The Equal Employment Opportunity Commission (“EEOC”) recently announced that it is yet again extending the deadline for covered employers to submit EEO-1 reports for 2019 and 2020.  The new deadline for reporting is October 25, 2021.   In its announcement, the EEOC confirmed that the October 2021 deadline is the “FINAL DEADLINE” and that no “additional changes to the filing deadline will be made.”

Private employers with more than 100 employees and federal contractors and subcontractors with 50 or more employees are required to annually submit EEO-1 reports, which collects data about employees by gender, race/ethnicity, and job groupings.  Submission of EEO-1 reports is mandatory for covered employers.  Filers who have questions regarding the data reporting and/or submission processes or requirements should visit the Filer Support Center on the EEOC’s website.

Private employers with more than 100 employees and federal contractors and subcontractors with 50 or more employees are required to annually submit certain workforce demographic data to the Equal Employment Opportunity Commission (“EEOC”). Employers meeting the reporting thresholds submit this data through an EEO-1 report, which collects data about employees’ by gender, race/ethnicity and job groupings. The previously announced deadline for submitting EEO-1 reports for 2019 and 2020 was July 19, 2021. Recognizing the impact of the pandemic on workplaces and the requirement to submit two years of EEO-1 data through a new process, however, the EEOC has further extended the submission deadline to August 23, 2021.

Submission of these EEO-1 reports is mandatory.  Filers who have questions regarding the data reporting and/or submission processes or requirements should visit the Filer Support Center on the EEOC’s website at https://eeocdata.org/EEO1/support.

The American Rescue Plan (“ARP”), signed into law by President Biden on March 11, 2021, does not place any new paid leave requirements on private employers who were previously covered by the Families First Coronavirus Response Act (“FFCRA”).  However, as they have been able to do through the first quarter of 2021, such employers may voluntarily continue to provide Paid Sick Leave (“PSL”) and Emergency Family and Medical Leave Act (“EFMLA”) leave as set forth in the FFCRA and receive certain payroll tax credits for such wages.

In addition, the ARP expands various aspects of the FFCRA:

Expansion of PSL:

• Employees can be given a new 10-day allotment of PSL for use from April 1, 2021 through September 30, 2021, even if they exhausted their PSL days during 2020 or used PSL with the employer’s permission during the period January 1 – March 31, 2021.
• PSL can be used for additional reasons (subject to the FFCRA requirement that the employee be unable to work due to the qualifying reason), specifically:
  • for leave needed when the employee is seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID 19, where such employee has
    

COVID-19 has led to significant employee absences from the workplace.  While the federal Family and Medical Leave Act (FMLA) may well apply to certain such absences, employers must avoid the temptation to count all COVID-related leave against employees’ FMLA entitlement without considering the specific circumstances.  Over-designating absences as FMLA leave when the FMLA does not actually apply can create just as many legal issues as failing to designate covered absences under the FMLA.

For example, an FMLA interference claim may result if an employee is denied additional FMLA leave after the employee’s FMLA entitlement is exhausted due to absences that did not truly count as FMLA leave.  Conversely, by offering FMLA protections when the FMLA does not apply, employers may be establishing a right to reinstatement or other benefits when no such right should exist.  At a minimum, improperly designating absences as FMLA leave can create confusion and administrative nightmares.

Accordingly, COVID-related absences must be evaluated carefully and designated as FMLA leave only in appropriate circumstances.  As a general overview – but with the caveat that this post is not intended to provide legal advice concerning specific situations – below are examples of COVID-related situations in which the FMLA typically

As COVID-19 vaccines become more widely available and efforts are underway to increase dissemination, employers are considering whether to require employees to be vaccinated in order to be present on Company property.  This Q&A addresses key issues regarding a mandatory workplace vaccine program or policy. In Part 3 of the three-part article, we address more of the most commonly asked questions.

As a prefatory note to the questions and answers below, we strongly recommend employers consult with legal counsel when contemplating a workplace vaccine program.  While mandatory vaccination programs may generally be permitted, the federal Equal Employment Opportunity Commission (EEOC) has long taken the position in its pandemic guidance that employee vaccination should be encouraged rather than required.  As such, before implementing a mandatory program, employers should consider whether an alternative approach may be preferable for their workforce.  Examples of such alternatives include:  encouragement programs, voluntary incentive programs (which have their own set of risks), teleworking arrangements, mandatory diagnostic testing programs, and implementation of additional social distancing and protective measures.

(Click here to see Part 1, questions 1-6 and Part 2, questions 7-12)

(13) Should employers have a written policy or program? What about training?

Yes and yes. 

As COVID-19 vaccines become more widely available and efforts are underway to increase dissemination, employers are considering whether to require employees to be vaccinated in order to be present on Company property.  This Q&A addresses key issues regarding a mandatory workplace vaccine program or policy. In Part 2 of the three-part article, we address more of the most commonly asked questions.

As a prefatory note to the questions and answers below, we strongly recommend employers consult with legal counsel when contemplating a workplace vaccine program.  While mandatory vaccination programs may generally be permitted, the federal Equal Employment Opportunity Commission (EEOC) has long taken the position in its pandemic guidance that employee vaccination should be encouraged rather than required.  As such, before implementing a mandatory program, employers should consider whether an alternative approach may be preferable for their workforce.  Examples of such alternatives include:  encouragement programs, voluntary incentive programs (which have their own set of risks), teleworking arrangements, mandatory diagnostic testing programs, and implementation of additional social distancing and protective measures.

(Click here to see Part 1, questions 1-6.)

(7) What must an employer do if an employee refuses vaccination for a reason that requires a reasonable accommodation analysis (e.g.