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.

WIRTW #599: the “34” edition

Ask any litigant who has had the (dis)pleasure of being a party to civil litigation in the Cuyahoga County Court of Common Pleas for their opinion on the experience, and I can almost guarantee they will tell you two things — their case moved too slowly and the courthouse is gross. A proposal currently being considered will fix the latter while making the former exponentially worse.

The Cuyahoga County Court of Common Pleas has 34 presiding judges. That's currently has. According to Cleveland.com, a proposal is being considered to slash that number. Why? Because fewer judges mean fewer necessary courtrooms, which means that the new courthouse that Cuyahoga County desperately needs will be less expensive to construct.

This idea is terrible. Civil cases move slowly through our court. Yet, it's not the court's fault, it's not the judges' fault, and it's not their staff's fault. It's a systemic fault caused by a system that has the same group of 34 judges simultaneously presiding over civil and criminal dockets. Criminal cases always take precedence. That's how our system must operate because the Sixth Amendment to the United States Constitution guarantees criminal defendants "the right to a speedy … trial." If criminal cases did not take precedence, too many criminal defendants would go free prior to trial because they could not obtain a "speedy trial."

Reducing the number of judges for the sake of construction costs will not remedy this problem. In fact, it will only make it exponentially worse. Slashing the number of judges would be an unmitigated disaster for civil litigants, who already wait years to try their cases.

I implore the Cuyahoga County Commissions to reject any proposal that calls for a reduction in the number of Common Pleas judges as a means to pay for a new courthouse. Don't get me wrong; we desperately need a new courthouse. But the county should not pay for it at the expense of the civil justice the court is supposed to dispense.

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

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.

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)

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?

More than 1,500 people responded, and the results shocked me. 27 percent — that's more than one out of every four respondents — say that they'd choose termination of their employment over a jab of the Covid vaccine.