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.