Workforce Bulletin

The Equal Employment Opportunity Commission (EEOC) recently proposed regulations (the “Proposed Rule”) to implement the Pregnant Workers Fairness Act (PWFA), which requires employers to provide reasonable accommodations for additional conditions relating to pregnancy, childbirth, and related medical conditions. Issued on August 11, 2023, the Proposed Rule is currently open for public comment, and has, as of this writing, already received more  than 40,440 public submissions responding to the EEOC’s proposal. Many remarks address the fact that the EEOC included ...

For more than two and a half years, employers across the country have navigated a nuanced web of legal requirements and guidance to safely operate during the global COVID-19 pandemic.  Recent updates to the legal landscape at the federal, state, and local level, however, have left many employers asking: is the COVID-19 pandemic finally over? For now, the answer remains “no.” This post discusses three key reasons why employers should continue to operate with the pandemic in mind.

On July 12, 2022, the U.S. Equal Employment Opportunity Commission (“EEOC”) yet again updated its COVID-19 FAQs, revising earlier guidance about worksite screening through viral testing for COVID-19, modifying some Q&As, and making various generally non-substantive editorial changes throughout. According to the EEOC, it revised the guidance in light of the evolving circumstances of the pandemic. Here’s a run-down of the substantive changes in this latest iteration of “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”

On December 14, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” Technical Assistance Questions & Answers (the “Guidance”). The most significant change is the addition of a long-awaited discussion of “long COVID,” which other federal agencies had identified as a disability in joint guidance issued back in July.

The Guidance now contains a new Section N, which addresses when COVID-19 can be considered a disability under each of the three standards of the Americans with Disabilities Act (ADA), i.e., “actual disability,” “record of disability,” or “regarded as an individual with a disability.”  Regardless of which definition may apply, the Guidance stresses the usual ADA rubric—that employers must conduct a fact intensive, case-by-case analysis to determine if an applicant or employee with COVID-19 or “long COVID” has a covered disability under the ADA.

November 17, 2021, the Department of Labor (“DOL”), National Labor Relations Board (“NLRB”), and Equal Employment Opportunity Commission (“EEOC”) conducted a webinar on Ending Retaliation and Promoting Workers Rights.  The webinar is the first component of a “Joint Initiative” devoted to “vigorous enforcement” of laws against retaliation, through closer inter-agency cooperation.  The webinar was moderated by EEOC Regional Director Robert Canino and involved over 90 minutes of detailed remarks from Solicitor of Labor Seema Nanda, NLRB General Counsel Jennifer Abruzzo, EEOC Chair Charlotte Burrows and Acting DOL Wage and Hour Division Director Jessica Looman.

President Biden’s $6 trillion 2022 budget proposal focuses on worker protections—including the American Jobs Plan and the American Families Plan. Both of these plans contain labor and numerous employment initiatives. The budget proposes increased funding for the Department of Labor (“DOL”), the Equal Employment Opportunity Commission (“EEOC”), and the National Labor Relations Board (“NLRB” or “Board”).

The 2022 budget calls for $2.1 billion, an increase of $304 million, in DOL’s worker protection agencies. Over the past four years, those agencies ...

On May 14, 2021, the United States House of Representatives passed the Pregnant Workers Fairness Act (“PWFA” or “HR 1065”) for a second time.  With a vote of 315-101, including support from all House Democrats and 99 Republicans, the PWFA now awaits Senate consideration.

As previously reported, the House had originally passed the PWFA on September 14, 2020 (“HR 2694”).  While members of congress have introduced versions of the PWFA each term since 2012, last year was the first approval.  After HR 2694 passed the House last September, by a vote of 329-73, the Senate did not ...

In a flurry of activity into the wee hours of June 2, 2021, Illinois legislators concluded a spring session that saw the passage of numerous measures that will affect employers in the state across the span of the employment relationship. Among the most significant of the many bills heading to Governor Pritzker for signature are acts amending the Artificial Intelligence Video Interview Act, the Equal Pay Act, the Victims’ Economic Security and Safety Act (“VESSA”), and the Freedom to Work Act. It is expected that Governor Pritzker will sign all of the above-mentioned bills.

