You can tell by the smell that your girl's not doing well when the end of the month rolls along. You can tell by the stink that your girl's not in the pink when the end of the month rolls along.
Tuesday, November 16, 2021
The 14th nominee for the “Worst Employer of 2021” is … the Singing Supervisor
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Monday, November 15, 2021
Coronavirus Update 11-15-2021: Employers, DO NOT allow a law firm to charge you for their OSHA ETS compliant vaccine policy
The following headline in my feed reader recently caught my attention: NOW AVAILABLE: Model Employment Policy for Compliance with OSHA’s Emergency Temporary Standard. Always curious about the competition, I clicked, thinking I'd find a breakdown and analysis of the free-to-download policies OSHA has made available on its website (one sample for Vaccination or Testing and Face Covering and one for Mandatory Vaccination only).
Our US Labor and Employment team has developed a model policy that complies with OSHA's recently announced Emergency Temporary Standards (ETS) requirements regarding vaccination and employee testing, which also includes sample forms for employees to request reasonable accommodations. This policy can be very helpful to employers as they navigate these challenges.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Saturday, November 13, 2021
BREAKING NEWS: 5th Circuit issues new order continuing its stay of the OSHA vaccine-or-test ETS
In a 22-page opinion issued last night that I can only describe as a scathing rebuke of OSHA's vaccine-or-test emergency temporary standard, the 5th Circuit Court of Appeals formally granted a stay of the ETS pending a full review of the pending motion for permanent injunction, and further ordered that "OSHA take no steps to implement or enforce the Mandate until further court order."
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, November 12, 2021
WIRTW #604: the “I promise I’m a real lawyer” edition
The post was not meant to be controversial. Aaron Rogers admittedly lied about his vaccination status. I merely suggested that he not get a free pass because of who he is, and should be treated like any other employee caught lying on the job. Then, LinkedIn featured my post in their Breaking News sidebar. And all hell broke loose.
More than a few people called me a Nazi (which, for the record, Linkedin does not consider a violation of its Professional Community Policies.)Others joyfully outed their own racism by comparing Rogers to his "murdering and raping teammates" or by calling Covid-19 the "Wuhan Flu."
Some questioned my understanding of employment law. Pro tip: If you start your comment with, "I'm not a legal expert, but," then you shouldn't be offering a legal opinion. I don't tell the pilot how to fly the plane or the surgeon where to slice. Please don’t tell me I'm wrong about employment law.
Check out the bonkers (and frankly, scary) discussion here, if you dare.
Here are the best things I read online this past week that I think you should be reading, too.For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, November 11, 2021
Coronavirus Update 11-11-2021: Religious groups tell 5th Circuit that the OSHA vaccine mandate is a “sin against God"
In a filing made with the 5th Circuit Court of Appeals in support of the petition seeking to strike down OSHA's "vaccine or test" emergency temporary standard, the American Family Association and Word of God Fellowship (which does business as Daystar Television Network) told the court that imposing the mandate on religious employees would be a "sin against God." (For the record, the AFA also believes that climate change is a hoax because only God can control the climate and stands firm against legal protection for LGBT rights. But I digress.)
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, November 10, 2021
Coronavirus Update 11-10-2021: Federal judge grants injunction victory to United on its vaccine mandates, but signals that this war is far from over
A U.S. federal district court judge ruled that an employer can impose on its employees a Covid-19 vaccine mandate that provides unpaid leave as the only reasonable accommodation for medical or religious reasons.
The case, Sambrano v. United Airlines, was seen as a test case for the viability of unpaid leave as a reasonable accommodation to vaccine mandates. The order denied the plaintiffs their requested preliminary injunction. Yet, it's not that aspect of the case that's the most noteworthy. Instead, it's the critical words that the judge saved for United's apparent cavalier and callous attitude against religious accommodations as a whole to which employers should pay the most attention.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, November 9, 2021
Coronavirus Update 11-9-2021: White House tells employers to proceed with vaccine mandate despite 5th Circuit stay; I concur
People should not wait. They should continue to move forward and make sure they’re getting their workplace vaccinated.– White House Deputy Press Secretary Karine Jean-Pierre, Nov. 8, 2021
On Saturday, the 5th Circuit Court of Appeal (which covers Texas, Louisiana, and Mississippi) entered an order staying OSHA's "vaccine or test" rule for employers with 100 or more employees.
