In the summer of 2021, Illinois Governor J.B. Pritzker signed into law several amendments to Illinois statutes focused on equal pay initiatives. One of those amendments requires companies with 100 or more employees in the state, who also file an EEO-1 (Annual Employer Information Report) with the Equal Employment Opportunity Commission (“EEOC”), to obtain an Equal Pay Registration Certificate (“EPRC”) from the Illinois Department of Labor (“IDOL”) and recertify on a rolling two year basis. The first EPRC Reporting deadline was March 23, 2024. The intent is to make the EPRC data – similar to that on the EEO-1 – public within 90 days of the IDOL’s receipt of the data.

While IDOL regulations state that the agency would contact every qualifying Illinois business and provide at least 120 days’ notice of the company’s compliance date for obtaining an EPRC, it is possible – even likely – that not every qualifying business heard from the IDOL or received compliance instructions.

However, employers should note that the required application materials include a current EEO-1 report and the demographic data that report entails, and an equal pay compliance certification that the average compensation of female and minority employees (as defined in the Business Enterprise for Minorities, Women, and Persons with Disabilities Act, 30 ILCS 575) is “not consistently below” the average compensation for male and non-minority employees. The company must also certify that it is in compliance with all other equal pay and anti-discrimination laws. The IDOL has an online EPRC Portal which will walk employers through the process.

Employers determine whether they have 100 or more qualifying employees by counting the number of full and part-time employees working for the business where the business’s base of operations is within Illinois. Remote employees count towards the threshold if the location from which the job done by the employee is directed or controlled is within Illinois. Remote employees who live in Illinois even if the job is directed or controlled from outside the state also count towards the qualifying threshold.

Independent contractors do not count toward the 100 employee threshold.

The IDOL FAQ’s indicate that the agency will contact employers regarding the two year recertification requirement with at least 180 days’ notice before the recertification deadline. The statute affords employers a 30 day compliance window for inadvertent failures to comply with the EPRC application requirement. Future violations of the EPRC requirements may carry a fine of up to $10,000.

If you have questions about the Illinois Equal Pay Act or other pay equity and transparency matters, please reach out to a member of Kelley Drye’s labor and employment team.

Recoveries

The EEOC recovered $665 million for employees, representing a 29.5% increase over Fiscal Year 2022. This figure includes the recovery of $440.5 million for private sector and state and local government workers and $202 million for federal employees. Recovery refers to amounts collected through litigation, mediation, conciliation, and settlement.

Litigation

The EEOC reported filing 143 new lawsuits in 2023, which constitutes an increase of more than 50% from the previous year. Specifically, the lawsuits included 86 suits on behalf of individuals, 32 non-systemic suits with multiple victims, and 25 systemic suits involving multiple victims or discriminatory policies. Through litigation, the EEOC obtained more than $22.6 million for 968 individuals while resolving 98 lawsuits and achieving favorable results in 91% of all federal district court resolutions. The breakdown of the recovery by claims is: $16.5 million for Title VII claims, $3.8 million for ADA claims, $1 million for multi-statute claims, $800,000 for ADEA claims, and $500,000 for Equal Pay Act claims.

Increased Demand

The statistics demonstrate an increase in demand for EEOC services. The EEOC received 81,055 new discrimination charges, 233,704 inquiries in field offices, more than 522,000 calls from the public through the agency contact center, and over 86,000 emails, representing respective increases of 10.3%, 6.9%, 10%, and 25% over Fiscal Year 2022. This increase signals a heightened awareness of the EEOC and corresponding likelihood of bringing a claim.

Priority Areas

The EEOC identified the following as priority areas - addressing systemic, preventing workplace harassment, advancing racial justice, preventing and remedying retaliation, advancing pay equity, advancing diversity, equity, inclusion, and accessibility (“DEIA”) in the workplace, and addressing the use of technology, including artificial intelligence, machine learning, and other automated systems in employment decisions. These priorities reflect many of the hot button topics in employment law.

PWFA

The PWFA addresses workers who face discrimination based on pregnancy, childbirth, or related medical conditions and was signed into law on December 29, 2022. As we previously reported, it requires covered employers to provide reasonable accommodations to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions. The PWFA became effective June 27, 2023, and the EEOC began accepting charges arising from the PWFA on that date. As this change occurred towards the end of Fiscal Year 2023, it will be interesting to see the evolution of PWFA claims into the remainder of 2024.

Conclusion

Given the increases in charges, litigation, and demand for EEOC services, employers should continue to keep their guard up, particularly due to the increases in monetary recovery. With the upcoming presidential election, employers face the potential for the continuation of the EEOC’s aggressive agenda or a potential shift in a different direction. Below are some best practices for employers for the remainder of 2024:

• Continue to provide regular training and make sure internal complaint and investigation procedures and policies are properly followed.
• Review and update pregnancy accommodation policies to make sure they comply with the PWFA.
• Identify any potential risk areas and work with counsel to develop mitigation strategies.

The proposed guidance lays out in detail the legal standards applicable to harassment claims under the federal law and provides a variety of illustrative examples coupled with references to recent case law.

One of the most notable aspects of this guidance is the incorporation of the Supreme Court’s decision in Bostock v. Clayton County. In Bostock the Supreme Court ruled that Title VII’s protections extended to claims for discrimination on the basis of sexual orientation and gender identity. Although that case dealt with a discriminatory termination, and not harassment, in the proposed guidance, the EEOC has noted: “[t]he Supreme Court’s reasoning in the [Bostock] decision logically extends to claims of harassment.”

The proposed guidance unequivocally states that Title VII extends to claims for harassment on the basis of sexual orientation or gender identity, “including how that identity is expressed.” Beyond these overt protections for LGBTQ+ employees, the proposed guidance also expressly acknowledges pregnancy, childbirth, and “related medical conditions,” encompasses harassment claims based on a woman’s reproductive decisions, including those related to contraception and abortion.

The EEOC’s proposed guidance lays out a playbook for how employers can show that they have exercised “reasonable care” both to prevent and correct harassment by describing in detail features of effective anti-harassment policies, processes, and training.

But the guidance is not final just yet. It is anticipated that the guidance will be published in the Federal Register on Monday, October 2, and once published the draft guidance will be open for public comment for 30 days.

Although the guidance itself will not be legally binding, employers would be wise to review this lengthy document and understand myriad ways that employees can pursue harassment claims against employers. If anything, it is a reminder that the best defense to these kind of claims is working to foster a respectful workplace and maintaining effective policies to mitigate issues that may arise. If you have any questions concerning compliance of your business’s current harassment policies or procedures, please contact a member of Kelley Drye’s Labor and Employment team.

In a recent webinar, Kelley Drye Partners, Kimberly Carter and Katherine White, and General Counsel & Deputy Comptroller for Legal Affairs, NYC Office of the Comptroller, Justina K. Rivera, explored the current AI legal and regulatory landscape in the U.S. and the opportunities and challenges associated with using AI-related technologies in the employment context. In this blog post, we summarize the high-level takeaways from the session.

AI Legal and Regulatory Landscape in the U.S.

Currently, no federal law specifically regulates the use of AI-related technologies. However, in recent years, federal regulators, including the Equal Employment Opportunity Commission (EEOC) and the Department of Justice (DOJ), have taken certain steps that demonstrate that they have been (and will remain) focused on the use of AI in the workplace.

More notably, in April 2023, the Federal Trade Commission (FTC), the Consumer Financial Protection Bureau (CFPB), the DOJ’s Civil Rights Division, and the EEOC issued a joint statement noting that existing laws apply to the use of AI-related technologies and affirming that each agency/department will use its existing statutory authority to protect against unlawful discrimination in AI systems.

Moreover, in the absence of federal legislation regulating the use of AI-related technologies, certain state and local lawmakers have enacted laws that regulate the use of such tools in the employment context.

• Illinois: In 2019, Illinois enacted the Artificial Intelligence Video Interview Act (effective January 1, 2020), which, among other things, requires an Illinois-based employer to provide notice and obtain a job applicant’s consent prior to using AI to analyze the applicant’s video interview and consider the applicant’s fitness for a position.
• Maryland: In 2020, Maryland enacted House Bill 1202 (effective October 1, 2020), which prohibits a Maryland employer from using certain facial recognition services during an interview without the job applicant’s consent.
• New York City: In 2021, New York City enacted the most expansive law in the U.S. regulating the use of AI in the employment context to date. Local Law 144 (effective January 1, 2023; enforceable July 5, 2023) prohibits a covered employer/employment agency from using an automated employment decision tool in hiring or promotion decisions unless: (1) the tool has been subject to an annual bias audit; and (2) the employer/employment agency has provided a notice to each job applicant or employee at least 10 business days prior to the use of the tool.

Several other states, including California, Massachusetts, New Jersey, and Vermont, are considering legislation that would also regulate AI in the workplace.

Putting It Into Practice

As federal, state, and local lawmakers and regulators continue to respond to the proliferation of AI-related technologies, an organization that is using these tools in the employment context should take certain steps to ensure legal compliance and help avoid regulatory scrutiny, including the following:

• Assess current uses of AI-related technologies to determine whether any existing laws and regulations are applicable.

• Conduct bias audits of AI-related technologies, including those provided by third-party vendors, to ensure that there is no disparate impact on protected classes (e.g., race, sex, disability, etc.).
• Prepare and distribute required notices to job applicants and/or employees regarding the use of AI-related technologies and obtain required consents.
• Ensure that the use of AI-related technologies is explainable and consider implementing a dispute process so that job applicants and/or employees can dispute and correct inaccurate information that may have contributed to an adverse employment decision.
• Monitor developments and consult legal counsel to ensure that the organization is aware of proposed and recently enacted laws and regulations and meeting its obligations.

Last week, the U.S. Equal Employment Opportunity Commission (EEOC) introduced proposed regulations to assist covered employers in their implementation of the PWFA. The proposed regulations identify certain accommodations for pregnant and postpartum workers that must be provided regardless of the circumstances. As a result of these proposed regulations, employers throughout the nation should be preparing themselves to identify and better manage requests for accommodation from pregnant and postpartum workers.

What’s the status of the proposed regulations?

The EEOC unveiled the proposed regulations on Monday, August 7, 2023, and subsequently published these proposed regulations in the Federal Register on Friday, August 11, 2023. The public will have 60 days to comment on the proposed regulations. The EEOC has asked for input on specific areas including defining key terms and examples of what would constitute reasonable accommodations under the law.

Has the EEOC identified reasonable accommodations?

The EEOC has identified four pregnancy accommodations that should be granted in almost every circumstance. These accommodations include allowing employees to carry and drink water as needed, additional restroom breaks, standing and sitting options, and additional breaks to eat and drink.

Additionally, the EEOC identified other examples of possible reasonable accommodations that a covered employer must provide unless it can demonstrate that the accommodation would impose an undue hardship, including:

• Schedule changes, part-time work, and paid and unpaid leave
• Telework
• Closer parking spaces
• Light duty
• Making facilities accessible or modifying the work environment
• Job restructuring

What’s the interplay between the PWFA, PDA and ADA?

Historically, two federal laws have governed an employers’ obligation to pregnant and postpartum workers. The Pregnancy Discrimination Act of 1978 (PDA) prohibits discrimination on the basis of pregnancy, childbirth, or related medical conditions. By contrast, the Americans with Disabilities Act of 1990 (ADA) prohibits discrimination based on a disability, including a disability related to a pregnancy (i.e. diabetes that develops during pregnancy). The PWFA bridges the gaps between these two federal laws, both of which provide minimal guidance with regard to appropriate reasonable accommodations for pregnant and postpartum workers.

