With the Supreme Court effectively killing OSHA Covid-19 vax-or-test Emergency Temporary Standard, and OSHA now officially withdrawing it, employers might think that they are beyond the reach of OSHA for Covid safety-related issues. If you are one of those employers that thinks this way, you are very mistaken.
Consider Sanoh American, a Findley, Ohio, auto parts supplier. OSHA recently cited and fined it $26,527 for ignoring guidelines to limit Covid-19 exposure in its facility. While the company had social distancing and mask policies in place, it failed to follow or enforce them. As a result, 88 of the company's 270 Findley employees (nearly one-third of the local workforce) tested positive for Covid-19. Five of those positive employees were hospitalized and two unfortunately died. OSHA determined that one of those deaths was work-related.
Suppose you have a group of unhappy employees. They don't like their working conditions. They don't like their pay. They generally want to work somewhere else. When they give you their notice, do you:
(a) Let them walk. (b) Engage them to see what will entice them to say. (c) Sue them for an injunction to stop them from leaving.
If you chose (c) you are ThedaCare, a Wisconsin healthcare system. You are also the 2nd nominee for the Worst Employer of 2022.
It was a calculated risk. I've been so careful for the past 22 months. We don't socialize outside of a very small bubble. We don't eat in restaurants or go to bars unless we can be outside. We've given up concerts and traveling. I wear my KN95 mask everywhere.
But before Omicron changed the Covid-19 narrative, I decided that my firm would sponsor the Ohio Craft Brewers Conference. I also agreed to speak at the event. And we timed the launch of our brand new Craft Beer Practice Area around the conference.
It was a safe event. Vaccines or negative tests were required of all attendees. Masks were mandatory at the event unless eating or drinking. I wore my KN95 mask everywhere. I was still nervous about spending three days out of town. But at my request, my firm had made a substantial financial investment in the event. So I packed my KN95 masks and my hand sanitizer, and off I went.
Twenty-four hours after returning home I felt my first symptoms — a scratchy throat and a mild dry cough. That's it. But having been out and about, I decided to home test. Negative.
On behalf of myself and my daughter, I'd like to thank everyone for all of the kind words of encouragement and support I received for our most recent podcast episode. Whenever you go through any sort of trauma, you feel like you're in it alone. What I learned through the many of you who took the time out of your busy lives to email, comment, or message is that we are not alone and that so many have gone through similar experiences. That community of shared experiences offers a tremendous amount of comfort.
If you've yet to listen, please do so (Apple, Spotify, or wherever you get your podcasts). If you have listened, please share. And if you've shared, please re-share somewhere else. Norah wants to make something positive out of her experience to help people by talking about and de-stigmatizing mental health issues. It's a conversation that is long overdue and very needed.
I do want to take a moment to address one critique we've received from one very small corner of the internet, which has been bothering me and that I don't want to leave unanswered — that because we chose to attack this issue with some humor, we are devaluing the seriousness of the situation and are not taking mental health issues seriously. Nothing could be further from the truth. No one (and I mean no one) has the right to tell someone else how to process trauma. Some do so with anger or sadness. Some with quiet reflection. And some with serious discussion. Consistent with our personalities, we process with humor and sarcasm. It doesn't mean we're not taking the situation seriously or making light of it. Quite the opposite. It just means we're coping the best we can. I can assure you that no one takes what Norah went through and is going through more seriously than she and our family.
Here's what I read this week that I think you should be reading, too.
I spent the past few days at the Ohio Craft Brewers Conference promoting my new venture, OhioBeerLawyers.com. In addition to being one of the event's sponsors, trying to network in as Covid-safe of a way as possible, and learning about the business of craft beer, I also was a presenter. My chosen topic was how to hire and retain employees in the midst of the Great Resignation.
I thought of my presentation as I read about the situation at Noah's NY Bagels in Vacaville, California. The restaurant's entire staff of 15 quit their jobs en masse in protest of their manager's (unjust, in their view) termination. The story took off after a TikTok, posted by one of the employees and captioned, "Say no to toxic management," went viral.
How do you respond to an employee who states that the Covid-19 vaccine is a plot by "the Jews" to exterminate people? Does your answer change if the employee in question is the company's founder?
The correct answers: You fire him, and no, it doesn't matter who he is.
The scenario recently played out at Entrata, a Utah technology company. David Bateman, Entrata's founder, sent an email to multiple parties, including various Utah tech leaders. Bateman's email started with the subject line, "Genocide." It went downhill from there.
I recently asked you, my readers, followers, and friends, for a favor. I asked you to take a moment to hug your kids a little stronger and a little longer. What I didn't tell you was why I was asking that of you.
Today I'm sharing the rest of the story. Except it's not my story to tell. It's my daughter's.
Sometimes you need to step out of your comfort zone to move forward, including in one's career.
For the past 25 years, I've been a management-side labor and employment lawyer. I've represented employers in just about every type of employee dispute you can imagine and counseled too many to count on a countless number of issues.
Still, I yearn for growth. One of the industries I've had the pleasure of representing over the years is the craft beer industry. Thus, I've helped spearhead the launch of Wickens Herzer Panza's brand new Craft Beer Practice Group. I'm excited to be one of the two leaders of this group, along with one of my partners, Grant Steyer. You'll find our new practice at ohiobeerlawyers.com.
I'm still a practicing labor and employment lawyer (don't worry). I'm just adding "craft beer lawyer" to my arsenal.
The Supreme Court has issued its opinion in the appeal of the 6th Circuit's decision that vacated the 5th Circuit's stay of OSHA's vaccine-or-test emergency temporary standard for employers with 100 or more employees.
