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Usually at this time of year, before we ever heard the term COVID, I would find myself in the sun in Port St. Lucie, Florida, hitting baseballs and sharing stories with Ron Swoboda and Mookie Wilson and Doc Gooden. It was my regular winter ritual.
COVID threw a wrench into that ritual a couple of years ago. COVID has thrown a wrench into so many rituals over the last two years. It really is weighing us down. Sometimes I think it isn’t so bad. I mean, I have made great changes in my life that I would never even have considered were it not for this pandemic. But still, I have this feeling that COVID causes a cloud to always a cloud follow me around. Most of us just keep waiting for it be over. And I guess that when something this big is disrupting our lives for this long, we look for someone or something to blame. But this is too big to blame some “one” or some “thing.” This pandemic just is. It really has infected us, even those of us who have been fortunate enough not to be infected. In our changed world where nothing is as it was, we still turn to the rituals and recurring benchmarks of our past for comfort, distraction, and solace. For me, one of those is spring training and the start of baseball season as a harbinger of brighter days to come. In this third year of COVID haze, where one full baseball season was ripped away from us, and another was just unusual with seven-inning games, and ghost runners on second base, it looks like the hope that comes to us in the second week of February will not be there this winter. COVID is not the cause, yet, but it certainly has made this loss even worse. For those of you who don’t know, the Major League Baseball Players Association – the union – and the Major League Baseball owners are in the midst of a lockout that is likely to stall the commencement of the 2022 baseball season possibly well into the spring or summer. Last week the owners made their first substantive proposal in weeks to try to get a season back on track. Like most negotiations in the early stages, it landed with a thud. The players were reportedly unimpressed. The players want to reduce the time it takes for them to reach free agency and earn the right to negotiate contracts that recognize their full value. In today’s game, players who arrive to the big leagues in their early 20s are putting up huge offensive numbers and bringing eyes to screens and fannies to seats. But they don’t see paychecks that match the value they bring. Big pay in MLB depends on seniority and owners want to maximize the value they receive from these players for the longest time possible. It is no different from any other negotiation where leverage is what counts. After negotiating contracts for 25 years, I predict that we won’t see players on a field until late March, and that a full season of games is highly unlikely. And that will just make the haze of this pandemic worse for folks like me.
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During this pandemic — which is officially two years old — there have been workers who have essentially kept this country going. We have acknowledged them with hearts on front lawns, thank you notes, and parades.
I have maintained that the only way to truly acknowledge them is to pay them. Everything else rings hollow to me. From what I can tell, there hasn’t been much in the way of pay. Until this past week — finally. Last Tuesday, the state of Connecticut announced that it has set aside a fund of 34 million dollars accessible to eligible essential workers to compensate them for the work they did and the risks they took throughout the pandemic from January 2020 through July 2021. For some reason the fund is limited to losses incurred through July 2021, even though the pandemic did not end on that arbitrary date. But we had naïve hopes back then, didn’t we? In any event, this is a gift horse, so I will cease looking in its mouth. Let me tell you about the program. First, you can access information about it at www.ctessentialworkerrelief.org. All applications for the benefits must be submitted by July 20, 2022. The program is first-come, first-served, so it is best to act fast before the money dries up. Not every person who worked through the pandemic will be categorized as “essential.” To determine if you qualify, you will have to go to www.cdc.gov/vaccines/covid-19/categories-essential-workers.html. The program leaves it to the CDC job categories to determine who is an essential worker. Generally, essential workers are those who work in industries that are essential to ensure the continuity of critical functions in the United States. You need to have been a resident of Connecticut between March 10, 2020 and July 20, 2021 and have been employed as an essential worker during that time to be eligible. You must be able to prove that you or a deceased relative contracted COVID-19 during that same time frame and that you lost wages due to an inability to work after the COVID-19 diagnosis. Most healthcare workers will qualify. First responders will likely be eligible. Those are sort of no-brainers. But there is a host of other workers who kept us going while the pandemic has raged, including public works and utility employees, teachers and school staffs, store clerks and employees, corrections officers, courthouse personnel, state administrative workers, food and beverage manufacturers, childcare providers, transportation and communication personnel including non-federal postal and packaging services, news media, and banking and finance personnel. When you boil it down, just about everyone who went to work outside of the home was “essential.” If there is a question about eligibility, you should simply apply. So what are you entitled to under the fund? Generally the fund will reimburse eligible workers for lost wages, out-of-pocket medical expenses, and burial expenses. You will need to gather the following documents when you apply: proof of a positive test or attestation by you physician that you were diagnosed or positive for COVID-19, proof that you went unpaid as a result of the diagnosis and that you did not have a remote-work option during that time, and proof of your earnings during the time. Once you have that information, you will be able to complete the application online. I love this week between Christmas and New Year. Not much is happening at work; it is time to catch up with family and friends. A time to take stock. A time to rest.
