Some 117 employees have sued their employer, Houston Methodist Hospital, over its requirement that all employees receive the COVID-19 vaccine.
According to ABC News, the hospital gave its employees a June 7 deadline to get vaccinated or face suspension and termination. The employees allege that their employer is “illegally requiring its employees to be injected with an experimental vaccine as a condition of employment.” The lawsuit adds that the hospital’s vaccine requirement violates the “Nuremberg Code and the public policy of the state of Texas.”
In a statement, hospital CEO Dr. Marc Boom said, “It is unfortunate that the few remaining employees who refuse to get vaccinated and put our patients first are responding in this way. It is legal for health care institutions to mandate vaccines, as we have done with the flu vaccine since 2009. The COVID-19 vaccines have proven through rigorous trials to be very safe and very effective and are not experimental.”
Dr. Boom is 100 percent correct; the hospital’s policy is legal. Here’s why, and why this lawsuit will fail spectacularly.
1. The EEOC expressly says that mandatory vaccine policies are 100 percent legal (as long as an employer makes allowances to accommodate employees whose underlying disabilities, sincerely held religious beliefs, practices, or observances, or pregnancy prevents them from getting vaccinated). Because I’ve seen zero references that any of the 117 plaintiffs are claiming an ADA or Title VII violation, I conclude that the hospital has met its legal obligations in this regard. (Note, however, that Texas is considering pending legislation that would make “COVID-19 vaccination status” a protected class under its employment discrimination law.)
2. Public policy actually favors as many individuals getting vaccinated as possible. Just ask the Biden White House, the CDC, the EEOC, OSHA, just about any other government agency, and even the State of Texas (although its governor did sign an Executive Order prohibiting government entities from compelling that anyone receives a COVID-19 vaccine administered under an emergency use authorization). Note also that there are efforts underway in states across the country (e.g., Ohio) to prohibit a business from mandating vaccines or permitting individuals to decline a required vaccine based on medical contraindications, natural immunity, or reasons of conscience.
3. The Nuremberg Code is not a thing, at least not in this context. In fact, there’s been a lot of chatting lately about the Nuremberg Code as a justification to refuse vaccine mandates. It’s wrong and it’s offensive. It’s a set of research ethics principles for human experimentation created as a result of the Nuremberg trials at the end of World War II. It was a reaction to the medical atrocities committed by Dr. Josef Mengele and other Nazis during the war, with the intent of protecting people from suffering similar atrocities. To compare Nazi war crimes to a life-saving vaccine that has been tested and vetted is the height of disgusting selfishness.
Bottom line: If you want to mandate that your employees get vaccinated as a condition of employment, you are legally in the clear to do so, subject to reasonable accommodation exceptions under the ADA for disabled employees, and under Title VII for employees’ sincerely held religious beliefs, practices, or observances, and for pregnant employees. Any other gripes, complaints, or objections by employees are just smokescreens that you can legally ignore, at least for now.
Employers have been anxiously waiting for the EEOC to publish its guidance for employers on incentives offered to employees in exchange for getting vaccinated against COVID-19. Late last week, the EEOC finally released that guidance. The issue is whether the incentive renders the vaccine coerced and therefore non-voluntary, which would be unlawful under the ADA and GINA.
What did the EEOC say:
An employer may offer an incentive to employees to voluntarily provide documentation or other confirmation that they received a vaccination on their own.
An employer may offer an incentive to employees for voluntarily receiving a vaccination administered by the employer or its agent as long as the incentive is not so substantial as to be coercive, and as long as the employer does not acquire genetic information while administering the vaccines. The EEOC does not offer any guidance as to what “so substantial as to be coercive” means, but it’s safe to assume that the incentives employers are offering (a day or two of added PTO, payments or gift cards up to a couple hundred dollars) will not meet this standards and are safe. And when states are offering the vaccinated the chance to win a million dollars…
An employer may not offer any incentives to an employee in exchange for a family member’s receipt of a vaccination from the employer or its agent, as such incentive would necessarily require the disclosure of the family medical history of the employee, which would violate GINA.
An employer may offer vaccinations to an employee’s family members if those vaccines are voluntary, employees are not penalized if their family members are not vaccinated, and all medical information obtained from family members during the pre-vaccine screening process is only used for the purpose of providing the vaccination, is kept confidential, and is not provided to any managers, supervisors, or others who make employment decisions for the employees.
