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U.S. COVID-19: Returning High Risk Employees To The Workplace: Best Intentions Could Be Bad News For Employers

Employers preparing to reopen their places of business have many logistical considerations, including compliance with state and local health orders relating to face coverings, temperature and wellness screenings, and other measures designed to help keep employees healthy and safe during the COVID-19 pandemic. Last week, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its own “Return to Work” guidance by adding Q&A guidance on how employers should handle a “high risk” employee, i.e., an employee with an existing and known disability that may make the employee more susceptible to severe illness from COVID-19.  The guidance is a helpful reminder to employers that even actions taken with the best of intentions may not comply with legal obligations and restrictions.  Below are three important questions for employers to consider in light of the EEOC’s updated guidance.

How does the Interactive Process Apply to COVID-Related Requests for Accommodation?

Under the Americans with Disabilities Act (the “ADA”), employers are obligated to consider requests from a disabled employee for reasonable accommodations to the employee’s work environment that would permit him or her to perform the essential functions of the job. While the EEOC’s earlier guidance addressed the nuts and bolts of the “interactive process” during the pandemic generally (including the timeframe in which employers should respond to requests for accommodation and what qualifies as an “undue hardship” during the pandemic), many employers were left questioning how the outbreak of COVID-19 would impact their

U.S. COVID-19: Mask and Facial Covering Orders—Four Things Employers Need to Know and Do to Comply with New Obligations

Across the country, state and local governments are considering safe ways to “reopen” their economies and revise some of their strict shelter-in-place orders. One such consideration includes masks and “face coverings,” with many implementing a requirement that members of the public, including employees reporting to work, wear such coverings.  Below are four things that employers should do now to be prepared to comply with mask and face covering requirements as they “reopen” their businesses.

  • Continue to Monitor Public Health Guidance
  • Public health authorities at the federal, state, and local levels are likely to continue revising their recommendations on face coverings as they learn more about COVID-19. For example, last month, the federal Centers for Disease Control and Prevention (“CDC”) issued guidance recommending that individuals wear “cloth face coverings”[1] in public settings where other social distancing measures are difficult to maintain (e.g., grocery stores and pharmacies), especially in areas of significant community-based transmission. The CDC makes clear that the purpose of such coverings is primarily to “help people who may have the virus and do not know it from transmitting it to others.” In other words, a face covering primarily protects others from an asymptomatic wearer.

    Although the CDC’s guidance is only a recommendation – and thus not binding – a variety of local and federal agencies rely on the CDC’s guidance generally to identify “best practices” for employers, including the Equal Employment Opportunity Commission (“EEOC”) and the Occupational Safety and Health Administration (“OSHA”). State and local

    U.S. COVID-19: EEOC Updates COVID-19 Guidance, Permitting Employers To Administer COVID-19 Tests and Clarifying Accommodation Obligations

    April 28, 2020

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    The U.S. Equal Employment Opportunity Commission (“EEOC”) recently issued new guidance to employers regarding the COVID-19 pandemic. Notably, and in a significant departure from prior guidance, the EEOC advises that employers may administer a COVID-19 diagnostic test to an employee before entering the workplace. The EEOC also clarified employee rights and employer responsibilities relating to accommodations. It will be critical for employers to understand this guidance from the EEOC, as well as orders and related guidance from federal, state, and local authorities, as they prepare to bring employees back to work safely.

    Testing Employees for COVID-19

    The EEOC has previously advised that, under the Americans with Disabilities Act (“ADA”), an employer can only require an employee to undergo a medical test if that test is “job related and consistent with business necessity.” Under this exacting standard, it was not clear whether an employer could test its employees for COVID-19 before entering the workplace. The EEOC has now clarified that, because an individual with the virus will pose a direct threat to the health of others, employers may take steps to determine if employees entering the workplace have COVID-19, even if those steps involve a medical test. Accordingly, an employer may choose to administer COVID-19 testing to employees before they enter the workplace.

    The EEOC reminds employers that, consistent with the ADA, employers should ensure that the tests are accurate and reliable. Guidance from the U.S. Food and Drug Administration describes the rapidly developing field of COVID-19 testing, and advises which

    U.S. COVID-19: Workplace Temperature Screening: How To Develop and Implement A Screening Protocol

    The notion that U.S. employers would engage in broad-scale temperature screening of employees would have once been essentially unthinkable.  But the realities of COVID-19 are changing the workplace, as least for the time-being.  With the encouragement of the Centers for Disease Control and Prevention (“CDC”) and some state and local governments, and in light of the blessing of the Equal Employment Opportunity Commission (“EEOC”), more employers are now considering the implementation of daily temperature screening[1] before employees enter the workplace.