I tend to do a lot of reading and writing during the week. Sometimes, I go down rabbit holes on the Internet. Earlier this week, with all of the news about COVID ramping up yet again, I was curious about when the virus first made news in America. The earliest story I could find was in the New York Times on January 6, 2020. Looking at the stories from that time, there was a lot that we did not know. Turns out, there is still a lot we don’t know as we enter our third year of the pandemic. I am finally coming around to the view that many embraced a while ago: nobody really knows much about this virus. And nobody in charge seems to have a clear idea about how to address it. Seems like an awful lot of flailing to me. I have gotten my Moderna shots and my booster. My experience is that the Moderna vaccine and booster have been effective in keeping me from getting any symptoms of COVID. The virus has been in my home a couple of times, but to date I have managed to avoid it. What does that mean for you and the rest of the world? Absolutely nothing from what I can tell. I take it to mean that for me, a 53-year-old guy with high blood pressure, the Moderna vaccine and booster taken according to guidelines did what it was supposed to do. And that is all. I guess that it might be better to be vaccinated than not. But I am not convinced that you have to get vaccinated. And I am not convinced that we as mere humans can stop this scourge brought upon us by Mother Nature. Thinking that we can is, frankly, the height of arrogance. Which leads me to my concern this week. This morning, one of my clients received notice that their employer was implementing the Biden administration’s COVID-19 Vaccination and Testing ETS issued by OSHA. The ETS (Emergency Temporary Standard) is intended to “protect” employees. Under the ETS, employers with over 100 employees must be informed of the vaccination status of each employee. Upon receipt of that information, the employer then gives unvaccinated employees a choice: agree to receive a vaccination or undergo regular weekly testing. OSHA says that “Unvaccinated Workers Face Grave Danger,” as if that is a fact. I am not so sure. Right now, from what I have seen, unvaccinated workers have made a reasoned (possibly disputable) choice not to get the vaccine. The danger associated with COVID could be as great as death, but that is a rare occurrence. Usually, COVID causes cold and flu-like symptoms that typically resolve within ten days - not a grave danger. Still, the ETS is being forced upon workers even though what we know about COVID changes from day to day and is often contradictory. I said from the beginning that forcing folks to do anything will be disastrous. It remains so. The ETS is not going to change that. It seems like it might make things worse. The Supreme Court is taking up the legality of the ETS on Friday. Let’s see where it all stands after that. In the meantime, sit tight. About six weeks ago I naively wrote that we finally had our hands around the neck of the pandemic and we were headed back to a normal work year in the new year. I think I must have gotten my booster around that time and I was feeling pretty bullet proof.