Employers may (and I’ll add, should) provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination.
This guidance is not earth-shattering or surprising. With more than 50 percent of the country having received at least one dose of the COVID-19 vaccine, it provides confirmation and legal comfort to those employers that have already offered such incentives. It also follows an important governmental trend we’ve recently seen across agencies—the adoption of policies intended to incentivize people to get vaccinated. Whether its PTO for vaccines, the CDC’s new mask rules, or OSHA reversing course and eliminating its prior guidance that required the reporting of adverse reactions to employer-mandated vaccines, the federal government is actively breaking down barriers that discourage or disincentivize employees from getting vaccinated.
With only 40.7 percent of the country fully vaccinated, we are a long way from the number needed to reach the all-important herd immunity, if we ever get there. While it feels like life is starting to return to normal, the COVID-19 pandemic is not over yet. Do your part and get your shot. And, if you’re an employer looking to get as many of your employees vaccinated as possible, you can rest easier knowing that the EEOC will not penalize you for offering vaccine incentives to your employees.
A Southern California logistics provider was ordered to pay $120,000 in overtime back wages to 388 employees and also must implement a timekeeping system to shore up compliance issues.
Following a recent finding of the Department of Labor affirmed by a federal court in California, an additional $2,000 penalty also was assessed to the employer, Global One Logistics, by the department’s Wage and Hour Division to address the employer’s willful violations of the Fair Labor Standards Act. Employees were told to record only eight hours of labor each day regardless of how many hours they actually worked, according to a May 24 Labor Department press release.
Maintain accurate timekeeping
The court ordered Global One Logistics, which provides warehousing and distribution services for the home fashion and apparel industry,toimplement a reliable timekeeping system that allows each employee to accurately record their daily start and stop times, the Labor Department stated. The order also instructed the employer tonot alter or manipulate time or payroll records to reduce the number of hours actually worked and not to encourage or pressure workers to underreport hours worked, the statement said.
Aimee Delaney, partner at law firm Hinshaw & Culbertson, said that while the timekeeping order is not unusual, the FLSA places an obligation on employers to maintain accurate time records for its employees. It does not dictate a specific method, but there must be accurate records maintained, she said.
“Digital time and attendance systems do deter manipulating time and payroll records, particularly if you are comparing to handwritten timesheets,” Delaney said.
‘Willful’ wage and hour violations
Investigators found the employer willfully failed to pay employees overtime at time-and-one-half their regular rates of pay when they worked more than 40 hours per week, according to the Labor Department. In addition to requiring employees to falsify the number of hours they worked each day, the employer also paid for the unrecorded hours in cash at workers’ straight-time rates, the Labor Department stated.
A “willful” violation under wage and hours laws has specific meaning and consequences, said Delaney. If a violation is found to be willful, the statute of limitations for the claim goes from two to three years and there are additional penalties, such as the $2,000 levied against the employer, she said.
Aimee Delaney, partner at law firm Hinshaw & Culbertson.
“When used in the FLSA context, a violation is willful if the employer either knew or showed reckless disregard for whether its conduct was prohibited by the FLSA,” Delaney said.
Employers who purposefully manipulate payroll records in an attempt to avoid their legal obligations will be held accountable by the Labor Department, said Wage and Hour Division Assistant District Director Rafael Valles in West Covina, California.
“The outcome of this investigation serves as a reminder to all employers to review their pay practices to ensure they comply with the law and as a reminder to workers that they have the right to be paid for all of the hours that they work.”
Compliance is an organizational responsibility
Minimizing the risk of wage and hour and overtime violations falls on several departments and various roles within the organization.Managers in particular often are on the frontline with workers and should be familiar with compliance and timekeeping requirements.
“They know and are often the assigner and approver of overtime,” Delaney said. “Managers certainly bear a responsibility for knowing the state and federal requirements and not directing employees to do something out of compliance with those requirements.”
Human resources and payroll departments often have higher-level oversight and compliance responsibilities. HR may not always be aware of specific timekeeping violations occurring day to day but can ensure that managers are properly trained.
“HR should also be aware if unusual or significant hours are being worked, which may prompt a review or audit to ensure employees working the additional hours are properly paid,” Delaney said. “Payroll is often simply a function of processing pay for what is reported on the time records. However, payroll certainly has a role to play in ensuring that all reported hours are paid correctly, including the correct overtime premiums.”
