COVID-19’S Continuing Workplace Impact: EEOC Revises Pandemic Guidance Again

On July 12, 2022, the EEOC issued updated COVID-19 guidance for employers, reflecting the ever-changing but persistent impact of the virus on the workplace. Key updates include the following:

  • Workplace COVID-19 testing
    • Previously, employers could require COVID-19 testing (although it is a medical exam under the ADA) because the EEOC recognized that a person with the virus would pose a direct threat to the health of others.
    • Under the revised guidance, employers may only mandate COVID-19 testing if they show that the testing is “job-related and consistent with business necessity.” (A.6.)
    • Mandatory COVID-19 testing will meet the “business necessity” standard when it is consistent with current guidance from the CDC, FDA, and state and local public health authorities. Employers may also consider such factors as:
      • Community transmission rates
      • Vaccination status of employees
      • Possibility of breakthrough infections for fully vaccinated employees
      • Transmissibility of and severity of illness from current variants
      • Potential impact on the workplace if an employee enters with COVID-19 (A.6.)
    • Antibody testing does not meet the ADA’s “business necessity” standard for a medical exam; employers therefore may not require such testing before allowing employees to re-enter the workplace. As the EEOC notes, an antibody test does not show whether an employee has a current infection, nor establish that an employee is immune to infection. (A.7.)
  • Hiring and job offers
    • If an employer screens everyone for COVID-19 before allowing entry to the worksite, it can screen an applicant in the pre-offer stage who needs to be in the workplace. (C.1.)
    • An employer can also screen applicants for COVID-19 symptoms after making a conditional job offer, as long as it does so for all applicants in the same job type. (C.1.)
    • After an applicant has been offered a job, an employer may only withdraw that offer based upon the applicant’s positive COVID-19 test, symptoms, or exposure if: (1) the job requires an immediate start date, (2) CDC guidance recommends the person not be in proximity to others, and (3) the job requires such proximity to others, whether at the workplace or elsewhere. (C.4.)
  • Interactive process/ accommodation requests
    • Delays in engaging in the interactive process and/or responding to employee accommodation requests are no longer acceptable unless an employer shows specific pandemic-related circumstances justified the delay. (D.17.)
  • Vaccinations
    • Consistent with prior guidance, employers may require all employees to be vaccinated against COVID-19, subject to Title VII and the ADA’s reasonable accommodation requirements. Employers may also require proof of such vaccination. (K.1.)
    • An employee’s vaccination status must be kept confidential and separated from the regular personnel file. However, an employer may share the vaccination information with other employees who need it to perform their job duties. Such employees also must keep the information confidential. (K.4.)

This is not a comprehensive list of the many issues covered in the updated COVID-19 guidance. Please reach out to your partners at Lake Effect HR & Law to ensure that your organization’s COVID-19 policies and practices are in full compliance with current EEOC guidelines. We are here to answer all of your questions about COVID-19 compliance and will continue to monitor important legal and HR developments in this area. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Employers Take Note: Updates on Required Federal Forms and Reports

Form 1-9
The Department of Homeland Security (DHS) and U.S. Immigration and Customs Enforcement (ICE) have extended the flexibility in complying with requirements related to Form I-9 until October 31, 2022. See our earlier blog for more information on how to obtain, remotely inspect, and retain copies of the identity and employment eligibility documents to complete Section 2 of Form I-9.

EEO-1 Component Data Report
On April 12, 2022, the EEOC announced that data collection for 2021 EEO-1 Component 1 filing is now open. Private employers with 100 or more employees must file and certify their EEO-1 Component data report(s) by May 17, 2022.

Employers can visit the EEOC’s dedicated website to access the EEO-1 Component Online Filing System and obtain other resource materials. The EEOC has also created a new Filer Support Team Message Center to answer questions and assist employers.

We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Spring Cleaning: Is Your Handbook House in Order?

The time has arrived when thoughts turn to warmer weather and spring-cleaning projects. It is a good time for employers to review their employee handbooks to insure they comply with applicable laws and reflect best practices and emerging trends. This spring, a review may be particularly important, as many employers face two key challenges: 1) welcoming current employees back to the post-pandemic workplace; and 2) recruiting and retaining talented employees amidst a persistent labor shortage.

