EEOC

Preventing and Responding to Workplace Violence [Webinar Recording]

Theresa Green Leave a comment

On Tuesday, October 11, 2022, Kara M. Maciel, Lindsay A. DiSalvo, and special guest Terri D. Patterson, Ph.D., a Principal at Control Risks and threat management expert with over two decades of experience, presented a webinar on Preventing and Responding to Workplace Violence.

In 2020, physical assault was identified as the 4th leading cause of workplace deaths. Nearly 2 million American workers experience violent acts at work annually. As the COVID-19 pandemic appears to be entering the endemic phase and workers begin to transition back into the workplace, experts predict even more of an increase in workplace violence. Thus, employers will want to be prepared to prevent these types of incidents and protect their employees to the extent possible, as well as ensure they are doing all that’s required from a regulatory standpoint.

Workplace violence has been a focus for both the Occupational Safety and Health Administration (“OSHA”) and the Equal Employment Opportunity Commission (“EEOC”) well before the pandemic and remains so now. While OSHA has no specific standard for workplace violence, the OSH Act’s General Duty Clause requires employers to provide a workplace free from recognized serious hazards, and OSHA has instituted enforcement actions under its General Duty Clause after incidents of workplace violence. OSHA has also initiated a rulemaking to address workplace violence in specific industries. For its part, the EEOC has also prioritized ways to effectively prevent and address workplace violence, particularly in the form of workplace harassment. And outside of OSHA and the EEOC, employers can also be held liable for workplace violence through other claims such as negligent hiring and supervision.

In this webinar, attendees learned: Continue reading →

[Webinar] Preventing and Responding to Workplace Violence

Theresa Green Leave a comment

On Tuesday, October 11, 2022 at 1 p.m. EST, Kara M. Maciel, Lindsay A. DiSalvo, and special guest Terri D. Patterson, Ph.D., a Principal at Control Risks and threat management expert with over two decades of experience, will present a webinar on Preventing and Responding to Workplace Violence.

In 2020, physical assault was identified as the 4th leading cause of workplace deaths. Nearly 2 million American workers experience violent acts at work annually. As the COVID-19 pandemic appears to be entering the endemic phase and workers begin to transition back into the workplace, experts predict even more of an increase in workplace violence. Thus, employers will want to be prepared to prevent these types of incidents and protect their employees to the extent possible, as well as ensure they are doing all that’s required from a regulatory standpoint.

Workplace violence has been a focus for both the Occupational Safety and Health Administration (“OSHA”) and the Equal Employment Opportunity Commission (“EEOC”) well before the pandemic and remains so now. While OSHA has no specific standard for workplace violence, the OSH Act’s General Duty Clause requires employers to Continue reading →

What Employers Need To Know About the Latest Public Health Crisis – The Monkeypox Virus

Eric J. Conn 1 Comment

By Eric J. Conn and Ashley D. Mitchell

After the last couple of years living with COVID-19, we were desperately hoping that we would not have to be talking, thinking or writing about the Monkeypox Virus (“MPV”) as a workplace safety and health issue.  And while Monkeypox does NOT appear to be a COVID-19 redux, we have been getting enough questions from our clients that it now seems unavoidable that we have to dig into this.  Alas, here is our first take on Monkeypox – what is it, what are the symptoms and modes of transmission, how is it similar to and different from COVID-19, and what should employers be thinking about and doing in connection with this latest plague.

The Monkeypox Virus (MPV):

Monkeypox is a zoonotic diseases, which means it is caused by a virus that is passed between animals & people.  MPV was first detected in 1958 in a colony of research monkeys in Central and West Africa, and the first human case of Monkeypox was recorded in 1970.  The virus that causes Monkeypox is in the same family as the virus that causes smallpox, and they involve similar, but less severe symptoms in the case of MPV.