Labor Department enforcement
Delaney also pointed out that “off the clock” violations are among the clearest abuses of state and federal wage and hour laws.
“It literally means you are requiring the employees to work while not recording their time, which means they will not be paid,” she said. “Under the FLSA, non-exempt employees must be paid for all hours worked. Employers also have an obligation to maintain accurate time records.”
She added that this case isn’t necessarily a predictor of tougher Labor Department enforcement of wage and hour laws. The violations presented in the facts were blatant violations of fairly established wage and hour rules, she said.
“Once violations are found, the Labor Department is always going to ensure enforcement to get the employees paid the wages owed,” she said.
Time and attendance software takes the headache out of tracking your hourly employees. Workforce.com has automatic systems in place to help you streamline your processes, save time and protect your bottom line. Book yourdemo today.
“I can’t believe you got vaccinated. It’s an experimental drug that I’m not injecting into my body. Besides, I heard that Bill Gates and the global elites implanted 5G trackers in the vaccine. All the government wants to do is control us, and you’re letting them by submitting to these shots. Sheeple!”
OR
“I can’t believe you’re not getting vaccinated. Don’t you care about protecting yourself and others? This vaccine has been tested, vetted, and is safe and effective. We need to reach herd immunity if we want this pandemic to end, and you’re not doing your part. Selfish!”
Some version of this drama is likely playing out in your workplace. And it has to stop, ASAP.
For starters, one’s choice not to get vaccinated might be because of an underlying physical or mental impairment, a pregnancy (or hope to become pregnant), or a sincerely held religious belief, practice or observance. In any of those cases, harassing a co-worker because of his or her unvaccinated status might cross the line into unlawful protected-class harassment.
Additionally, whether another is or is not vaccinated is really none of anyone’s business. As noted in this post, it’s confidential medical information under the ADA (not HIPAA). It’s an employer’s business whether unvaccinated employees are following the CDC’s guidelines and keeping their masks on while at work.
But whether they’ve gotten the Pfizer, Moderna, or J&J jab? Not a co-worker’s business. And certainly not something anyone should be harassing or bullying anyone else over. Civil discourse is one thing. Harassment, bullying and disrespect is another altogether.
It’s simply not realistic to eliminate all vaccine-related discourse from the workplace. We’ve lived with COVID for over a year. With a few exceptions it’s all we’ve talked about. How can we expect employees simply to ignore conversing about issues such as vaccines for the eight-plus hours a day they are at work?
Instead of banning these discussions, remind employees of your expectations regarding all workplace conversations — that they are civil, professional, respectful and do not intrude on protected classes. And, if an employee violates these precepts, an employer should (or, in the category of protected-class harassment, must), address the issue.
Discussions over divisive issues need not be nasty, uncivil or contemptuous as long as we respect the rights of others to think differently and hold them accountable when they fall short of this standard.
If an employer is supposed to keep an employee’s vaccination status as a confidential medical record, how is an employer supposed to enforce the CDC’s most recent guidance that permits fully vaccinated individuals to unmask?
The EEOC makes it clear that an employer encounters zero legal impediments from “asking or requiring an employee to show proof of receipt of a COVID-19.” But once you obtain that information from an employee, you still must maintain it as a confidential medical record under the ADA.
The ADA requires employers to keep confidential any medical information they learn about any employee and store it confidentially and separately from an employee’s personnel information. An employer may only disclose this information to other personnel on a “need to know” basis.
So, if you intend to follow the CDC guidelines, you need a process to know which employees are vaccinated and which are not, which would involve the disclosure of vaccination status. Then, you need to communicate that information on a limited basis to those managers or supervisors who need to know that information to enforce your mask rule for the unvaccinated.
As long as you limit the disclosure to the narrowest group who reasonably and in good faith legitimately need to know which employees are, and are not, vaccinated, in this employment lawyer’s opinion such disclosure should pass muster under the ADA’s confidentiality rules. (As with all things, check with your own employment counsel before rolling out such a policy.)
Jon, you ask, won’t everyone know who is and is not vaccinated just by looking at who’s marked versus maskless? No really, as some fully vaccinated employees may choose to keep wearing a mask. Moreover, even if only unvaccinated employees wore masks, that would be a function of you following CDC guidelines, not the result of a breach of confidentiality.
Employers are navigating a variety of issues as employees gradually return to a more permanent physical workplace.