    In Part 1 of our two-part series on temperature screening, we addressed the question of whether employers may (or must) implement a temperature screening protocol.  Here, in Part 2, we address the question of how to implement such a protocol, i.e. what procedures for temperature screening in the workplace should employers implement? Below are a number of issues for employers to consider:

  • Decide who will be screened. Some employers are screening only critical infrastructure workers who were or may have been exposed to a person suspected or confirmed to have COVID-19.  Other employers are screening all employees, and often are also screening any contract workers and visitors who enter the workplace, unless doing so would be virtually impossible (e.g., a grocery store screening all customers).  Although deciding who will be screened is essentially a business decision, at all times, employers must ensure that employees are selected for screening on a nondiscriminatory basis.
  • Decide who will do the screening. The options for who will do the screening range
  • U.S. COVID-19: Employee Temperature Screening: What Employers Need To Consider When Deciding Whether To Implement a Screening Process

    In light of concerns about the spread of the novel coronavirus in the workplace, employers are confronting important questions pertaining to the screening of employees for COVID-19 symptoms, including as it pertains to taking employees’ temperatures: May (or must) we screen employees for fevers, and if so, how should we implement such a practice?

    In Part 1 of this two-part blog series, we address issues relating to the decision of whether employers may (or must) implement a temperature screening protocol.  In Part 2, we will provide guidance on how to do so.

    Non-Discriminatory Temperature Screening Is Permitted

    Taking an employee’s temperature is considered a medical exam under the Americans with Disabilities Act (“ADA”) and would normally be subject to strict restrictions. However, the federal Equal Employment Opportunity Commission (“EEOC”) has expressly stated in updated guidance that employers are permitted to screen employees for fevers due to the COVID-19 pandemic.  Some state agencies are following suit; for example, the California Department of Fair Employment and Housing recently issued guidance indicating that temperature checks are permissible and non-discriminatory under the present circumstances, so long as they are conducted on all personnel entering a facility.

    Federal Guidance Supports Temperature Screening In Certain Circumstances

    At the federal level, the Centers for Disease Control and Prevention (“CDC”) has advised all employers to consider “community level spread” of COVID-19 when determining appropriate workplace precautions, stating that workplaces in communities with minimal to moderate community spreading should, among other things, “[c]onsider regular health

    U.S. Employers Weigh EEOC Guidance in Responding to Coronavirus

    As the coronavirus disease 2019 (COVID-19) continues to spread, U.S. employers considering taking preventative measures to reduce transmission should bear in mind employment laws that may restrict certain precautions, including the Americans with Disabilities Act (“ADA”).

    Basic precautionary measures like promoting washing hands, encouraging employees to stay home when they are sick, and other good hygiene practices recommended by the Centers for Disease Control and Prevention (“CDC”) are unlikely to raise concerns under the ADA.  Indeed, recent guidance from the Equal Employment Opportunity Commission (“EEOC”) makes clear that the CDC’s guidelines and suggestions for employers regarding COVID-19 do not violate the ADA.

    However, the ADA does prohibit covered employers from excluding individuals with disabilities from the workplace for health or safety reasons unless they pose a “direct threat” (i.e., a significant risk to the health or safety of others that can’t be eliminated by reasonable accommodation).

    Nonetheless, it is likely permissible for employers to ask employees who travel to or from an area affected by COVID-19 to work from home or, if remote work is not possible, take leave for 14 days (the incubation period for COVID-19) because the employees pose a direct threat under the ADA.   Whether the leave period must be paid or can be unpaid depends mostly on the employee’s classification under the federal Fair Labor Standards Act as “exempt” or “non-exempt,” the particular state laws of the state in which the employee works, and the employer’s own sick leave policies.

    Remember to Think Outside the Box: Ban-the-Box Laws Are Not the Only Restrictions on Consideration of an Applicant’s Criminal History

    December 5, 2019

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    A growing chorus of cities, counties, and states have passed “ban-the-box” laws that restrict when and how employers can consider an applicant’s or employee’s criminal history. Currently, thirteen states (California, Colorado, Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, New Mexico Oregon, Rhode Island, Vermont, Washington) and eighteen cities and counties (Austin, Baltimore, Buffalo, Chicago, Columbia (MO), District of Columbia, Kansas City (MO), Los Angeles, Montgomery County (MD), New York City, Philadelphia, Portland (OR), Prince George’s County (MD),  Rochester, San Francisco, Seattle, Spokane, and Westchester County (NY)) have ban-the-box legislation for private employers.

    However, employers often forget that use of an individual’s criminal history in making employment decisions may also violate the federal prohibition against employment discrimination under Title VII of the Civil Rights Act. For instance, an employer’s neutral policy to exclude applicants from employment based on certain criminal conduct may disproportionately impact individuals of a certain race or national origin.