Since then I attended an event that required production of a negative COVID test within the preceding 48 hours, proof of full vaccination status, and masking at all indoor events. Following that event, twelve attendees tested positive. That was a week after we first heard breathless news reports about Omicron attacking South Africa. Unbeknownst to us at the time, it was apparently already here and bursting through the protection offered by a double vaccine. I credit the booster with helping me avoid infection. In any event our anticipation of a fairly normal holiday season has been put to rest. It ain’t happening people. So what will this mean in the new year. Well, interestingly, Connecticut is poised to implement new family leave laws on January 1 and those new laws are going to impact business response to the Omicron variant and all succeeding variants. The Connecticut Family and Medical Leave Act has been expanded to include more employees who previously could not take advantage of the law. Connecticut FMLA provides job protection to employees who must miss work to care for their own serious health or pregnancy condition or the serious health condition of a family member including grandparents, parents, siblings, and children. It also applies to bone marrow donation, as well as to those who have a family member in active military service who are experiencing a qualifying emergency. In order to be eligible for the Connecticut FMLA you must have worked for your employer for at least three consecutive months. If you are eligible, you are entitled to leave for 12 weeks in a 12-month period. The leave is unpaid unless you are eligible for paid leave from other source. Which brings me to the next new law. Connecticut’s Paid Family Medical Leave Act will start issuing paid benefits to eligible employees beginning January 1. In order to be eligible you must have elected the paid leave benefit through your employer which has been paid for by a deduction from your paycheck over the last year. Your employer can require you to use your available paid leave time concurrently with your unpaid leave time. Your employer can also require you to use your available paid leave time while out on FMLA leave. This all means though that whereas prior spikes in infections could leave employees without an opportunity to get paid while either on quarantine, or while dealing with illness related to COVID, beginning January 1 there will be ways for employees to be paid when dealing with the effects of COVID. And employers will also have to, at a minimum, hold jobs for employees who must miss work due to the effects of COVID. Employees will be able to take up to twelve weeks of leave time due to COVID and still return to their jobs when the leave has ended. This could create some difficulties for employers, but ultimately it should provide employers with some workforce stability over time which will serve their purposes and their employees’ purposes. At the end of last week, the U.S. Labor Department issued a startling report that inflation rose at an annual rate of 6.8 percent in November, representing the highest the inflation has been in 39 years. November was the sixth straight month that inflation has been above five percent.
Most economists agree that this inflation - which is unprecedented over two generations - is primarily caused by supply-chain issues brought on by Covid shutdowns to national economies across the globe over the last eighteen months. Those pressures have been exacerbated by the free flow of government stimulus money saturating the market which has driven demand for goods and services far beyond what is available from suppliers. The result is that when you go to the grocery store or the gas station, you are paying significantly more than what you were paying last year. And while this is clearly an economic policy problem, it is also a workplace problem for most American workers who are watching prices rise while wages do not keep up. As many of you know, I make a good part of my living by negotiating wages and benefits for labor unions. Contract negotiations in a union environment is part art and part science. The science part comes into play by looking at real data showing where the market is on wages and benefits currently. We also try to use that data, along with historical references to figure out where wages and benefits might be headed in the future as we negotiate contracts that will last three to five years from today. And what we are seeing in our bargaining, at least over the last year, is that employers have not recognized that labor costs are going to be on the rise for the foreseeable future. When we learned over the summer that inflation was on the rise most employers viewed it as a short-term problem that would resolve quickly once Covid vaccinations became prevalent and the supply-side market returned to normal. However, as we have seen, vaccination rates internationally have not come close to the seventy-to-eighty percentage rates we are seeing in the U.S., and, as a result, Covid continues to wreak havoc on international suppliers. We can conclude then that this inflation that we are seeing is likely going to continue well into 2022. And given the steep rise in November, we may soon be wishing for the days when inflation was only running at five percent annually. The upshot is that workers are going to start feeling the pinch in their pocketbooks in 2022 if wages do not keep up with inflation. From a household standpoint, folks are going to wind up cutting back on spending which is going to hurt employers and possibly lead to recession. The spiral is headed downward, and 2022 is looking like it is going to be a tough year for lots of households even if we are able to finally smother the pandemic. I would expect that over the next year we are going to see wage increases start to inch up for lots of workers. While it would be unreasonable to expect wage increases matching inflationary rates, it is likely that wage increases are going to pass the three percent annual threshold in 2022. That type of outcome will probably be necessary in order to keep the country out of recession. If you read this column regularly, you know that employer retaliation against your exercising your civil rights in the workplace is illegal under federal or state anti-discrimination laws.