Questions—
- Does that order only apply to employers in the three states within the 5th Circuit, or does it apply nationwide?
- What happens next?
- Most importantly, what should employers do now?
I have answers, which I offer in this short video, which I recorded yesterday.
Employers must assume that the OSHA ETS is taking effect as planned and stay the course. January 4, 2022, will be here before we know it, and employers that don't start planning now will be caught out of compliance.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, November 8, 2021
Coronavirus Update 11-8-2021: Let’s talk about Aaron Rogers
Last Wednesday, Aaron Rodgers, future Hall of Fame quarterback for the first-place Green Bay Packers, tested positive for Covid-19. This fact, in and of itself, might be newsworthy because of who he is, but in and of itself it's not earth-shattering. That is, it's not earth-shattering news until you couple it with the fact that: (1) it appears Rogers is not fully vaccinated against Covid-19; and (2) in August, when a reporter asked if he had received the Covid-19 vaccine, Rodgers said, "Yeah, I've been immunized."
"Immunized," in this case, however, appears to mean something very different than fully vaccinated against Covid-19.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Saturday, November 6, 2021
I did not lose on Jeopardy!
The Final Jeopardy category is “Cybersecurity.”
The answer: “The reason why it was not Jeopardy! Clue Crew member assistant director Sarah Whitcomb Foss trying to sell me a PS5 over Twitter.”
The question: “What is her account was hacked?”
For anyone who followed my PS5 saga from yesterday, here’s the resolution.
If you need to catch up, you can do so here.
I’m quite happy I wagered big on my cyber fraud Spidey sense.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, November 5, 2021
WIRTW #603: the “Did anything happen yesterday?” edition
Unless you've been living in a cave for the past 24 hours, you are well aware that OSHA released its vaccine-mandate emergency temporary standard. There are lots of resources that have since been published, including this website from OSHA itself. One of the best is this half-hour video in which the agency explains the nuts and bolts of the ETS.
Here are the best things I read online this past week that I think you should be reading, too.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, November 4, 2021
BREAKING NEWS: OSHA publishes its vaccine-mandate emergency temporary standard
Write down November 4, 2021, as the Employment Lawyer Superbowl. At 8:45 am this morning, OSHA published its Covid-19 Vaccination and Testing Emergency Temporary Standard in the Federal Register. You can download and read all 490(!) pages of it here.
Most importantly, this rule takes effect immediately upon its publication in the Federal Register — i.e., today — but employers have 30 days, or until December 5, 2021, to comply with all requirements except testing for employees who are not fully vaccinated (which has a January 4, 2022, compliance date).
This means that by no later than January 4, 2022, employers will need to ensure that their employees have received their final vaccination dose, with weekly testing required for unvaccinated employees thereafter.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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I lost on Jeopardy! A cybersecurity lesson on phishing scams
It started innocently enough, with a tweet: "Please share your best strategies for finding a PS5 before Christmas that do not involve me sleeping outside of a store or paying through the nose on eBay. Thanks."
Almost too coincidentally, a few minutes later I saw this tweet from Sarah Whitcomb Foss, a member of the Jeopardy! Clue Crew and one of the show's assistant directors: "Hello Twitter family! I am proud to announce that I have partnered with #Sony to supply you guys with some brand new #PS5 consoles for retail pricing! Just RT and like this and send me a DM if you need help!"
With my curiosity piqued (and her Twitter account blue-checkmark verified and looking legitimate), I followed her instructions by retweeting and liking her tweet, and sending her this DM: "Looking to purchase a PS5. Is this legit?"
