Coronavirus Update 12-21-2021: Employers are starting to get real about vaccinated workforces

Last week marked the one-year anniversary of the Covid-19 vaccine being administered in the United States. Yet, here are some headlines from last week:

• U.S. employers lean toward required COVID-19 vaccinations
• Google is threatening to fire unvaccinated employees
• Kroger to end some Covid-19 benefits for unvaccinated workers
• From mandates to masks, how some big companies are adjusting to Omicron

While we wait for the Biden administration's vaccine mandates to work their way through the courts (this past weekend's 6th Circuit pronouncement notwithstanding), employers are taking matters into their own hands. Fueled by the exponential surge in Delta-related Covid cases, and the real and palpable threat of a more contagious Omicron variant looming and starting to wreak havoc, many employers have simply run out of patience with unvaccinated employees.

Coronavirus Update 12-20-21: OSHA’s “vax or test" mandate is back on … for now

OSHA is gratified the U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard. OSHA can now once again implement this vital workplace health standard, which will protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.

To account for any uncertainty created by the stay, OSHA is exercising enforcement discretion with respect to the compliance dates of the ETS. To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.

That's what OSHA posted on the heels of the 6th Circuit's decision dissolving the 5th Circuit's stay of the agency's "vax or test" emergency temporary standard. 

BREAKING NEWS: 6th Circuit dissolves stay and re-starts OSHA’s vax-or-test emergency standard

In a 2-1 decision, the 6th Circuit has dissolved the 5th Circuit’s prior stay of the OSHA vax-or-test emergency temporary standard. The opinion is available here. 

In sum, Judge Stranch, writing with reason and common sense for the majority, concluded that the petitioners are unlikely to succeed on the merits of their claim that the ETS exceeded OSHA’s authority. 

WIRTW #608: the “back and forth” edition

Before we get to the links of others that you might have missed this past week, I thought it best to look back on my own links that you also might have missed in the hustle and bustle of your workweek.

1/ Voting is open for the Worst Employer of 2021, and will remain open until 11:45 pm on Monday. If you don't vote, you forfeit your right to complain about the results. Vote here.

2/ I guested on this week's episode of Marc Alifanz's and Kate Bischoff's Hostile Work Environment podcast (my favorite employment law podcast, with two of my favorite people), running down the eight Worst Employer finalists. Listen on Apple Podcasts, Spotify, or wherever you get your podcasts.

3/ Episode 4 of The Norah and Dad Show is live on Apple Podcasts, Spotify, or wherever you get your podcasts. Please consider subscribing to our show in your app of choice so that you never miss an episode, and, as Norah says every week, we'd love your 5-star reviews on Apple Podcasts and 5-star ratings on Spotify (which just launched its podcast ratings).

Here's the plan for the remainder of the year. After regular posts on Monday and Tuesday, on Wednesday I'll announce the winner of the Worst of Employer of 2021. Finally, on Thursday I'll wrap up the year with my annual reading of 'Twas the Employment Law Night Before Christmas, which will have a companion video if I get my stuff together over the next few days.

Have a great, safe, and healthy weekend. Here's this year's final list of the best things I read online over the past week that I think you should be reading, too.

Coronavirus Update 12-16-2021: Who peed in the 6th Circuit’s cornflakes?

Yesterday, the 6th Circuit issued its first substantive opinion in the consolidated case that will determine the legality of OSHA vax-or-test emergency temporary standard. The opinion didn't determine any matters related to the substance of the mandate itself; it only addressed the procedural issue of whether the case would initially be heard by a three-judge panel of the 6th Circuit or an en banc panel comprised of the entire court. The answer — a three-judge panel initially will hear the case. 

Tragic workplace emergency safety lessons from a candle factory

Thus far, eight employees have tragically died inside the Mayfield Consumer Products candle factory from the tornado that tore through Mayfield, Kentucky, and left the factory a pile of rubble. That number, however, could have been much less.

According to NBC News, as the storm warnings came and tornado sirens blared, as many as 15 employees asked managers for permission to leave so that they could take shelter in their own homes. Instead of granting permission, managers threatened to fire anyone who left their shift early. Now at least eight employees are dead, and many more are injured. 