For example, if you testify on behalf of a fellow employee who has been targeted with racial epithets in the workplace, you are protected from retaliation for giving that testimony. Likewise, if you make a complaint against a supervisor for using sexually hostile language in the workplace, and the company then starts to overly-scrutinize your work, you will be protected from that kind of retaliation. This is so even if the hostile language that you were subjected to did not rise to the level of a sexually-hostile work environment. Our courts have generally been very expansive in holding employers accountable for retaliatory behavior. The reasoning is easy to understand: if our anti-discrimination laws are intended to eradicate discrimination in the workplace, then folks need to feel comfortable reporting discriminatory actions or even testifying about discrimination. If discriminators can shield themselves from facing the consequences of their discriminatory acts by retaliating against witnesses, then discrimination will proliferate. The law will be incapable of putting an end to it. We have pretty robust anti-retaliation laws for the workplace. They are even tougher than the anti-discrimination statutes. The EEOC, the federal agency empowered to stop discrimination and retaliation in the workplace, recently put out some new guidance on addressing retaliation issues related to COVID. COVID has changed everything about the workplace, including, apparently, how folks discriminate and retaliate. It has gotten so bad that the EEOC is now putting out guidance on how to deal with it. Under the specific guidance that the EEOC has sent out, the agency has written that, in an example where an Asian-American employee complains about a coworker making abusive comments accusing Asian people of spreading COVID-19, said employee would be protected from retaliation. The EEOC has also reminded employers that where an employee is harassed for refusing the COVID vaccine for religious reasons and reports the harassment, any subsequent retaliation against the employee for reporting the harassment would be illegal. While sexual harassment has routinely occurred in-person in the workplace, the EEOC is now reminding employers that harassment can also occur in virtual settings including in videoconferences or via messaging apps. Employers need to ensure that anti-harassment policies are expansive enough to include remote work. The guidance also reminds employers that anti-retaliation laws apply to protect most employees regardless of the employees’ citizenship or work authorization status. Anti-retaliation protections apply to former employees as well. Typically, this will be in the context of post-employment recommendations for former employees. Retaliation occurs when an employer’s response is such that it could deter a reasonable person from engaging in protected activity like filing a complaint or testifying on behalf of a coworker. Retaliation, by its nature, is designed to dissuade folks from speaking out against illegal activity. That is why the anti-retaliation provisions of state and federal law need to be robust. Without stiff penalties, the policy designed to eliminate discrimination would fail. I embraced the idea of remote work really early in the pandemic. I always believed that there was a more efficient way to get traditionally office-based work done rather than through commuting and remaining stationary at a desk from nine to five.
I have never been a supporter of meetings because I have believed that they are often too long, unfocused, and time-wasting. The pandemic has shown us that many workers and managers agree. The pandemic presented us all with an opportunity to redesign how work can be done. For those who had enough foresight to embrace the new model and refine it to their needs, the results have shown that employees are happier, more productive, and more efficient. Now, as the pandemic is slowly being brought to its knees, we are facing the question of how we are going to do our work moving forward. Are we going to simply view the pandemic as an earthquake from which we rebuild by returning back to the way things were? Or instead, are we going to recognize that the seismic changes in the workplace that were caused by the pandemic have refashioned the way work will be done in the coming decades? I am a believer in the second notion, but not everyone, including many in my line of work, agrees. The labor market has changed, and we are living through what is being termed the “great resignation.” Workers are using newfound leverage to help redesign the workplace in a way that is more satisfying to their needs and allows them to live the fuller lives they desire. The changes brought about by a nearly two-year pandemic have made workers aware of the lives they could and should be living. And workers are no longer accepting of the lives that have essentially been forced upon them by the demands of a now-outdated labor market. The facts are that talent is talent and antiquated rules are unnecessary to release that talent. An exceptional employee will be exceptional whether she is doing the work between 3 p.m. and 7 p.m. or 9 a.m. and 5 p.m. She will be exceptional whether she is doing it in a non-descript office building or while sitting by the pool in her backyard. Functional workers who can get their work done in three hours will no longer tolerate sitting at a desk for eight hours, commuting for another hour, and wolfing down their meals while passing through their homes and neighborhoods for the remainder of their waking hours. As these changes take hold and become foundational, the law will necessarily have to adapt. How will overtime hours be calculated? How much paid time off will be necessary? Will paid time off even be a consideration for workers? Will workers be expected to work even a few hours a day even when taking “time off.” Will workers object to checking in or handling occasional issues when otherwise traveling with families or friends? Will sick time be necessary for those dealing with a child’s illness or a parent’s convalescence? The workplace has changed forever. Soon it will be necessary for norms and laws to catch up. That day is coming fast. I got my COVID booster last week and a flu shot to boot. I feel like maybe I should get through the winter without even a cough. But we’ll see.