According to anew survey by Aon, 52 percent of employers said employees will return onsite in the third quarter, and 81 percent of those organizations already have a tentative date in mind.AMay 2021 survey by law firm Littler, however, reveals a disparity in employers’ plans and employees’ preferences when it comes to hybrid work models and returning to physical workplaces.
There are several reasons employees may hesitate returning to the workplace. Chief among them for parents of young children, returning to work means finding quality, affordable child care.
Reestablishing pre-pandemic connections to daycare facilities is a challenge for many workers who are remote or unemployed and looking to return to work. The pandemic has crushed many small businesses, and child care centers are no exception, said Lauren Gill, head of people at New York-based child care provider Vivvi, which has 200 employees working on three campuses. Thousands of child care facilities have closed since March 2020, Gill said, and experts say that will have a profound impact on working families, especially women.
“Our challenge as an industry is how to rebuild and provide increased access,” Gill said.
Women bear the brunt of caregiving
The Center for American Progress found that the pandemic led to a 144 percent increase in child care-related work absences from September through November 2020, compared with the same period in 2019. The pandemic also ledthree in 10 womenwith children under 18 to temporarily or permanently leave the workforce to become a primary caregiver to children.
“The pandemic exacerbated the issues, resulting in over 2.2 million women leaving the workforce and the average parent spending 27 more hours per week on child care,” Gill said. “This has forced organizations to confront the fact that child care is a universal concern that affects all employees and that employee benefits have inadequately addressed this issue. Inadequate access to quality child care has been a challenge for individual families, for employers and for the U.S. economy for a long time.”
Fatima Goss Graves, president and CEO of the National Women’s Law Center, said that child care providers bring invaluable benefits to children and their families every day.
“Our entire economy is dependent upon their labor, yet razor-thin margins and a dearth of public investment mean the workers themselves receive poverty-level wages and few benefits,” Goss Graves said in a statement commemorating National Child Care Provider Appreciation Day in May.
Early childhood education is already a physically and emotionally demanding field, said Kae Bieber, education programs manager at nonprofit ACCA Child Development Center in Annandale, Virginia. The additional workload from health precautions coupled with the stress of working in a field that exposes employees directly to COVID-19 has made it difficult to fill positions.
At the pandemic’s onset ACCA kept its doors open for the children of essential workers, Bieber said. The number of children dropped from over 210 to 40 in the early days of the pandemic.
Struggling now to fill positions
As more parents returned to work and enrollment increased, Bieber said they have struggled to find qualified staff to fill positions vacated by employees who left during the pandemic. Some employees felt pressure to find a less stressful, safer choice for them and their family, so they left, she recalled.
“With the limitations on capacity due to COVID regulations and the need for staff, wait lists for quality child care are increasing,” she said. “Most often, a parent may get the call to return to the office but then still must wait until child care is available. This causes stress on the parents during an already extremely challenging time.”
Kae Bieber, education programs manager at the ACCA Child Development Center.
As ACCA — which has an infant-toddler center as well as a preschool building with 12 classrooms — began restaffing its workforce of 65 hourly employees, Bieber found job candidates were hesitant to join the field. Early childhood education previously was seen as a good starting point for someone interested in working with children and education, she said.
“Now a potential candidate must consider the low wage in comparison to the sacrifice they will be making with their lives for themselves and their family,” she said. “We may have 30 responses to one job posting but when a potential candidate sees the reality of the amount of work and exposure in-person, they do not see the value in their work due to the low wage.”
While money may not be everything, Bieber believes that if they were able to offer hazard pay as additional support during the pandemic, ACCA would not have lost as many child care professionals. In a worker’s mind, she said, they could at least feel as if they were being compensated in some way for the exposure they were faced with and bringing to their homes.
“No matter how vested someone’s heart may be, if their ability to provide for their family is struggling and they are now facing exposure to a deadly virus each day, it can be very difficult to rationalize staying in that position.”
Employees move on for safety and pay
Good employees were forced to choose between staying with a profession they loved versus switching to a job with less exposure and often higher wages, she said. The added sanitation measures quadrupled workloads in an already labor-intensive environment. Interaction with children also changed dramatically due to social distancing guidelines.
“Children thrive off of closeness, hugs, smiles, high fives, pats on the back and interacting with each other,” Bieber said. “We lost that, literally overnight. We went from creating high quality learning experiences to supervising social distancing and implementing nonstop sanitation. Our staff began to question if they were doing more harm than good by having children play six feet apart and keep their distance from the children. They had a very difficult time adjusting to the new normal.”
