On December 2, 2020, the Equal Employment Opportunity Commission (“EEOC”) announced a new interactive data search and mapping tool, named “EEOC Explore,” which permits users to access “the most current, granular, and privacy protected aggregate EEO-1 data publicly available,” covering over 56 million employees and 73,000 employers across the United States. According to the agency, EEOC Explore “enables stakeholders to explore and compare data trends across a number of categories, including location, sex, race and ethnicity, and industry sector without the need for experience in computer programming or statistical analysis.”

EEOC Explore uses aggregate information from employer EEO-1 reports, which are collected annually from private employers with 100 or more employees and federal contractors with 50 or more employees. Currently, the aggregated dated is only from two years, Fiscal Years 2017 and 2018, although FAQs the EEOC released in conjunction with the tool’s launch state that the agency will eventually add data from prior years to the database upon de-identification and organization into Public Use Files. This process ensures the confidentiality of the data by eliminating the means for identifying any particular employer or employee in compliance with Section 709 (e) of Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972.

Importantly, the EEOC Explore launch includes a User Guide, which provides detailed instructions on how to use the tool to obtain the specific information desired. The tool contains the following features:

After selecting a dashboard, the user can then filter the data further, by year, geography, sex, race/ethnicity, job category, NAICS code (2-digit), and NAICS code (3-digit) to view more granular data, as illustrated in the following map:

Other features of EEOC Explore include the ability to:

  • Filter and sort data.
  • View details about specific data points through “Tooltips.”
  • Select marks to highlight data points in the view.
  • Ascertain time trends.
  • Compare geographic locations.
  • Export screen display to PDF.
  • Download underlying data from a visual object.

The EEOC’s Chief Data Officer, Dr. Chris Haffer, asserts that EEOC Explore’s features will make “tracking employment trends as simple as a few clicks, particularly for those analyzing job patterns for minorities and women in private industry.”

It is too soon to tell if the availability of this data will lead to increased enforcement or litigation exposure for employers. We will continue to monitor for relevant developments and update as needed. If you have any questions about the tool, please contact the authors or your Epstein Becker Green attorney directly.

In advance of the December holiday season, the CDC has issued a revised guidance on recommended quarantine periods.

The revised guidance provides shortened quarantine periods for individuals who have been in close contact with someone who has COVID-19. While the CDC maintains that the 14-day quarantine period provides greater protection for reducing transmission of the coronavirus, the agency has now provided two shorter options, which it says are designed to help alleviate the personal economic hardship associated with the extended quarantine period.

Pursuant to the guidance, individuals who do not develop symptoms may quarantine for only ten (10) days. This quarantine period can be further reduced to seven (7) days if the asymptomatic individual receives a negative test (PCR or antigen) result from a sample collected within 48 hours of the final day of quarantine. The guidance makes clear that testing should be considered only when diagnostic testing resources are sufficient and available. In addition, the agency cautions that after the quarantine period ends, individuals should continue to self-monitor for symptoms until 14 days after close contact and should continue to adhere to mitigation measures to prevent the spread of COVID-19, such as wearing a mask, social distancing and avoiding crowds.

Finally, the CDC explicitly reminded that state and local public health authorities determine the quarantine options applicable in their jurisdictions.  Accordingly, employers must review any state or local guidelines before changing current protocols.

With New Jersey experiencing a second wave spike of COVID-19 infections and with holiday season gatherings upon us, on November 30, 2020 Governor Phil Murphy issued Executive Order 204 (“EO 204” or the “Order”) tightening restrictions on outdoor gatherings and pausing indoor practices and competitions for youth and adult sports.

Indoor Youth and Adult Sports

With limited exception, EO 204 prohibits youth and adult indoor sports practices, competitions, and other organized sporting activities from December 5, 2020 until January 2, 2012. The prohibition will not affect collegiate and professional sporting activities.  In addition, the Order permits private fitness classes, lessons, and trainings at gyms, studios and similar locations to continue.

Outdoor Gatherings

Beginning December 7 at 6:00 a.m. and continuing indefinitely, EO 204 lowers the outdoor gatherings limit from 150 people to 25 people. The Order exempts wedding ceremonies, funerals, memorial services, and religious and political activities from the outdoor gatherings limit. In addition, the Order exempts athletes, coaches, referees and other individuals necessary for a professional or collegiate sports competition from being counted towards the 25-person limit.