The PWFA does not replace federal, state, or local laws that are more protective of employees and applicants and the PWFA does not apply to claims of discrimination. Rather, the PWFA focuses only on a covered employer’s obligation to provide reasonable accommodations.

What can employers do now to comply with the PWFA?

The EEOC began accepting charges alleging violations of the PWFA on June 27, 2023, leaving employers in a quandary as to how to comply with the new law with very little guidance. The EEOC’s proposed regulations shed some light on what accommodations may pass muster, but what practical measures should a covered employer consider now to manage risk? Here are some tips:

• Policy Updates: While many employers may already have policies in place that comply with the PDA and ADA, covered employers should review and, if necessary, update their accommodation policies to ensure compliance with the PWFA, as well as related state laws.

• Revamp Protocols: Employers must reevaluate and/or formalize processes for managing requests for accommodation from pregnant and postpartum workers, thereby ensuring that employers consistently satisfy their obligation to engage in the interactive process pursuant to the PWFA.

• Training: Employers should consider training managers on how to identify requests for accommodation from pregnant and postpartum workers, including channeling these requests to the appropriate individual(s) within the organization who is tasked with facilitating workers’ accommodation requests.

As covered employers navigate these new accommodation requirements, Kelley Drye’s Labor and Employment team can assist employers in their efforts to ensure compliance with the new law, including updating policies and procedures and training Human Resources and supervisors to identify and better manage pregnant and postpartum workers’ requests for accommodation.

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In the SFFA ruling, the Court struck down affirmative action programs at Harvard and the University of North Carolina, holding that the admissions programs at both universities violated the Equal Protection Clause of the 14th Amendment. On July 13, 2023, the Attorneys General (the AGs), of thirteen states – Alabama, Arkansas, Indiana, Iowa, Kansas, Kentucky, Mississippi, Missouri, Montana, Nebraska, South Carolina, Tennessee, and West Virginia – sent a letter to the CEOs of Fortune 100 companies warning that their current race-conscious hiring and promotion preferences violate the law, and citing the SFFA decision as authority. The AGs’ letter threatens that hiring and promotion quotas favoring minorities violate Title VII of the Civil Rights Act of 1964, and may further violate analogous state laws that the AGs have jurisdiction to enforce. Similar to the Supreme Court’s analysis of the affirmative action issue, the AGs argue that even if DEI hiring programs are benignly designed to “help” members of certain minority groups, they naturally do so to the detriment of others who do not meet the same protected criteria. Senator Cotton certainly takes a similar view.

Then, on July 17th, Senator Tom Cotton (R-Arkansas) sent a letter to 51 major U.S. law firms, claiming that DEI employment initiatives violate federal law and the Supreme Court’s holding in SFFA. In his summary, the Senator broadened the threat not just to the firms themselves, but to their clients as well, warning: “to the extent that your firm continues to advise clients regarding DEI programs, or operate one of your own, both you and those clients should take care to preserve relevant documents in anticipation of investigations and litigation.”

To further confuse businesses, on July 19, the Attorneys General from 21 states sent their own letters to a number of large companies stating that DEI programs are lawful. They pointed out that the SFFA decision does not apply to private businesses, and that DEI programs are still a lawful goal for companies to pursue. The pro-DEI AGs go on to encourage employers to continue to advance diversity lawfully, and to recruit and retain diverse employees. Faced with these two competing viewpoints, employers are left to pull out their hair in confusion.

Who is right: Are DEI Progress Unlawful?

First, the July 19th pro-DEI AG’s are correct: the SFFA decision does not directly apply to private employers. The decision only addressed the narrow issues of whether the admissions process of two educational institutions, both of which accept federal financial assistance, violated Title VI of the Civil Rights Act of 1964 and the Fourteenth Amendment. These laws do not apply to private employers, which are covered by statutes like Title VII, and use different legal frameworks to analyze claims of discrimination. Those legal tests were not affected by the SFFA decision at all.

Additionally, even before the SFFA decision, many of the processes which universities were allowed to follow in admissions were already illegal for a private employer – which cannot favor one race over another in employment decisions. Under Title VII, private employers are prohibited from making decisions based on race and other protected characteristics. Unlike higher education, federal law has never allowed employers to take race into consideration in making employment decisions, and employers generally are not permitted to take employment actions motivated by protected characteristics, including meeting racial- or sex-based quotas.

The EEOC’s View

Following the SFFA decision, the EEOC released a statement reiterating that the decision does not address employer efforts to foster diverse and inclusive workforces. The EEOC has made it clear that it remains lawful to implement DEI programs to ensure that workers of all backgrounds are provided with an equal opportunity in the workforce. This dichotomy between the EEOC and conservative political elements in Congress, mean that employers who choose to implement DEI programs must pay attention to the swinging political pendulum, and be ready to adapt as necessary to conform with any power changes in Washington (or, alternatively, be prepared to bear the financial costs of litigating any challenges).

The opposing view as stated by the 13 AGs’ letter to the Fortune 100 CEOs, is concerned with any progress that provides a benefit to some applicants but not others in a corporate setting. Corporate DEI hiring programs that have given a “plus” factor to some protected characteristics, may operate as “negative” factors for others, and might not hold up under greater scrutiny in future litigation. In the wake of the SFFA decision, we may see an uptick of “failure to hire” lawsuits by non‑diverse applicants, who allege that they were not fairly considered based upon an employer’s publicly-expressed DEI initiatives, which are perceived to favor minority-applicants.

Are reverse-discrimination claims on the rise?

In recent years, there has been an increase in cases where Caucasian employees have sued claiming reverse discrimination, and won. For example, in Philips v. Starbucks (Case No. 1:19-cv-19432-JHS-AMD, D.N.J. June 15, 2023), the New Jersey federal court awarded $25.6 million dollars to Philips, a White manager who was fired following an incident with a Black customer. In Philips, the jury found that the plaintiff’s termination was motivated by her race.

In another example, a conservative group filed a complaint with the EEOC against McDonald’s concerning the fast food giant’s DEI strategy. In the letter Michael Ding of America First Legal Foundation wrote, “In its 2021-2022 Global DEI Report, the corporation credited its “Global Diversity, Equity and Inclusion Strategy” as the primary cause for driving an increase in women at the Senior Director and above level from 37% in 2020 to 41% in 2021, and an increase of “Underrepresented Groups” from 29% to 30%.5 … To further incentivize managers to hire and promote employees according to these quotas, in 2022, the corporation has, among other things, expanded its quantitative metrics to hold all Vice Presidents, Senior Vice Presidents, and Managing Directors “accountable for engaging in inclusive behaviors that support talent development and building a strong diverse succession pipeline” and implemented race, sex, and national origin based preferences and quotas for hiring, promotion, and training within its legal department.”

There’s also the Netzell v. Amer. Express Co. (2:22-cv-1423-SMB, D. Az.) case, where American Express is currently being sued by a group of employees who claim that its DEI initiatives directly violate Title VII. The rise of “anti-woke” activism, particularly by conservative-aligned, non-profit organizations, will only increase this trend.

What Should Employers Do?

The SFFA decision did not change the law for private sector employers. However, it certainly signals a “shift in the winds,” which may have indirect implications for the continued trend of pushback against DEI initiatives. Now is the moment to act, before your company is targeted for a lawsuit. Take proactive steps to assess your diversity programs, and eliminate any adverse risks.

• Evaluate your DEI initiatives. Review your voluntary DEI initiatives and programs carefully and make sure they are compliant with the law. There should never be a mandate or directives to “favor” or “target” certain groups for hiring or promotion. Avoid or eliminate direct numerical targets, such as “10% of this team must be a certain demographic”. Look closely at leadership acceleration programs or internship programs that are open only to members of underrepresented minority groups, as these may come under scrutiny under the expected wave of further litigation.
• Review Your DEI Communications. Review internal and public facing DEI communications to avoid statements that may be mischaracterized as unlawful. Take care to be clear that your company is committed to all employees, regardless of protected class. Make sure that race or ethnicity are not explicit “plus” factors in any employment decision. Also make sure that executives are careful about statements that indicate any sort of racial or ethnic preference.
• Use Other Factors to Encourage Diversity. It is important to keep in mind that DEI programs do not exist to favor certain groups of individuals over others. These programs exist because diverse, equitable, and inclusive workplaces may be more successful, agile, and equipped to fit customer and client needs. Rather than directly relying upon an individual’s race or other protected characteristic, it may be more appropriate to consider an individual’s history of overcoming adversity or economic status when making hiring decisions.
• Expand Your Recruiting Efforts. The SFFA decision is likely to have an effect on the diversity of graduating classes in higher education, which will result in decreased diversity in applicant pools coming from at least certain colleges and universities. Employers committed to ensuring a diverse applicant pool may want to reconsider what colleges and universities they recruit and hire from as part of this effort. Employers may also lawfully take steps to ensure the applicant or talent pipeline includes people of all backgrounds.
• Pay Attention to State Law Requirements. A number of states and localities have enacted their own anti-discrimination laws. More recently, a small number of states have enacted “anti-DEI” statutes that could affect your business. Employers in these jurisdictions should be cognizant of the applicable laws and consult with their counsel to ensure any DEI programs are compliant.

Of course, this all must be undertaken without any suggestions that diversity would be seen as a negative factor. You never want to suggest that hiring or promoting a diverse person would be a bad thing, everyone should be judged on merit.

Employers who value diversity do not need to immediately abandon their diversity initiatives, but do need to expect that they may be challenged, and ensure that they are compliant with the law and do not promote favorable treatment of one ethnic group over another.

If you have any questions concerning your business’s current DEI initiatives or the impact of the SFFA decision, please contact a member of Kelley Drye’s Labor and Employment team.

While it remains to be seen how the lower courts apply Groff, for employers in healthcare and transportation and hospitality with 24/7 scheduling needs, Groff could make staffing on weekends a bigger challenge than it already is.

Background

Title VII (along with all state and many local laws) has long-required employers to provide applicants and employees with a “reasonable accommodation” from any employment obligations that may conflict with their religious beliefs or practices. The key word here is “reasonable.” Employers do not need to provide accommodation if doing so creates an undue hardship for the business.

Courts, lawyers, and businesses have grappled with the meaning of these terms for decades, especially when it comes to the issue of accommodating Sabbath observance, which generally entails requests for weekend days off. Up until Groff, the Supreme Court’s decision in Trans World Airlines (TWA) v. Hardison, 432 U.S. 63 (1977) had set the standard. Hardison concerned an employee’s request for Saturdays off from work to accommodate his religious observance, which conflicted with seniority rules and other employees who also wanted that day. In Hardison, thecourt found in favor of TWA, ruling that the employer did not have to grant the accommodation, because it would have borne “more than a de minimis cost.”

Since Hardison, courts have repeatedly clashed over the definition of “undue hardship” and the threshold an employer must demonstrate in order to reject an employee’s request for religious accommodation. Many courts took this decision to mean that any religious accommodation that produces a “more than a de minimis cost” would not need to be granted. By that definition it is a relatively low bar for employers to prove, allowing more employers to deny religious accommodation so long as it they can prove minimal impact on operations. Additionally, it was generally recognized that employers did not have to violate seniority rules or a union contract in order to grant religious accommodation.

This may all now change due to the Groff decision.

Groff v. DeJoy

Groff also arose out of a dispute over time off, and concerned a U.S. Postal Service employee (Groff) who requested Sundays off from his job at a small rural Post Office to accommodate his Evangelical faith. This was not an issue until his branch partnered with Amazon and began delivering packages on Sundays. Groff then requested and received a transfer to a different branch that did not deliver on Sundays. When the second branch also partnered with Amazon Groff remained unwilling to make deliveries on Sundays. For a time the Post Office did attempt to accommodate Groff, staffing other employees to cover his shifts. Eventually however, Groff was disciplined for failing to work on Sundays, and ultimately resigned. Groff then sued the Post Office for religious discrimination on account of its unwillingness to accommodate his religious beliefs.

