The Practical Employer

June 2, 2021

Hospital employees are about to lose a vaccination lawsuit against their employer in spectacular fashion

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.

May 26, 2021

Vaccination status harassment

“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!”

“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.

May 25, 2021May 25, 2021

How to enforce mask rules at work without breaching ADA confidentiality rules

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.

Tomorrow, vaccine-status harassment.

April 28, 2021August 31, 2022

Biden administration announces $15 minimum wage for all federal contractors

On April 27, the White House announced that effective Jan. 30, 2022, all federal contractors will be required to incorporate a $15 minimum wage in new contract solicitations, and by March 30, 2022, all federal agencies will need to implement the minimum wage into new contracts and into existing contracts with annual options to renew.

The Executive Order that implements these changes will also tie this new minimum wage to inflation and adjust accordingly annually, eliminate the tipped minimum wage for federal contractors by 2024, and extends the required $15 minimum wage to federal contract workers with disabilities.

“But Jon,” you ask, “I’m not a federal contractor; why should I care?”

You should care because this Executive Order will move the minimum wage needle. Other companies will have to begin voluntarily offering a $15 minimum wage to compete in the job market for new hires. As a result, eventually and over time a $15 minimum wage will spread to all employers nationwide. If Congress won’t act on this issue, President Biden will force employers to act on their own.

April 26, 2021

Another reason not to mandate the COVID-19 vaccine for employees

I’ve not hidden my belief that employers should not be mandating that their employees receive the COVID-19 vaccine as a condition of employment. Now, OSHA offers yet another reason why employers should recommend, but not mandate, the vaccine.

Per OSHA, if the vaccine is mandatory, then an employer must record an employee’s adverse reaction or side effects on its OSHA log.

If I require my employees to take the COVID-19 vaccine as a condition of their employment, are adverse reactions to the vaccine recordable?

If you require your employees to be vaccinated as a condition of employment (i.e., for work-related reasons), then any adverse reaction to the COVID-19 vaccine is work-related. The adverse reaction is recordable if it is a new case under 29 CFR 1904.6 and meets one or more of the general recording criteria in 29 CFR 1904.7.

I do not require my employees to get the COVID-19 vaccine. However, I do recommend that they receive the vaccine and may provide it to them or make arrangements for them to receive it offsite. If an employee has an adverse reaction to the vaccine, am I required to record it?

No. Although adverse reactions to recommended COVID-19 vaccines may be recordable…, OSHA is exercising its enforcement discretion to only require the recording of adverse effects to required vaccines at this time. Therefore, you do not need to record adverse effects from COVID-19 vaccines that you recommend, but do not require.

A few more points that OSHA made about this issue.

1. To avoid reporting, the vaccine must be truly voluntary and an employee cannot suffer any repercussions from that choice. For example, an employee’s choice to accept or reject the vaccine cannot affect a performance rating, bonus payment, or professional advancement. An employee who chooses not to receive the vaccine cannot suffer any repercussions from this choice.

2. The method by which employees might receive a recommended vaccine does not matter. This rule also applies even if an employer makes the COVID vaccine available onsite or otherwise makes arrangements for employees to receive it offsite. As long it the employee’s choice is voluntary, side effects and reactions are not recordable.

So there you have it. Yet another reason not to mandate that employees receive the COVID vaccine — the administrative burden of recording reactions and side effects, and the risk of potential OSHA citations and fines for failing to do so.

April 19, 2021

How to identify and handle an employee at risk for workplace violence

termination, covidiot, workplace violence, gun, weapon

It’s been four days since Brandon Hole returned to the Indianapolis FedEx facility at which he previously worked, and killed eight people.

I’ve previously written about how to spot an employee at risk for workplace violence. And while I’m not sure FedEx could have done anything to prevent what happened here, this tragedy nevertheless is a reminder of what employers need to do when they suspect an employee presents a risk of violence.

Here is my post from Feb. 18, 2019, following a workplace shooting in Aurora, Illinois.

Early Friday afternoon, Henry Pratt Co. informed one of its employees, Gary Martin, of his termination. Shortly thereafter, he opened fire with a .40-caliber Smith & Wesson, killing five of his co-workers and wounding five police officers. Martin himself was the sixth casualty, killed in a shootout with police.

After the news of this tragedy broke, reports surfaced of Martin’s history of violence — six prior arrests by the local police department for domestic violence, and a decades-old felony conviction for aggravated assault.

All of which begs the question, should this employer have known that Martin was prone to violence, and if so, should it have taken added measures in connection with his termination.

