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US COVID-19: 4 Takeaways from the EEOC’s New Guidance on Antibody Testing, Older Workers, and Accommodations

June 23, 2020

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With more and more states reopening their economies, employers are facing a barrage of new requirements from state and local governments.  But compliance with local law isn’t the only thing employers must consider as they resume business operations.  Federal anti-discrimination laws, including the Americans with Disabilities Act (“ADA”) and the Age Discrimination in Employment Act (“ADEA”), continue to impact which workers may be required to return to work and what information employers may gather in the process.

Just as the COVID-19 pandemic evolves, so, too does guidance on these topics from the Equal Employment Opportunity Commission (“EEOC”), the agency charged with enforcing federal anti-discrimination laws.  In its most recent publication, the EEOC offers new insights on antibody testing, older workers, and accommodations.  Below are four key takeaways from the updated guidance for every employer to consider.

  • Employers may not require employees to undergo antibody testing (i.e. serologic testing used to determine whether an employee was previously infected with COVID-19) prior to returning to the workplace. This is in contrast to diagnostic testing (i.e. viral testing used to determine whether an employee is currently infected with COVID-19), which an employer may require.
  • Employees are not entitled to an accommodation under the ADA in order to reduce the risk of exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition.
  • If an employer implements health/temperature screenings upon entry, an employee’s request for an alternative method of screening due to a medical
  • US COVID-19: EEO Reminders to Include in Return to Work Communications

    As employers prepare their “Return To Work” plans, clear communications to employees about protocols and expectations will be critically important.  Recent updates to the federal Equal Employment Opportunity Commission (EEOC) COVID-19 publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEOC Laws,” discuss “reminders” that employers should consider providing to employees on various EEO-related “Return To Work” topics.

    Anti-Harassment Reminders

    Near the beginning of the COVID-19 outbreak in the U.S., as reports of harassing conduct towards Asian individuals increased, the EEOC was quick to remind employers that they could reduce the chance of harassment by explicitly communicating to the workforce that fear of the pandemic “should not be misdirected against individuals because of a protected characteristic, including their national origin, race, or other prohibited bases.”  (E.1.)

    The EEOC reiterated that guidance in its recent updates, noting that workforce reminders should:

    • Note Title VII’s prohibitions on harassment;
    • Remind employees that harassment will not be tolerated;
    • Encourage anyone who experiences or witnesses workplace harassment to report it to management; and
    • Remind employee that harassment can result in disciplinary action up to and including termination.

     

    (E.3.)  The EEOC further emphasized that managers in particular should be reminded of their roles in watching for, stopping, and reporting any harassment or other discrimination, and that managers should specifically “be alert to demeaning, derogatory, or hostile remarks directed to employees who are or are perceived to be of Chinese or other Asian national origin, including about

    Coronavirus: new detailed UK guidance on part-time furloughing and reduction in grants under the UK furlough scheme – implications for employers

    The UK government has now released its detailed guidance to implement flexible furlough and gradually wind down the Coronavirus Job Retention Scheme (“CJRS”) to its expected end date of 31 October 2020.

    Key highlights of the new flexible furlough regime and winding down payments

    From 1 July 2020, employers can bring furloughed employees back to work for any amount of time and any shift pattern, while still being able to claim a CJRS grant for the hours not worked. Some of the key aspects of the flexible furloughing regime are set out below:

    • Employers will still be able to claim the CJRS grant for the hours that its employees are flexibly furloughed (that is, not working), compared to the hours they would normally have worked in that period.
    • The existing three week minimum furlough period will be removed. CJRS claims made via the online portal will, however, need to be for a minimum period of one week.
    • Wage caps will be proportional to the hours an employee is furloughed. For example, an employee is entitled to 60% of the £2,500 cap if they are placed on furlough for 60% of their usual hours.
    • Save for employees returning from family leave:
      • employers will only be able to claim for employees who have previously been furloughed for at least 3 consecutive weeks taking place any time between 1 March 2020 and 30 June 2020; and
      • the number of employees an employer can claim for in any claim period starting

    Coronavirus: UK Furlough Scheme – timeline of key dates including collective consultation triggers

    The UK Coronavirus Job Retention Scheme (“CJRS”) is evolving and winding down. In addition to knowing when these changes take effect, UK employers need to bear in mind the risk that they may also trigger collective consultation obligations. Set out below are some key dates for UK employers to bear in mind:

    10 June 2020: furlough claims can only be made in respect of employees who have been registered under the scheme by this date.

    16 June 2020: ‘cliff-edge’ date for conducting minimum 45 days collective consultation prior to any changes from 1 August 2020.