Stagnant wages for caregivers
Though there is a greater appreciation for child care, Gill said many programs are restricted in their ability to boost wages since they are under-enrolled and recovering from months on end collecting little or no tuition.
“We haven’t seen a major shift in wages in the child care industry since the pandemic,” she said.
Gill added that as a sector, they need to think about how to make early childhood education a true career with all of the financial stability, respect and growth opportunities that other careers offer both in the wake of the pandemic and beyond.
“We should never make educators choose between their passion and a comfortable life,” she said. “It’s vital that they become synonymous.”
Entice candidates by prioritizing benefits
There are opportunities to bring stability to the child care industry and its professionals. Only 4 percent of employers offered subsidized child-care centers or programs, according to the Society for Human Resource Management’s 2019 employee benefits survey. There is a huge opportunity to move the needle, Gill said.
Lauren Gill, head of people at child care provider Vivvi.
“Employer partnerships are a path to bringing high-quality care and early learning to more families” while helping employers recruit and retain top talent and increase productivity across the board, Gill said.
As a private employer that has partnered with organizations including the New York Presbyterian Hospital network, Gill said Vivvi built its business model with competitive wages for teachers at its core. “While we haven’t shifted our compensation strategy as a result of the pandemic, we continue to offer full-time, salaried roles and offer a full suite of benefits,” she said.
Some employers are looking at offering employee benefits that give employees options for access to affordable and quality child and elder care options, said Michelle Barrett Falconer, co-chair of the Leaves of Absence and Disability Accommodation Practice Group at Littler Mendelson.
“If an employee has access to affordable, quality child and elder care, the employee may not need to take time off from work using a paid family leave statute to address those caregiving obligations,” Barrett Falconer said.
Higher wages are not yet a reality for early childhood, Bieber said, although with the Biden administration’s new American Rescue Plan, she sees hope that wages for early childhood workers could begin to increase and meet a living wage for early childhood educators.
“The child care industry desperately needs legislation in place to recognize early childhood education as a valued profession and the message from top to bottom in our society needs to place emphasis on the recognition and need for quality child care,” Bieber said.
Having spent most of her career in education, Gill said that supporting the educational development of future generations is a monumental and vitally important task. Affordable, quality child care can be transformative for working families and make for happier, more productive employees, she said.
“When parents have peace of mind, they can pursue their goals outside of the home and be better, happier parents as a result.”
After months of anticipation, the U.S. Department of Laborwithdrew its Independent Contractor Final Rule on May 5.
The Final Rule was published in the final two weeks of the Trump administration. Almost immediately following President Joe Biden’s inauguration, it became the subject of a delayed effective date (from March 8, 2021, to May 7, 2021) andnotice of proposed rulemaking, in which the Labor Department proposed to withdraw the Final Rule before its delayed effective date.
In light of theLabor Department’s withdrawal of the Final Rule, employers will continue to be subject to the existing “economic realities” standard applied by the agency for determining whether a worker is an employee or an independent contractor. However, employers should remain vigilant as the Labor Department may soon revisit this issue.
The Final Rule had sought to clarify the relevant factors the Labor Department would consider to classify workers as independent contractors or employees. This designation is important because independent contractors, unlike employees, are not afforded minimum wage and overtime protections under the Fair Labor Standards Act.
Because the FLSA provides minimal guidance to employers regarding worker classification, the Labor Department and the courts have developed their own standards, including the so-called “economic reality” of the relationship between the employer and the worker.
Before the Final Rule, the Labor Department and most courts had long utilized a six-factor test for determining whether a worker should be classified as an independent contractor or an employee. The Supreme Court originally set out this test in United States v. Silk, indicating the following factors:
The employer’s versus the individual’s degree of control over the work.
The individual’s opportunity for profit or loss.
The individual’s investment in facilities and equipment.
The permanency of the relationship between the parties.
The skill or expertise required by the individual.
Whether the work is part of an integrated unit of production.
Since the Silk ruling, most federal courts and the Labor Department analyzed employee classification using a variation of the multifactor weighing test with all factors being given equal consideration. Indeed, in its primary regulatory guidance issued in July 2008, the Labor Department confirmed inFact Sheet 13: Employment Relationship Under the Fair Labor Standards Actits reliance on the economic reality test and listed seven factors to be considered, which largely mirrored the six factors identified in Silk and added the “amount of initiative, judgment, or foresight in open market competition with others required for the success of the claimed independent contractor” as an additional factor to be considered.