The lower court applied the Hardison standard and sided with the Post Office, finding that granting Groff’s accommodation would have presented more than a de minimis cost to the Post Office. The Supreme Court however, found that the lower court applied the wrong standard, and sent the case back to the lower courts to apply the new standard adopted in its opinion.

Groff’s New “Undue Hardship” Standard

Although the Supreme Court claimed that it was not directly overruling Hardison, it came very, very close, and certainly implied that ‘de minimis,’ as defined under Hardison, was no longer the operative test.

The Supreme Court criticized the way Hardison had been applied over the years, and held that many courts applying Hardison failed to invoke the fact-specific analysis and consideration of alternatives, that is required under Title VII, to evaluate a request for a religious accommodation. Implicit in the criticism was an undertone that more accommodations should have been granted.

The Court stated that in order to deny a religious accommodation (or defend any claim for failure to accommodate), the “employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.” As part of this analysis, the Supreme Court stated that employers must consider: (i) the particular accommodations at issue, (ii) their practical impact in light of the nature, size and operating cost of an employer, and (iii) the availability of alternative means of accommodating the employee’s religious beliefs.

Interestingly, the Court stated that it did not believe that the EEOC would need to change its guidance. The Court also did not “foreclose the possibility that the (Postal Service) would prevail” under this new standard.

It will be interesting to see how the lower courts treat Mr. Groff’s claim the second time around. And whether showing the effects of Mr. Groff’s accommodation on other employees, and slowed delivery of mail in the area will be enough to show an undue hardship.

What Should Employers Do Now?

Right now – nothing is required. Assuming that you have a policy that provides for individual consideration of requests for religious accommodation, you do not need to change that policy.

However, in applying that policy, we suggest that you keep the following guidelines in mind:

1. Be more careful how you apply your religious accommodation policy, and be more cautious when denying a request for religious accommodation.
2. The standard announced by the Supreme Court is context-specific, so be sure to look at the facts of every situation. Avoid blanket rules such as ‘we never do that.’ Consider each request independently, and document your decision.
3. Be wary of questioning the bona fides of an employee’s religious belief. This is a very loose standard. You can ask for some explanation, and if appropriate, a letter from the clergy. The EEOC’s definition of a ‘sincerely held’ religious belief is quite liberal – tread carefully.
4. Be sure to train front-line managers about these issues so they do not inadvertently say yes or no to a request without knowing the legal standards. Make sure they know to contact HR when religion is raised.
5. In considering what is an ‘undue hardship’ look beyond dollars. Especially for a large employer, you may have to consider not just the total amount that an accommodation will cost, as this may not be enough to appear ‘significant.’ Consider other soft costs that may not be measurable in dollars, such as the cost to your operations, your ability to provide service, your ability to staff, etc. Document all hard and soft costs. You may not be able to deny an accommodation based on revenue lost, but there may be other costs you can cite to.
6. Engage in an interactive process of communication with every employee who makes a request, and respond to each request in writing, especially if it is a denial. Documentation is key, and may well become essential to your defense to a charge or lawsuit.

In the wake of Groff, many employers may see more requests for religious accommodations. Employers dealing with religious accommodation requests should tread cautiously, evaluating the totality of the circumstances behind the request, including the direct financial cost (if any), and the availability of alternatives such as voluntary schedule swaps, “floating” holidays, and flexible scheduling. Employers do not have to entirely upend practices to the detriment of other employees.

Importantly, the Supreme Court expressly avoided determining if existing EEOC regulations complied with its new standard, and directed the agency to review and revise its regulations as appropriate. Employers should watch for potential EEOC updates regarding its interpretation and enforcement efforts on this issue. Employers should also keep in mind that state and local laws are often more liberal than the federal law.

If you have any questions concerning religious accommodations under federal, state or local law, please contact your usual counsel at Kelley Drye, or a member of our Labor and Employment team.

Regulators have asked a legitimate question, however: what if the AI algorithm looks for characteristics that disproportionally, even if unintentionally, impact one kind of legally-protected status more than some other class? Consider this example: during a Zoom interview, AI reads facial expressions to capture information about mood, personality traits, and even honesty. (Yes, this is a thing.) What if an applicant has limited facial movement because of a stroke? Would that potentially impact AI’s assessment of a candidate’s “mood”? (Hint: yes, it would.)

It is exactly these unintended impacts that has motivated the U.S. Equal Employment Opportunity Commission’s (“EEOC”) recent guidance, published on May 18, 2023, clarifying that even if an employer is utilizing AI to make employment decisions, the protections of Title VII still apply. The EEOC previously addressed similar issues in the context of the Americans with Disabilities Act (“ADA”) in a guidance document this time last year.

The AI-related issues under Title VII and the ADA are similar in some ways, but also distinct. Title VII prohibits discrimination based upon race, color, religion, sex or national origin. The ADA prohibits discrimination based upon a person’s disability. The previous ADA guidance focused primarily on intentional and unintentional bias against disabled applicants, such as a decision-making algorithm failing to consider whether an applicant may be able to perform the role with a reasonable accommodation. In this respect, issues under the ADA may be more individualized to specific applicants and employees. For additional commentary on the previous ADA-targeted guidance and initiatives in other jurisdictions, please be sure to review our prior blog on the topic.

By contrast, the AI-related issues under Title VII are broader, and concern whether a specific tool may cause a disparate impact (or, “adverse impact”) on members of a protected class.

What Does this Mean for Employers?

Employers are free to use AI and other algorithmic-based methods to screen applicants or identify problem employees; however, this technology does not insulate the employer from discrimination claims. Employers have an obligation to reasonably understand how this technology works, and ensure that it is being used in a way that does not disparately impact any protected class without a justifiable basis.

Disparate Impact Analysis

Generally, a policy or employment decision is considered to have a disparate impact when it disproportionately excludes or targets members of a protected group. This can be true even when a policy is facially-neutral, such as requiring all applicants to have a minimal level of education.

The EEOC’s recent guidance states that if use of AI or a similar tool selects individuals in a protected group “substantially” less than individuals in another group, then the tool will violate Title VII unless the employer demonstrates that the methodology is job related and consistent with business necessity.

The EEOC also addressed what it considers to be “substantial” in terms of any disparate impact analysis. Traditionally, the EEOC has relied upon the “four-fifths rule,” which sets a baseline for whether the selection of one group over another may be disproportionate. (For example: if 60% of all White applicants are selected for a position, and 30% of all Black applicants are selected, then the process would violate the four-fifths rule, because 30 divided by 60 is less than 4/5). In the recent guidance the EEOC retreated from the four-fifths rule, stating that it is merely a “rule of thumb,” and that it may be inappropriate in some circumstances. Although this rule has been applied by courts and the EEOC in the past, the EEOC explicitly warns employers: “the EEOC might not consider compliance with the rule sufficient to show that a particular selection procedure is lawful under Title VII when the procedure is challenged in a charge of discrimination.”

It will be important for employers to consult with counsel before taking any action that may disparately impact a certain group, and reliance upon the four-fifths rule by itself may not be sufficient to mitigate any enforcement action by the EEOC.

What if a Vendor or Outside Consultant Creates and Implements the Tool?

The EEOC guidance states that an employer who uses AI or a similar tool to make employment decisions may be held responsible even if the tool was created or implemented by a third-party, such as a software vendor. The guidance emphasizes that employers have an obligation when deciding to utilize a vendor to question the vendor on whether the tool has been evaluated to ensure it does not target a specific protected group.

From a practical perspective, managers and human resources professionals overseeing these types of decisions may not understand the technical aspects of the tool, and cannot be expected to become experts in AI overnight. However, these decision makers should consult with counsel and their own information technology experts as necessary, and be sure to vet any vendors thoroughly. To the extent that management or human resources recognizes that the tool may be yielding an adverse impact on a protected group, alternative approaches should be considered as soon as possible.

Likelihood of Enforcement

The EEOC often seeks to take on novel cases in new areas of the law that are likely to create employee-friendly court rulings and maximize deterrence. Employers should expect the EEOC and similar state and local agencies to target discrimination issues based upon employers’ use of AI and other algorithmic technology for enforcement actions. The EEOC’s emphasis on disparate impact issues also means that any enforcement action could incorporate a large population of employees or applicants, inherently increasing the “dollar value” for any lawsuit or settlement (in turn, maximizing the deterrence value to the government).

This initiative from the EEOC, together with the enactment of state and local laws like New York City’s Local Law 144 (discussed here), should signal to employers that this is a hot button issue likely to gain even more attention as AI becomes a part of everyday life and decision-making. Employers utilizing AI and other advanced tools to make employment decisions can do so confidently, so long as appropriate controls are put into place to ensure compliance with existing employment laws.

For up-to-date and individualized guidance on the interaction between AI and employment laws, please contact your regular Kelley Drye & Warren LLP employment attorney.

Can Employers Require COVID-19 Screening?

Yes, but an employer must show that testing is job-related and consistent with business necessity. At the beginning of the COVID-19 pandemic, the EEOC’s assessment was that the ADA standard for conducting medical examinations was met for employers to conduct COVID-19 viral test screening of employees. The updated guidance now requires “individual assessment by employers to determine whether such testing is warranted.”

In order for an employer to mandate a COVID-19 viral test as a screening test for new or continued employment, the employer must now show that the test “is job-related and consistent with business necessity.” Whether or not testing is “consistent with business necessity” will be based on whether it is “consistent with guidance from Centers for Disease Control and Prevention (CDC), Food and Drug Administration (FDA), and/or state/local public health authorities that is current at the time of testing.”

The EEOC provides a list of factors that may be considered when determining whether testing is a “business necessity,” including:

“[T]he level of community transmission, the vaccination status of employees, the accuracy and speed of processing for different types of COVID-19 viral tests, the degree to which breakthrough infections are possible for employees who are ‘up to date’ on vaccinations, the ease of transmissibility of the current variant(s), the possible severity of illness from the current variant, what types of contacts employees may have with others in the workplace or elsewhere that they are required to work (e.g., working with medically vulnerable individuals), and the potential impact on operations if an employee enters the workplace with COVID-19.”

Employers that intend to mandate testing should monitor evolving CDC guidance.

Can Employers Screen Job Applicants For COVID-19 Symptoms?

Yes, if the employer screens everyone entering its facilities. An employer may only screen applicants for COVID-19 during the pre-offer stage if screening is required of every person who enters the workplace, and if entering the workplace is part of the application process. Applicants can be screened for symptoms once they receive a conditional job offer – provided that screening is required of all employees in the same position.

Can Employers request a doctor’s note from Employees returning to the workplace post COVID?

Yes. The EEOC's updated guidance states that employers may require that employees returning to the workplace after being out with COVID-19 provide a note from a qualified medical professional stating that it is safe for the employee to return (i.e., no risk of transmission) and that the employee is able to perform the job duties. However, employers can also choose to follow CDC guidance to determine whether it is safe to allow an employee to return to the workplace without confirmation from a medical professional. The EEOC advises that, because it may be difficult to obtain a note from a medical professional in a timely manner, businesses may need to rely on local clinics as a practical matter.

Can Employers Use Antibody Testing Before Permitting Employees to Re-Enter the Workplace?