On March 12, 2021, the Equal Employment Opportunity Commission (EEOC) announced that the EEO-1 Component 1 data collection period will open at the end of April 2021 and close in July 2021.  Submission of the EEO-1 Report is required for employers with 100 or more employees, and applicable Federal government contractors with 50 or more employees and contracts of $50,000. The agency has not announced an exact closing date, indicating:

The EEO-1 Component 1 data collection will open at the end of April 2021 and close in July 2021. The exact closing date will be posted when the data collection ...

We previously discussed the EEOC’s proposed new wellness program incentive rules under the ADA and GINA in our post, How Big Can the Carrot Be?  The proposed rules were to replace the EEOC’s previous “health-contingent” wellness program regulations, which had been struck down by the U.S. District Court for the District of Columbia because they allegedly permitted large incentives that the court found were essentially coercive and thus in violation of the ADA and GINA proscriptions permitting only voluntary disclosures of disability or genetic-related information ...

Many employers have established wellness programs to promote employee health and, in doing so, help counter the ever increasing costs associated with employer-sponsored health benefit plans. Often employers want to establish programs that provide employees with incentives to achieve certain health outcomes, such as smoking cessation or weight loss. Employers must exercise caution in creating such health-contingent wellness programs, which necessarily require employees to disclose health information, because the Americans with Disabilities Act (“ADA”) and the ...

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 ...

After repeated introductions over the course of several years in both the U.S. House of Representatives and the Senate, on September 14, 2020, the House passed HR 2694, the Pregnant Workers Fairness Act (“PWFA”). The stated purpose of the legislation is to “eliminate discrimination and promote women’s health and economic security by ensuring reasonable workplace accommodations for workers whose ability to perform the functions of a job are limited by pregnancy, childbirth, or a related medical condition.” If passed by the Senate and signed into law, the Act would ...

On September 8, 2020, the Equal Employment Opportunity Commission (“EEOC”) released updates to its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws Technical Assistance Questions and Answers (“FAQs”), addressing questions largely focused on return-to-work questions and concerns such as permissible and impermissible inquiries, reasonable accommodation and confidentiality of employee health information.

Notable additions to the FAQs include clarification regarding the types of questions employers may ask as employees ...

While the country remains focused on the COVID-19 pandemic, U.S. employers cannot ignore the ongoing opioid epidemic or how it may affect their workforces.  On August 5, 2020, the Equal Employment Opportunity Commission (“EEOC”) released new guidance addressing the rights of opioid users in the workplace under the Americans with Disabilities Act (“ADA”).[1]  The two question-and-answer documents clarify that while current illegal drug use is not protected, employees who “are using opioids, are addicted to opioids, or were addicted to opioids in the past, but are not ...

On June 17, 2020, the Equal Employment Opportunity Commission (the “EEOC” or “the Commission”) again updated its COVID-19-related technical assistance for employers (“Guidance”).  The Commission’s recent updates have focused on return-to-work issues (e.g., see June 11, 2020 Guidance update). This latest update advises employers that, at least for now, requiring employees to undergo antibody testing before re-entering the workplace violates the Americans with Disabilities Act (the “ADA”).

In reaching its conclusion, the EEOC relied on recent Interim ...

On May 5, 2020, and again on May 7, the Equal Employment Opportunity Commission (the “EEOC”) updated its technical assistance for employers, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”

The EEOC has updated its guidance multiple times since the beginning of the COVID-19 pandemic. Most recently, on April 17, the EEOC provided guidance on employers’ reasonable accommodation obligations under the Americans with Disabilities Act (the “ADA”) and included a section on “Return to Work” issues (discussed here). On ...

On the heels of adding Return to Work guidance to its technical assistance for employers, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Law” (discussed  here),  on April 23, 2020 the Equal Employment Opportunity Commission (“EEOC”) issued an update addressing COVID-19 testing by employers. This latest guidance acknowledges that COVID-19 presents a direct threat to the health of others sufficient to justify testing.  It cautions, however, that employers should only use tests that are “accurate and reliable.” Specifically ...

