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—
I have answers, which I offer in this short video, which I recorded yesterday.
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.
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.
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.
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?"
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.
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:
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.
The NHL has suspended San Jose Sharks forward Evander Kane 21 games for violating the League's Covid-19 protocol. His offense: supplying a fake vaccination card.
Fake vaccine cards are out in the world, easy to find, and easy to use. Their use is also a federal crime punishable by up to 5 years in prison and grounds for termination of employment. Yet, as workplace vaccine mandates become more prevalent (and soon federally mandated), more anti-vax and vaccine-hesitant employees will take the risk instead of losing their jobs.
Do you know how to spot a fake vaccine card? Here are some telltale signs.
Late Friday, The Verge reported that Netflix fired one of the leaders of an internal trans employee resource group who was organizing an employee walkout later this week. The employee had been encouraging trans employees and allies to walk off the job in protest of Netflix's handling of the Dave Chappelle special The Closer (in which the comedian and the streamer have been criticized for the special's transphobic content).
According to the report, Netflix fired the employee based on its suspicion that s/he leaked confidential metrics on the Chappelle Special to Bloomberg, including how much Netflix paid for it and how many have streamed it.
This week I rejoined my good friends Marc Alifanz and Kate Bischoff on the Hostile Work Environment podcast to discuss the Season 2 finale of Ted Lasso.
Spoiler alert: you should absolutely avoid listening until you complete Season 2. We discussed the employment law and human resources beats we saw in the episode, including Nate's descent into darkness, the fallout of Sam's big choice, and the actions of Trent Crimm, Independent. You'll also hear talk of mannequins, sky diving, and arugula.
Find it wherever you get your podcasts, including Apple Podcasts, Overcast, Spotify, Google Podcasts, and Stitcher.
Here are the best things I read online this past week that I think you should be reading, too.
Q: In what ways can/should HR departments capture and record employee vaccination information? What are the HIPAA implications?
A: When it comes to recording this data, it's a good idea to keep it separate from other employee information on file. It should not be part of standard employee records and should be accessible to as few people as possible. Because vaccination records are covered under HIPAA regulations, businesses must ensure they're diligent about securely collecting, recording and storing this information to limit the risk of compromise.
"I don't need the vaccine; I've already had Covid and have superior natural immunity" is a popular refrain from some people who've been infected with Covid and, for that reason or another, are hesitant to get the Covid vaccine.
Does that argument hold up against an employer's vaccine mandate? According to two federal courts that recently examined the issue, the answer is a clear no. Kheriaty v. Regents of the Univ. of Calif. (decided 9/29/21 by a California federal court judge) and Norris v. Stanley (decided 10/8/21 by a Michigan federal court judge) each examined whether an employee was entitled to a preliminary injunction against their employer's vaccine mandate.
In each case, the Court sided with the employer and rejected the employees' pre-existing immunity arguments.
Yesterday was World Mental Health Day. It was also day 579 of the Covid-19 pandemic.
Covid-19 has altered all of our lives; all employees are dealing with stress, anxiety, and isolation.
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.
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)
If your employer is mandating the Covid vaccine, would you rather get fired or get the shot?
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.
"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.
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.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.
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.
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?
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.
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.
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.
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?
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.
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.
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.
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.
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.
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.
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:
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.
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.
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.
PERRYSBURG, OH — @InsideTheFive is a cool brewery started by two NFL vets. Great food and spirited waitresses!
— Josh Mandel (@JoshMandelOhio) August 20, 2021
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
That is perennial political loser and 2022 Senatorial candidate Josh Mandel tweeting in support of a local restaurant.
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.