Special thanks to Melissa Allchin and Matthew Gorman.

Federal agencies have renewed their focus on job postings that discriminate against protected groups, even when there is no clear intent to be discriminatory. As evidenced by a significant increase in investigations and fines levied over the past four months, the Department of Justice’s (“DOJ”) Immigrant and Employee Rights Section (“IER”) and the Equal Employment Opportunity Commission (“EEOC”) are actively reviewing external, and often third-party, job postings to determine whether they are unlawfully restrictive.

The Investigations

Compared to a single settlement in all of 2021, the IER has entered into 19 settlements with US employers relating to discriminatory job postings since May 2022. The largest investigation targeted 16 employers who posted job advertisements with unlawful citizenship status restrictions through recruitment platforms used by the Georgia Institute of Technology and other college recruitment platforms. Per the June 2022 DOJ settlements, most of the advertisements restricted job opportunities to US citizens and/or lawful permanent residents. The settlements require the employers to pay civil penalties totaling $832,944, undergo training, and change their recruiting practices.

In a separate settlement in May 2022, the DOJ found that an IT recruitment company improperly emailed job ads with discriminatory preferences for citizenship status that deterred potential candidates from applying as part of a pattern of implementing its clients’ unlawful citizenship or immigration status preferences.

The DOJ’s revived attention on discriminatory job postings is not limited to those expressing a preference for US citizens. In June 2022, the DOJ found that a consulting company’s advertisement was directed only to workers seeking H-1B visa sponsorship. Similarly, in July 2022, DOJ found that a technology company posted job advertisements that deterred asylees, refugees and US nationals from applying, and in at least one instance sought only H-1B visa holders. In both the June and July settlements, the companies were subject to civil fines, required training, and to DOJ monitoring and reporting obligations.

The DOJ is not alone in its enforcement attempts.  In recent years, the EEOC has honed its focus on systemic age discrimination in job postings.  In its 2021 guidance, the EEOC unequivocally stated that job postings seeking candidates with seemingly innocuous traits – such as “recent graduate” and “energetic” – may violate the Age Discrimination in Employment Act (“ADEA”). A July 2022 study by the National Bureau of Economic Research further bolsters the EEOC’s position. The study team created and posted fake job advertisements focused on common age stereotypes: communications skills, physical ability and technology skills. The researchers determined that even when the advertisements lacked obviously discriminatory language, they ultimately discouraged candidates 40 and older from applying.  Examples of such troublesome posts included: “You must be up-to-date with current industry jargon and communicate with a dynamic workforce” and “You must be a digital native and have a background in social media.”

The Law

There are several regulations that prohibit employers from engaging in discriminatory hiring practices, including the ADEA, Title VII of the Civil Rights Act of 1964, and the Americans with Disabilities Act, along with countless state and local laws. 8 USC Section 1324b also prohibits unfair immigration-related employment practices. Specifically, employers are prohibited from discriminating against any individual with respect to “hiring, or recruitment or referral for a fee” due to that individual’s national origin or citizenship status. The individual must be a “protected” person – which includes (i) a citizen or national of the United States, (ii) lawful permanent residents, (iii) refugees and (iv) asylees, with some additional restrictions relating to those who have failed to timely apply for naturalization.

Investigations by the IER and EEOC can be time-consuming and disruptive to a business. Civil penalties  range widely – but can be hefty – depending on the scope of the alleged discriminatory actions. Perhaps of equal importance is the potential reputational harm resulting from an investigation and public announcement of settlement, in addition to required reporting and monitoring from the DOJ.

Employer Takeaways

Given the clear focus and mandate from the DOJ and EEOC regarding discriminatory job postings, employers must take additional care to ensure their job postings do not run afoul of anti-discrimination laws. Critically, this is true not just for the employer’s external website job postings but also those posted by third parties. Employers should consider the following best practices:

  • Conduct a review of current protocols for posting job advertisements on the company website and with external/third-party vendors.
  • Require third-party vendors to provide copies of all job postings for pre-approval before publishing.
  • Ensure those responsible for managing external job postings have undergone anti-discrimination training targeted to avoid incidental discriminatory postings.
  • Except in limited circumstances, never reference citizenship status, immigration status, national origin, age or any other protected category in job postings.

We are pleased to share with you The Global Employer – Global Immigration & Mobility Quarterly Update, a collection of immigration and mobility alerts from around the world.

Please click here to view.

It is official.  California has joined Colorado, Washington and New York City in requiring job posting to include pay ranges. Today (September 27, 2022), Governor Newsom signed SB 1162 into law, requiring California employers with 15 or more employees to include the salary or hourly wage range of positions in job listings. SB 1162 also requires employers with 100 or more employees to provide additional detail in the annual pay data reports already mandated under California law.

An earlier version of the bill would have required large employers to post salary data broken out by gender, race and ethnicity online. But those requirements were stripped from the bill in August, after business groups opposed the measure on the basis that sharing such pay data publicly would lead to increased and costly litigation, which in turn would limit the employers’ ability to increase wages. Though large employers may breathe easier given this change, SB 1162 still imposes significant and new pay transparency and disclosure requirements on California employers.