No. The EEOC's updated guidance states that COVID-19 antibody testing is different than a viral screening test. While a viral screening test can meet the ADA’s “business necessity” standard, antibody testing cannot meet the standard. The CDC’s current guidance indicates that antibody testing does not show whether an employee is currently infected. The CDC has also found that antibody testing does not “establish that an employee is immune to infection.” As a result, the EEOC advises that using any form of antibody testing is inappropriate to determine whether an employee can re-enter the workplace.

What Does This Mean For Employers?

Employers that currently mandate COVID-19 testing for their employees should review their policies. At a minimum, these employers will need to monitor CDC updates and adapt their requirements to the level of community transmission in their area. Employers will also need to make certain that their policies are in compliance with the ADA. Employers are well advised to confer with experienced employment counsel to review their policies and testing requirements in light of the EEOC’s updated guidance.

Contributions to this post were made by summer associate Timothy D. Hopper.

Tuesday, September 13, 2022 at 12:30pm ET Pay Equity & Transparency: Rising Workplace Trends

New York, which has over 9.3 million workers and counting, will soon join other jurisdictions in a growing trend of state and local pay transparency requirements for employers across the country. Currently there are 17 states (and numerous cities) that have laws requiring pay transparency and/or prohibit salary inquiries by current/prospective employers. Additionally, the recent focus on pay equity laws, both state and federal, has served as a catalyst for increased scrutiny by government agencies and resulted in an uptick in related class action lawsuits in recent years. While transparency is generally a virtue, compliance with the ever-evolving pay transparency and pay equity laws across multiple jurisdictions can create a quagmire of issues in attracting and retaining talent—not to mention the HR and legal landmines.

This webinar will cover:

• New pay transparency laws
• Review of pay equity and salary history ban laws
• Insights on compliance
• Practical implications for talent acquisition and retention

Tuesday, October 11, 2022 at 12:30pm ET Wake-up Call: The Resurgence of Unions

The death of union representation was probably not exaggerated—that is, before the pandemic. Now, with employers desperate to recruit and retain employees in a robust labor market, wages seeing the highest percentage increases in years, and a sense of worker-side empowerment not seen for years, unions are more powerful and relevant than at any time in decades.

This webinar will explore recent trends, strikes, organizing activity, and strategies to mitigate union-related risks and disruptions to your business.

This webinar will cover:

• The resurgence in union activity across all industries
• Changes at the NLRB that affect your everyday business operations
• Taking the temperature of your workforce

Tuesday, November 8, 2022 at 12:30pm ET Protecting Your (Human) Resources: Fighting Business Email Compromise and Ransomware

HR employees are, willingly or not, the guardians of the company’s most sensitive collection of data—its employee’s personal information. Cybercriminals often perceive the human resources department as the perfect gateway into a company’s employee data goldmine. Many scams and information theft are perpetrated through social engineering. Cybercriminals posing as job applicants, recruiters or new vendors prey on the fact that human resource employees often receive emails and attachments from unknown sources. Conversely, because of the central role that HR plays in employees’ lives, many employees reflexively open emails and attachments that appear to be sent from the HR department. Employees are just one click away from granting fraudsters the access they need to install ransomware or steal login credentials, potentially exposing employees’ sensitive and valuable personal information, and resulting in significant losses and legal exposure for your company.

This webinar will cover:

• Weapons and techniques fraudsters use to infiltrate company systems and current scam trends
• Proactive best practices for fraud and information theft prevention
• E! true HR stories: theft, lawsuits, and the one simple move that would have stopped it all
• What to do when the perpetrators are in-house

• In the first, the Court stayed OSHA’s “vaccine or test” mandate for employers with 100 or more employees, finding that OSHA had overstepped its authority in promulgating the rule.
• In the second, the Court allowed a rule implemented by the Centers for Medicare and Medicaid Services (“CMS”), requiring healthcare facilities to ensure vaccination of their entire workforces, with no testing alternative.

Here’s our brief guide.

Blocking OSHA

On September 9, 2021, President Biden announced his plan to increase vaccination rates among Americans. Two months later, on November 5, OSHA issued its emergency temporary standard (“ETS”), mandating workforce vaccination for all employers with 100 or more employees across the country. In lieu of vaccination, an employee might submit to masking and testing, at their own expense. By OSHA’s estimate, 84.2 million employees, or roughly half the U.S. workforce, would be subject to its mandate. Across the country, legal challenges to the ETS were filed almost simultaneously with the rule.

In a 6–3 opinion, with the liberal justices dissenting, the Court quibbled over whether COVID is a “work-related danger” subject to OSHA’s statutory authority. Because “COVID-19 can and does spread at home, in schools, during sporting events, and everywhere else that people gather,” the Court concluded that it would be beyond OSHA’s authority to manage the spread of COVID in workplaces. The Court dismissed the dissent’s argument that, like fire hazards, excessive noise, or unsafe drinking water, COVID is not a harm exclusive to the workplace but one which OSHA nonetheless has the authority to regulate. Moreover, the Court concluded that Congress’s having appropriated $100 million to the agency in order “to carry out COVID-19 related worker protection activities,” did not stipulate the promulgation of a vaccine mandate.

Legal discourse aside, the end result is that President Biden’s largest vaccine mandate is dead in the water.

How do businesses react?

That doesn’t mean that businesses have to scrap their plans to comply with the ETS. In most states, employers remain free to implement their own “vaccine or test” policies. Generally speaking, employers are still allowed, but are no longer required, to implement their own vaccination policies, which may still be even more restrictive than the stymied OSHA policy (so long as there are mechanisms for employees seeking religious or medical exemptions). See our prior post for more details.

The Supreme Court has repeatedly supported businesses that choose to implement their own worker-related policies. The exceptions are employers in Montana and Tennessee, where the states have effectively banned employers from instituting COVID vaccine mandates. Those businesses will no longer be able to implement vaccination policies using the preemption offered by the OSHA ETS as legal cover.

The inverse remains true as well—businesses may still be required to implement vaccine mandates depending on local or state laws. For instance, New York City now requires that most employees going in to a workplace be vaccinated. Without a federal mandate, employers across the country must once again assume the burden of finding out which state or local laws apply to them.

What might OSHA do?

DOL Secretary Marty Walsh commented on Thursday that OSHA would “do everything in its existing authority to hold businesses accountable for protecting workers.” He also implied that businesses could implement the ETS on a voluntary basis. OSHA may well issue a narrower ETS targeted toward certain high-risk businesses and industries. However, that will certainly take time and be subject to more court challenges.

In the interim, all employers in states where mandates are not prohibited should consider what is right for their business and their workforce.

The healthcare mandate

Like OSHA, CMS in 2021 published a rule requiring that healthcare facilities receiving Medicare and Medicaid funding would have to ensure that all staff are vaccinated against COVID-19 (subject to religious or medical exemptions) by February 2022. According to CMS, the mandate is “necessary for the health and safety of individuals to whom care and services are furnished.”

The CMS mandate was stayed by one federal Circuit court. In a seemingly contrary opinion, the Supreme Court lifted that stay, and held this rule was proper.

It was apparent that the narrower nature of the mandate appealed to the justices. The opinion noted that CMS was authorized by Congress “to impose conditions on the receipt of Medicaid and Medicare funds that ‘the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services,’” and further noted that Medicare and Medicaid recipients are typically at higher risk for COVID. Accordingly, the Court found that “the rule thus fits neatly within the language of the statute.”

Across two separate dissents, Justices Thomas, Alito, Gorsuch, and Barrett argued that a) CMS has no such authority, and b) even if such authority existed, the rule was promulgated improperly.

CMS had issued guidance on the implementation of this rule in late December, which requires covered employers to have policies in place by January 27, so that staff who are not granted an exemption are in the process of getting vaccinated. Everyone who is not exempt should be vaccinated by February 28, 2022. Stay tuned for whether CMS will require a receipt of a booster shot in order to be considered “fully vaccinated.”

Many healthcare entities already have such policies in place. But, for those who do not, the clock is ticking and you should be moving swiftly to implement and publish these policies.

Other COVID issues

In addition to vaccine mandates, be aware that under new rules, employer-sponsored health plans must now cover the costs of certain over-the-counter COVID testing. The DOL just issued FAQs on those requirements on January 10. If you have questions about vaccines, COVID policies, or how these rulings apply to your business, do not hesitate to reach out to us, or to your Kelley Drye attorney.

In a move that comes as no surprise, the EEOC has updated its COVID-19 technical assistance to provide guidance on when COVID-19 may be considered a “disability” under the ADA, making specific reference to the DOJ/HHS guidance discussed in the original blog below. The EEOC’s technical assistance focuses “more broadly on COVID-19” beyond just “long COVID,” and does so “in the context of Title I of the ADA and section 501 of the Rehabilitation Act, which cover employment.” However, the EEOC’s guidance clearly echoes the DOH/HHS guidance and states that long COVID or sustained symptoms of COVID may be a “disability” under the law.

In many states, long COVID could also qualify as a disability under state laws. So, employers should be ready for more claims into the future, even when the pandemic (finally) ends – from employees who suffer symptoms of COVID as a chronic illness.

THE GUIDANCE

What is Long COVID and when is it a disability?

The EEOC has reemphasized that determining whether COVID may be considered a “disability” under the law is a fact-intensive question, requiring an analysis of the extent to which COVID’s symptoms, its long-term effects, or the manner in which it exacerbated the symptoms of another condition “substantially limit a major life activity,” as discussed in the original blog below. This means that an individual suffering, even intermittently, from certain symptoms relating to long COVID can be considered to be “disabled” under the law.

The EEOC provides several examples of these impairments, including: “brain fog” and difficulty remembering or concentrating; substantially limited respiratory function; chest pains; or intestinal pain.

Importantly, the EEOC distinguishes these “substantially limiting” conditions from less-serious symptoms, such as “congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks,” which would not create a “disability.” But make no mistake: even these relatively insignificant symptoms may constitute a disability if they last or are expected to last for a significant period of time (i.e. more than six months).

According to the guidance, while long COVID “does not automatically qualify as a disability,” as with any disability inquiry, an employer is obligated to engage cooperatively with an ailing employee to conduct an “individualized assessment” and determine whether that employee’s long COVID symptoms constitute physical or mental impairments that substantially limit one or more major life activities.

The guidance emphasizes that the symptoms need not necessarily manifest physically—long COVID may substantially effect an individual’s psychological or emotional wellbeing to the point that an accommodation may be required.

What You Can and Cannot Do

Thankfully, the EEOC has not issued employees with long COVID a ticket not to do their jobs.

Not wanting employers to lose sight of the bigger picture, the EEOC also clarified that taking an adverse action against an employee disabled due to COVID-19 does not automatically mean that the action to discriminatory. Rather, an employer may have legitimate, non-discriminatory reasons for having undertaken the adverse action. The EEOC points to the circumstance in which the affected employee was no longer able to perform their job duties at all due to the disability. Additionally, the EEOC states that “the ADA’S ‘direct threat’ defense could permit an employer to require an employee with COVID-19 or its symptoms to refrain from physically entering the workplace during the CDC-recommended period of isolation, due to the significant risk of substantial harm to the health of others.”

In sum, the EEOC’s guidance is concordant with the DOJ/HHS guidance we discussed back in August. But don’t let the blog’s focus on long COVID distract from the larger point that any COVID-19 infection, including active infections, may constitute a “disability” under Title I of the ADA depending on the severity and duration of the symptoms. As we said, each employee brings their own set of facts that require an individualized analysis. For prompt answers to your fact-intensive COVID-19 questions, contact Kelley Drye.

ORIGINAL BLOG: August 5, 2021

It seems that at every turn, COVID-19 is keeping employers from catching their breath. We’ve discussed on this blog how employers should navigate having employees work from home, reopening and remaining compliant with the law and CDC guidelines, mask and vaccine mandates, and what to do when an employee tests positive for the virus. Now another issue confronts employers: how to best accommodate employees who are suffering from COVID symptoms months after having been infected with the virus—long COVID.