As you assess the experience of current employees in your post-pandemic workplace, consider reviewing handbook policies that address:

  • Telecommuting/hybrid/remote work
  • Unique leave requirements under applicable state laws
  • Time reporting procedures for remote or hybrid non-exempt employees
  • Anti-harassment/respectful workplace requirements
  • Reasonable accommodation policy as it may apply to COVID-19 situations
  • Flexible scheduling options for employees who may continue to experience pandemic-related challenges

If you are struggling to hire and keep qualified and committed employees, examine whether your handbook policies reflect your inclusive and engaging work experience. Consider policies that highlight:

  • Your organization's distinctive mission, vision, values, voice, and culture
  • Your wide array of benefits and perks
  • Opportunities for professional development and advancement
  • Tuition assistance for lifelong learners
  • Wellness/mindfulness benefits
  • Volunteer or civic engagement opportunities
  • Employee Assistance Programs
  • Summer schedules and/or other unique flexible scheduling arrangements
  • Time off policies that encourage positive work/life balance

Your employee handbook should be a dynamic tool to ensure legal compliance, communicate expectations and benefits, and enhance relationships with all employees. Take some time this spring to give it a fresh look and ensure that it accomplishes these goals. The Lake Effect team is here to help.

Lake Effect is here to answer your questions about handbooks and innovative employment policies. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Biden Administration Bans Arbitration of Workplace Sexual Harassment Claims

On March 4, 2022, President Biden signed ithe “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act,” a new law banning mandatory arbitration for workplace sexual assault and sexual harassment claims. Arbitration is a form of dispute resolution outside of the court system. Many employment contracts broadly require employees to resolve claims against employers in arbitration.

This legislation makes language in existing and future employment contracts related to compulsory arbitration of sexual harassment and sexual assault claims unenforceable, at the option of the person bringing the claim. The law does not impact arbitration of other types of employment disputes, and applies to claims and disputes going forward, not past or pending claims. A person bringing a workplace sexual harassment or assault claim may still choose to resolve the claim through arbitration, or they may elect an alternative forum such as mediation, administrative agency proceedings, and/or state or federal court.

In light of this new law, employers should consider the following steps:

  • Review Employment agreements
    Employers should review employment agreements for language about mandatory arbitration. We can assist in this review.
  • Evaluate voluntary mediation services
    Nothing in the new legislature prohibits an employee from resolving disputes outside of court voluntarily. If disputes arise in the workplace, mediation is often a good option for all parties. Mediation is voluntary, confidential, and self-determined, meaning the parties come up with solutions to resolve the dispute. If you would like to learn more about Lake Effect’s mediation services, please contact us.
  • Reiterate your commitment to creating a harassment-free environment 
    Kindness is part of our mission and core values at Lake Effect. Our passion is helping employers cultivate kind environments, where workplace harassment has no place. Contact us to assist with leadership training, employee training, workshops, coaching, and other options that may fit your needs.

Lake Effect is here to answer your questions about compliant employment agreements and workplace dispute resolution. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Dane County Face Covering Emergency Order #7

Public Health Madison & Dane County has issued Face Covering Emergency Order #7. The new order is effective February 1, 2022, and remains in place until March 1, 2022. The only change from the previous Order #6 (see Lake Effect’s summary of the previous orders here) is the extension of time.

Lake Effect is here to answer your questions about how local and state public health orders apply to employers. We continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please keep watching our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

OSHA Formally Withdraws COVID-19 Vaccination and Testing ETS

On the heels of the US Supreme Court’s recent ruling blocking enforcement of its COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS), OSHA issued a statement formally withdrawing the ETS as an enforceable temporary standard effective January 26, 2022. OSHA stated that it will continue to pursue the ETS as a proposed rule and focus on finalizing a permanent COVID-19 Healthcare Standard. OSHA continues to encourage COVID-19 vaccination of workers to minimize workplace health risks posed by the virus.

For a complete discussion and history of this issue, please see Lake Effect’s prior blogs on the ETS and the Supreme Court's recent decision.

Lake Effect is here to answer your questions about COVID-19 compliance and will continue to monitor important legal and HR developments, as well as COVID-related updates from federal, state, and local authorities. Please watch our blogs and emails for these important updates, as well as discussions of how compliance meets culture. To dive into these issues, contact us at info@le-hrlaw.com or 1-844-333-5253.

Milwaukee Institutes New Mask Ordinance

Starting January 22, 2022, Milwaukee’s new mask ordinance will go into effect until March 1, 2022.  While similar to the previous Milwaukee Cares mask ordinance which expired on June 1, 2021 (see Lake Effect’s prior blog), the new ordinance has some distinct differences. 

Lake Effect HR & Law, LLC
(844) 333-5253 (LAKE)
info@le-hrlaw.com

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