Coronavirus Update 8–4–2021: The dam is breaking on mandatory Covid vaccines, and the flood is coming

The news on mandated Covid vaccinations is coming fast and furious, from courts, governments, and private businesses.

Coronavirus Update 8–3–2021: What the CDC’s new mask guidance actually says and means

Since there was so much confusion that resulted from the last time the CDC updated its mask guidance for the fully vaccinated, I thought it best to take a look at its most recent pronouncement, explain exactly what it means, and detail whom the CDC recommends should now be masking up indoors.

According to the CDC, the fully vaccinated should wear a mask in public indoor settings in areas of substantial or high transmission, meaning 50 or more cases per 100,000 people. For the unvaccinated, the guidance remains as it always has been—mask up indoors and in most cases outdoors.

What is an "area of substantial or high transmission? As of today, any county colored orange or red on this map. 

Nearly 80 percent of all counties in the United States meet this definition.

Coronavirus Update 8–2–2021: Employers, now is the time to mandate Covid vaccines

As short as a few weeks ago, I'd have told you that the choice to get vaccinated is a personal one, and that employers that mandated the Covid vaccine for their employees were over-stepping into their employees' medical privacy.

That was before last week's news that the Delta variant has taken hold and taken off. As we now know that Delta is more transmissible than the chickenpox or the common flu, impacting younger people, and likely more dangerous than prior variants, our country is in a dark place with this virus, and it's rapidly getting darker.

Coronavirus Update 7–23–2021: We talkin’ bout masks! We ain’t talkin’ bout the vaccine, we talkin’ bout masks.

I'm not proud of this but i just made a scene in public for the first time in my life… I walked into a Starbucks and they asked me to put a mask on! I yelled this is ridiculous, so I turned around and walked out. I know what you're thinking… My first mistake was walking into a Starbucks:)

– Actor Kevin Sorbo, on LinkedIn, 7/20/21

I came across the post written by the former Hercules actor a couple of nights ago while perusing my LinkedIn feed. Three things came to mind.

Coronavirus Update 7–22–2021: How the ADA and FMLA apply to Covid long haulers

The risks associated with Covid-19 aren't limited to the 625,000 Americans this virus has killed or the 2.3 million hospitalizations. One of the greatest risks comes from the fact that nearly one-third of Covid-19 patients will develop long-haul symptoms that long outlast the actual infection, and further that nearly one-third of all Covid long haulers had asymptomatic Covid cases. These long-haul symptoms can include fatigue, respiratory problems, "brain fog," body aches and muscle pain, abdominal issues, and loss of smell and taste. They can be quite debilitating and last for months or longer.

If you have an employee experiencing one or more of these long-haul symptoms, what are your legal obligations to that employee under ADA and FMLA?

Coronavirus Update 7–21–2021: Employers, now is the time to ready your back-to-school plans

Children nationwide are getting ready to go back to the school for the 2021 – 22 school year, the third school year students and their parents will be living and dealing with, Covid-19.

Here's what we know about what this school year will look like.

When protected concerted activity isn’t protected

Netflix has fired three marketing executives for criticizing their co-workers over Slack. According to The Hollywood Reporter, "the executives in question thought the messages were private. An insider says an employee stumbled across several months’ worth of these messages and reported it."

An adverse jury verdict is just a number on a piece of paper

Late last week, a federal jury tagged Walmart with a verdict totaling more than $125 million in a disability discrimination lawsuit the EEOC brought on behalf of an employee with Down syndrome.

The facts were not great for Walmart. 

Coronavirus Update 7–16–2021: Ohio prohibits schools from mandating the Covid vaccine

Ohio currently requires that students receive each of the following vaccines (subject to medical or religious exceptions) as a condition of attending school: diphtheria, tetanus, pertussis, polio, measles, mumps, rubella, hepatitis B, chickenpox, and meningococcal.

The one vaccine that Ohio schools can no longer mandate as a condition of attendance or participation in activities? The Covid-19 vaccine.

There’s nothing illegal about paying employees a “day rate,” as long as you also pay an overtime premium for overtime hours

Here's how the president of Fusion Japanese Steakhouse describes the manner in which his company (unlawfully) pays its kitchen staff:

I pay a teriyaki chef $120 per day. He worked ten hours—ten hours a day. So here’s how to calculate it. He works ten hours a day at $120 a day. I divide it by hours, and it’s $10.97 per hour. If he works overtime, it will be $16.20 overtime pay. So $120 a day, I have it covered because it was way past—way beyond $7.25 minimum wage rate. So I take consideration of the industry standard, you know. So either it is for teriyaki chef, it is $120 or $120 per day.

In other words, as the court correctly surmised in Walsh v. Fusion Japanese Steakhouse, the employer "works backward to calculate the hourly rate of the employees based on the day rate." That backward calculation, however, to jerry-rig an hourly rate plus and overtime rate to arrive at the agreed-upon day rate, is not legal.