On April 17, 2020, the Equal Employment Opportunity Commission (“EEOC”) once again updated its technical assistance for employers, titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”

Previously, the EEOC (i) on March 17, 2020, issued initial guidance on COVID-19 in a series of Frequently Asked Questions (“FAQs”) (discussed here) (ii) on March 19, updated its publication titled “Pandemic Preparedness in the Workplace and the Americans With Disabilities Act,” to address issues specifically concerning ...

On April 9, 2020, the Equal Employment Opportunity Commission (“EEOC”) issued its latest guidance (“Guidance”) for employers on how to ensure compliance with their obligations under federal antidiscrimination laws during the COVID-19 pandemic. As we previously reported, the EEOC’s initial guidance on COVID-19 was released on March 17, 2020, as a series of Frequently Asked Questions (“FAQs”). Two days later, the agency updated its publication titled “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act” (“ADA” ...

On March 17, 2020, the Equal Employment Opportunity Commission (EEOC) posted an article on its website, “What You Should Know About the ADA, the Rehabilitation Act, and COVID-19.”  The article confirms that workplace anti-discrimination laws enforced by the EEOC remain applicable, but that nothing in those laws interferes with or prevents “employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19.”

In addition, the article provides a link to guidance the ...

In a stinging rebuke of the Trump Administration’s attempt to remove burdensome regulations on employers, Judge Tanya Chutkan, a District Court judge in the District of Columbia this week reinstated the EEO-1 “Part 2” wage data/hours worked reporting form for all employers who file annual EEO-1 demographic reports with the Equal Employment Opportunity Commission ("EEOC") and the U.S. Department of Labor. (This includes all companies employing more than 100 people, or 50 people if they are a US federal contractor.)

This new data collection requirement, launched in 2016 by ...

On April 18, 2017, the Equal Employment Opportunity Commission (“EEOC”) filed a putative class action against the SLS Hotel South Beach in Miami, Florida (“Hotel”), alleging that the Hotel violated Title VII by firing black Haitian dishwashers who worked in the kitchen and serviced several restaurants in the Hotel – including the Bazaar by Jose Andres, Katsuya and Hyde Beach – and replacing them with white and Hispanic workers, who were supplied by a staffing agency, National Service Group (“NSG”).

This case highlights one of the EEOC’s asserted priorities in ...

Throughout 2016, the Equal Employment Opportunity Commission (“EEOC” or “Commission”) has been examining initiatives to identify and attempt to rectify a perceived lack of diversity in the workplace. The EEOC has, in particular, identified the technology industry as an area where significant strides can be made to create a more diverse workforce.

Following a May 18, 2016, public meeting on diversity in the technology industry, the EEOC issued a “Diversity in High Tech” report (“Report”) summarizing research on the lack of diversity in the “high-tech ...

We recommend our colleagues’ post on the Retail Labor and Employment Law blog: Three Lawsuits Brought by the U.S. EEOC Challenge Employer Separation Agreements, by Lauri F. Rasnick, Susan Gross Sholinsky, Frank C. Morris Jr., and Nancy L. Gunzenhauser.

Following is an excerpt:

The federal Equal Employment Opportunity Commission (“EEOC” or “Agency”) has been spending a fair amount of time in recent months challenging the validity and legality of employers’ separation agreements. This is apparently part of the EEOC’s core priorities, including “targeting ...

The federal Equal Employment Opportunity Commission (“EEOC” or “Agency”) has been spending a fair amount of time in recent months challenging the validity and legality of employers’ separation agreements. This is apparently part of the EEOC’s core priorities, including “targeting policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or which impede the EEOC’s investigative or enforcement efforts.” Retail employers have not been exempted from the agency’s scrutiny. A ...

Our colleagues Kara Maciel, Adam Solander, and Lindsay Smith have co-authored a Bloomberg BNA article titled, "Future New Year's Resolutions: Will Your Wellness Program Still Be There to Help?"

Following is an excerpt:

With the New Year squarely in the rear view mirror, now is the time when many of our grandiose resolutions to get healthy may run out of steam. For individuals who are relying upon their employer's wellness initiative to provide them with the resources they need to succeed in their resolutions, recent regulatory and legislative changes could jeopardize their ...