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, November 3, 2021
The customer isn’t always right, especially when the customer wants you to discriminate
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Tuesday, November 2, 2021
Politics and work don’t mix: Southwest Airlines investigating pilot for “Let’s go Brandon” in-flight announcement
Southwest Airlines is investigating one of its pilots for saying "Let's go Bradon" during an in-flight announcement.
What is "Let's go Brandon," you ask? It's a euphemism many conservatives are using in place of saying "F**k Joe Biden." The origin of the phrase stems from an Oct. 2 NASCAR race won by Brandon Brown. During his post-race interview with NBC reporter Kelli Stavast, the crowd started chanting "F**k Joe Biden." Stavast, however, said, "You can hear the chants from the crowd, 'Let's go, Brandon!'"
While it's unclear whether Stavast misheard the crowd or was merely covering up its audible on-air obscenity, the phrase "Let's go, Brandon" stuck and quickly spread among conservative groups and continues to be used in place of a direct expletive toward President Biden, even among members of Congress.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, November 1, 2021
The 13th nominee for the “Worst Employer of 2021” is … the Abortion Forcer
I literally have no words for this, the 13th nominee for the Worst Employer of 2021. Here's the headline, from NBC News:
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, October 29, 2021
WIRTW #602: the “Where’s the beef?” edition
How'd your Wednesday go? Me? I got into a beef on Twitter with a fictional character, which ended with him telling me to go wax my head. Fun fact — I saw that last tweet come through while I was sitting in a board meeting and snort-laughed out loud.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, October 28, 2021
Coronavirus Update 10-28-2021: EEOC publishes its own internal Religious Accommodation Request form
"Jon, we have so many employees asking us for religious accommodations from our workplace Covid rules, including our vaccine mandate. Do you have a form we can use to document the request?"
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Paid family and medical leave reportedly DROPPED from Biden’s economic plan
I was so hopeful when I learned that Presiden Biden's economic plan included paid family and medical leave. Then we heard reports that two Democratic Senators, West Virginia's Joe Manchin and Arizona's Kyrsten Sinema, were holding up the bill over its reported $3.5 trillion price tag. That led to reports that the paid family leave allotment would be cut to only 4 weeks, still a transformational change for American employees and employers, but significantly less than that which any other industrialized nation provides its employees.
Now, it's being reported that Democrats have eliminated paid family leave from the bill entirely to appease Manchin and get a bill passed. From NBC News:
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Wednesday, October 27, 2021
Coronavirus Update 10-27-2021: No, employers, you can’t fire employees who complain about Covid health and safety issues
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Tuesday, October 26, 2021
Coronavirus Update 10-26-2021: EEOC updated Covid-19 technical guidance to address religious vaccine objections
Religious accommodations to vaccine mandates continue to be the number one issue occupying the time and energy of HR practitioners and employment lawyers. Yesterday, the EEOC updated its Covid-19 technical assistance specifically to address vaccine-related religious objections and accommodation requests.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, October 25, 2021
Coronavirus Update 10-25-2021: Lawsuits challenging employer vaccine mandates are borderline frivolous
More than 130 employees of the City of Chicago have filed a lawsuit against their employer challenging its Covid-19 vaccine mandate. CNN has the details:
"The mandate, and the Executive Orders, violate the constitutional and fundamental rights of those who either choose not to be vaccinated, or choose not to disclose their vaccination status to either the state, or their employers," the lawsuit says.