Breaking with the Labor Department’s prior practice of treating these seven factors as equally weighted, the Final Rule sought to pare the inquiry down to five factors and stated that two of those factors — the “nature and digress of the individual’s control over the work” and “the individual’s opportunity for profit or loss” — should be “afforded greater weight.”
As such, the Final Rule directed that only if the two core factors were inconclusive should the three remaining factors — namely, the skill or expertise required by the individual; the permanency of the relationship between the parties; and whether the work is part of an integrated unit of production — be considered.
Although many praised the Final Rule for simplifying what has become an inconsistent patchwork of approaches to the economic realities test in courts across the country, the Labor Department has since stated that the Final Rule was inconsistent with the FLSA’s text and purpose, and would have a confusing and disruptive effect on workers and businesses alike due to its departure from longstanding judicial precedent. Accordingly, the agency announced May 5 that the Final Rule was withdrawn effective immediately.
The Labor Department has not stated whether it intends to issue new guidance or regulations addressing the classification of independent contractors. Further complicating this issue for employers, both the initial delay of the Final Rule and its subsequent withdrawal are the subjects of a lawsuit pending in the U.S. District Court for the Eastern District of Texas brought by four employer-focused interest groups who seek the court’s intervention to declare the withdrawal unlawful and make the Final Rule effective.
The lawsuit is in its initial stages, and it remains to be seen how it will be resolved.
For the time being, all Labor Department regulations and guidance concerning independent contractor classification in place before the Final Rule’s publication continue to apply. However, given recent remarks by President Biden andU.S. Secretary of Labor Marty Walsh, the Labor Department may revisit the independent contractor standard.
If that occurs, it is expected that the Labor Department would take a more aggressive approach toward enforcement of worker classification laws and seek to further narrow the subset of workers who may be properly classified as independent contractors under the FLSA, particularly gig economy workers.
Notwithstanding the pending legal challenge to the withdrawal of the Final Rule, employers would be wise to evaluate their practices as to classification of employees and ensure that any independent contractors are properly classified under the Labor Department’s current 2008 guidance.
One open issue stemming from the CDC’s about-face on masking for the fully vaccinated is how OSHA would address these new guidelines. When OSHA published its Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace in late January, it made it clear that one’s vaccination status had zero impact on an employer’s obligation to require masks in all cases.
Workers who are vaccinated must continue to follow protective measures, such as wearing a face covering and remaining physically distant, because at this time, there is not evidence that COVID-19 vaccines prevent transmission of the virus from person-to-person.
In the world of COVID-19, 3 ½ months is an eternity, so here we are just 3 ½ months later living in a country without facial coverings for the fully vaccinated. So what says OSHA?
The Centers for Disease Control and Prevention (CDC) has issued new guidance relating to recommended precautions for people who are fully vaccinated, which is applicable to activities outside of healthcare and a few other environments. OSHA is reviewing the recent CDC guidance and will update our materials on this website accordingly. Until those updates are complete, please refer to the CDC guidance for information on measures appropriate to protect fully vaccinated workers.
Until further notice, the story on masks at work remains as follows:
Fully vaccinated employees = maskless, if they choose.
Unvaccinated employees = masks.
As for me, I’ll be OK going maskless in places in which I know everyone else maskless is also fully vaccinated. Otherwise (hello Costco, and any other store that is putting people on the honor system) I’ll be keeping my mask on until further notice.
If the last year has taught me anything it’s that if left to their own devices too many people will fail to do the right thing. I just don’t trust that everyone maskless will be fully vaccinated. There just seems to be too high of a correlation between those who are anti-vax, anti-mask, and pro “liberty.” So thank you, maskless and unvaccinated. Your selfishness will require me to keep wearing a mask in many public places.
FIS Holdings LLC, a pipeline inspection company based in Sand Springs, Oklahoma, was fined $3,852,968 after violating overtime requirements of the Fair Labor Standards Act for 1,100 of its employees, a Labor Department investigation discovered.
The oil and gas industry depends on independent inspection companies like FIS Holdings to protect this essential infrastructure. The employees, who work in 40 states ranging from Massachusetts to California and Idaho to Alabama, keep more than 2.6 million miles of pipe in the U.S. secure, the Labor Department said in an April statement.