Who are this year’s crop of nominees for The Worst Employer of 2021? Check out today’s episode of Hostile Work Environment to find out.

I had the pleasure of guesting on this week's episode of my favorite employment law podcast, Hostile Work Environment, hosted by my good friends, Marc Alifanz and Kate Bischoff. In what is becoming an annual tradition, they had to me on to discuss this year's crop of Worst Employer nominees. I walk through all 8. 

Thus, if you need a refresher before you cast your vote, I highly recommend heading to your podcast app of choice, searching for "Hostile Work Environment," downloading the Dec. 14 episode (entitled, "Jon Hyman Puts Out A Lot"), and subscribing to their show if for some odd reason you haven't yet done so. 

And please VOTE for this year's Worst Employer. Polls remain open until Monday, Dec. 20, at 11:45 pm.

Coronavirus Update 12-14-2021: 800,000 Covid deaths and rising, and many have stopped caring

"Where I Live, No One Cares About COVID," reads the headline in The Atlantic. 

Outside the world inhabited by the professional and managerial classes in a handful of major metropolitan areas, many, if not most, Americans are leading their lives as if COVID is over, and they have been for a long while. …

VOTE for The Worst Employer of 2021

Today is the day you’ve waited for all year. I’ve made my list. I’ve checked it twice. It’s voting day for The Worst Employer of 2021.

Here’s how voting will work. I’ve culled my list of 15 nominees down to the worst 8. To vote, you’ll rank the 8 finalists from 1 (the worst) to 8 (the least worst). Please rank all 8, because every point counts in the final results. The employer with the most points wins (or loses, depending on your perspective).

The polls are now open, and will remain open until 11:45 pm on Monday, December 20. I’ll then tally the vote, certify the results, and announce this year’s winner on December 22.

Click here to vote: https://www.surveymonkey.com/r/RW7PR82

Follow this link for a refresher on this year’s 8 nominees. The ballot also contains hyperlinks back to the original nominating posts.

Happy voting, and good luck to all of the nominees. May the worst employer win!

WIRTW #607: the “broken record” edition

Earlier this week a local hospital system held a webinar entitled, COVID-19: Omicron, Vaccines, and Anti-Virals. The news is sobering. 

Covid is surging, yet again. Delta is wreaking havoc on populations in colder-weather states. Moreover, we don't yet know or understand exactly what Omicron means for the future of this pandemic. Unvaccinated populations remain at the highest risk for serious illness, hospitalizations, and death, but those who are fully vaccinated still must act with caution. The news is that we are in for a long winter. And it's not just the virus itself that we have to worry about, but the impact of the virus on our healthcare systems. ICUs and hospital beds at capacity mean diminished care and strained healthcare workers.

None of this is good news. Yet, it's the same news we've heard since March 2020. And the best practices to combat Covid remain the same. If you're not vaccinated, get vaccinated. If you're not boosted, get boosted. Regardless, wear a mask to protect yourself and others. Limit contact with unvaccinated people. Practice good hand-washing and other hygiene habits. And for God's sake, if you don't feel well or have any possible symptoms of Covid-19, stay the frick home until you've tested negative.

While we all might be done with Covid, it's not done with us. We all just need to act like it. Now I sound like a broken record.

I can't leave you for the week with all bad news, so before I turn today's post over the employment law links, I have two other links to share with you.

First, before there was The Norah and Dad Show (have you downloaded and listened yet?), there was the guest-hosting spot Norah and I recorded for the Rockin' the Suburbs podcast. Our episode, in which we discuss daddy/daughter concert experiences, went live today. You can listen to it here, or wherever you get your podcasts.

Secondly, I have a movie recommendation. Check out Mixtape on Netflix. It's an utterly charming, family-friendly movie set in 1999 about a quirky 12-year-old who sets out to learn about her deceased parents through the songs on an old mixtape of theirs she found in her grandmother's basement. It's the rare family movie that speaks to adults without dumbing down the substance, speaks to children without soaring over their heads, and has the emotional beats and laughs hit equally for both. Also, the music slams. Any scene in a 1999 Pacific Northwest indie record store that accurately showcases early White Stripes is a winner in my book. Bottom line — my house absolutely loved Mixtape, and you should add it to your Netflix List. Highly recommended.