    30 June 2020: employers will not be able to put additional employees on furlough.

    1 July 2020: part-time furloughing is permitted.

    1 August 2020: employers will have to pay employer National Insurance contributions and employer pension auto enrolment contributions for furloughed employees.

    1 September 2020: employers must contribute 10% towards the pay of furloughed employees.

    15 September 2020: ‘cliff-edge’ date for conducting minimum 45 days collective consultation prior to the end of the CJRS on 31 October 2020.

    1 October 2020: employers must contribute 20% towards the pay of furloughed employees.

    31 October 2020: the CJRS ends.

    BCLP has assembled a COVID-19 Employment & Labor taskforce to assist clients with employment law issues across various jurisdictions. You can contact the taskforce at: COVID-19HRLabour&EmploymentIssues@bclplaw.com. You can also view other thought leadership, guidance, and helpful information on our dedicated COVID-19 / Coronavirus resources page at https://www.bclplaw.com/en-GB/topics/covid-19/coronavirus-covid-19-resources.html

    COVID-19 redundancy issues: HR frequently asked questions in multiple jurisdictions

    Summary

    We understand that our clients and contacts will be addressing complex redundancy issues related to COVID-19 in multiple jurisdictions. BCLP, together with our local counsel friends, have produced a global Q&A document covering 40 jurisdictions. We cover questions around dismissals, compensation, collective consultation and alternatives to redundancy.

    Please download our global Q&A document here.

    The document covers the following questions:

    • Is there any legislation, order or mandate prohibiting an employer from dismissing an employee in circumstances where the employer has obtained the benefit of Coronavirus government support?
    • Does an employee with a qualifying period of employment have any statutory protection against redundancy dismissal?
    • What redundancy compensation is payable to an employee who is dismissed by reason of redundancy?
    • Should an employer take into consideration a Coronavirus government support scheme before dismissing an employee?
    • Are employers subject to separate collective consultation obligations?
    • If an employer is subject to collective consultation obligations, is there any defence for a failure to comply?
    • If an employer is subject to collective consultation obligations, what is the sanction for a failure to comply?
    • What alternatives to redundancy dismissal are open to an employer?

    U.S. COVID-19: Chicago Ordinance Bars Retaliation For Taking COVID-19 Related Leave

    As the result of an Ordinance that was passed and became effective on May 20, 2020, Chicago employers are prohibited from taking adverse action against employees who take leave for certain COVID-19 related reasons.

    Covered Employers

    The Ordinance applies to all employers who are covered by the Chicago Minimum Wage and Paid Sick Leave Ordinance (“PSL Ordinance”), which went into effect in July 2017.  This includes any employer (any individual, partnership, association, corporation, limited liability company, business trust, or person/group of persons) that: (a) employs at least one Covered Employee, and (b) maintains a business facility within the geographic boundaries of Chicago and/or is subject to certain Chicago licensing requirements.

    Covered Employees

    Most employees are covered, so long as they work at least two hours during any two-week time period in the City of Chicago (including time travelling for deliveries or sales calls but not including uncompensated commuting time).

    Prohibited Retaliation

    As part of a “[d]uty to allow Covered Employees to obey public health orders,” employers are prohibited from taking adverse action against an employee “for obeying an order issued by the Mayor, the Governor of Illinois, the Chicago Department of Public Health, … or a treating healthcare provider [in the case of 2-4 below],” requiring an employee to:

  • Stay at home to minimize the transmission of COVID-19;
  • Remain at home while experiencing COVID-19 symptoms or sick with COVID-19;
  • Obey a quarantine order issued to the Covered Employee;
  • Obey an isolation order issued to the Covered Employee;
  • Coronavirus – UK furlough scheme changes increase employer costs and may trigger collective consultation

    Today, the UK Chancellor of the Exchequer, Rishi Sunak, made a long awaited statement setting out further details of the changes to the UK Coronavirus Job Retention Scheme (the “CJRS”). He confirmed that progressively with effect from 30 June 2020 until the cessation of the CJRS on 31 October 2020 the following changes will be made:

    • From 30 June 2020: employers will not be able to put additional employees on furlough under the CJRS – employers can only make furlough claims in respect of those who have already been registered under the scheme as at 10 June 2020.
    • From 1 July 2020: employers may take employees off furlough to work part-time. Employers will be responsible for remuneration costs related to any period of part-time work, with CJRS grants continuing to fund the period when the employees are not working part-time.
    • From 1 August 2020: employers will have to pay the related employer National Insurance contributions and employer pension auto enrolment contributions.
    • From 1 September 2020: employers must contribute 10% towards the pay of furloughed employees, with the government grant reduced to 70%. The 80% furlough pay will continue to be capped at £2,500 per month.
    • From 1 October 2020: employers must contribute 20% towards the pay of furloughed employees, with the government grant reduced to 60%. The 80% furlough pay will continue to be capped at £2,500 per month.

