EverythingPeople This Week!

There is a growing argument that there should be three types of people considered under COVID-19 protocols:  unvaccinated, vaccinated, and previously infected.  This argument claims that because they were infected, they have the antibodies similar to vaccinations, and in certain studies, better protected than those who are vaccinated.

As we wait for the OSHA guidance detailing how employers (over 100 in employment) can implement mandated vaccination for employees, employers need to keep in mind how they require vaccination and testing may impact proper pay for non-exempt employees.

U.S. Department of Health & Human Service (HHS) issued additional guidance concerning how HIPAA rules intertwine with the COVID environment.  The guidance provides greater clarity to employers as to when HIPAA does and does not apply in various situations. The following is a rundown of the guidance.

Monday started the U.S Supreme Court's new year. Though it has some incredibly impactful cases in other areas of the law, it marks the start of this year’s docket looking at four workplace law questions.

Last month, the Supreme Court declined to take up the issue of whether the nation's schools must allow students to use the bathroom that matches their gender identities.  In that case, a 4th Circuit Court of Appeals decision, the court ruled in favor of Gavin Grimm, a transgender man who sued his Virginia high school for barring him from using the boys’ restroom.  Grimm stated that “[b]eing forced to use the nurse’s room, a private bathroom, and the girl’s...

The new Guidance from the Safer Federal Workplace Task Force (“Task Force”) issued on September 24, 2021, in response to the President’s Executive Order 14042, Ensuring Adequate COVID Safety Protocols for Federal Contractors, outlines the following requirements for federal contractors and subcontractors:

In addition to providing an employee valuable information about the company, its rules, benefits, and general practices, employee handbooks include a myriad of important legal compliance statements.  These statements are intended as not only employee notices that may or may not be required by law, but to set up employer affirmative defenses in the event of a wrongful employment action. These policies will generally not keep you out of court but do set up an argument that the company...

From sexual harassment to discrimination to power abuse, harassment affects more than just a handful of employees. Harassment deteriorates culture and morale and can lead to psychological discomfort, leaving a job, or lawsuits. Why is this happening? And how can organizations work to prevent harassment before it begins, or hear about issues when they arise?

An interesting report by Fisher Phillips, a management-side law firm that is tracking litigation coming from the COVID-19 pandemic and its impact on employers, found a big increase in employment lawsuits around COVID-19 situations. Fisher Phillips reports the lawsuits primarily involved remote work, leave, and employment discrimination issues.

Back in June we were gearing up for the new identifier redaction policy that was to go into effect in Michigan on July 1^st. This policy would have caused dates of birth to be redacted from court records before those records could be provided to the public. It would also have prohibited court clerks from using date of birth in searches and from verbally verifying dates of birth.

Last week, President Biden directed OSHA to issue an Emergency Temporary Standard (ETS) that will require all employers with 100 or more employees to ensure that their employees are either fully vaccinated or that the unvaccinated employees produce a negative test weekly before coming to work. The ETS will also require these employers to provide paid time off for their employees to get vaccinated or to recover if they are “under the weather post-vaccination.”

As ASE has written about previously, a vaccine mandate is allowed under law, except in jurisdictions which do not allow it, e.g. Montana. In addition, vaccine mandates in a union environment is still under question as to whether it has to be negotiated.  But employers are not flocking to this mandate.  In a recent ASE survey of 143 Michigan organizations, a majority of those surveyed (74.1%) continue to encourage vaccinations, but not mandate them.  Yet, the Delta variant...

There is some good news for employers regarding credit checks. In a recent lawsuit, TransUnion LLC v. Ramirez (No. 20-297), the Supreme Court reversed a $40 million class action judgement that was awarded to the class members at the circuit court level. The jury of the circuit court trial awarded $1,000 in statutory damages and another $6,300 in punitive damages to each class member. The punitive damages were reduced by half in the Ninth Circuit Court of Appeals before the case proceeded to...

The CDC's updated guidance suggesting facial coverings be worn in "public indoor settings" adds a new but hopefully surmountable barrier to returning the workforce to the office. The latest guidance has frustrated some employers who are attempting to develop sensible policies to return their workforce to offices.

More and more employers, including the federal government are considering either vaccine mandates or knowledge of an employee’s vaccination status.  Even President Biden will require vaccinations or knowledge of it for all government employees.  In the news recently, Dak Prescott, quarterback of the Dallas Cowboys, and Congressperson Marjorie Taylor Green both cited HIPAA as a reason to not disclose.  How should employers respond when employees yell out HIPAA?