For other adult and youth sports occurring outdoors, the number of individuals necessary for a game or practice can exceed the 25-person limit, but only if there are no unnecessary individuals (e.g., spectators) present.

In accordance with Gov. Murphy’s Executive Order Nos. 152 and 161, persons attending outdoor gatherings must continue to follow social distancing restrictions, including the requirement to wear masks whenever it is not possible to socially distance.

Addiction Support Groups

EO 204 modifies the restriction on indoor meetings of addiction groups, such as Alcoholics Anonymous and Narcotics Anonymous, which was previously limited to 10 individuals.  Such gatherings will now be limited to 25 percent of the capacity of the room in which they take place, to a maximum of 150 individuals. The new limits become effective December 7 at 6:00 a.m. and will continue indefinitely.

As featured in #WorkforceWednesday:  News that a potential COVID-19 vaccine could be imminent brings employers to their next challenge: workplace vaccine policies and procedures. Attorneys Jennifer Barna and Nathaniel M. Glasser tell us more. You can also read about the issues in Business Insider (subscription required).

Video: YouTubeVimeoInstagram.

The rising number of COVID-19 cases in New Jersey has prompted Governor Phil Murphy to issue two new Executive Orders aimed at tightening restrictions on businesses and activities, with a goal of slowing the spread of the virus: (1) Executive Order 194 (“EO 194”) sets limits on indoor operations for bars/restaurants, prohibits indoor interstate youth sports competitions, and clarifies occupancy limits for personal care services; and (2) Executive Order 196  (“EO 196”) tightens prior restrictions on indoor and outdoor gatherings.

EO 194

Indoor/Outdoor Dining

EO 194, which became effective November 12, 2020, requires bars and restaurants to close indoor operations to the public from 10:00 p.m. to 5:00 a.m., but permits them to operate their full range of normal business hours for outdoor dining and food delivery and/or takeout services. Casinos may continue to operate but must stop indoor food and beverage service between 10:00 p.m. and 5:00 a.m., including on casino floors. Similarly, indoor retail, recreational, and entertainment business that are permitted to be open may operate after 10:00 p.m. only if they prohibit the consumption of food or beverages between 10:00 p.m. and 5:00 a.m.  Regardless of the time, bars and restaurants may not seat patrons at any indoor bar area, and in-person service to patrons standing in bar areas continues to be prohibited.

EO 194 clarifies that bars and restaurants that are permitted to offer in-person service in indoor areas must ensure that tables are six feet apart in all directions from another table or seat, but where that is not possible, establishments may erect barriers between tables consistent with safety standards from the Department of Health (“DOH”), while still complying with the capacity limits of Executive Order 183 (“EO 183”) (limiting capacity for indoor dining at 25 percent of the establishment’s indoor capacity, excluding the establishment’s employees).   According to the DOH’s safety standards (which can be found in full here for indoor dining and here for outdoor dining), the table barriers for indoor dining must be:

a minimum of five feet (5 ft) in height, but no higher than six feet (6 ft) in height and must not be within 18 inches of a sprinkler head or block emergency and/or fire exits. Physical barrier options include plexiglass or other non-porous dividers or partitions and comply with current requirements regarding wall finishes. Establishments must ensure that such barriers do not restrict airflow throughout the restaurant.

For outdoor dining, EO 194 allows for the use of structures, such as plastic domes, but no more than eight individuals are permitted to dine together at a time and the structure should be ventilated for a minimum of 15 minutes and cleaned and sanitized between seatings. These structures must also comply with all other applicable codes and regulations (such as the Fire Safety Code) and establishments must obtain necessary prior municipal approvals and permits.

Indoor Interstate Youth Sports Competitions

EO 194 suspends indoor interstate youth sports competitions, including those operated by schools, clubs and recreational programs.   Such programs “are also prohibited from hosting indoor interstate youth sports competitions outside of New Jersey, or indoor youth sports competitions outside of New Jersey that would require New Jersey teams to travel to another state.” Under the order, an “indoor interstate youth sports competition” includes “any sports game, scrimmage, tournament, or similar competition that is conducted indoors with opposing teams or individuals from different states competing against each other and which would require an opposing team or individual to travel from a state outside of New Jersey.”