What Employers Should Know

The guidance, just like our understanding of long COVID, is frustratingly vague. The silver lining is that any employer already sensitive to the accommodation needs of its employees is already well-positioned to account for the needs of employees with long COVID symptoms. Employers should not fall prey to tunnel vision and determine whether an employee’s symptoms are due to COVID per se.

Rather, they must stay focused on the fundamental question: are these symptoms substantially limiting my employee’s ability to perform their job?

As with any medical condition, the substance of an ensuing “cooperative dialogue” between employer and employee may vary greatly depending on the employee’s duties, their symptoms, and the advice they receive from their medical care providers. Of course, any employer may make the reasonable request that an employee provide a doctor’s note in order to substantiate a request for an accommodation under the ADA, but simply making that request of an employee does not absolve an employer from making reasonable efforts to engage with that employee to determine what accommodations, if any, are available.

Planning for the Future

Employers should also anticipate ongoing and evolving accommodation discussions, particularly if the employee is in fact a COVID “long-hauler.” The long-term effects of a COVID infection are still not fully understood, and the best-prepared employer is the one ready to adapt to an employee’s needs not only reasonably, but also rapidly.

That can mean a few different things.

• DOCUMENT. It will be crucial for anyone performing a human resources function to (securely) memorialize the substance of every discussion regarding an employee’s requests for accommodation. At the same time, be sure to sequester and secure any medical records, and work to ensure confidentiality.
• ASSESS REGULARLY. As so little is known about long COVID, and because symptoms may suddenly lessen or become more severe in time, employers should require affected employees to agree upon pre-determined “check-in” meetings. At a specific date in the future, employer and employee might reconvene to reassess what further (or fewer) accommodations the employee could require. This is a sensitive issue, however, and is best done in concert with qualified legal counsel.
• BE FLEXIBLE. If an employee requires an accommodation for long COVID, be flexible in addressing their requests. Consider whether you can grant the accommodations, and document why you can or cannot. Finally, before denying an accommodation, be sure that there is now reasonable way that the accommodation may be granted.

In addition, the Centers for Medicaid and Medicare Services (CMS) and President Biden’s Safer Federal Workforce Task Force (SFWTF) have issued their own rules requiring the vaccination of healthcare workers and federal contractors, which we have covered previously here and here. Those employers covered by the CMS and SFWTF rules do not have to comply with the new OSHA mandate.

Today, OSHA promulgated this rule, via an Emergency Temporary Standard (ETS), covering employers with 100 or more employees. OSHA estimates this will cover approximately 2/3 of all workers in the United States.

Here are some highlights that employers should be aware of:

THE OSHA RULE COVERING PRIVATE SECTOR BUSINESSES

Which employers are covered by the OSHA mandate?

The OSHA mandate applies to all companies that currently have 100 or more employees.

• The number of employees is counted on a “firm or company-wide” basis, rather than just the number of employees at any particular office. Therefore, if a company has 150 employees spread out across 5 locations (each with 30 employees), the rule will still apply to them.
• Part-time employees, employees who work remotely, and employees who work fully outside will count toward the rule’s 100-employee threshold. Therefore, if an employer has 105 employees, and 103 of them work remotely, the rule will still apply to them.
• However, independent contractors do not have to be included in any headcount.

• The OSHA rule applies to all employees who report to a workplace where other individuals are present. This could be coworkers, customers, or other visitors. This applies to most workers who attend work in an office setting that is not “remote.”
• However, it does not apply to employees who work exclusively outdoors, employees who work remotely, or employees who otherwise do not interact with other individuals in the workplace.

What are the deadlines?

• December 6, 2021 - covered employers must have their vaccination compliance program in place in accordance with the rule. This means that they must offer paid time off for vaccinations, require unvaccinated workers to wear masks, and satisfy the other requirements of this rule that are laid out below.
• January 4, 2022 - all of the workers who have not received their primary vaccination doses must start being tested. If an employee receives one or both vaccinations (depending on the brand) before January 4, 2022, they do not have to be tested even if they have not completed the two week waiting period.

This January 4^th deadline allows employers to keep unvaccinated workers on the job through the holiday shopping and travel season. This delay is something that business groups had lobbied for. Whether that is a good thing, or leads to a winter COVID-19 surge, will remain to be seen.

What if an employee tests positive for COVID?

• If any employee tests positive: Regardless of vaccination status, the company’s COVID protocol must require the employee to notify them of any positive test result. The employer must also remove that employee from the workplace. That employee may not be allowed to return unless they receive a negative confirmatory NAAT test result following a positive antigen test, they complete the CDC isolation protocol for 10 days, or they receive a letter from their doctor.
• If an unvaccinated employee tests positive: If an unvaccinated employee tests positive, the same principles discussed above apply. However, the employer may not require that unvaccinated employee to undergo the weekly testing for 90 days after testing positive.
• Employers must report COVID deaths and hospitalizations to OSHA: If any employee who was exposed to COVID-19 in the workplace is hospitalized, the employer must notify OSHA within 24 hours of finding out. If any employee exposed in the workplace dies, that notice must be within 8 hours. There are three ways to notify OSHA: by calling your local OSHA office, by calling the national OSHA hotline (1-800-321-6742), and by filling out an online form (found at osha.gov). If the employer is unable to reach someone by phone, the online option is the only method of notice—leaving a voicemail is not sufficient.

• Workers must get paid time off to get vaccinated: Employers must pay workers for the time it takes to get vaccinated and must provide sick leave for workers to recover from any side effects.
• Different testing requirements for frequency of travel in the office: Unvaccinated employees who come into the office at least once every seven days must be tested at least once every seven days. Unvaccinated employees who are not in the office for more than seven days must provide a test result at least seven days before returning. If an unvaccinated employee can't produce a negative test, employers must remove them from the workplace until the employee is able to provide a negative test result.
• Companies must get proof of vaccination: Employers must determine the vaccine status of each employee, obtain proof of the vaccine, and keep records of same. Any employee, or someone with authorized consent of that employee, may request their individual vaccination status or recent test results.
• Employers don't need to pay for testing: In a move that appears designed to push workers to choose vaccinations over testing, the OSHA rule does not require employers to pay for or provide testing to workers who decline the vaccine, meaning the unvaccinated employees must pay for their own testing. However, collective bargaining agreements, state and local laws, or an employer’s voluntary decision to pay may dictate otherwise.
• Employers may refuse entry to unvaccinated workers: While many employers may opt to let employees get tested to work, they are not required to do so. In other words, employers could lawfully opt to say that those who are not vaccinated may not work in person and require those employees to work remotely.
• Updated mask requirements for businesses: Under the OSHA rule, all unvaccinated workers must wear face coverings around others while indoors or occupying a vehicle. In addition, businesses may not prohibit any employees or visitors from wearing a mask voluntarily, unless that mask creates a “serious workplace hazard.”
• Employers must post certain notices: In addition to the vaccination policies, employers must also prominently post information about the OSHA guideline and the company’s vaccination policy, CDC-sponsored information about the COVID vaccine found here, information about protections from retaliation or discrimination due to the employee’s decision whether or not to vaccinate, and information about laws prohibiting the supplying of false documents.

Because OSHA cannot investigate the vaccination records of every single covered employee, enforcement largely depends on employee reporting. At any point, an employee may request the aggregate number of vaccinated employees working with their employer, as well as the total number of employees, which the employer must provide by the end of the next business day.

If that employee reports an alleged violation to OSHA, the agency may also request these same records, which must be produced within 4 hours. In addition to the aggregate numbers (which contain no identifiable information), OSHA has the right to inspect all records pertaining to employees’ vaccination without needing permission from the individual employees.

If a company is inspected and the employer can’t produce records showing the firm is following the rule—or if they are found to be violating the standard—OSHA has up to six months following that inspection to issue citations. Because OSHA notes the threat posed by COVID-19, all violations of this rule will be serious, willful, or repeat. A “serious” violation is when the hazard could cause serious harm or death, unless the employer had no way of knowing about the violation. A “willful” violation is when the employer either knowingly failed to comply with the rule or “acted with plain indifference to employee safety.” Finally, a “repeat” violation would be when an employer is found liable for the violating the rule on multiple occasions.

Each serious violation of the OSHA rule could result in a maximum fine of $13,653. Each willful or repeat violation could result in a maximum fine of $136,532. However, the proposed version of the Build Back Better Act, if it becomes law, would raise maximum fines for all OSHA rules to $70,000 for serious violations and $700,000 for willful or repeat violations. We will monitor this provision to see if and when it ultimately gets enacted.

THE THREE RULES: DIFFERENCES AND CLARIFICATIONS

In a helpful move, the government made clear that an employer subject to the CMS rule or the SFWTF rule does NOT also have to comply with the OSHA rule. Healthcare workers and hospitals should comply with the CMS rule only and federal contractors should comply with the SFWTF rule only. Therefore, it is important to consider your business and which of these categories best describes your business:

• The CMS Mandate: CMS states that all health care workers must be vaccinated by January 4, but with no option for weekly testing in lieu of vaccination. The rule covers all employees—clinical and non-clinical—at about 76,000 health care facilities that receive federal funding from Medicare or Medicaid.
• The SFWTF Mandate: The SFWTF states that all federal contractors and subcontractors must be vaccinated by January 4, and it also provides no option for weekly testing in lieu of vaccination. This requirement was placed into the covered employers’ contracts with the government, and it gives these employers much more authority to enforce their vaccination requirements than the OSHA rule (including termination for employees who do not comply).
• The OSHA Mandate: Discussed in this post, the OSHA rule states that all covered employees must be vaccinated by January 4. Unlike the other two mandates, the OSHA rule does provide an option for weekly testing in lieu of vaccination. This rule is perhaps the most expansive of all of the mandates thus far, as it is estimated to apply to over 66 percent of American workers.

Employers should keep in mind that the OSHA rule does not eliminate requirement to comply with Title VII or the Americans with Disabilities Act. In other words, employers will still have to review relevant EEOC guidance and must still consider employees’ requests for religious and medical accommodations. As discussed by Kelley Drye here, the accommodation process must be more than mere lip service. The OSHA rule itself notes that vaccination may not be required where it is impracticable due to a medical condition or in conflict with a sincerely held religious belief. In New York and other states that have already enacted their own vaccine mandates, these medical exemptions have been rarely granted. But the unavailability of medical exemptions has led to more employees seeking a religious exemption. The EEOC has recently issued helpful guidance on religious accommodation, but it is important to note that there is no hard and fast rule to apply for accommodations; it is a very fact-specific inquiry that depends on the circumstances.

Much has been written about the challenge of religious accommodations. When an employee makes a request for religious accommodation, the employer will often face difficulty in showing that a belief is not sincerely held. Because of this, the EEOC suggests not challenging a religious belief unless there are compelling reasons to do so (such as a desire to have vaccinated employees in the office). With that being said, there are some factors that businesses can consider in making their determination of whether to grant an accommodation.

These include:

• whether the employee acts inconsistently with their professed belief,
• whether the accommodation sought is often sought for secular reasons,
• whether the timing of the request is suspicious (e.g., it follows an earlier-denied medical request for exemption), and
• whether there are other reasons to believe that the accommodation is not sought for religious reasons.