A criminal history of violent arrests and offenses is not necessarily a predictor of workplace violence. Still, there are certain warning signs for which an employer can look to help determine whether an employee is at risk for potential violence.

According to ESI Group, these warning signs include:

A chronic inability to get along with fellow employees
Mood swings and anger control issues
Expressions of paranoia or persecution. Being a “victim”
A history of problems with past jobs and and/or personal relationships
An inability to get beyond minor setbacks or disputes at work
A fascination with guns, weapons, or violent events
A sudden deterioration in work habits or personal grooming
Signs of stress, depression, or suicidal ideation
A major life problem, such as divorce or legal problems

If one more of these red flags surface, it is recommended that you refer this employee to an employee assistance program, for assessment and treatment.

If you are compelled to fire an employee who you think poses a risk of violence, it is recommended that you take further steps to mitigate against the risk of your termination transforming into a workplace tragedy.

ESI Group recommends the following:

Consider a professional threat assessment.
Consider using a neutral manager or outside security consultant to carry out the termination.
If there is manager or supervisor who has been the object of threats or anger, that person should not be the person to conduct the termination.
Have security nearby—not in the same office, but close enough to hear signs of a problem and to act.
Do not take a break. There are numerous instances of an employee asking for a bathroom break or time to compose him- or herself, and using the break to retrieve weapons.
Wait until the end of the workday to terminate, if possible. This protects the dignity of the fired employee and minimizes the number of employees on hand should a situation escalate.
Minimize any reasons why the employee would have to revisit the workplace. Mail a check; have uncollected belongings sent to the person’s home via a delivery service.
Allow the person as much dignity as possible, but be brief and to the point. Do not get into a back and forth.
Emphasize any severance benefits and outsourcing help that may be available. Some organizations decide they will not contest unemployment or offer the option of resigning.

As with most issues in the workplace, the proverbial ounce of prevention really matters. While there exists no foolproof way to protect your workplace against these kinds of tragedies, a few preventative steps can go a long way to putting you in the best place to deter and respond.

April 5, 2021

Employers, the COVID-19 lawsuits are coming

essential workers; workers' compensation, mask

Thirteen months into the pandemic, the COVID-19-related employment lawsuits are starting to roll into courthouses. Consider the following, all of which made headlines over the past couple of weeks.

A former crew member who worked for Universal TV is suing his former employer claiming discrimination stemming from his termination after his COVID-19 diagnosis.

A COVID-19 long hauler is suing her former employer after she was fired for missing too many days of work while recovering from her illness.

A doctor is suing after he was fired over his vocal opposition to his employer’s COVID-19 response.

And these lawsuits don’t even scratch the surface of employees fired for other COVID-related reasons, such as those fired for refusing the vaccine or complaining on social media about unsafe working conditions.

Employers, you need to understand that if you fire someone related to the pandemic, their first stop likely might be the office of their friendly neighborhood plaintiff attorney. Do yourself a favor a don’t go this alone.

Take the time to vet these terminations pre-termination. The time you spend on the phone with your employment lawyer will be time and money well spent if it helps you not to walk in front of a runaway lawsuit.

March 24, 2021

How to choose which remote work employees to bring back

coronavirus, remote work, COVID-19, remote workforce

For the past year, an astounding 44 percent of employees have been working remotely full time, and two-thirds of employees have done remote work at least one day per week. With vaccination rates on the rise and offering a light at the end of the pandemic tunnel, employers are starting to plan for bringing employees back to the physical workplace.

These decisions involve a lot of key questions an employer needs to answer in planning for where employees will work in a post-vaccine, post-pandemic world.

Here are four questions to think about.

1. How have employees performed during the pandemic while working remotely?

Has an employee been less productive, as productive, or more productive? Have they stayed connected and in communication? Can you trust them to continue to work remotely, or do they need closer monitoring? Have you gotten more productivity out of employees during the pandemic because of the resulting blurring of work time and personal time (i.e., if one’s home is now the workplace, do they ever really disconnect from working)?

2. What is an employee’s preference?

Do they want to continue working remotely, would they prefer to return to a physical office or workspace or do they want some type of flexible or hybrid arrangement? Do they have long commutes that eat into their available working time, and will remote work create greater productivity as a result?

3. Does remote work makes sense for your business moving forward?

How interactive do your employees need to be in performing their jobs? Is their work highly collaborative, and being with people, in person, will assist in getting the job done quicker and at a higher quality? Or does your business involve production processes that cannot be done or effectively managed remotely? Or can employee “get it done” just as well without being face-to-actual-face with others?