This suspension does not impact collegiate and professional sports activities, which are permitted to continue operations subject to compliance with applicable laws, regulations and Executive Orders (including the restrictions on recreational and entertaining businesses in Executive Order 157, which we wrote about here), and restrictions on gathering in place at the time the sporting activity occurs.

Personal Care Services

EO 194 clarifies that personal care services that were authorized by Executive Order 157 to reopen their indoor facilities to the public  must limit occupancy of any indoor premises to 25 percent of the stated maximum capacity, if applicable, at any one time, excluding the facility’s employees.

EO 196

In the introductory language of EO 196, Gov. Murphy states that “approximately 13 percent of all outbreaks in New Jersey between March 20 through November 1 can be attributed to private gatherings, consistent with the role indoor gatherings have played in leading to further spikes of COVID-19 in other states and countries.”  Recognizing that is it challenging to monitor mask wearing/social distancing and to properly contact trace for informal events such as “large house parties,” EO 196 sets new, lower, limits for indoor and outdoor gatherings, with several exceptions.

Indoor Gatherings

Indoor gatherings are limited to 10 persons, except as follows:

  • For indoor religious services or celebrations, political activities, wedding ceremonies, funerals, or memorial services, the number of attendees is limited to 25 percent of the capacity of the room in which the event takes place, but regardless of the capacity of the room, such limit shall never be larger than 150 or smaller than 10. For purposes of this provision, any private residence or residential unit shall be treated as a single “room;”
  • Legislative proceedings of state, county, or local government, including local Boards of Education, and state and local judicial proceedings are not subject to the capacity limits on gatherings in EO 196 or any other applicable Executive Order; and
  • The provision of Executive Order 183 governing indoor gatherings for entertainment centers where performances are viewed or given, including movie theaters, performing arts centers, and other concert venues, and provides (among other requirements) that capacity must be limited to 150 people (excluding the business’s employees) or 25% of a room’s capacity— whichever number is lower remains in effect.

EO 196 provides that indoor professional and collegiate athletic competitions are subject to the indoor gathering limit of 10 persons, excluding  athletes, coaches, referees, and trainers, and other individuals necessary for the competitive professional or collegiate sporting event (essentially allowing up to 10 spectators).  The number of individuals present inside facilities where indoor professional or collegiate athletic competitions are taking place may not exceed 25 percent of the capacity of the room in which it takes place, and such limit may not exceed 150 persons. Additionally, EO 196 reiterates that the provisions of Paragraph 1 of Administrative Order No. 2020-22 regarding indoor gatherings continues to apply.

All other indoor athletic practices and competitions are limited of 10 persons, unless the number of individuals who are necessary for the practice or competition, i.e, players, coaches, and referees, is greater than 10 persons. In that case, the indoor practice or competition may proceed, but no other persons, including spectators, maybe present.  In addition, the number of individuals at such an indoor gathering still may not exceed 25 percent of the capacity of the room in which it takes place, and such limit may not exceed 150 persons.

The indoor gathering limits became effective at 6:00 a.m. on November 17, 2020.

Outdoor Gatherings

EO 196 establishes a 150 person maximum for outdoor gatherings, except for religious services or celebrations, political activities, wedding ceremonies, funerals, or memorial services (which do not have a numerical limit on attendees).  Outdoor entertainment centers where performances are viewed or given (including movie theaters, performing arts centers, and other concert venues), are subject to the 150-person maximum, but must also limit the number of patrons to a number that ensures that all individuals can remain six feet apart.

Professional and collegiate athletic competitions conducted outdoors are subject to the outdoor gathering limit of 150 persons, excluding athletes, coaches, referees, trainers, and other necessary individuals. All other outdoor sports practices and competitions are subject to the limit of 150 persons, inclusive of athletes, coaches, referees, and trainers.  In addition, EO 196 reiterates that the provisions of Paragraph 1 of Administrative Order No. 2020-22 regarding outdoor gatherings shall continue to apply.

EO 196’s outdoor limits become effective at 6:00 a.m. on November.

Just one week after ordering new business restrictions to combat the recent surge of COVID-19, Governor Larry Hogan announced further mitigation measures in Maryland that will dial back business operations.

On November 17, 2020, Governor Hogan issued Executive Order 20-11-17-01, which amends and restates Executive Order 20-11-10-01 (which we previously summarized here).  The amended order goes into effect at 5:00 p.m. on Friday, November 20, 2020.

