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

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:

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

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.

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

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
    

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

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

In court documents filed on April 3, 2019, the Equal Employment Opportunity Commission (“EEOC”) announced that employers may be required to submit pay data to the agency by September 30, 2019.

The filing was made after Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia ordered the EEOC to describe when and how it will comply with the Court’s March 4th Order lifting the White House’s Office of Management and Budget’s August 2017 stay on the EEOC’s collection of pay data.

Pay data has received much attention from employers and advocates alike since the Court’s March 4th Order, but the EEOC has largely remained silent until this recent filing.  For example, on March 18, 2019, when the EEOC opened its online portal for filing EEO-1 reports for 2018 (which are due by May 31, 2019), the portal did not include any request for pay data.  Instead, the agency issued a statement that same day noting that it was “working diligently on next steps” regarding the collection of pay data.

In addition to identifying a date by when employers may need to submit pay data, the EEOC’s April 3rd filing also proposes that employers only be required to submit pay data for 2018 (rather than 2017 and 2018) and describes the agency’s plan to use a data and analytics contractor to develop a new reporting program to collect the data.

The September 30, 2019 deadline, however, is not set in stone.  Worker advocates objected to the

Scrutiny of the gender pay gap in the U.S. and abroad has intensified in recent years and shows no sign of diminishing in the short term.

In the U.K., both private and public sector employers with at least 250 employees are now required to publish gender pay data. This is an annual obligation to publish details including the organization’s overall gender pay gap, the percentages of male and female employees across four quartiles and the gender pay gap in relation to bonuses. The deadline for the first reports was April 4, 2018, for private sector employers and March 30, 2018, for public sector employers.

Meanwhile, in the U.S., the Equal Employment Opportunity Commission continues to identify pay discrimination enforcement actions among its strategic priorities, and a number of states (e.g., California, Delaware, Oregon, etc.) have recently enacted more stringent laws aimed at achieving pay equality in the workplace.  Alongside these legislative and enforcement efforts to curb pay discrimination, activist shareholder firms have begun pressuring public companies in the U.S. to address the gender pay gap by making shareholder proposals that, if passed, would require targeted companies to disclose pay information describing their female employees’ pay as a percentile of male employees’ compensation.

Activist firms, such as Arjuna Capital and Trillium Asset Management, have targeted numerous companies with shareholder proposals that would require disclosure of gender pay data in annual 14-A proxy statements. Overwhelmingly, these proposals have either failed (by a significant margin) or, increasingly, have been withdrawn before a formal