Now, here are the best things I read online the past week that I think you should be reading, too.

Coronavirus Update 12-9-2021: The current state of vaccine mandate litigation

What is the current state of the Biden Administration's three separate federal Covid-19 vaccination mandates, and how should employers be responding. In this short video update, I discuss where things stand and what it means.

The 15th nominee for the “Worst Employer of 2021” is … the (Not) Better Boss

A little over a week ago Better.com — a digital mortgage lender that Forbes.com recently called a $7.7 billion Unicorn — received a $750 million cash infusion from investors. Two days ago its CEO, Vishal Garg, gathered 909 of the company's employees (nine percent of its total workforce) via Zoom and let them know that their services were no longer needed.

The Norah and Dad Show podcast is live and ready for your downloads

Today is a very exciting day for me. Today is the official launch of The Norah and Dad Show podcast.

It started a month or so ago when Norah (my 15-year-old daughter) and I recorded a guest episode of Rockin' the Suburbs (which you can listen to this Friday). "Dad," Norah said, "We should start a podcast." Never one to discount the wishes of a teenager to spend time with a parent, I quickly agreed, and The Norah and Dad Show was born.

Coronavirus Update 12-6-2021: Masks — the results

On Friday, I asked three simple questions — Do you still wear a maks? If yes, when? If not, why?

Here are the results (and thank you to the nearly 300 of you that took the time to respond).

WIRTW #606: the “masks” edition

Today is Day 632 of the COVID-19 pandemic, and somehow we are still debating the efficacy of masks. While we ride out the current wave of Delta infections and sort out just how dangerous Omicron actually is, the best advice we still have is to mask up for safety. 

The UK, for example, has just reinstituted its national mask mandate. Meanwhile, here in the US, leaders are urging Americans to wear masks indoors, while some cities have reinstituted indoor mask mandates. Yet, despite the irrefutable science backing the efficacy of masks as among the most effective means to stop the spread of Covid-19, people still resist.

I'd like to know where my readers currently stand on masking, both in use and philosophy. I've put together a short two-question survey — https://forms.gle/MFTS4rJe2WA99bYs7 

Thanks for taking the time. I'll report the results Monday.

Here are the best things I read online the past two weeks that I think you should be reading, too.

Coronavirus Update 12-2-2021: Repeat after me — anti-vax legislation WILL NOT fix workforce shortages

Meet Rep. Al Cutrona, a first-term member of Ohio's House of Representatives, and a Republican who describes himself as "Pro-Constitution." He's also the primary sponsor of HB 218, a bill that would prohibit any employer or school from mandating any non-approved vaccine that uses mRNA technology, and would further require employers and schools to grant exceptions to vaccine mandates for reasons of medical contraindication, natural immunity, religious convictions, or personal conscience.

According to Rep. Cultrona, this law is needed "to address the crisis that the workforce is struggling," to fix workforce "shortages," and to "bring back jobs."

The problem, however, is that vaccine mandates are not causing The Great Resignation. There are lots of reasons why workers are quitting their jobs in record numbers, but vaccine mandates are not one of them, according to the World Economic Forum.

Coronavirus Update 12-1-2021: Other federal vaccine mandates fall (for now)

In the past several days, two federal vaccine mandates have been preliminarily enjoined, joining the OSHA Emergency Temporary Standard on the sidelines.

First, the Eastern District of Missouri entered a preliminary injunction against the Centers for Medicare and Medicaid Services' federal vaccine mandate for healthcare facilities. That injunction applies to covered employees in Alaska, Arkansas, Iowa, Kansas, Missouri, Nebraska, New Hampshire, North Dakota, South Dakota, and Wyoming. The Western District of Louisiana issued a similar ruling late yesterday, but expanded the scope of the preliminary injunction nationally.

Then, also late yesterday, the Eastern District of Kentucky issued its own preliminary injunction against President Biden's mandatory vaccination rules for the employees of federal contractors and subcontractors. That injunction applies to covered employees in Ohio, Kentucky, and Tennessee.