    With the above changes in mind, employers need to make early assessments as to whether, and if so how,

    Sexual Harassment Prevention Training Now Required For Illinois Employees – Is Your Training Compliant?

    Employers in recent months have understandably been laser-focused on COVID-19. However, Illinois employers – including employers who are largely based outside of Illinois but have even one employee who works in Illinois – should be mindful of their new obligation to provide annual sexual harassment prevention training before the end of the year (and yearly thereafter) under the Illinois Workplace Transparency Act (“WTA”) and its amendments to the Illinois Human Rights Act (“IHRA”). Recently, the Illinois Department of Human Rights (“IDHR”) published its Model Sexual Harassment Prevention Training Program (the “Model Training”), which should be used as a guideline for ensuring employers’ own training programs comply with the WTA.

    Administration of the Training

    All Illinois employers must implement a sexual harassment prevention training program by the end of 2020 and subsequently provide the training on an annual basis. Unlike in some other states, there are no length or format requirements for the training, except that the training must be “interactive,” must be accessible to employees with disabilities, and must be accessible to employees who speak languages other than English.

    The minimum content requirements for all employees are:

  • An explanation of sexual harassment consistent with the definition provided in the IHRA;
  • Examples of conduct that constitutes unlawful sexual harassment;
  • A summary of federal and Illinois law concerning sexual harassment, including remedies available to victims of sexual harassment; and
  • A summary of responsibilities of employers in the prevention, investigation and corrective measures of sexual harassment.
  • On April 28, 2020, IDHR released

    Coronavirus Statutory Sick Pay Rebate Scheme – UK online service to be launched on 26 May 2020

    Today, the UK government announced that a new online service will be launched on 26 May 2020 for small and medium-sized employers (with fewer than 250 employees) to recover Statutory Sick Pay (SSP) payments they have made to their employees.

    The Coronavirus Statutory Sick Pay Rebate Scheme (part of a package of support measures for businesses affected by Coronavirus) covers all types of employment contracts, including full-time employees; part-time employees; employees on agency contracts and employees on flexible or zero-hour contracts.

    Employers will be able to make their claims through a new online service in respect of payments made to current or former employees for eligible periods of sickness starting on or after 13 March 2020 on condition that they have a PAYE payroll scheme that was created and started before 28 February 2020 and they had fewer than 250 employees before that date.  Employees do not have to provide a doctor’s fit note for their employer to make a claim under the scheme.

    The repayment will cover up to 2 weeks of SSP and is payable in respect of employees who are unable to work because they have Coronavirus; are self-isolating and unable to work from home or are shielding because they have been advised that they are at high risk of severe illness from Coronavirus.

    BCLP has assembled a COVID-19 Employment & Labor taskforce to assist clients with employment law issues across various jurisdictions. You can contact the taskforce at: COVID-19HRLabour&EmploymentIssues@bclplaw.com. You can also view other thought

    U.S. COVID-19: Biometrics and Business Re-Opening

    Now that wearing gloves has become the new normal because of the COVID-19 pandemic, biometric privacy litigation, which in recent years has centered on employers’ use of finger-scan timekeeping technology, may ultimately shift in focus to the measures that businesses implement as employees return to the workplace and customers begin to frequent their favorite establishments.  Body temperature checks, used to screen employees and visitors for a fever, are one such measure being considered as a first line of defense for public health.

    To mount a defense against, or avoid altogether, biometric privacy class action litigation, businesses open to the public and employers must have a comprehensive understanding of the thermometer or thermal imaging technology selected—and the data it captures—before rolling out temperature screenings on a widespread basis.  Among the technologies available are:

    • Non-contact infrared thermometers that use lasers to measure temperature from a distance;
    • Thermal imaging cameras that detect elevated skin temperatures compared against a sample of average temperature values;
    • Monitoring systems that use thermal and color visual imaging to detect fevers in high-volume pedestrian areas; and
    • “Wearables” that can use radiometric thermometry measuring electromagnetic wave emissions.

    While temperature screening has been endorsed by the Centers for Disease Control and Prevention, the Equal Employment Opportunity Commission, and various state and local governments, biometric privacy laws have not been suspended or amended.  The Illinois Biometric Information Privacy Act (“BIPA”) regulates the possession, collection, capture, purchase, receipt, and sale of “biometric identifiers” and “biometric information”—defined to include retina or iris

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