The current Monkeypox outbreak is unique in that prior to 2022, Monkeypox cases were extremely rare in the U.S., and cases in individuals outside of Africa, where the virus commonly occurs, were almost always linked to international travel.  In mid-May of this year, the first cases associated with the current outbreak were identified in the U.S., and it is clearly spreading now among non-travelers.  On July 23rd, the World Health Organization (WHO) declared Monkeypox a Public Health Emergency of International Concern (PHEIC). By late July, the U.S. surpassed 10,000 total cases. Continue reading →

What Does the EEOC’s Updated COVID-19 Testing Guidance Mean for Employers

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By Kara M. Maciel and Ashley D. Mitchell

As COVID-19 infections continue to climb, the EEOC rolled back its guidance that COVID-19 viral screening tests conducted by employers is always permissive under the Americans with Disabilities Act (“ADA”). The updated guidance requires employers to weigh a host of factors and determine whether COVID-19 viral screening is “job-related and consistent with business necessity,” the traditional standard for determining compliance with the ADA.

The Factors Employers Should Consider:

Under the EEOC’s updated FAQs, an employer may, as a mandatory screening measure, administer a COVID-19 viral test, if the employer can show it is “job-related and consistent with business necessity.” In making this determination, employers should assess these factors:

  • The level of community transmission
  • The vaccination status of employees
  • The accuracy and speed of processing different types of COVID-19 viral tests
  • The degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations
  • The ease of transmissibility of the current variant(s)
  • The possible severity of illness from the current variant
  • What types of contact employees may have with others in the workplace or elsewhere that they are required to work
  • The potential effect on operations of an employee enters the workplace with COVID-19

It is worth noting, Continue reading →

[Panel Webinar] A Chat with EEOC Commissioner Keith Sonderling: Artificial Intelligence in the Workforce in 2022 and Beyond

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​Join Kara Maciel and Jordan Schwartz on Tuesday, June 7th at 2 PM ET for a very special bonus event in Conn Maciel Carey’s 2022 Labor and Employment Webinar Series in the form of a panel webinar program regarding The Impact of Artificial Intelligence on the Workforce in 2022 and Beyond.

Presented by
Conn Maciel Carey LLP with Special Guest
EEOC Commissioner Keith Sonderling

On May 12, 2022, the EEOC issued a Technical Assistance (“TA”) document entitled, “The Americans with Disabilities Act (“ADA”) and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees” focused on providing “clarity to the public regarding existing requirements” under the ADA and agency policy. This is the first guidance document the EEOC has issued regarding the use of Artificial Intelligence (“AI”) in employment decision-making since announcing its Al Initiative in October 2021.

It’s no secret that more employers have turned to AI to enhance their work processes over the years. An estimated 83% of employers have Continue reading →

Religious and Disability Accommodations in Response to COVID-19 Mandates [Webinar Recording]

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On Thursday, April 7, 2022, Andrew J. Sommer and Lindsay A. DiSalvo presented a webinar regarding Religious and Disability Accommodations in Response to COVID-19 Mandates.

Employee requests for medical and/or religious accommodations in the workplace are not new. However, never before have these accommodation requests been such a hot-button topic, nor have these accommodation requests been used so frequently (and in particular, religious accommodation requests). The imposition of COVID-19 vaccine mandates has changed that, particularly with regard to religious accommodation requests, which has become the ultimate “gray area,” as both employers and employees alike have learned that sincerely held religious belief can include an employee’s religious-based objection to vaccinations. As a result, the Equal Employment Opportunity Commission (“EEOC”) has issued guidance regarding the obligations of employers under Title VII when an employee presents with a religious objection to a mandatory COVID-19 vaccination policy, which actually builds upon prior EEOC guidance regarding COVID-19 vaccinations in the employment context. Thus, there are multiple issues that employers need to keep in mind and juggle when addressing these vaccination accommodation requests.

Participants in this webinar learned how to best deal with such requests by their employees, including: Continue reading →

As OSHA Finalizes Its Vaccination ETS, the EEOC Updates Guidance on Religious Exemptions to Vaccine-Mandates

Eric J. Conn 1 Comment

By Conn Maciel Carey LLP’s COVID-19 Task Force

Earlier this week, the EEOC finally updated its guidance on Title VII and Religious Objections to COVID-19 Vaccine Mandates, which will impact how employers will implement their various vaccination, testing, and masking requirements.