As with other accommodation requests under Title VII, if the employer finds that there is a basis for an accommodation, they should consider all reasonable accommodations, both to protect the employee and to prevent potential litigation. For example, teleworking or forced social distancing have been suggested as reasonable accommodations for employees who cannot be vaccinated. And just like other accommodations, an employer does not have to grant any accommodation that will cause an undue hardship, which is also a fact-specific inquiry that depends on nature of their business. If social distancing or telework are not feasible and the unvaccinated employee will be in close proximity to others, providing and requiring additional PPE may also be an option to mitigate risk.

Before terminating or denying an accommodation, an employer would be well advised to consult with employment counsel, in order to avoid litigation down the road.

A NATIONAL STANDARD, SUBJECT TO LEGAL CHALLENGES

A White House fact sheet made clear that the federal government believes that this rule supersedes any more lenient state or local rules or laws. In other words, it will nullify any state or local law which prohibits vaccine or mask mandates (like in Texas). Therefore, this now-national standard should actually make compliance simpler for companies with facilities in multiple states. However, the fact specific inquiry around the accommodation process still looms large over an employer’s decisions under the rule.

Because the discussion around COVID-19 vaccination has unfortunately turned political, these rules are subject to change. Even before the details of the rules were released, several attorneys general have announced their intention to sue the Biden Administration. One argument they advance is that COVID-19 is outside of OSHA’s jurisdiction, as it is not a work-related hazard. Congressional Republicans have vociferously opposed the mandate-or-testing requirements since they were initially floated by the president back in September. GOP members of the House Committee on Education and Labor sent the president a letter on September 29^th that unsuccessfully urged him to pull the mandate, which they called "extreme, intrusive, disruptive, and likely unlawful."

We will continue to monitor the situation surrounding the OSHA rule and its effect on your business. The rule has been logged with the Federal Register as of this morning, and it can be found here. In the meantime, if you have any questions about mandatory vaccination programs or accommodations, please reach out to Kelley Drye & Warren LLP.

UPDATE (November 11, 2021)

We updated this blog to answer one additional question that continues to cause confusion for many—must employers offer a testing option or can they mandate vaccination for ALL employees?

The answer is that employers can mandate a vaccine for ALL employees, subject to possible medical and religious exemptions.

While a lot has been made about the vaccine-or-test requirements contained in the ETS, employers can adopt one of three vaccine-policy options. It is important to note that while the ETS is geared towards employers with 100 or more employees, employers of ANY size can also adopt these options. Further, any employer can opt to do more than OSHA requires. Therefore, any employer may opt to require masking of all employees, vaccinated or not. This is all lawful. The three vaccine-policy options are below.

• Mandatory Vaccination Policy – Under the ETS, employers may require all covered employees to be fully vaccinated against COVID-19 in order to work on the premises. Employers do not have to offer the testing option.
  • Covered employers must consider employee applications for religious and medical exemptions.
  • Employers may set the deadline for covered employees to be vaccinated, but that deadline should not come after January 4, 2022.
  • After the set deadline, an employer may reassign or terminate unvaccinated employees unless the employee has applied for and been granted an exemption from the vaccination requirement due to a medical accommodation or sincerely held religious accommodation (as discussed above).
• Vaccination-or-Testing Policy – Employers also have the option to set a policy where employees are either required to be fully vaccinated against COVID-19 or submit to weekly testing. This also should go into effect no later than January 4, 2022.
  • As of December 6, 2021, covered employers must require that any unvaccinated employees wear a mask when in the workplace.
  • As of January 4, 2022 employers who opt for a “vaccination-or-testing” policy must ensure that unvaccinated employees are getting tested for COVID-19, at their personal expense, weekly.
  • Also by January 4, 2022, covered employers must have some mechanism to confirm that unvaccinated employees are being tested at least weekly and keep records of those test results.
  • After the testing protocol takes effect, subject to some exceptions, an employer may remove any employee who is not vaccinated and who cannot produce a negative test result.

• Hybrid Policy – Under the ETS, employers may also mandate vaccination for some employees while implementing for a “vaccination-or-testing” policy for others. OSHA gives the example of a retail employer who requires its floor staff to be vaccinated but implements a “vaccination-or-test” policy for staff at its headquarters. This type of hybrid policy is permissible, but only if all covered employees are subject to some form of vaccination or testing protocol.

As you consider which of these policy types to adopt, you want to look into the specific needs of your business and your employees. OSHA has indicated that it “strongly prefers” that all employees adopt mandatory vaccination policies as the best way to slow the spread of COVID-19. In addition, regardless of the vaccination policy that your business adopts, the other requirements of the ETS discussed above (such as giving employees paid time to get the COVID-19 vaccine and recover from any side effects) will continue to apply. If you have any questions about these vaccination programs or any of their specific logistical requirements, please reach out to Kelley Drye & Warren LLP.

With the highly transmissible Delta variant surging, and vaccination rates stagnating, employers are facing new pressures to reinstate mask mandates for everyone, regardless of vaccination status, and encourage COVID-19 vaccines through workplace mandates.

On August 23, 2021, the Food and Drug Administration (FDA) fully approved the Pfizer-BioNTech COVID-19 vaccine for use in those age 16 and older. This upgrade to full approval from “emergency use” status is predicted to lead to a rise in vaccine requirements from employers, schools, and local governments. Health officials are also hopeful that the approval will lead to higher vaccination rates. Note that the Pfizer vaccine is only one of three COVID-19 vaccines to receive full approval. The Moderna and Johnson & Johnson vaccines remain in emergency use status only.

Even under the FDA’s prior emergency use approval, major companies – including Google, Facebook, BlackRock, and Morgan Stanley – initiated policies insisting that workers get vaccinated before returning to the office. Meanwhile, California and New York City became the first state and major city, respectively, to require public workers to be vaccinated. Illinois very recently joined the returning wave of COVID-19 related restrictions by enacting another statewide mask mandate and requiring all teachers and healthcare workers be vaccinated or subject to weekly testing. The Biden administration also requires all federal workers to attest to being vaccinated or face strict testing protocols.

See our prior blog post for practical considerations on whether or not to consider mandating the vaccine in your workplace. But the legal considerations surrounding workplace mandates – how to implement them and how to respond to employees who refuse – remain uncertain. Earlier this year, Montana became the first state to make vaccination status a protected class under the law. That puts an employee’s vaccination status in the same category as race, sex, and religion when it comes to employment discrimination. Under the new law, Montana employers are not allowed to discriminate against non-vaccinated employees and are not allowed to mandate vaccines. Other state legislatures – including in New York, New Jersey, Maryland, and Illinois – have also introduced similar bills. However, as discussed further below and with the exception of Montana, non-governmental employers in the 49 remaining states may still legally require employees to be vaccinated as of the date of this publication.

A slate of employment-related COVID-19 cases have already hit the courts, and more litigation is expected as workplaces reopen with varying levels of vaccination requirements and accommodations issues. How can employers protect against potentially costly lawsuits as they bring workers back to the office? Here’s what you need to know:

Can employers require vaccinations?

The EEOC and DOJ issued guidance saying that federal laws do not prevent employers from requiring all employees physically entering the workplace to be vaccinated, so long as they provide reasonable accommodations under The Civil Rights Act of 1964 and the Americans with Disabilities Act. This means that employers must accommodate those who are unvaccinated due to a disability or religious objection. It is also unlawful for an employer to enforce vaccination policies that treat employees differently based on their disability, race, color, religion, sex (including pregnancy), national origin, age, or genetic information. So, if an employee cannot be vaccinated due to one of these protected characteristics, a vaccine mandate could constitute illegal discrimination and give rise to a lawsuit if reasonable accommodations are not offered. This EEOC guidance is still valid for non-governmental employers – with the exception of those in Montana.

Federal guidance does not preempt state law. In Montana, for instance, vaccine status is now a protected class and employers would be discriminating under the state’s employment laws by making employment decisions – like hiring and firing – based on vaccination status. This will become increasingly relevant for employers as more states consider similar legislation.

In addition, several states have issued bans preventing state and local governmental entities from requiring that their employees receive COVID-19 vaccines. These states include Arkansas, New Hampshire, Texas, and Utah. Additional states have banned state employers from requiring proof of vaccination as a condition of employment, a small but relevant distinction. Most recently, the governor of Texas issued an executive order banning state and local governmental bodies from mandating COVID-19 vaccinations even after the Pfizer-BioNTech vaccine obtained full FDA approval. Notably, these bans do not have an effect on non-governmental employers who may still implement vaccination mandates. Some state governors have previously indicated that they may allow or consider vaccine mandates after full FDA approval of one or more of the vaccines.

While the full FDA approval of the Pfizer-BioNTech vaccine brings hope of increased vaccination rates and more legal protections for employers, it is, as previously noted, only one of three vaccines on the market in the U.S. While the Pfizer-BioNTech vaccine is currently the most widely available vaccine, it is far from the exclusive option and may not be the locally available option for your employees. Employers should ensure the Pfizer vaccine is readily available in your area before basing any vaccine policy changes on its full FDA approval.

Note that, without an affirmative ban on state and local governmental agencies requiring COVID-19 vaccines, it is generally considered permissible for state or local governments to even require vaccinations of all citizens (not just governmental employees), with certain religious or medical exemptions. This governmental power was recognized in a 1905 Supreme Court case arising out of a smallpox outbreak in Massachusetts and the resulting vaccine mandate for local citizens. This 115+ year-old Supreme Court precedent still forms the basis of vaccine-related judicial rulings today.

Do hospitals and universities get special treatment?

Generally, courts have allowed hospitals and universities (or other institutions of higher learning) to maintain their mandatory vaccination policies in response to legal challenges. Given the obvious high-risk status of many patients and staff, hospitals and other healthcare facilities are often explicitly exempted from state laws and executive orders prohibiting governmental employers from requiring COVID-19 vaccinations (i.e. Texas). As you may have seen, in July 2021, a federal court in Indiana upheld Indiana University’s requirement that all students returning to campus be vaccinated. This ruling was upheld in August by the U.S. Court of Appeals for the 7th Circuit (the 7th Circuit encompasses Illinois, Indiana, and Wisconsin) and the Supreme Court decided not to review the 7th Circuit’s decision, leaving the ruling in place. The 7th Circuit Court relied on the 1905 smallpox vaccine mandate case in upholding the district court’s ruling.

What would constitute “reasonable accommodations” for unvaccinated employees?

Under the ADA, employers must provide reasonable accommodations for employees unless it would pose an undue hardship, which typically means a significant difficulty or expense. EEOC guidance provides a host of examples here. This includes having unvaccinated employees wear a face mask, social distance from colleagues or clients, work a modified shift, get periodic COVID-19 tests, telework, move office locations, or accept a reassignment. It is important to note that, as with other ADA-related accommodations, the employer only needs to offer an accommodation that is reasonable under the circumstances, it does not need to be the employee’s preferred accommodation.

Can employers create separate policies for vaccinated and unvaccinated employees?

Generally, an employer can have separate policies for vaccinated and unvaccinated employees (i.e. regarding masks). However, if a person’s vaccination status is connected to a protected class (or if your state treats vaccination status as a protected class), then an unvaccinated employee is protected from both unlawful discrimination and harassment. This means employers could be violating the law by treating employees differently based on their vaccination status and by allowing unvaccinated (or vaccinated) employees to be harassed by managers, colleagues, or clients. For instance, if an employee objects to a vaccination for religious reasons or due to pregnancy, adverse employment actions against that employee could constitute religious or sex discrimination.

Can employers offer vaccine incentives rather than implement a vaccine mandate?

Under EEOC guidance, employers may incentivize vaccination so long as those incentives (both rewards and penalties) are not so substantial that they become coercive – think of offering a $10.00 gift card rather than a $1,000.00 bonus payment. Some employers are validly offering additional paid time-off to employees who get vaccinated.

