In light of the recent crippling Russian cyber-attacks on Colonial Pipeline and JBS, now is a perfect time for a refresher course on cybersecurity.
Here are some A+ resources I've previously provided:
In light of the recent crippling Russian cyber-attacks on Colonial Pipeline and JBS, now is a perfect time for a refresher course on cybersecurity.
Here are some A+ resources I've previously provided:
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Employers have been anxiously waiting for the EEOC to publish its guidance for employers on incentives offered to employees in exchange for receiving the COVID-19 vaccine. Late last week, the EEOC finally released that guidance. The issue is whether the incentive renders the vaccine coerced and therefore non-voluntary, which would be unlawful under the ADA and GINA.
What did the EEOC say:
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Today, my rock-star daughter turns 15.
There's lots I can say about Norah, but I've shared so much over the years that I feel like it'd just be repetitive. So instead of writing about what a sweet, smart, compassionate, talented human she is and has always been, today I'm turning this space over to her.
Norah's "final exam" for her 9th grade English class was a creative writing assignment. They were given very little direction. Just, "You have a week; write something creative." With her permission, today I'm publishing what she wrote. I found it so moving and so outstanding that I think it needs to be shared with as wide of an audience as possible. Enjoy.
And please take a moment to wish Norah a happy birthday. You'll find her on Twitter @normlmao_ or @norahmariemusic.
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If an employer is supposed to keep an employee's vaccination status as a confidential medical record, how is an employer supposed to enforce the CDC's most recent guidance that permits fully vaccinated individuals to unmask?
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Yesterday's post about COVID-19 vaccine-card fraud got me thinking about what we need to do to combat it (other than trying to spot fakes when we can and diligently enforcing the criminal laws that already prohibit this fraud). My answer:
A national digital vaccine passport.
But it's complicated.
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Fraudulent COVID-19 vaccine cards are readily available online, and their prevalence will only grow with the CDC's loosening of its mitigation guidelines for the fully vaccinated.
The problem has gotten so bad that the FBI is now warning people that making or buying a fake COVID-19 vaccination record card is a federal crime.
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One open issue stemming from the CDC's about-face on masking for the fully vaccinated is how OSHA would address these new guidelines. When OSHA published its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace in late January, it made it clear that one's vaccination status had zero impact on an employer's obligation to require masks in all cases.
Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person.
In the world of Covid, three and half months is an eternity, so here we are just three and a half months later living in a country without facial coverings for the fully vaccinated. So what says OSHA?
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Today, a break from talking about the CDC and masks (but more tomorrow) to bring you a truly awful nominee for the Worst Employer of 2021.
For the past two years, a human trafficker or enslaver hoisted the "Worst Employer" trophy at year's end. Will 2021 bring us a threepeat?
NBC News reports on a strong contender:
The FBI was at a massive Hindu temple in New Jersey on Tuesday that has been accused in a lawsuit of luring Indian men from marginalized communities to the U.S. and forcing them to work nearly 90 hours a week for around $1 an hour.
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Friendly reminder that under HIPPA, your vaccination status is private.
Or this tweet:
The rule is simple, HIPAA protects EVERY American from disclosing ANY of their health records to ANYONE.Their point? That medical privacy laws protect their vaccination status, and it's illegal for any business to ask as a condition of anything.
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Yesterday, the CDC updated its Covid guidance to remove all masking and social distancing guidance for those of us who are fully vaccinated. According to the CDC—
But what does this really mean? And, more to the point, how you know who's vaccinated and who's not so that you can permit them to remove their masks inside your business?
But what does it really mean? And, more to the point, how do you know who's vaccinated and who's not so as to allow anyone to be unmasked?
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Last evening, Governor DeWine held a statewide address to announce the availability of the Pfizer vaccine for Ohioans ages 12 - 15. That news was not shocking. The rest of what he had to say, however, was.
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This weekend, the Ohio Employer Law Blog turns 14!
May 9, 2007 — my first post ever here at the blog. 3,628 posts and three law firms later, happy birthday to me!