The 490 page federal vaccine mandate that came out last week doesn’t really affect me directly. But it will affect many of you directly. And of course there will be indirect effects like labor market impacts, supply bottlenecks, and hopefully (finally) a squashing of the virus to manageable levels. Not to say that it is not manageable in Connecticut yet, because it appears to be. Still, there are enough folks out there who remain extra vigilant against a virus that has, for the most part, been brought to its knees in Connecticut. That vigilance is impacting our ability to get the economy back to the full-blown roar it was at before the pandemic hit us. So now, as the eye of the storm heads out to sea, we are faced with a 490-page “temporary standard” issued by OSHA that mandates vaccinations for most private employees that work for employers with 100 or more workers. The mandate goes into effect on January 4 after being pushed back by a month. The standard requires covered employers to take a few important steps in order to comply with the mandate. First, employers have to put a written mandatory vaccination policy in place within 30 days. Smart and prepared employers will also be ready with forms to give to employees seeking either a religious or a medical accommodation. Those employers with union employees will have to be ready to discuss the impacts of the mandate on those bargaining units. The OSHA Emergency Temporary Standard (ETS) will require covered employers to provide employees with information about the ETS, including information about policies and procedures along with information about the safety and benefits associated with the vaccine. Further information includes notice about anti-discrimination and retaliation and notices regarding criminal penalties for providing false information. Employers are required by the ETS to determine the vaccination status of employees. The ETS provides employers with various ways of accomplishing this task. If an employee will require a vaccination, the employer will be required to grant the employee sufficient paid time off to get the vaccine. Under the ETS, four hours to obtain two shots is deemed reasonable. The employer cannot deduct this paid leave from other available leave time, like sick or vacation, that the employee has accrued. Paid sick leave must also be provided to employees to recover from the side effects associated with the vaccination. In order to comply with the requirement of paid leave time to recover from vaccine side effects, employers can require the employee to use their own personal sick, personal, or vacation leave for the purpose. OSHA has determined that two paid leave days for each shot is reasonable in order to allow a full recovery. Employers will also be required to provide records regarding the vaccination status of work staff within 24 hours of request. It will therefore be important for an employer to have that information regularly updated and available in swift fashion. According to recently-released data, more than 78 percent of Connecticut’s population has received at least one dose of a COVID-19 vaccination, and more than 70 percent of the population is considered “fully vaccinated.”