In a novel twist on the idea of vaccine incentives, Delta Airlines will begin docking the pay of unvaccinated employees on the company’s healthcare insurance plan $200 per month – effectively a vaccine penalty. (You can promote this as “increased employee costs of health insurance” rather than a “penalty”). The airline justifies this approach by noting that the average COVID-related hospital stay costs the company $40,000, and all airline employees who were recently hospitalized with COVID were not fully-vaccinated. Unvaccinated Delta Airlines employees will face weekly COVID testing in addition to the unvaccinated surcharge.

What if an employee refuses to get vaccinated?

Before determining whether to discipline or terminate an employee for refusing to comply with a lawful vaccine mandate, check with your Kelley Drye attorney to make sure you are not running afoul of the applicable laws or executive orders in your area. However, unless state law provides otherwise, employers may generally be permitted to terminate an employee who refuses a COVID-19 vaccine out of personal preference and who cannot be reasonably accommodated.

What can employers do to protect against COVID-related discrimination litigation?

The legal landscape surrounding back-to-work and vaccination policies is quickly evolving. To reduce risk associated with potential vaccine discrimination claims, employers should be updating workplace policies and keeping abreast of local law. Employers will be better prepared against vaccination-related legal claims if they adhere to CDC guidelines and other safety guidelines published by state and local health agencies (e.g. mask mandates). Because nothing can prevent a current or former employee from filing a claim (meritless or not) against an employer, especially in such a novel area of the law, it is generally safest to explore possible accommodations of unvaccinated employees prior to termination.

For specific examples to promote workplace safety and, therefore, also minimize potential legal liability, the CDC has extensive guidance for employers which was last updated in March 2021. In addition, to use as a supplement or complement to CDC guidance, OSHA very recently updated its guidance for employers to consider in creating a safe work environment.

Does an employee’s refusal to get vaccinated make them a “direct threat” to coworkers?

Maybe. The concept of a “direct threat” is an exception to the general rule under the ADA that employers must accommodate persons with disabilities. Employers do not have to accommodate an employee who is a “direct threat,” defined as someone who presents “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” In the COVID-19 arena, someone who cannot get a vaccine due to a disability could potentially be a considered a direct threat, but only if there is no reasonable accommodation to eliminate the threat to the health of others or their own health. Even with the known dangers of COVID-19, an extensive, case-by-case analysis is required to establish whether an employee is a direct threat to others under the ADA.

In short, the direct threat analysis only applies in the context of someone who is not able to receive a vaccine due to a disability (potentially including pregnancy-related disabilities or complications, depending on the jurisdiction).

What is going on in Florida (as it relates to employers)?

The state of Florida has been in the news for recent COVID-19 related legislation and executive orders. Mainly such statutes and executive orders are aimed at preventing places of public accommodation (restaurants, movie theaters, retailers, etc.) from requiring documentation of vaccine status from patrons who enter into their establishment – this documentation is commonly known as a “vaccine passport.” (Florida is only one of several states to restrict the use of vaccine passports). Other restrictions are being placed on Florida public school districts and educational institutions. However, employers in Florida may still require their employees to be vaccinated at this time.

To paraphrase a line from a Florida attorney – you have to get the jab to keep the job.

Should you have any questions about issues related to workplace safety, vaccination policies, or other issues related to back-to-work policies, contact your Kelley Drye representative.

Looking back, it was June 2020 when the Supreme Court held that discrimination on the basis of sexual orientation and transgender status constitutes unlawful sex discrimination under Title VII of the 1964 Civil Rights Act. We’ve discussed the landmark Bostock v. Clayton County decision in-depth before. Fast forward, one year later on Bostock’s first anniversary, the EEOC issued a slate of new resources to help employers comply with new LGBTQ+ protections.

According to Catalyst.org, members of the LGBTQ+ community still face high rates of discrimination in the workplace. At least 20 percent of LGBTQ+ employees report being discriminated against when applying for jobs and 52 percent report having been subjected to lesbian or gay jokes in the workplace.

Discrimination is bad for business, as it impacts employee retention. Nearly half of LGBTQ+ workers in the United States are closeted at work with 10 percent having left a job because of an intolerant environment. Meanwhile, 25 percent reported staying in a job because of an inclusive culture.

As discrimination in the workplace persists, so too do related lawsuits. In fact, before we were able to finalize this short blog, two new cases hit the press. One involved a former Boeing contractor’s suit against a staffing agency claiming she was fired for being a transgender woman. The other involved a former Iowa Democratic official’s suit against the state’s prior Republican governor alleging the governor cut his salary and urged him to resign because he was gay. Without commenting on those claims, no employer wants to be in that headline.

So how do you avoid being in the headlines? Start by knowing the law. Here’s what you need to know about the new EEOC guidance:

How has the EEOC interpreted Title VII protections after Bostock?

The EEOC’s post-Bostock guidance outlines the types of actions it considers unlawful discrimination or harassment based on sexual orientation or gender identity.

• It doesn’t matter what clients or customers prefer. When it comes to the rights of your LGBTQ+ employees, your clients are NOT always right. For example, the EEOC states that it would be unlawful to move an LGBTQ+ employee out of a public-facing position because of real or perceived client preferences about sexual orientation or gender identity.

So employers should avoid acting on customer suggestions about how client/customer-facing roles must “look” like a certain gender.

• Employers cannot discriminate based on non-conformity with gender stereotypes. For example, employers cannot require transgender employees to dress in accordance with the sex they were assigned at birth. This is true regardless of whether an employer knows the employee’s gender identity or sexual orientation.

Employers should avoid the “male” and “female” dress codes. Instead, employers should require their employees to be neat, professional, and wear clothing that is appropriate for their job.

• Employers can have separate, sex-designated bathrooms, locker rooms, and showers. However, the EEOC’s position is that employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds with the employee’s gender identity.

While, this can be tricky to comply with, we have not found it to be an insurmountable problem with most employees. The key is often some education. You may just need to give some explanation to employees, especially if there has been a gender transition, as to who is using the facilities.

• Employers cannot disregard an employee’s preferred name or pronouns. This gives much more weight to the preferred pronouns that some have opted to include in their signature block and LinkedIn profiles. While accidental misuse of a transgender employee’s preferred name and pronouns does not constitute a Title VII violation, intentional and repetitive use may contribute to a hostile working environment.

Employers, train your employees and especially managers to be sensitive to proper name and pronoun use.

Among their recent notable victories, EEOC litigators secured a $175,000 judgment against a retail employer for subjecting a gay male and female employees to a hostile work environment based on sex when a manager subjected those employees to unwanted sexual comments, photographs, and touching and the employer failed to adequately intervene. The Commission also filed one of the lawsuits decided in the Bostock. That case, which dealt with a transgender employee’s clothing preferences and subsequent termination, resulted in a more than $250,000 judgment against the funeral home that fired her.

Conclusion

What employers should know is there are many different gender identities and they are all under a protected class under Title VII. And the EEOC’s interpretation of Title VII protection after Bostock has made is that much easier for an employer to fall out of compliance and susceptible to litigation.

We recommend you review your antidiscrimination policies and employee handbook to address the EEOC’s new enforcement positions. If you have any questions related to the laws protecting LGBTQ+ workers, reach out to your Kelley Drye contact for guidance.

It’s also not just the result, but the strong language of the decision, which should give employers comfort that a mandatory vaccination program is lawful.

Background

On April 1, 2021, the Houston Methodist Hospital announced a policy requiring all employees be vaccinated against COVID-19 at the Hospital’s expense by June 7, 2021. As that date approached, Plaintiff Jennifer Bridges and 116 other Hospital employees who had refused that vaccine, filed suit in the Southern District of Texas to block the Hospital’s vaccination requirement and their terminations, arguing that the Hospital’s mandatory vaccination program was unlawful.

Plaintiffs argued that the vaccination program constituted wrongful termination under Texas law and that the injection requirement also violated public policy. The Court rejected these arguments because the Plaintiffs did not establish the essential elements of the wrongful termination claim and because Texas does not recognize a public policy exception to an at-will employment relationship. Among the more absurd arguments advanced by the plaintiffs were that under the Hospital employees were being treated as participants in a human trial in violation of the Nuremburg Code.

Although the decision did not directly address whether the Hospital policy allowed for exemptions for employees who could not take a vaccine for medical or religious reasons. The Court’s decision noted the EEOC’s guidance allowing employers to institute mandatory vaccination programs subject to the legal requirement to provide appropriate accommodations, in a nod to “the position one is likely to meet at the Commission.”

The Result

In a brief dismissal order, Judge Hughes dismissed the action noting that not only was the comparison to Nuremburg was “reprehensible,” but also stating succinctly that the Hospital’s program was also not “coercion.” Judge Hughes highlighted that the Hospital’s choice was made to keep staff, patients, and their families safe and noted (correctly) that “Bridges can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else.”

The Houston Methodist Hospital decision is the first ruling on mandatory vaccination programs, but we can certainly expect to see similar fact patterns play out in jurisdictions across the country. As we previously discussed, mandatory vaccination programs are lawful subject to an employer’s duty to consider accommodation requests. And while, this case exemplifies the potential downside to instituting such a mandatory vaccine program, employers are still within their right to do so. If you have any questions about your mandatory vaccination program or employee accommodations, be sure to reach out to your Kelley Drye contact for guidance.

Key takeaways for New York employers from the NY HERO Act, as amended:

• The NYS DOL must publish a model safety standard by July 5, 2021.
• 30 days thereafter, New York employers must either adopt the model standard or create their own health and safety plan to prevent occupational exposure to airborne infectious diseases, which meets or exceeds the minimum requirements established by the NYS DOL.
• Every employer must provide its prevention plan to its employees, within 30 days after adoption of the plan, within 15 days after reopening after a period of closure due to airborne infectious disease, and to any newly hired employee, upon hiring the new employee.
• Employers must permit employees to establish joint employer-employee workplace safety committees, beginning on November 1, 2021.

* * *

States are also issuing their own new rules. As an example, in early May, New York Governor Cuomo signed into law the New York Health and Essential Rights Act (“HERO Act”), which requires that ALL employers, of any size, establish a health and safety plan to prevent occupational exposure to airborne infectious diseases based on certain minimum standards. According to the June 11, 2021 amendments to the HERO Act, the New York State Department of Labor (“NYS DOL”) must establish industry-specific model disease prevention protocols by July 5, 2021. As explained below, the HERO Act also permits employees to establish joint employer-employee safety committees, beginning on November 1, 2021.

Below is a summary of the HERO Act’s requirements (as amended) for New York employers to anticipate.

Safety Plans

As stated above, the first part of the Act requires all private employers, of any size, to create a written prevention plan of health and safety standards to protect employees from workplace exposure to airborne infectious diseases. The NYS DOL, in consultation with the Department of Health, is directed to publish a model standard, differentiated by industry, which establishes minimum requirements for such plans, by July 5, 2021. The NYS DOL’s model standard is to address, among other topics, (i) employee health screenings, (ii) face coverings, (iii) personal protective equipment, (iv) workplace hygiene stations, (v) regular cleaning and disinfecting of shared equipment, and (vi) social distancing. Within 30 days after the Commissioner publishes the model standard, employers must either adopt the model standard or create their own plan, which meets or exceeds the minimum requirements established by the NYS DOL. Every employer must provide such prevention plan to his or her employees, within 30 days after adoption of the plan, within 15 days after reopening after a period of closure due to airborne infectious disease, and to any newly hired employee, upon hiring the new employee. Businesses permitted to operate as of the effective date, shall provide such prevention plan to all employees within 60 days after the Commissioner publishes the model standard relevant to the industry. If the employer has an employee handbook, it must also add the plan to the handbook. Employers must also post a copy of the plan in a visible and prominent location within each worksite. It is important for employers to remember that these mandatory safety standards are not just for COVID-19; they are for all airborne infectious diseases. Time to revise your employee handbooks!

