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Update: Last and Final Extension to EEO-1 Report Filing Deadline

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.

COVID Vaccination – OSHA Suggests Employers Consider Requiring Vaccination

August 16, 2021

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In the strongest language issued on the subject to date, on August 13, 2021, OSHA revised its COVID guidance for employers (“Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace”) and “suggest[ed] that employers consider adopting policies that require workers to get vaccinated or to undergo regular COVID-19 testing – in addition to mask wearing and physical distancing – if they remain unvaccinated.”

Since COVID vaccines became widely available, employers have been weighing whether to implement a COVID vaccination requirement for employees (whether to enter the workplace or to remain employed).  While not having the same force and effect as a regulation, published OSHA guidance is a meaningful and important indicator of what the federal safety watchdog considers to be appropriate employer action.  For those employers who were looking for that nudge to convince them to implement a policy requiring vaccination, this revised guidance may just be that nudge.

As we discussed in previous blog posts (Coronavirus (US): Key vaccination issues for employers – Part 1, Part 2, and Part 3) on the subject, when implementing a mandatory vaccination policy, employers must, among other legal

Employee COVID Vaccination Status: You Asked. They Answered. Now What?

As employers make plans to modify pandemic-related work-from-home arrangements and require employees to come into the workplace, many have wrestled with “the vaccination status question.” Should employers ask employees whether they are fully vaccinated against COVID-19, or even require employees to provide proof of vaccination before returning to work (subject to certain accommodation obligations)?

The U.S. Equal Employment Opportunity Commission’s (“EEOC”) COVID-19 Guidance has made clear that, under the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”), employers are generally permitted to inquire about vaccination status, because the question is not a disability-related inquiry or a medical examination.  In light of this guidance, many employers have opted to ask the vaccination status question, and are doing so in various voluntary or mandatory ways, e.g., through surveys, through required completion of forms or attestations, or even by requesting proof of vaccination (i.e., a copy or photograph of the employee’s CDC-issued vaccination card received at the time of vaccination).

But once the vaccination status question is asked and answered, what can and should an employer do with the vaccination status information? Can it be the basis for employment-related decisions? Are there any restrictions on

Illinois Employers Must Report Gender, Race, Ethnicity and Compensation Data and Practices

Under amendments to the Illinois Business Corporation Act and the Illinois Equal Pay Act, certain corporations will be required, beginning in 2023 and continuing thereafter, to report data concerning the gender, race, and ethnicity makeup of their workforces, along with information about their compensation practices and efforts to comply with equal pay laws.  Much of this information will become public, and failure to report the necessary information can lead to significant penalties.

EEO Data Reporting

Illinois domestic corporations and foreign corporations authorized to do business in Illinois are already required by the Illinois Business Corporation Act to file certain annual reports with the Secretary of State.  Beginning with the corporation’s annual report filed on and after January 1, 2023, any such corporations which are also required to file an Employer Information Report EEO-1 with the Equal Employment Opportunity Commission (“EEOC”) must include with their annual report “information that is substantially similar to the employment data reported under Section D of the corporation’s EEO-1” report.

Employers should be aware that data on the gender, race and ethnicity of each reporting corporation’s employees will be published by the Secretary of State on its website within 90 days of receipt.

Equal Pay Registration

Illinois Tightens Restrictions on Use Of Criminal Conviction Information

Restrictions on inquiring into, or using, criminal history information are not new to Illinois employers.  For years, Illinois employers been precluded from using an applicant’s arrest history when making hiring or other employment decisions.  And, in 2015, Illinois joined the list of “ban the box” states by precluding employers with 15+ employees from inquiring into or considering the criminal record or criminal history of an applicant until after the applicant was selected for an interview or had received a conditional offer of employment.

Effective March 23, 2021, the restrictions have tightened again, through amendments to the Illinois Human Rights Act (“IHRA”), which borrow concepts from the Equal Employment Opportunity Commission (“EEOC”) and the Fair Credit Reporting Act (“FCRA”).

Restricted Use of Conviction Records

The new IHRA provisions make it a civil rights violation for an employer to use a “conviction record” as the basis for any employment decision, including hiring, promotion, discipline and discharge, unless:

  1. There is a “substantial relationship” between one or more of the previous criminal offenses and the employment sought or held; OR
  2. The granting or continuation of employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals

Coronavirus (US): Key vaccination issues for employers – Part 3

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

Coronavirus (US): Key vaccination issues for employers – Part 2

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.

Coronavirus (US): Key vaccination issues for employers – Part 1

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 1 of the three-part article, we address six 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.

(1) May an employer require employees who will be present on company property to obtain a vaccine when it becomes readily available to the general public?

Generally, yes; provided that

New OFCCP Director Appointment Signals Renewed Focus on Pay Discrimination

President Biden’s appointment of Jenny Yang to Director of the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) on his first day in office signals a new direction in federal equal employment opportunity enforcement.  Prior to this appointment, Director Yang had a career as a plaintiff’s attorney before being appointed to Chair of the Equal Employment Opportunity Commission (“EEOC”) under the Obama administration.  Notably, during Director Yang’s time as Chair of the EEOC, the agency introduced a highly contested requirement for employers to disclose certain employee pay data when filing EEO-1 Reports.

We expect that many of the Biden administration’s equal employment initiatives, including a renewed emphasis on pay discrimination, will be vetted through the OFCCP by Director Yang.  The EEOC may not experience as much of an immediate sea change since the Republican EEOC commissioners will remain in place through 2022.

Importantly, the OFCCP has the authority to audit private employers’ hiring and pay practices if the employer falls within the agency’s jurisdiction, which is broadly defined and applies to approximately 25% of private employers.  For example, a private employer is a government contractor or a subcontractor under the OFCCP’s jurisdiction if it has 50 or more

US COVID-19: Risky Business – Navigating Workplace Issues Involving High Risk Employees

As states across the country see spikes in COVID-19 cases, employers continue to wrestle with how to handle “high risk” employees, i.e., employees who are at an increased risk for severe illness from COVID-19.  Guidance from a variety of agencies on the topic, including the Equal Employment Opportunity Commission (“EEOC”), the Centers for Disease Control and Prevention (“CDC”), and the Occupational Safety and Health Administration (“OSHA”), has been published in waves, leaving many to wonder how this guidance may or may not continue to be relevant.

Below are six important areas of the law to consider when navigating this evolving landscape.  As a reminder, each individual employee’s circumstances are unique, so while employers should have a consistent procedure in place for triaging high risk employees’ presence in the workplace, employers should also be prepared to develop individualized solutions based on an employee’s specific needs.

  1. The Americans with Disabilities Act (“ADA”): Employees with certain underlying health conditions may qualify as “high risk” and thus be entitled to a reasonable accommodation under the ADA.  While accommodations may include a leave of absence or telework arrangement, other possible accommodations include permitting the employee more frequent hygiene breaks, excusing
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