Work-life balance vs. Antiwork

Compare the following.

From CNN — "In Portugal, it's now illegal for your boss to call outside work hours."

-vs-

From the Antiwork subreddit — "Just a friendly reminder, if your boss texts you to come in at a time you were not scheduled to work, you are not obligated to answer the text."

Coronavirus Update 11-29-2021: What we do know and don’t know about Omicron

While we digested our Thanksgiving turkey, news broke about a new COVID-19 variant making its way around the world — B.1.1.529, now officially named the Omicron variant. 

Here's what we know about Omicron, what we think we know, what we don't yet know, and, perhaps most importantly, what employers should be doing in response. 

Happy Thanksgiving. What are you #thankful for?

Thanksgiving is my favorite holiday, hands down. And it's not just the turkey, stuffing, and pies (especially the pies). It's the people with whom I spend the holiday. And this year, I'm especially thankful that I am again able to share my favorite day with some of my favorite people. 

Thus, today, as I start my Thanksgiving break, I am sharing what I am thankful for this year.

1. My family (always tops on any list).
2. My health, and that of those I hold close to my heart.
3. Science, which is allowing my family to gather together this holiday season.
4. My new(ish) law firm, which has rejuvenated and reenergized me and my practice.
5. My community of half-witted employment law friends for helping to keep me sane over the past several years.
6. My readers and followers, many of whom have become friends and clients over the years.

Please enjoy your holiday. Be safe. And don't eat too much. I'll see everyone next week. 

It’s a bad idea — and age discrimination — to badger an older employee about retirement

A new manager takes away a pet project from a long-term 60-year-old employee, repeatedly asks him when he's "going to retire," calls him "Uncle," and criticizes his "old skills." Those are the basic facts that caused the 6th Circuit to reverse a grant of summary judgment to the employer in Sloat v. Hewlett-Packard Enterprise Co.

WIRTW #605: the “Norah and Dad show” edition

I'm starting a podcast. Correction. We are starting a podcast. The other half of the "we" in question is my 15-year-old daughter, Norah. It was 100 percent her idea, and who am I to say no to quality Norah/Dad time behind two microphones, recording it for all to hear. Stay tuned. We are getting ready to start recording and we will have episodes to share in the coming weeks.

Please look for episodes in your podcast app of choice, or at norahanddadshow.buzzsprout.com. You should also follow us on Instagram, Twitter, and Facebook. I still need Norah to explain the whole TikTok thing to me, but I'm guessing we'll be there, too.

Here are the best things I read online this past week that I think you should be reading, too.

John Oliver’s exposé on "union busting” missed one key fact — the unions are actually WINNING

This past Sunday night, John Oliver closed his 2021 season with a long-form exposé on labor unions. More specifically, he focused on the efforts employers take to combat union organizing drives: anti-union messaging and videos, captive-audience speeches, threats of job loss and plant closures, and more pointed retaliation against union organizers and other pro-union employees.

His story, however, left out one key fact — the labor unions are actually winning. And they are winning a lot.

Coronavirus Update 11-17-2021: OSHA’s vax-or-test emergency standard is on life support

Yesterday brought two huge developments in the battle over OSHA's vaccine-or-test emergency temporary standard.  

First, the conservative 6th Circuit won the lottery to determine which circuit court of appeals will hear one consolidated challenge to OSHA's vax-or-test emergency temporary standard. 

Secondly, OSHA announced that it had suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.

All in all a bad day for the pro-mandate crowd. 

I break down what it all means in this short video.

The 14th nominee for the “Worst Employer of 2021” is … the Singing Supervisor

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.

That's the first verse of a song Brian Mamott, an employee in the Village of Lancaster, New York's, Department of Public Works, sang to his co-workers during a July 15, 2021, workplace meeting. And that's the least offensive part of the song. According to WGRZ (which obtained a video recording of the performance), the remainder of the two-minute ditty included verses, "about women being 'bitchy' during their period and about sex acts with women while they're menstruating."

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).

Instead, this is what I discovered:

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. 

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."

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."