The lawsuit will fail. Period.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, October 22, 2021
WIRTW #601: the “What’s in your queue?” edition
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Thursday, October 21, 2021
Coronavirus Update 10-21-2021: Nick Rolovich v. Pope Francis
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Wednesday, October 20, 2021
Coronavirus Update 10-20-2021: How to spot a fake vaccine card
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, October 19, 2021
“Striketober” highlights union organizing concerns for Ohio craft breweries
One of the unexpected byproducts of the ongoing Covid-19 pandemic is a corresponding rise in union organizing and other union-related activity. This crisis has magnified attention on key union agenda items and talking points such as worker safety and higher pay. Unions have not been shy about pressing these issues. "Striketober" is in full effect, with more than 100,000 workers walking off the job in the past week alone. According to The Wall Street Journal, employees are angry and are increasingly turning to labor unions to vent.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, October 18, 2021
Netflix’s termination of the organizer of a trans employee walkout very well might be legal
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Saturday, October 16, 2021
UPDATE: HIPAA (mis)information and the Covid vaccine
Earlier this week I wrote about a national payroll provider that shared some very incorrect information about an employer’s HIPAA responsibilities on its website.
That company, ADP, saw my post and reached out to me to let me know that they updated their article.
“I saw your blog that highlighted an oversight from one of our writers on our Spark Blog. It was good to see in that we were able to correct it immediately.”
(Sadly, the Oxford comma omission persists, but I’ll take my victories where I can get them.)
You can find their updated article here.
Well played, ADP. 👏
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, October 15, 2021
WIRTW #600: the “Here, there, and every … where” edition
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.For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, October 14, 2021
Coronavirus Update 10-14-2021: We still don’t know what OSHA’s vaccine standard says … but we’re getting closer
Late Tuesday, news broke that OSHA had submitted in vaccine mandate Emergency Temporary Standard to the White House’s Office of Information and Regulatory Affairs for its review. What does this mean? It means that OSHA has taken the first important step towards publishing the ETS and implementing its vaccine mandate for employers with 100 or more employees.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, October 13, 2021
Coronavirus Update 10-13-2021: Unfortunately I need to keep clarifying misconceptions about HIPAA
I came across the following information on the website of a prominent national payroll provider:
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, October 12, 2021
Coronavirus Update 10-12-21: A prior Covid infection is not a defense to an employer’s vaccine mandate
"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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, October 11, 2021
Coronavirus Update 10-11-21: World Mental Health Day
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.19 months into the pandemic, more than 45 million Americans have been diagnosed with Covid-19, 733,000 have died, and millions more have suffered debilitating illnesses. These are actual people, not just statistics, and we all know someone this virus has impacted.
Many of us have dealt with the stress of layoffs, furloughs, lost income, closed businesses, and the stress that flows from figuring out how to pay the bills and feed our families.
Parents have balanced the second job of homeschooling (or at least assistant homeschooling) their kids against their primary job of their actual paying job.
While life has returned to some semblance of normalcy, there remain many too many of us who are unvaccinated and, thanks to Delta, we all still live with the worry of contracting this virus merely by stepping out into the world.
As a result, some of your employees are working with and through mental health issues of varying degrees caused by all of this stress, change, and loss. Some will be dealing with the exacerbation of pre-existing mental health issues, and some will have what I am calling Covid-19 PTSD.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, October 8, 2021
WIRTW #599: the “34” edition
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Thursday, October 7, 2021
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, October 6, 2021
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)
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Tuesday, October 5, 2021
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?
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, October 4, 2021
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, October 1, 2021
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, September 29, 2021
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, September 28, 2021
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, September 27, 2021
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:
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, September 24, 2021
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.For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, September 23, 2021
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, September 21, 2021
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, September 20, 2021
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, September 17, 2021
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, September 15, 2021
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?
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, September 14, 2021
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Saturday, September 11, 2021
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.
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, September 10, 2021
WIRTW #595: The “future of paid leave" edition
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Thursday, September 9, 2021
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, September 8, 2021
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?
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, September 7, 2021
“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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Friday, September 3, 2021
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Thursday, September 2, 2021
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Wednesday, September 1, 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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Tuesday, August 31, 2021
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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Monday, August 30, 2021
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.
For more information, contact Jon at (440) 695-8044 or JHyman@Wickenslaw.com.
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