The amended order, titled “Regulating Certain Businesses and Facilities and Generally Requiring Use of Face Coverings,” has the greatest impact on restaurants and other foodservice establishments (which now includes banquet and catering halls).  In addition to reducing indoor dining to only 50% of the establishment’s maximum capacity, bars and restaurants will not be permitted to stay open for indoor dining or serve alcohol after 10:00 p.m.—although they may continue carry-out and delivery service.

In addition, racetracks, outdoor entertainment venues, and sports stadiums will be limited to 250 persons regardless of its size.  Notably, the Secretary of Health no longer has the authority to grant waivers for stadium occupancy limits.  Religious facilities and retail establishments may not exceed 50% of maximum occupancy, and individuals may now remove face coverings to verify their identity for bona fide security purposes.  All other provisions of the prior order remain in place.

The amended order does not interfere with the more stringent restrictions in Montgomery and Prince George’s Counties.  Employers operating elsewhere should determine whether their local jurisdiction has published orders more restrictive than the statewide mandate.

*    *    *

Epstein Becker & Green, P.C., continues to monitor developments in the DMV and throughout the country.  Readers may contact the authors or their EBG attorney with any questions or needs for assistance in operational compliance or addressing any other COVID-19-related issue.

The final installment of a 10-part series featuring our video Rules of the Road: Return to Work in the Time of COVID-19.

Did COVID-19 end sexual harassment?

Did a global pandemic that sent humanity indoors, forcing many of us to work remotely (if at all) and to be socially distant while avoiding handshakes and touching obviate the need for such an obvious rule?  Well, not exactly.  I have been advising clients on this rule and the ripe environment for harassment claims since the pandemic began, and in candor, my position has been met with varying degrees of skepticism (yes, you can still see people rolling their eyes even if they’re not on camera.)

And then it happened.  It was inevitable.  And it unfolded in the most dramatic and ironic of ways.

Jeffrey Toobin.  And a Zoom call.  And the rest is history.

The reality is, with more of our interactions taking place via video conference from people’s homes, or through e-mail, social media, instant messaging and Slack channels, things have gotten – well – a little more personal. And people have gotten a little more casual in their interactions (and their use (or misuse) of technology) (side note: one cannot “mute” a video camera on Zoom, fyi…)

Sexual harassment in the workplace has not ended.  It just went digital.

And while we await formal study and reporting by the EEOC, the early indications – both from our own practice anecdotally, and empirical data supports this view – globally.  Take Australia, for example, where Victoria has reported an 8% increase in sexual harassment complaints during the pandemic amidst some of the most aggressive lockdowns in the world, illustrating that sexual harassment complaints, in the wake of #MeToo – and even in the remote environment – can still very much be “a thing.”

The EEOC Select Study on Workplace Harassment was prescient on this point, concluding that “isolated workplaces” and “decentralized workplaces” were contributing risk factors to harassment claims, particularly as bystander intervention becomes more challenging in a virtual context and may decrease the likelihood of reporting. Additionally, bodies of historical research show that gender-based violence increases during times of crisis.

Many other factors contribute to this paradigm. Chief among them: feelings of social isolation and the desire for human connection in any form; the seemingly endless workday and the blurring of work and home; the challenges the pandemic has had on domestic relationships and childcare; the digital invitation into one’s home via video calls that breaks the third-wall between an employee’s work and personal life that typically exists when the employee reports to a workplace outside the home; the lack of transparency around digital interactions; physical, psychological and economic vulnerability; and yes, the Zoom happy hours, and their ubiquitous side-chats (remember: those too are workplace events and workplace conversations). Be ever mindful of how your words, your actions, and your digital presence might impact other colleagues, both through the end of this pandemic and thereafter.

Recognizing this as a reality, nearly every state that maintains mandatory anti-harassment training requirements (CA, CT, DE, IL, ME, and NY) kept those requirements largely in place throughout the pandemic, including their respective deadlines – further underscoring the point. Companies would also be well-served to adapt their policies and procedures to take into account the virtual workplace, and to reiterate the importance of early reporting of harassment or misconduct.

It’s fair to say that we are all looking ahead with optimism – toward the distribution of a vaccine (or two), to seeing friends, family and loved ones, and to getting back to some semblance of normalcy. All of that will engender relief and exultation – and rightly so.

