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?"