The 10th nominee for the “Worst Employer of 2021” is … the transphobic terminator

Kimberly Grinage was born male but identifies as a transgender woman. That fact presented a huge problem for her during her employment at an Extended Stay America property, as she alleges in her lawsuit. She claims that her Christian manager fired her specifically because he did not want a transgender woman working for him.

Coronavirus Update 7–13–2021: The 3 reasons why it matters that you get vaccinated (even if I’m vaccinated)

"If you're vaccinated, and the vaccines work, why do you care if I get vaccinated? Let me live my life. My body, my choice." This sentiment echoes a popular refrain of those who are anti-vax or otherwise not getting the Covid vaccine.

It's also very, very wrong. Here are the top three reasons that it matters that you get vaccinated (even if I'm vaccinated).  

You don’t need to wait for President Biden to fix what’s wrong with non-compete agreements

On Friday, President Biden signed an Executive Order on Promoting Competition in the American Economy. According to the Order, its goal is to promote a "fair, open, and competitive marketplace" and "the welfare of workers, farmers, small businesses, startups, and consumers" through the elimination or limitation of "excessive market concentration," which "threatens basic economic liberties, democratic accountability." One of the President's targets is "companies [that] require workers to sign non-compete agreements that restrict their ability to change jobs." Indeed, according to the President, half of private-sector businesses require at least some employees to enter non-compete agreements, affecting some 36 to 60 million workers.

Thus, President Biden ordered "the Chair of the FTC … to consider working with the rest of the Commission to exercise the FTC's statutory rulemaking authority … to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility."

WorldatWork’s Work in Progress podcast—Episode 118: A Conversation with Employment/Labor Attorney Jon Hyman

This week marks my record-setting third appearance on WorkatWork's Work in Progress podcast. Tune in to listen to me talk about employer vaccination policies, transgender bathroom rights, workplace drug testing, and an assortment of other controversial issues in between. We also started our conversation with a bonus chat on the latest RRHOF inductees. Which one am I most excited about? You'll have to listen to find out.

A huge thank you to Charles Epstein and Tom Alexander for inviting me back on. Tom, I'm anxiously awaiting receipt of a Popeye's chicken sandwich as my "three-timer" award. I'm just hoping it's delivered in the form of a value-appropriate gift card and not an actual sandwich. 

You can listen below, or wherever you get your podcasts.

Religious accommodations shouldn’t flummox employers, yet they still do

I've shared this story before, but it's worth re-sharing because (a) it's been a few years and I have many new readers, (b) it's really good, and (c) because it's super relevant to today's lesson.

I spent a high-school summer working on a warehouse loading dock. One of my co-workers was named Harland Jester. (I provide his name because he named his son "Court," and this context provides the necessary color for the rest of the story.)

Four days into my summer job, a co-worker pulled me aside and asked, "Did Harland get a hold of you yet?"

ABA President fixes the victim-blaming problem the ABA Journal created for working moms

Yesterday, I was highly critical of the ABA Journal for publishing a column that victim-blamed working moms for their lack of advancement in the legal profession. Then, ABA President Patricia Lee Refo did what she could to fix the injustice created by the journal of the organization she runs.

In her own column—Women's success in legal careers: Lack of advancement is not a 'woman' problem, it’s a 'profession' problem—Refo took apart the notion that female attorneys are to blame for their lack of upward mobility. They have not failed, Refo correct argues, their employers have failed them.

The American Bar Association must never again victim-blame working-parent attorneys for the discrimination they suffer

The ABA Journal recently published a column by
Susan Smith Blakely, a career counselor and former law-firm partner, that does a gross injustice to every law-firm working parent. 

Her piece, titled, Are women lawyers paying enough attention to upward mobility?, argues that women lawyers are responsible for the limited opportunities their employers have fostered upon them. By focusing on family instead of firm, she argues that they have chosen their priority and should not complain when career advancement passes them by.

Coronavirus Update 6–30–2021: Because of your vaccine hesitancy, COVID-19 is here to stay

Last week I asked you, my readers, for your creative ideas to incentivize more people to get vaccinated. 

Your thoughts—

Transgender bathroom access remains a solution in search of a problem

Yesterday, the Supreme Court declined to hear the appeal of a school district challenging the right of a transgender student to use the bathroom that corresponded to his gender identity, leaving in place the landmark 4th Circuit opinion holding that transgender bathroom restrictions constitute illegal sex discrimination.

This decision falls in line with the EEOC's recent statement on this issue for employers.

Coronavirus Update 6-28-2021: Television meteorologist April Moss correctly fired for on-air rant against employer’s Covid policies

WWJ CBS Detroit fired meteorologist April Moss after objecting on-air against her employer's COVID-19 policies. Moss paused her Father's Day weather forecast to say, "And speaking of a brand new week, I will be sitting down this week with Project Veritas to discuss the discrimination that CBS is enforcing on its employees. Tune in to Project Veritas for my full story." (Project Veritas is a controversial far-right activist group that uses hidden camera footage to attack its targets.)