Importantly, employers are also prohibited from discriminating or retaliating against employees for:

• Exercising their rights under the Act or the applicable prevention plan;
• Reporting violations of the Act or their employer’s prevention plan to any state local, or federal government entity, public officer, or elected official;
• Reporting concerns over potential airborne infectious disease exposure or seeking assistance or intervention with respect to concerns, to their employer or government entity, public officer, or elected official, or
• Refusing to work based on a reasonable good-faith belief that such work poses an unreasonable risk of exposure to an airborne infection disease.

• Employees must provide their employer with 30 days’ notice and an opportunity to cure a violation before bringing suit, except where an employee alleges with particularity that the employer has demonstrated an unwillingness to cure a violation in bad faith.
• An employee is precluded from bringing suit if the employer corrects the alleged violation, or more than 6 months have passed from the date that the employee had knowledge of the alleged violation.
• Employees may no longer be awarded liquidated damages.
• A court may award costs and attorneys’ fees to the employer, if the court finds that an employee’s claim is frivolous.

The second part of the Act requires private employers to permit employees to establish joint employer-employee workplace safety committees, beginning on November 1, 2021. Each workplace safety committee shall be composed of employee and employer designees, provided at least two-thirds are non-supervisory employees. Workplace safety committees shall be authorized to, among other things, regularly schedule meetings during work hours at least once a quarter that shall last no longer than 2 hours. Employers must also allow employees to attend a training (limited to no more than 4 hours)—without suffering a loss of pay—on the function of worker safety committees, rights established under this section, and an introduction to occupational safety and health. Similarly to the safety standards, an employer cannot retaliate against an employee who participates in a safety committee.

The amendments also specify that employers are only required to permit one safety committee per worksite, and the amendments limit the purview of the workplace safety committees to issues of occupational health and safety.

Accordingly, with these new timeframes in mind, and an employer’s clarified obligations, New York employers should review their existing safety and return-to-work plans, keep an eye out for regulations from the NYSDOL, and consult with legal counsel to ensure compliance with the HERO Act’s new safety requirements, as amended.

Tuesday, June 22nd at 12:30pm ET

Restrictive Covenants 101: NDAs, Non-Competes & Other Tools To Protect Your Company

A company’s confidential information and customer relationships are its lifeblood—and are the assets that can walk out the door too easily with a departing employee. Too few companies take a considered approach to protecting those assets. NDAs and noncompetes can help, but using them without a holistic strategy can be worse than no protection at all. Join the Kelley Drye Labor and Employment team for a practical look at how to use—and not to use—restrictive covenants, and how to tailor them to your company’s unique needs.

On May 28, the EEOC updated its Technical Assistance Guidance and has now stated with certainty that employers CAN indeed require employees to be vaccinated before coming in to the office or workplace. The updated guidance also addresses accommodations for the vaccinated, vaccine incentives, and vaccines for pregnant employees, among other questions. However, since this was drafted before the CDC came out with its latest guidance, it does not specifically address all issues related to the handling of unvaccinated and vaccinated employees in the workplace.

Below are some key points of the new guidance:

Mandatory Vaccination is Lawful, But Accommodations Must Be Offered

Even though many employers have opted against mandatory vaccination for their employees, the EEOC made clear that they can, in fact, mandate vaccinations for those who want to report to work. The key for employers, however, is they must engage in the interactive process and provide reasonable accommodations under the ADA and Title VII, for eligible employees seeking an exception to the mandate.

The EEOC offers some examples of possible accommodations, most of which are no surprise, such as allowing unvaccinated employee to wear a face mask, maintaining social distance from others, working a modified shift, periodic COVID-19 testing, being allowed to telework or, as a last resort, reassignment to another position.

Further, the EEOC makes clear that employees who claim they cannot get vaccinated because of disability or religious objections must notify their employer of the need for an exemption and must also present some proof to back up that exemption. Of course, these accommodations may not be possible for all workplaces and all employees, and it will be a case by case decision how employers handle accommodation requests.

For instance, you will have to consider whether the employee who cannot be vaccinated must be in the workplace to do their job, and whether their presence presents a ‘direct threat’ to others.

The EEOC also advises employers to consider whether a vaccine mandate may have an adverse impact on or disproportionately exclude employees based on their race, color, religion, sex, national origin, or age. Specifically, the updated guidance states that “[e]mployer should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.”

For industries where employees interact with the public, like retail and hospitality, a mandatory vaccine policy could be a good thing. Not only will it comfort customers and co-workers, but can even be used to differentiate from other businesses. For example, a restaurant that can say “All of our servers are vaccinated,” may have a leg up on others in the neighborhood.

However, employers should also consider the downside to a mandatory vaccine policy – the ability to provide or consider reasonable accommodations for those employees with disabilities or religious objections. As recommended by the EEOC, the process should be to announce that vaccination is mandatory and that requests for reasonable accommodation based on disability or religious objection will be considered.

Disclosing Vaccine Status – Keep it Confidential

The EEOC states that employers may lawfully ask employees to disclose their vaccine status, whether or not there is a mandatory vaccination policy in place. However, employers cannot ask why employees did not get the vaccine because this inquiry is not considered a “disability-related” inquiry under the ADA.

In other words, pre-vaccination questions are permissible under the ADA. However, an employee’s decision to answer those questions are purely voluntary; they do not have to tell you why they are not vaccinated. You may also face challenges from employees to those questions.

Further, the EEOC makes clear in its updated guidance that documentation concerning proof or confirmation of vaccination is a medical record subject to the strict confidentiality requirements of the ADA.

Lastly, you cannot ask your employees whether their family members have been vaccinated because it is prohibited under GINA.

Can Vaccinated Employees Request an Accommodation?

What about vaccinated employees who are still nervous about returning to work because of COVID? Is this even something that employers must consider at this point?

According to the EEOC, at least on paper, the answer is YES. The EEOC states that fully vaccinated employees, if they are still concerned about a potential COVID-19 infection, may still be entitled to reasonable accommodation based on an underlying medical condition. The EEOC explains that for employees with certain medical conditions (i.e. immunocompromised), the vaccine may not offer the same measure of protection as other vaccinated individuals. In this situation, employers must engage in the interactive process with such employees and provide accommodations, absent undue hardship.

Can You Require Pregnant Employees To Get The Vaccine?

Studies have confirmed that pregnant women can safely be vaccinated, and that it may be a good thing. However, there is still hesitation on this issue.

The EEOC states that employers may require pregnant employees to be vaccinated. It also addresses how employers should handle pregnancy related requests for accommodation from the vaccine.

In addressing accommodation requests by pregnant employees, the EEOC states that you cannot discriminate. In other words, the pregnant employee who requests an accommodation must be treated the same as “other employees similar in their ability or inability to work. This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent such modifications are provided for other employees who are similar in their ability or inability to work.”

This suggests that employers should accommodate pregnant employees who do not get the vaccine in the same manner as they would for employees who cannot get the vaccine because of a disability or religious objection.

Vaccine Incentives Are Generally Fine

Vaccine incentives can be divided into two groups, (1) incentives for employees to get a vaccine from a 3^rd party, and (2) incentives if the employer is doing the vaccinations.

For Group 1, if an employer is not doing the vaccinating, the EEOC makes clear that it CAN lawfully offer employees an incentive to get vaccinated. So, free lunch or a gift card for the vaccinated is fine. It is also lawful to offer employees and family members education about the efficacy of the vaccines.

For Group 2, if it is the employer or an agent of the employer providing the vaccines, incentives may be offered, as long as they are not “so substantial as to be coercive.” The EEOC stated that a “very large incentive” could make employees feel pressured to disclose protected medical information. Having said that, the agency failed to give any guidance on what is or is not considered a “very large incentive.” Employers who plan to provide the vaccine directly or through an agent should consider any incentives carefully.

Conclusion – Where Does this Leave Us

The good news is that the updated guidance provides a clear answer on the question of vaccines. If you believe that it will be good for your business to require those who are coming to the workplace to be vaccinated, you may lawfully make that a requirement.

So:

• You can ask employees if they are vaccinated;
• You can offer an incentive to be vaccinated, with some caveats; and
• You can mandate a vaccine for those coming to work.

• Will you allow the unvaccinated employees to come in with masks? Will that make other employees feel unsafe?
• Am I going to require pregnant employees to be vaccinated?
• What proof will be required of those who claim they require accommodations?
• Will you allow the unvaccinated to continue to work remotely? How do you then handle vaccinated employees who want to also work remotely?
• Should you offer a vaccine incentive?

Since COVID-19 hit us in 2020, the workplace as been filled with challenges. If you have any questions on these and other workplace issues, be sure to contact your Kelley Drye contact to get the answers!

States are also issuing their own new rules. As an example, in early May, New York Governor Cuomo signed into law the New York Health and Essential Rights Act (HERO Act), which requires all employers, of any size, to establish a health and safety plan to prevent occupational exposure to airborne infectious diseases. The HERO Act also permits employees, later in 2021, to establish joint employer-employee safety committees.

Below is a summary of the HERO Act’s requirements for New York employers.

Safety Plans

Section 1 of the HERO Act requires all private employers, of any size, to create a written prevention plan of health and safety standards to protect employees from workplace exposure to airborne infectious diseases. The New York State Department of Labor (NYS DOL), in consultation with the Department of Health, is directed to publish a model standard, differentiated by industry, which establishes minimum requirements for such plans, by June 4, 2021. The NYS DOL’s model standard is to address, among other topics, (i) employee health screenings, (ii) face coverings, (iii) personal protective equipment, (iv) workplace hygiene stations, (v) regular cleaning and disinfecting of shared equipment, and (vi) social distancing. Employers must either adopt the model plan or create their own plan, which meets or exceeds the minimum requirements. Employers must provide the health and safety plan to all current employees, to new employees upon hire, and to all employees upon reopening after a workplace closure due to an outbreak. Employers should start reviewing their policies now and be prepared to make any adjustments based on the NYS DOL’s model standards. If the employer has an employee handbook, it will also be required to add the plan to the handbook. Employers must also post a copy of the plan in a visible and prominent location within the worksite. It is important for employers to remember that these mandatory safety standards are not just for COVID-19; they are for all airborne infectious diseases. Time to revise your employee handbooks!

Importantly, employers are also prohibited from discriminating or retaliating against employees for:

• Exercising their rights under the HERO Act or the applicable prevention plan;
• Reporting violations of the HERO Act or their employer’s prevention plan to any state local, or federal government entity, public officer, or elected official;
• Reporting concerns over potential airborne infectious disease exposure or seeking assistance or intervention with respect to concerns, to their employer or government entity, public officer, or elected official, or
• Refusing to work based on a reasonable good-faith belief that such work poses an unreasonable risk of exposure to an airborne infection disease.

Safety Committee

Section 2 of the HERO Act requires private employers to permit employees to establish joint employer-employee workplace safety committees. Each workplace safety committee shall be composed of employee and employer designees, provided at least two-thirds are non-supervisory employees. Notably, employers must also allow employees to attend training—without suffering a loss of pay—on the function of worker safety committees, rights established under this section, and an introduction to occupational safety and health. Similarly to the safety standards, an employer cannot retaliate against an employee who participates in a safety committee.

Accordingly, New York employers should review their existing safety and return-to-work plans, keep an eye out for regulations from the NYS DOL, and consult with legal counsel to ensure compliance with the HERO Act’s new health and safety requirements.