Still others incorrectly cited laws such as HIPAA (which they at least spelled correctly) to claim that Rogers' rights are being violated.

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. 

One notable commenter — a paralegal who has since blocked me — even went so far as to suggest that I shouldn't be writing about legal issues because I'm not actually an attorney.

So, today, I'm here to establish that I am, in fact, an actual, bona fide, licensed, and practicing attorney. I graduated law school in May 1997, took the bar exam that July, learned a few months later that I had passed said bar exam, was sworn in 10 days after that, and have been a licensed attorney in the State of Ohio practicing management-side labor and employment law ever since. Really. I promise.

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.

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.)

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.

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.

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. 

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. 

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.

Alternatively, you can just randomly pound on your keyboard and you'll end up on the website of an employment lawyer offering you his or her summary (me included).

Here are the best things I read online this past week that I think you should be reading, too.

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.

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?"

The customer isn’t always right, especially when the customer wants you to discriminate

"I'm afraid we can't hire you because you won't mix well with our customers."

That's what the EEOC alleges a northern Minnesota furniture retailer told a transgender job applicant. It's also the reason that company has agreed to pay a $60,000 settlement. "Title VII does not permit discriminatory employment decisions based on customer preference," says the EEOC.

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.

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:

D.C. assistant police chief says she was told to

'have an abortion or be fired'

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.

I applaud the Ted Lasso team for running such fun accounts. I can't wait to see how Nate's character plays out in Season 3, as the stress of his new job is clearly getting to him.

Here are the best things I read online this past week that I think you should be reading, too.

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?" 

I certainly do. But it's not mine. It's the EEOC's. The Agency just published the internal form it uses for its own employees' religious accommodation requests.

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:

Coronavirus Update 10-27-2021: No, employers, you can’t fire employees who complain about Covid health and safety issues

An employee sends this email to all of his coworkers: "It has come to my attention that an employee has tested positive for COVID-19. I feel it is important to inform all employees of the current situation."

An hour later management fires that employee. Their reason? His job was to fix cars, not police positive Covid tests in the workplace. 

That's exactly what the Department of Labor alleges happened at an Austin, Texas, car dealership in December 2020. Earlier this month, the agency filed suit under section 11(c) of the Occupational Safety & Health Act, which protects employees from retaliation for exercising their rights under the Act.

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.

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.

WIRTW #601: the “What’s in your queue?” edition

Ted Lasso has no new episodes until next August. I binged Squid Game a couple of weeks ago. I need something new to fill my nights on the couch. So this is me, crowdsourcing you, my readers, for some recommendations. 

What should I watch next, and, most importantly, why? 

Make your best case in the comments below, tag me on Twitter with the hashtag #JonWatchThis, or drop a comment on LinkedIn here.

Here are the best things I read online this past week that I think you should be reading, too.

Coronavirus Update 10-21-2021: Nick Rolovich v. Pope Francis

Compare the following two statements, and then let's talk.

1. "It is a tragic and damning commentary on our culture … that Coach Rolovich has been derided, demonized, and ultimately fired from his job, merely for being devout in his Catholic faith."

2. "Being vaccinated with vaccines authorized by the competent authorities is an act of love. And contributing to ensure the majority of people are vaccinated is an act of love."

Statement number one: the lawyer for Nick Rolovich, the former head football coach at Washington State University, who the University just terminated for refusing to get vaccinated pursuant to its mandate.

Statement number two: Pope Francis.

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.

“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.

Unions, however, are not just focusing on current members. More importantly for all employers, potential members also have unions' full attention. Indeed, earlier this summer, and hitting way too close to home, production employees at Great Lakes Brewing Company, Ohio's oldest and largest craft brewery, signed union cards to be represented by the United Steelworkers.

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.

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. 👏 

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.

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.

But that's it.

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.

It cuts me to the quick to see an entity that should know better getting HIPAA so very wrong. If they can't get it correct, we have little hope that the general public will stop raising HIPAA as an objection to any disclosure of their health information, including vaccination status.

So, to clear the air once and for all, this is what HIPAA covers and doesn't cover, and why it does not apply to employers gathering vaccine-related information from employees.

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.

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.