May 9 offers another reason to celebrate, Mothers' Day. I haven't seen my mom in 19 months, but with vaccines hopefully on the immediate horizon for my kids, I should be able to give my mom a sorely missed and needed hug really soon. This long-distance message will have to do until then.
Today also happens to be my mom's birthday, so everyone please wish her a happy one!
Next week, more legal stuff, starting with some good, and not-so-good, news from the EEOC.
* Photo by Marty Southwell on Unsplash
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The Telegraph recently tweeted about what is being called "Covid anxiety syndrome." The whole thread is a fascinating read, but its bottom line is that some people are reacting irrationally by continuing extreme Covid mitigation measures when they are no longer needed.
The Guardian quotes professor Marcantonio Spada London South Bank University, who first theorized this syndrome after noticing people were developing a particular set of traits in response to Covid.Fear is normal. You and I are supposed to fear the virus because it's dangerous. The difference, however, in terms of developing a psychopathological response is whether you end up behaving in … overly safe ways that lock you into the fear. My expectation is we're going to have … chunks of the population that are avoiding re-engagement and constantly worrying about the virus for months to come, whether they are vaccinated or not.
So here's my question for you — do you have employees experiencing such behavior? Continuing to insist on remote work even after being fully vaccinated? Wearing a mask all of the time, even when alone in an office? Insisting on constantly wiping down surfaces as if they are disinfecting a crime scene?
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The National Federation of Independent Business just released the results of its most recent Covid-19 Small Business Survey. 546 businesses, all with fewer than 200 employees, provided their experiences on a variety of Covid related topics. The results that jumped off the page, however, were the two questions about the Covid vaccine.
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Bobby Edwards, the manager of J&J Cafeteria in Conway, South Carolina, effectively enslaved JCS (to whom we refer with the fictitious name "Jack"), forcing him to work at the restaurant over 100 hours per week without pay. …In 1990, when Jack was 12 years old, he started working part-time at J&J Cafeteria as a dishwasher. He has an intellectual disability and an IQ of 70. After a few years of part-time work, Jack dropped out of high school and started working full-time at the restaurant. For the first 19 years of his employment, when the restaurant was owned and managed by different members of the Edwards family, Jack was always paid for his labor.
That, however, changed in September 2009, after Bobby Edwards took over the management of the restaurant. Edwards moved Jack into an apartment attached to the restaurant and forced him to work more than 100 hours per week without pay — usually 6:00 a.m. to 11:00 p.m. for 6 days and 6:00 a.m. to 2:00 p.m. on Sundays. Not only did Jack work long hours without pay, he was never given a day off. Edwards effected this forced labor by taking advantage of Jack's intellectual disability and keeping Jack isolated from his family, threatening to have him arrested, and verbally abusing him. His control over Jack also involved physical abuse. Once, when Jack failed to deliver fried chicken to the buffet as quickly as Edwards had demanded, Edwards dipped metal tongs into hot grease and pressed them to Jack's neck, resulting in a burn that fellow employees had to immediately treat. Other times, when Jack made supposed mistakes, Edwards whipped him with his belt, beat him with kitchen pans, and punched him with his fists. This treatment left Jack physically and psychologically scarred. Jack later said, "I felt like I was in prison. Most of the time I felt unsafe, like Bobby could kill me if he wanted. … I wanted to get out of that place so bad but couldn't think about how I could without being hurt."
At the time of sentencing, the judge ordered Edwards to pay Jack $272,952.96 in restitution, in addition to sentencing him to 10 years in prison.
Last month, the court of appeals ruled that Edwards should pay liquidated damages to Jack under the FLSA in addition to the $272,952.96 of back wages. Under the FLSA, an aggrieved employee is entitled to an award of liquidated damages in an amount equal to the total amount of unpaid wages (i.e., double damages) unless the employer can show (1) that it acted in good faith; and (2) that it had reasonable grounds to believe it had complied with the FLSA. I see no way possible that Edwards could have ever hoped to have met that standard.
Thus, at the end of the day, Jack should receive a total award of $545,905.92 in restitution. Of course, how Edwards intends to make good on his substantial obligation to Jack is another story.