And when that day comes, we should celebrate. We should hug our friends. We should kiss our parents, our grandparents and our loved ones.

But when it comes to colleagues, please curb your enthusiasm – Don’t Be Creepy™.

Michigan recently announced two COVID-19 developments that will impact employers and their workplaces.  Most recently, the Michigan Department of Health and Human Services (MDHHS) issued new restrictions for business operations in the state that are set to take effect on November 18 and last through December 8, 2020 (the “Three Week Pause Order”).  The Three Week Pause Order followed an announcement late last week by the Michigan Occupational Safety and Health Administration (MIOSHA) of a State Emphasis Program (SEP) focused on in-door activities and venues, including office settings.  The Three Week Pause Order and SEP announcements also include an important reminder to employers of the potential liabilities and penalties if they violate the State’s COVID-19 safety requirements.

Three-Week Pause Order

MDHHS has identified gatherings, and in particular indoor gatherings, as the greatest source of spread of COVID-19.  Consequently, the Three Week Pause Order focuses on limiting the spread of COVID-19 by imposing restrictions on in-person business operations.  Effective November 18, 2020 employers must comply with the Three Week Pause Order by, among other things, restricting capacity of indoor and outdoor gatherings at certain types of facilities or venues and entirely prohibiting in-person gatherings at others, including high schools, universities, recreational facilities and entertainment venues.  An infographic showing what is “open” (with restrictions) and “not open” is available here.

The Three Week Pause Order also imposes contact tracing requirements on certain businesses and activities that are allowed to maintain reduced in-person operations.  Specifically, the MDHHS requires those businesses and facilities to “maintain accurate records, including date and time of entry, names of patrons, and contact information” of individuals who enter an employer’s facility to aid with contact tracing efforts.  Businesses must collect and maintain this data for 28 days, protect it as confidential to the fullest extent of the law, and furnish it to MDHHS and local health departments upon request.

Finally, the Three Week Pause Order reiterates that employers must comply with face mask usage rules, unless an exception applies.  Pursuant to these rules, and with certain exceptions, an employer must prohibit gatherings of any kind unless it requires individuals in such gatherings, including employees, to wear a face mask, and denies entry or service to all persons refusing to wear face masks while gathered.  Employers may not assume that someone who enters the facility without a face mask falls within one of the recognized exceptions, including those who cannot medically tolerate a face mask, but may rely on an individual’s verbal representation that they are not wearing a face mask because they fall within a specified exception.

Failure to comply with the Three Week Pause Order requirements can become a costly expense for employers.  A violation can be considered a misdemeanor, punishable by imprisonment for not more than 6 months, or a fine of not more than $200.00, or both.  In addition, a violation can also be punishable by a civil fine of up to $1,000 for each violation or day that a violation continues.

State Emphasis Program (SEP) for Office-Based Work

In the first week of November, MDHHS issued a summary of the impact of COVID-19 in the workplace, noting 28 reported cases of COVID-19 outbreaks in office settings and a continued increase week after week.  MIOSHA followed up less than a week later by launching a SEP focused on office-based employers, reminding employers that they are required to create a policy prohibiting in-person work for employees to the extent that their work activities can feasibly be completed remotely.  The SEP for office-based employers seeks to educate and obtain compliance with guidelines and rules that protect workers in office locations where community spread of COVID-19 is a risk.  MIOSHA, to enhance compliance with COVID-19 safety practices, has stated that it intends to conduct inspections at workplaces with traditional office settings to review how rules are being followed.  If MIOSHA inspections uncover deficiencies in the employer’s COVID-19 preparedness and response plans, it could issue the employer citations and penalties up to $7,000.

Takeaways

The Three Week Pause Order and SEP for office-based work should serve as important reminders to Michigan-based employers of the need to comply with COVID-19 safety practices and of the potential for significant fines and penalties for non-compliance.  Michigan-based employers should review their current policies and practices, including any training materials, to ensure they are in compliance with the most up to date COVID-19 safety requirements.  Epstein Becker & Green, P.C. stands ready to help employers comply with their COVID-19-related safety obligations and answer any related-questions.  Please feel free to contact Adam S. Forman or your Epstein Becker & Green, P.C. attorney.