Today, I offer for your listening pleasure two podcasts on which I've recently appeared, the HR Social Hour Half Hour Podcast, and the Tech Leader's Toolbox Podcast.
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Late last week President-elect Biden released his America Rescue Plan, a comprehensive legislative package to provide relief to those struggling because of COVID-19. Among its proposals was a $15 minimum wage.
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GitHub reportedly fired a Jewish employee after he posted a message in Slack that said "stay safe homies, Nazis are about" the day of the attack on the US Capitol….
The message sparked controversy inside the company, with one colleague criticizing him for using divisive language. GitHub's HR team chastised the employee for using the word "Nazi" in a company Slack channel. Two days later, GitHub allegedly fired him, citing vague patterns of behavior.
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