    Recently, Dollar General Corp. agreed to pay $6 million to resolve a discrimination suit brought by the United States Equal Employment Opportunity Commission over the use of Dollar General’s broad criminal background check policy that purportedly discriminated against African-American applicants and employees. In addition to the monetary settlement, Dollar General must hire a criminology consultant to develop and implement a new criminal background check policy.  The consent decree also requires Dollar General to update its reconsideration process and make it clear to rejected applicants that they may provide information to support reconsideration of their exclusion. The consent decree further

    EEOC Publishes Much Anticipated EEO-1 Component 2 Guidance in Advance of Employers’ September 30th Filing Deadline

    On July 1, 2019, the Equal Employment Opportunity Commission (“EEOC”) published its much anticipated guidance on the collection and submission of Component 2 data of the EEO-1 report.  As a reminder, covered employers are required to submit Component 2 data (which covers certain pay data and hours worked data) for report years 2017 and 2018 by September 30, 2019.  The EEOC intends to use Component 2 data to identify potentially unlawful pay disparities based on race/ethnicity and sex.

    The guidance, which is published on the EEOC’s web-based portal, includes a variety of information, including a sample EEO-1 Component 2 report form, a Fact Sheet, and a Frequently Asked Questions section (“FAQ”).

    Much of the new guidance aligns with that which the EEOC published in 2016, before the White House’s Office and Management and Budget stayed the collection of Component 2 data in August 2017.  Below are a few important highlights from the new guidance:

    • Workforce Snapshot Period
      • Employers need only submit Component 2 data for employees employed during the “workforce snapshot period” for each of the relevant reporting years.
      • The “workforce snapshot period” is an employer-selected pay period between October 1 and December 31 of the reporting year.
      • The “workforce snapshot period” does not need to be the same for 2017 and 2018, nor does it need to align with the pay period used for submitting Component 1 data.
    • Pay Data
      • Employers will submit Component 2’s pay data by

    Employers Must Submit Pay Data in EEO-1 Reports for 2017 and 2018 – Additional Guidance from the EEOC is Forthcoming

    As a result of recent federal litigation, the Equal Employment Opportunity Commission (“EEOC”) has announced that employers must submit pay data in their annual EEO-1 reports to the agency for calendar years 2017 and 2018 by September 30, 2019.  Although not currently active, the EEOC expects a web-based portal for the collection of the data to be open by mid-July 2019.  The portal will be available at https://eeoccomp2.norc.org.

    In addition to the portal, the EEOC intends to issue guidance, including FAQs and other materials, to assist employers in mid-July 2019.  In the meantime, the Department of Justice has filed a Notice of Appeal to the federal litigation that lifted the EEOC’s stay on collecting such pay data.  Likewise, the EEOC’s helpdesk is set to become operational this week and can be contacted as follows:

    Email: EEOCcompdata@norc.org

    Toll Free Telephone: (877) 324-6214

    Although an appeal has been filed, the EEOC is proceeding with enforcement of the regulation, so employers should not wait on the outcome of the appeal to begin compliance efforts. If they have not already done so, employers should immediately begin reviewing their collection processes to ensure that they are prepared to report the required pay data by September 30, 2019.

    Bryan Cave Leighton Paisner LLP has a team of knowledgeable lawyers and other professionals prepared to help employers review and comply with EEO-1 reporting obligations.  If you or your organization would like more information or assistance in preparing EEO-1 reports, please contact an attorney in the Labor

    Employers Have Until September 30, 2019 to Submit Pay Data to the EEOC

    Update to our April 11 article:

    Earlier today, Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia ordered employers to submit worker pay data to the Equal Employment Opportunity Commission (“EEOC”) by September 30, 2019. In so ruling, the Court rejected arguments from worker advocate groups who had sought to require the collection of pay data by May 31, 2019.

    Pursuant to the Court’s Order, employers must submit two years’ worth of pay data to the EEOC.  While data for 2018 must be included in an employer’s September 30th submission, the EEOC is free to choose whether the second year of data will come from 2017 or 2019.   If the EEOC elects to collect data from 2017, employers will be required to submit the 2017 pay data by September 30, 2019 as well.  If the agency elects to collect data from 2019, employers will be required to submit the 2019 pay data in the spring of 2020.  The EEOC has until May 3, 2019 to decide whether it will collect 2017 pay data or 2019 pay data.

    If not already done, employers should immediately begin reviewing their collection processes to ensure that they are prepared to report the required pay data by September 30, 2019.

    Bryan Cave Leighton Paisner LLP has a team of knowledgeable lawyers and other professionals prepared to help employers review and comply with EEO-1 reporting obligations.  If you or your organization would like more information or assistance in preparing EEO-1

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