4. What about high-risk employees and working parents?

COVID-19 more disproportionately severely impacts older people and people with certain underlying health conditions. And, working parents who lost child care during the pandemic had other reasons to remain at home. Thus, separate from stay-at-home order and social distancing rules that have kept everyone home, these employees have a greater reason to have worked remotely and remain remote. As individuals are vaccinated and schools and childcare reopen, these concerns should melt away, but employers still need to be mindful of not discriminating on account of age, disability, and parental/caregiver status as they bring employees back to work and reintegrate them into the workplace.

COVID-19 has changed how most businesses think about work from home. That genie is likely never going back in the bottle. Each business will have to answer all of the above questions in deciding what work from home looks like for them and their employees as we move into a post-pandemic world and workplace.

March 18, 2021

Employers facing lawsuits for failing to pay for pre-shift COVID-19 screenings

In the early days of the COVID-19 pandemic, I asked this question: “Are employers legally responsible for paying workers for the time it takes to record their body temperatures before entering the workplace?”

My answer was a legal, “Probably,” and a moral, “Definitely.”

This isn’t a “what does the law allow” issue; this is a “what’s right is right” issue. If you’re requiring your employees to queue in a line to take their temperature before you’ll let them enter the workplace, pay them. Don’t be cheap and don’t count pennies.

Your employees are scared. They are risking their own personal health and safety, and that of everyone who lives in their homes, to keep your essential business up and running. They could just as easily stay home, limit their exposure, and collect unemployment. What they need is your compassion, not your penny-pinching. Times are tough for everyone. I get it. But your business shouldn’t go belly up if you pay each employee for a few extra minutes of time each day.

But since this is a legal blog, we might as well take a fresh look at the legal issue, courtesy of a recently filed lawsuit against The Merchant of Tennis Inc., a San Bernardino, California, racquet sports retailer. According to Law360, among other wage and hour violations, José Hernandez Solis claimed that his former employer illegally failed to pay employees for their time spent undergoing

COVID-19 temperature checks at the beginning of the shifts.

Law360 points out that Walmart faces similar allegations in another recently filed California lawsuit. According to that lawsuit, Walmart failed to pay its employees for the 30-45 minutes spent each workday for COVID-19 temperature screening and questioning.

Legally, the standard, per SCOTUS’s decision in Integrity Staffing Solutions v. Busk, asks whether the pre-shift activities are “integral and indispensable” to an employee’s principal activities (“necessary to the principal work performed” and “done for the benefit of the employer”). It’s hard to fathom a situation during a pandemic in which pre-shift health screenings don’t meet this standard.

I think employers getting sued over this issue have real (and expensive) exposure. Don’t join them. Do the legal thing. Do the right thing. Pay your employees for this time.

March 17, 2021

CDC allows large employers to establish vaccination sites

The CDC released guidance permitting large employers to establish temporary sites to vaccinate employees.

The CDC on March 16 said that employers should consider opting for an on-site vaccination program if they have a large number of employees with predictable schedules and enough space to set up a pop-up clinic while still allowing for COVID-appropriate social distancing.

Employers should consider pushing employees to off-site vaccination clinics if they have a smaller number of employees, employees with flexible or non-predictable schedules, mobile employees who don’t have one worksite, or employees who’d prefer not to have their employer administer their vaccine.

Employers who choose to set up a vaccination site still must follow the EEOC’s guidelines on managing vaccines under the ADA, Title VII, and GINA (which I summarized here).

Bravo to the CDC for implementing policies to encourage as many employees to get shots in their arms as quickly as possible. It’s the only way we are going to stay ahead of the more contagious (and perhaps more deadly) variants and beat this pandemic. To this end, I highly recommend that you check out the CDC’s COVID-19 Vaccine Communication Toolkit for Essential Workers, in addition to these 5 tips on building vaccine confidence in your workplace:

Encourage your leaders to be vaccine champions. These leaders should reflect the diversity of the workforce. Invite them to share with staff their personal reasons for getting vaccinated and remind staff why it’s important to be vaccinated.

Communicate transparently to all workers about vaccination. See Key Things to Know, Frequently Asked Questions, and Myths and Facts for up-to-date information.

Create a communication plan. Share key messages with staff through breakroom posters, emails, and other channels. Emphasize the benefits of protecting themselves, their families, co-workers, and community. This fact sheet is available in numerous languages.

Provide regular updates on topics like the benefits, safety, side effects, and effectiveness of vaccination; clearly communicate what is not known.

Make visible the decision to get vaccinated and celebrate it! Provide stickers for workers to wear after vaccination and encourage them to post selfies on social media.

Now please do your family, friends, coworkers, me, and society in general a huge favor and get vaccinated as soon as your state allows you to do so. We are all counting on you.