By next week, children aged between five and eleven years old will be eligible for a vaccination. Connecticut’s numbers put the state well above the national average where just 57.6 percent of the national population is fully vaccinated. Many of those folks who have yet to be vaccinated are unlikely to ever voluntarily get the jab, despite the fact that many of those same people face job loss for defying vaccine mandates by their employers or the government itself. Many of those who have legally avoided vaccinations to date have done so as a result of a religious objection to the vaccine. But just this week the EEOC has passed new guidelines designed to make it more difficult for religious objectors to avoid employment consequences for refusing the vaccine. Title VII of the federal civil rights law requires employers to accommodate employees who object to getting a vaccine based on a “sincerely-held religious belief.” To date, employers have been counseled to avoid challenging the sincerity of an employee’s religious belief except in exceptional circumstances. As a result, most claims of a religious objection by employees have resulted in accommodations allowing the employees to avoid getting a vaccine. The EEOC still maintains that employers should “generally assume an employee’s religious belief is sincerely held unless there is a basis to question it, in which case the employer may make limited inquiries and seek additional supporting information.” However even where an employee can support a sincerely-held religious belief, the EEOC’s new guidance is giving employers more leeway on determining whether or not a reasonable accommodation can be provided without causing “undue hardship” to the employer. If a proposed accommodation would cause “undue hardship” to the employer, then the employer need not provide the objecting employee with an exemption from the vaccine mandate. Under the new guidance, the EEOC is advising employers that they can define “undue hardship” more broadly than previously counseled. Where a religious accommodation is sought, an undue hardship will be considered one that causes simply more than a de minimis cost. Further, the EEOC now says that employers can consider various common and relevant impacts of an accommodation including whether the employee works outdoors or indoors; whether the employee works in a solitary or group work setting; and whether the employee has close contact with other employees, members of the public, or medically-vulnerable individuals. Additionally, the employer can take into account the total number of employees who are seeking an accommodation for similar reasons. In other words, the employer can consider the cumulative burden upon it when assessing each individual request for an accommodation. The result of the EEOC’s new guidance could be that fewer religious exceptions to mandate requirements are granted by employers. Still, it is hard to imagine that employers will be willing or able to take disciplinary action against an employee that refuses a vaccine for religious reasons, not only because it could lead to a lawsuit, but also because the workers could be very difficult to replace, and therefore negatively impact the bottom line. I had a new issue arise this week regarding vaccines. We are fully involved in vaccine mandates now, but the new issue is whether or not employers can mandate vaccine booster shots.
Over the last several weeks, the FDA has approved COVID vaccine booster shots for varied demographic groups. According to the FDA Commissioner the available data suggests “waning immunity in some populations who are fully vaccinated.” Therefore, the FDA issued “emergency use authorizations” for the Moderna and Johnson and Johnson vaccines. Those folks who originally received the Pfizer vaccine have been eligible to receive Pfizer boosters since September. Folks who received the Moderna vaccine will be eligible to get a booster six months after their second shot, while those who received the J&J vaccine can get a booster two months after their only shot. In addition, the FDA has approved mix and match vaccinations on the booster, meaning, for example, that if you got J&J the first time, you can get Pfizer for a booster. This is called heterologous boosting. Currently, boosters for those who received the Pfizer and Moderna vaccines will only be available for people aged 65 and older or for those aged 18 to 64 with health conditions that put them at high risk of severe illness from COVID. This group includes healthcare workers, teachers, and those working or living in homeless shelters or prisons. For those who received the J&J vaccine, boosters are recommended regardless of age or health factors. On Friday, the CDC director said that given the new authorizations for boosters, the U.S. may alter or update its definition of “fully vaccinated.” This is where the issue of mandating boosters comes in. Under the Connecticut vaccine mandate issued by Governor Lamont in Executive Order 13G, “fully vaccinated” is defined as meaning that “at least 14 days have elapsed since a person has received the final dose of a vaccine approved for use against COVID-19 by the U.S. Food and Drug Administration, or as otherwise defined by the Centers for Disease Control.” The mandate currently requires covered workers to be “fully vaccinated” by September 27, 2021, or to “have received the first dose and have either received a second dose or have an appointment for the second dose in a two-dose series vaccination, such as Pfizer or Moderna vaccines. . . .” But if the FDA and the CDC are now saying that boosters are recommended for those who have otherwise been considered “fully vaccinated,” then it is likely to occur that in order to continue to comply with the mandate, workers will be required to get a third vaccine dose, or a second dose if originally in receipt of the J&J vaccine. Notwithstanding any governmental vaccine mandate applying to covered workers, some private employers not covered by the governmental mandate may also decide to mandate a booster vaccine for their workers. Under the law as it currently stands, employers in Connecticut may do so in order to ensure the health of their employees and their customers and vendors. This means that given the recommendations of the FDA and the CDC we are likely to begin seeing booster mandates from employers. The same analysis that has applied to the original one or two-shot vaccines will also apply when it comes to booster mandates. |
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