US law has long-recognized an exemption from mandatory work policies (including vaccine-mandates) based on sincerely held religious beliefs, pursuant to Title VII of the Civil Rights Act of 1964 (and equivalent state statutes). For employers, evaluating religious exemption requests can be tricky (certainly trickier than requests for medical/disability-based exemptions), as there is often no readily verifiable evidence to help ascertain whether an employee’s religious objection to the work policy is a sincerely held religious belief (or even a religious belief at all). Indeed, although it is permissible to attempt to obtain a supporting statement from a religious leader or another member of their community who is familiar with the employee’s belief system, and employee is not required to provide such a statement, as they may not be affiliated with an organized religion. Furthermore, as an end-around to COVID-19 vaccine-mandates, many employees nationwide are attempting to seek a religious exemption when their actual objections are really based in political, ethical, or personal beliefs.

In response to requests from the regulated community, the EEOC has attempted to provide more clarity so that employers can have more confidence in implementing their accommodations process, and in many instances, to push back on suspect claims by employees of the need for a religious exemption. The guidance does offer some useful tools for employers, but unfortunately, it is not as helpful as we had hoped it might be.

The theme of the EEOC’s updated guidance is that employers must make an individualized evaluation of each employee’s request for a religious accommodation. The EEOC renewed Continue reading →

Pfizer Vaccine’s Full FDA Approval – What Does This Mean for Employers?

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By Conn Maciel Carey’s COVID-19 Task Force

Earlier this week, on August 23, 2021, the U.S. Food and Drug Administration fully approved the Pfizer-BioNTech COVID-19 vaccine.   Earlier this year, many employers were hesitant to issue vaccine mandates and expressed concerns about potential legal risks associated with such a mandate since the COVID-19 vaccines were only approved for emergency use.  While the full approval designation may not change the legal landscape as it relates to vaccine mandates, many employers may feel more comfortable imposing such mandates.

As explained in our prior blog, employers can mandate employee vaccinations under federal law.  The U.S. Equal Employment Opportunity Commission (EEOC) issued guidance several months ago stating that employers generally can mandate COVID-19 vaccinations for employees who physically enter the workplace without running afoul of the federal anti-discrimination laws it enforces.  The U.S. Department of Justice (DOJ) also issued a slip opinion on July 6, 2021, regarding vaccination mandates and the emergency use authorization status of the vaccines:

We conclude that section 564(e)(1)(A)(ii)(III) concerns only the provision of information to potential vaccine recipients and does not prohibit public or private entities from imposing vaccination requirements for vaccines that are subject to EUAs. Continue reading →

EEOC Updates COVID-19 Vaccination Guidance

Eric J. Conn 3 Comments

By Conn Maciel Carey’s COVID-19 Task Force

Last week, Conn Maciel Carey posted a blog article about How to Navigate the Thorny Legal Landscape Around Employee Vaccination Status.  One of the observation in that article was that we were all on the edge of our seats waiting for the EEOC to issue promised guidance about employer incentives and mandates about the COVID-19 vaccination.  On Friday, the EEOC finally issued much-anticipated updated FAQs about the legal landscape of various employer vaccinations policies.

Here is a summary of the vaccine section of the guidance:

May employers ask employees about vaccination status under federal law?  See FAQs K9, K5, K15, K16, K18, K19

  • Yes – does not violate ADA or GINA.
  • However, employer should not ask “why” an employee is unvaccinated, as this could compel the employee to reveal disability information that is protected under the ADA and/or GINA.
  • Recommended practice: If employer requires documentation or other confirmation of vaccination, “notify all employees that the employer will consider requests for reasonable accommodation based on disability on an individualized basis.”

Is vaccination information “confidential” under the ADA?  See FAQ K4

  • Yes, this includes documentation (i.e., the white vaccination card)  or “other confirmation” of vaccination, which we presume means any self-attestation form or email from the employee, as well as any record, matrix, spreadsheet, or checklist created by the employer after viewing employees’ vaccination cards or receiving a verbal confirmations from employees.
  • The records or information must be kept confidential and stored separately from employee personnel files.