Investigators discovered that the company, which does business as Frontier Integrity Solutions Operations LLC and operates in the U.S. and Canada, paid workers a fixed amount per day, regardless of the number of hours that they worked. The practice resulted in violations when employees worked more than 40 hours in a workweek, but the employer failed to track those hours or pay workers overtime.
The employees typically worked between 50 and 60 hours per week. The employer’s failure to keep records of the number of hours employees worked also resulted in recordkeeping violations, the Labor Department release stated.
Kate Bischoff, an employment attorney at tHRive Law & Consulting LLC, said that managing employees’ time and attendance across multiple states shouldn’t necessarily complicate the process. The employer wasn’t following federal law for tracking time and paying overtime, she said. And that responsibility cuts across the entire organization, not just a single department like human resources or payroll.
“Everyone needs to play a part in compliance,” Bischoff said. “Frontline managers are important to get accurate time records from each employee. Payroll needs to verify, compile data including deductions, and ensure pay stubs are accurate. And, HR needs to make sure everyone has the tools and knowledge to do their jobs accurately.”
Many employers are looking for ways to make payroll as easy as possible, including paying fixed rates to non-exempt employees, misclassifying workers as independent contractors, and not requiring employees conduct paperwork when their actual work is dangerous, Bischoff said.
Bischoff pointed out that the investigation wasn’t handled by one office and one investigator but was a much bigger effort by multiple field offices to get the outcome for FIS employees.
Bischoff said it’s clear that the Labor Department is focusing on enforcement over guidance.
“The Biden administration’s Department of Labor underSecretary Walshis going to focus on enforcement as a major motivator for employers to get their wage and hour houses in order,” she said.
Bischoff advised employers to talk with their attorneys and their technology vendors to ensurecompliance before a Labor Department investigator comes knocking.
“The Department of Labor’s focus on enforcement is designed to be a deterrent for all employers to motivate them to comply with the law,” she said. “Work with an attorney to really focus on making sure your I’s are dotted and T’s are crossed on wage and hour issues.”
The rule is simple, HIPAA protects EVERY American from disclosing ANY of their health records to ANYONE.
Their point? That medical privacy laws protect their vaccination status, and it’s illegal for any business to ask as a condition of anything.
They are very, very wrong. So, I thought today I’d clear up some common misconceptions about HIPAA specifically and medical privacy more generally.
HIPAA stands for the Health Insurance Portability and Accountability Act. It’s HIPAA. Not HIPPA, HIPPO, or anything else.
Broadly speaking, HIPAA does protect the privacy of individuals’ medical information. But not all medical information and only in certain circumstances.
HIPAA applies only to “covered entities,” defined as: (1) health plans; (2) healthcare clearinghouses; (3) healthcare providers that electronically transmit certain health information; and certain “business associates” of covered entities. If an employer does not fall into one of those categories, HIPAA does not apply to it at all. Thus, HIPAA does not apply to employee health information collected or maintained by an employer in its role as an employee’s employer.
For employees, HIPAA does not:
Prohibit an employer from asking for a doctor’s note related to an absence (or, in the case of COVID-19, an employee’s vaccination status).
Impact the ability to request information necessary to administer programs, such as health care benefits, workers’ comp, or sick leave.
Protect all health data maintained in employment records, only those employees’ medical and health plan records that relate to their participation as a member of the employer’s healthcare plan.
For businesses dealing with the public (such as a retail store or restaurant, for example), HIPAA simply does not apply at all. HIPAA does not prohibit a business from asking a customer about his or her vaccination status as a condition to entry or donning a mask upon entry. Period. Hard stop.
An employer that merely asks its employees for proof of vaccination status does not violate other laws, such as the Americans with Disabilities Act. The ADA does place limits on an employer’s disability-related inquiries of its employees. But, as the EEOC has clearly and succinctly stated, “requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.”
The bottom line is that private businesses absolutely can require employees to provide vaccination status as a condition of employment (subject to certain reasonable accommodation obligations), and further a business can require the same as a condition to entry.
A business can’t force anyone to provide that information, it can legally deny access to anyone who won’t or can’t provide it. We all have a choice to make — to vax or not to vax. It’s really this simple. If you don’t want to wear a mask, get vaccinated. If you don’t want to get vaccinated, wear a mask.
If you don’t want to do either, then accept that there are places you won’t be able to go for now and for the foreseeable future.