In a 6-3 decision, strictly down ideological lines, the Court reinstituted the stay, blocking the ETS from taking effect.
The CDC is not considering updating its current mask guidelines to recommend that everyone wear highly protective N95 or KN95 masks, contrary to earlier reports by the Washington Post.
In a White House briefing yesterday, Rochelle Walensky, the head of the CDC, said that any mask is better than no mask, and that the CDC would not be changing any guidance regarding the type of maks that people should be wearing. Walensky did concede that the CDC's website needs to be refreshed to include information on the "different levels of protection different masks provide."
The U.S. Department of Labor has reached a settlement with Labcorp over allegations that it failed to provide lactating employees a space for them to express milk privately without fear of intrusion.
The investigation stemmed from an allegation of one employee in the company's Lynwood, California, location. DOL investigators determined that when the employee asked for a private place to express her breast milk, supervisors offered a common space that resulted in her being interrupted twice. As result, and per its settlement with the DOL, Labcorp has agreed, for all of its 2,000-plus locations nationwide, to "provide a private space as required with a notification on the door to guarantee an intrusion-free space."
An allegation of slavery has played into each of the last three Worst Employer winners. Thus, even at this early point in this year's list, I have a strong suspicion that today's nominee will finish strong at year's end.
A OK Walker Autoworks and its owner, Miles Walker, a 2021 Worst Employer finalist, finished dead last in last year's voting, garnering only 7% of the total weighted vote. They may win the prize after all, however. The Department of Labor just filed a lawsuit against the auto repair shop and its owner for retaliation under the Fair Labor Standards Act.
I don't know what you'll be doing tomorrow morning at 10 am. But I do know what most employment lawyers will be doing — their best to follow the Supreme Court oral arguments in the appeal related to the OSHA vaccine-or-test emergency temporary standard for employers with 100 or more employees (as well as the appeal related to the Center for Medicare & Medicaid Services healthcare worker vaccination mandate).
Starbucks, however, is not waiting for SCOTUS to rule on the legality of the OSHA ETS. It has informed its 220,000 nationwide employees that they must disclose their vaccination status by January 10, and either be fully vaccinated against COVID-19 or be tested weekly by February 9.
As we start 2022 (HNY!) let's jump in the time machine and look ahead a couple of weeks to what I think is in our immediate pandemic future.
To catch a glimpse of what's coming here in the next 7-14 days, we need only look across the pond to Europe, which has been a great predictor thus far of what our Covid future looks like. For the whole of the pandemic, our Covid experience has trailed that of Europe by 2-3 weeks. Because of the quickened transmission and infection timeline of Omicron, we can likely shorten that to 7-10 days.
In what has become an annual tradition for my final post of the year, I bring you the holiday classic, 'Twas the Employment Law Night Before Christmas, tweaked for 2021.
As has been the case in years past, you can read my tale below. This year, however, you also get the holiday present of me reading it for everyone.
To all of my readers, new and legacy, thank you all for reading, commenting, and sharing throughout the year, and please have a happy and, most importantly these days, safe holiday season. I'll see everyone on January 3, 2022, with fresh content to kick off the new year.
'Twas the night before Christmas, when all through the office Not a creature was stirring … well, just one of the bosses; The bonuses were paid by the company with care, In hopes that no ungrateful employees would swear.
The workers were home all snug on their thrones; While visions of deadlines danced on their iPhones; And I at my desk, alone to deal with the crap, For the one who's in charge gets no holiday nap.
When out in the lot there arose such a clatter, I sprang from my desk to see what was the matter; Away to the door I flew in a hurried jolt, Tore open the shutters and threw open the bolt.
The moon on the breast of the new-fallen snow, Gave a lustre of midday to objects below, When what to my wondering eyes did acquaint, A process server holding a seven-count complaint.
Count One alleged that we had discriminated, On the basis of race by one irritated; A denied promotion, gone to someone who's white, Said the lawsuit I read in the glow of the night.
Count Two, racial harassment, words she had o'erheard, Does she know the ruckus she's about to have stirred? Oh, how she had pulled that nasty, evil trigger. I'd never heard supervisors rhyme something with bigger.
Count Three, it's not just racism she alleged, Also sexism, to which management pledged. The boys, she said, we paid so much more than the girls Yet they do the same work as each workday unfurls.
Count Four, uh oh, sexual harassment; It's true her manager hoped to be her gent. But the touching and groping, alleged quid pro quo, Never did anyone coerce being her beau.
Count Five targeted our vaccine direction. We denied her ask for a moral exemption. "Conspiracy," she yelled. "You're part of the elite." You'll care when Omicron our employees deplete.
Count Six, firing a COVID rule breaker. Masks she refused, even those made of paper. Social distancing of six feet or more, Enforcement can be such an insufferable chore.
Count Seven, wage and hour class action, oh crap! Did we fall into an FLSA lawsuit trap? Mis-classifications, non-exempt for exempt, And off-the-clock work too, my butt cheeks were then clenched.
Not just a lawsuit was waiting, I see.
An election petition from the NLRB.
Ungrateful employees want more pay and respect.
Should I have treated them better, I reflect?
I spoke not a single word, went back to my desk, And yelled, with none to hear, "Do I ever get to rest?!" I emailed our lawyer, thru my phone I exclaimed, "How much trouble are we in? To me please explain!"
He sprang to his phone, gave to me this rejoinder. "A lot; I'll need a $20,000 retainer." But I also heard him proclaim, so as not to slight— "Happy Christmas to all, and to all a good night!"
