Commentary & Opinion

June 22, 2021October 7, 2021

Workplace things COVID has not changed: You can still fire dishonest employees

Suppose an employee leaves work claiming COVID-like symptoms. He then calls off work for the next two weeks, claiming he is quarantining at home at his doctor’s recommendation.

Can you fire the employee during that quarantine period? Does your opinion change if you learn during the quarantine that the employee’s doctor never recommended the quarantine and the employee lied about receiving that recommendation?

Those are the basic facts of O’Bryan v. Joe Taylor Restoration, and upon which a federal court jury in southern Florida recently entered a verdict in favor of the employer.

O’Bryan’s lawsuit claimed that his employer had denied him paid sick leave under the FFCRA during his quarantine and retaliated against him for seeking paid sick leave. The employer uncovered his dishonesty when it saw a discrepancy between the alleged note ordering the quarantine and a later note authorizing his return to work.

COVID has altered a lot about the workplace. Thankfully, however, the ability of an employer to fire a dishonest employee has not been one of them.

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.

June 1, 2021

EEOC says that employers legally can offer incentives to employees to get vaccinated in almost all instances

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.

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.

May 19, 2021

OSHA sends employers a strong signal that it intends to follow the CDC on masks

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.

May 17, 2021

Fixing some common misconceptions about HIPAA

Ever since the CDC amended its COVID-19 guidance to say that the fully vaccinated no longer need to wear masks indoors, I’ve read myriad variations of this tweet:

Friendly reminder that under HIPPA, your vaccination status is private.

Or this tweet:

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.

May 12, 2021

We are in the midst of a public mental health crisis; how employers can help

employers mental health; Millennials and mental health

Consider these statistics, courtesy of the National Institute of Mental Health, which recently examined mental health issues one year into the COVID-19 pandemic:

31 percent of people report symptoms of anxiety or depression.
13 percent report having started or increased substance use.
26 percent report stress-related symptoms.
11 percent report having serious thoughts of suicide in the past 30 days.

These grim numbers tell me that COVID-19 has created a national mental health crisis. At least some of your employees are struggling. Your challenge is what to do about it.

Here are four suggestions.

1. Check the benefits available to your employees. Do you have an employee assistance plan and are its mental health and counseling services are up to date? Are your health insurance plan’s mental health benefits easy to access and affordable? Do your employees know about state-offered resources, such as Ohio’s CareLine, a 24/7 community administered emotional support call service (800-720-9616)?

2. Revisit paid time off policies and consider providing employees the time they need to take care of themselves and their families. And understand that everyone’s situation at home is different. Some only have themselves to worry about, while others have families, older parents, etc. None of this is ideal, but for some, it’s less ideal than for others, depending on how much non-work responsibilities are on one’s plate.

3. Consider holding town halls or all-employee meetings that focus on mental health awareness. If senior leadership encourages education and communication around mental health issues, your employees will be more likely to access care if and when they need it. Leadership always starts from the top, and it’s vital that leadership leads on this issue.

4. Small gestures of kindness can go a long way. An extra day paid day off, a gift certificate for takeout meals or grocery deliveries or a surprise delivery of a mid-day snack can help employees feel appreciated and connected instead of overwhelmed and stressed.

Also, do not forget about or ignore your ADA obligations. The statute covers mental impairments no differently than physical impairments. If an employee is suffering from a mental illness you have an affirmative obligation to reasonably accommodate that employee, which might involve, for example, unpaid time off for the employee to obtain needed treatment.

Finally, do not ignore these issues or your employees who are living with them. Mental health illnesses are no different than other illnesses from which we suffer.

Treating them differently only increases the stigma that surrounds them and pushes individuals deeper into their illnesses and further away from the treatment they need.

May 10, 2021October 13, 2021

EEOC commissioner wants industry-specific COVID-19 guidelines

Last week, the EEOC held a public meeting on the impact of the COVID-19 pandemic on civil rights in the workplace. Following up on the remarks at that meeting, EEOC Commissioner Keith Sonderling, speaking at a virtual summit held by the Institute for Workplace Equality, said that employers need guidance on whether their COVID-related decisions are legal, and that the EEOC should issue industry-specific guidance to clear up these ambiguities.

Law 360 quotes Commissioner Sonderling:

I stress that the commission must issue new, common-sense guidance on return-to-work and other timely issues. Moving forward, the EEOC must begin to issue industry-specific guidance to address the array of issues that are becoming prevalent as the pandemic enters its final stage. … It’s my belief that businesses must know they will not be penalized by the federal government or through litigation for taking bold steps to help their workers thrive amid COVID-19 and ultimately return to the workplace.

High on my list of topics that the EEOC must quickly address is the legality of vaccine incentives. Another issue that I’d love to see the agency address is whether certain industries (e.g., health care, education) can be more strict with vaccine requirements than others, even for employees who might otherwise require a legal exception.

With vaccine hesitancy a legitimate barrier to reaching herd immunity, we need rules that will permit employers to get as many individuals vaccinated as possible. We need to be breaking down barriers, not erecting them.

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.