Finally, my offer to Bobby Paul Edwards still stands. If the Federal Correctional Complex in Butner, North Carolina, will not allow him to collect his trophy, I’ll have it waiting for him to claim when he's released in 2029.Do you like what you read? Receive updates two different ways:
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In a stunning show of ignorance, a Miami, Florida, private school has informed its staff that because the Covid-19 vaccine poses a health risk to those in close proximity to those who have been vaccinated, those who have already received the vaccine must physically distance from students and anyone vaccinated will not be permitted to return to work after the summer break.
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McDonald's has lots of secrets. What's in its sauce? What part of the chicken do the McNuggets come from? How come every time I crave a cone the soft-serve machine is out of order? Why do their soft drinks taste better than anyone else's?
Something that's not a secret, however, is that McDonald's has a serious sexual harassment problem.
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As we move into the vaccination campaign focused on working-age adults, one concern I've heard from so many Americans is that they can't afford to take the time off to get vaccinated or lose a day's work because they are feeling slightly under the weather after their shot. I'm calling on every employer, large and small, in every state to give employees the time off they need -- with pay -- to get vaccinated, and any time they need -- with pay -- to recover if they're feeling under the weather after the shot. No working American should lose a single dollar from their paycheck because they chose to fulfill their patriotic duty of getting vaccinated.
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According to a recent Axios-Ipsos poll, vaccination efforts may have plateaued, and most people who've not yet been vaccinated don't plan to get vaccinated.
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A couple of months ago I was approached by the That One Case podcast to record an episode. This show asks lawyers to share the story of one case that has stood out over their careers. As they pitched it, that case could be a big win that defined my career, a turning point that took my work down an unexpected path, or simply the case of which I am most proud.
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Consider the following Covid safety and health violations OSHA recently uncovered at a Massachusetts tax preparation business.
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I haven't taken a proper vacation in 25 months. We were supposed to go to Portugal last March, but then Covid happened. In the 13 months since, there's been little point in taking off from work for any length of time because I haven't been able to go anywhere. "I can't go anywhere, so I might as well work," has been a popular pandemic refrain (me included).
Americans were bad at vacations before Covid. The pandemic certainly hasn't helped our PTO hesitancy.
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One of the lasting lessons of the Covid-19 pandemic for businesses is our broken state unemployment systems. State governments have paid out tens of billions of dollars in bogus unemployment claims. And with claims paid comes tax forms reporting the income related to those claims.
Consider the story of just one taxpayer, as relayed by the Wall Street Journal.
Michael Baird, a 33-year-old marketing manager in Chicago, hasn't lived in Texas for several years. And yet there was a tax form from the state of Texas sitting at his parents' house in Houston, showing that the state had paid him $1,014 in unemployment benefits.
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In the history of this blog's 3,603 posts, I've never written about the False Claim Act. If you've been waiting with bated breath for me to fix this omission, today's your lucky day, thanks to United States ex rel. David Felten, M.D., Ph.D. v. William Beaumont Hosp. (6th Cir. 3/31/21). Before diving into the Felten case, let's first take a 61-word peek at the False Claims Act and to what it applies.
The False Claims Act is a federal statute that imposes liability on people and companies that defraud the federal government, and further, relevant to Felten, permits private citizens (which the law calls "relators") to file lawsuits (known as qui tam claims) on behalf of the government and protects relators from retaliation when the lawsuit they are filing is against their employer.
At issue in Felten is whether the FCA's anti-retaliation protections only cover current employees, or whether they also extend to an employer's former employee who blows the whistle by filing a qui tam suit.
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Three weeks ago I returned to the office. That return matched my start date at Wickens Herzer Panza. I decided that it'd be difficult, if not impossible, to learn a new firm and its systems, and build camaraderie and teamwork with my new co-workers, if I'm working remotely. Thus, I made the decision to break free of my self-imposed Covid cocoon and start working most days in person in the office.
I thought about this decision as I read this article in the Wall Street Journal: After Covid, Should You Keep Working From Home? Here’s How to Decide.
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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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