How may employers encourage employees and family members to get vaccinated?  See FAQ K3 Continue reading →

How to Navigate the Thorny Legal Landscape Around Employee Vaccination Status

Lindsay A. DiSalvo 1 Comment

By Conn Maciel Carey’s COVID-19 Task Force

As the number of vaccinated individuals continues to increase and we are seeing a significant decrease in COVID-19 cases, the landscape of legal requirements applicable to employers and employees is changing, particularly related to employees who are fully vaccinated.  Indeed, in an unexpected update to its guidance last week, the CDC stated that fully vaccinated individuals may resume essentially all indoor and outdoor pre-pandemic activities in almost all circumstances.  Although federal agencies such as OSHA and the EEOC have not yet updated their relevant guidance on treatment of vaccinated workers to reflect these changes, they both have stated their intent to address, and in OSHA’s case follow, the CDC guidance, and many states are doing the same.

Accordingly, employers now, more than ever, must understand and may want to take certain actions based on the vaccination status of their workers.  However, obtaining information on an employee’s status and using that information to dictate policies and practices in the work environment has legal implications and raises many important questions that could pose difficulties for employers who want to ensure that they proceed in compliance with applicable laws.  Below, we provide answers to questions we have received related to employee vaccination status as well as tips to effectively deal with these novel and complex issues.

[6/1/21 UPDATE – Check out our newer article about updated EEOC vaccination guidance that touches on many of these same issues.]

Question 1: Can employers ask employees about their COVID-19 vaccination status?

Yes, but employers should be mindful of compliance with federal and state laws on disability, privacy and discrimination.  If the employer requests confirmation and/or proof that an employee has been fully vaccinated, this should be a simple, straightforward inquiry to determine an employee’s current vaccination status.  Such a simple, general inquiry is legitimate and would be considered permissible under applicable employment laws, particularly if it is made to determine whether: Continue reading →

Free In-Person OSHA and Labor & Employment Client Briefing in Chicago – September 25, 2018

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Join Conn Maciel Carey for an In-Person OSHA and Labor & Employment Briefing in Chicago on Tues., Sept. 25, 2018, and stay for a reception to celebrate the launch of our Chicago Office.

This complimentary program will feature panel discussions with representatives from EEOC, NLRB, and OSHA addressing key policy trends and regulatory developments.  They will be joined by senior corporate counsel from multinational corporations and Conn Maciel Carey’s Labor & Employment and OSHA specialist attorneys.  There will also be moderated breakout roundtable sessions covering issues of concern to various industry segments.

Agenda

1:00 PM – Registration and Networking
1:30 PM – OSHA Panel
  • Angie Loftus (OSHA Area Director – Chicago North Area Office)
  • Nick Walters (Former OSHA Regional Administrator – Region 5) Continue reading →

OSHA, EEOC and the Dept. of Justice Weigh In On Transgender Rights in the Workplace

Eric J. Conn Leave a comment
By Jordan B. Schwartz and Eric J. Conn

In the last few months, hardly a day has gone by without some news regarding transgender bathroom access.  Perhaps the catalyst for the increased attention on this issue was North Carolina’s passage of its controversial H.B. 2 law which, among other things, restricts transgender people’s access to public restrooms and blocks local governments from passing NC Bathroom Lawanti-discrimination laws to protect LGBT individuals.

Notably, the American Civil Liberties Union (“ACLU”) has since filed a lawsuit in federal court challenging that law, and seeking an injunction preventing the State from enforcing it.  On May 4, 2016, the U.S. Department of Justice sent a letter to North Carolina Governor Pat McCrory saying the state’s controversial law restricting bathroom access for transgender persons is in violation of federal civil rights laws prohibiting employment discrimination.

The ACLU has also successfully challenged other entities that it believed were infringing on transgender rights.  For example, the U.S. Court of Appeals for the Fourth Circuit recently sided with the ACLU and ruled that a transgender high school student who was born as a female but was barred from using the boys’ bathroom can sue his school board for discrimination.  In that case, the Fourth Circuit accepted the federal government’s interpretation of discrimination as including discrimination against transgender individuals and thus deferred to the U.S. Education Department’s position that transgender students should have access to the bathrooms that match their gender identities, rather than being forced to use bathrooms that match their biological sex.OSHA Bathroom Image

As a byproduct of the increasing visibility of this issue, both the U.S. Equal Employment Opportunity Commission (“EEOC”) and Occupational Safety and Health Administration (“OSHA”) have strongly supported transgender rights.  Indeed, last year, OSHA promulgated its “Transgender Restroom Access Guide” with the core Principle that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity.  OSHA linked this to safety and health by reasoning that:

Continue reading →