Here is what California employers need to know now.

Pay data reporting: what is required now that SB 1162 is law

The existing requirements (before SB 1162 modifications)

California already requires private employers with 100 or more employees (counting employees located both inside and outside of California) who are required to file an annual Employer Information report (EEO-1) under federal law to submit a “pay data report” to the Civil Rights Department (CRD, formerly known as the DFEH) by March 31 each year for the prior calendar year (“reporting year”). (For more information, see our prior blogs here and here.)

  • The report must include specified information, including the number of employees by race, ethnicity, and sex for 10 job categories, established by creating a “snapshot” that counts all individuals in each job category by race, ethnicity, and sex employed during a single pay period of the employer’s choice between October 1 and December 31 of the reporting year. The 10 job categories include executive or senior level officials and managers; first or mid-level officials and managers; professionals; technicians; sales workers; administrative support workers; craft workers; operatives; laborers and helpers; and service workers.
  • Employers also must report the number of employees by race, ethnicity, and sex whose annual earnings fall within each of the pay bands the US Bureau of Labor Statistics uses in the Occupational Employment Statistics survey (established by calculating the total earnings shown on the IRS Form W-2 for each employee in the “snapshot” for the entire reporting year; the total number of hours worked by each employee counted in each pay band during the reporting year; and the employer’s North American Industry Classification System (NAICS) code).
  • An employer could (pre-SB 1162) comply with the pay data reporting obligation by submitting an EEO-1 report that contains the same or substantially similar pay information. Employers with multiple establishments must submit a report for each establishment and a consolidated report that includes all employees. All employers must provide the data in a format that allows CRD to search and sort the information using readily available software, and employers may, but are not required to, provide clarifying remarks concerning the information in the report.
  • CRD must make the reports available to the Division of Labor Standards Enforcement (DLSE) upon request and maintain the data for at least 10 years. Both CRD and DLSE must keep the data confidential, except as necessary for administrative enforcement or through the normal rules of discovery in a civil action. CRD may seek an order requiring an employer to comply with these requirements and is entitled to recover the costs associated with seeking the order for compliance.

What changes now that SB 1162 is law

No EEO-1 report allowed

SB 1162 eliminates the option of submitting an EEO-1 report in lieu of a pay data report.

Consolidated reports not required

Employers with multiple establishments are no longer required to submit a consolidated report, and instead only need to submit a report covering each establishment.

Median and mean hourly rate required

The new law now requires the pay data report to include the median and mean hourly rate for each combination of race, ethnicity, and sex within each of the 10 job categories.

New deadline for submissions

The bill requires the submission of pay data reports on or before the second Wednesday of May 2023, and for each year thereafter on or before the second Wednesday of May (as opposed to the current March 31 annual deadline).

Employees hired through labor contractors now count

SB 1162 also requires a private employer that has 100 or more employees hired through a labor contractor (an individual or entity that supplies, either with or without a contract, a client employer with workers to perform labor within the client employer’s usual course of business) to submit a separate pay data report for those employees by the submission deadline.

Violations / penalties

The bill authorizes a court to impose a civil penalty not to exceed $100 per employee upon any employer who fails to file the required report, and not to exceed $200 per employee upon any employer for a subsequent failure to file the report.

Pay scale disclosure: what changes now that SB 1162 is law

Pay scale required in job postings

SB 1162 now requires an employer with 15 or more employees to include the pay scale (salary or hourly wage range) for a position in any job posting. SB 1162 also requires employers who engage third parties to announce, post, or publish (or otherwise make known) job postings to provide the third parties with the pay scale information, and requires the third parties to include the pay scale in job postings.

Pay scale disclosure to applicant and current employee

California law previously required employers to provide pay scale disclosures to applicants upon reasonable request.  Now, SB 1162 requires employers to provide current employees with the pay scale for their positions upon request.

Required records

Under SB 1162, employers must maintain records of job titles and wage rate histories for each employee for a specified timeframe, with the records to be open to inspection by the Labor Commissioner.  If an employer fails to keep the required records, the law creates a rebuttable presumption in favor of an employee’s claim.

Violations / penalties

SB 1162 requires the Labor Commissioner to investigate alleged violations of its requirements and authorizes the commissioner to order employers to pay civil penalties upon finding a violation. The bill also authorizes a person aggrieved by a violation to bring a civil action for injunctive and any other appropriate relief.

What should California employers do now?

California employers need to act quickly – SB 1162 requires posting of pay ranges in job listings as of January 1, 2023.  And the revised pay data reports must be submitted by May 10, 2023.

As always, contact your Baker McKenzie employment attorney for help with this new law or any other employment needs.

Special thanks to guest contributors Bradford Newman, Pamela Church and George Avraam.

New Baker McKenzie Survey of 500 US-Based C-Level Executives Reveals AI Blind Spots

Regulatory and enforcement agencies in the US are taking a closer look at artificial intelligence (AI) and its potential for bias and other harms, but a new Baker McKenzie study has found that many in the C-suite are overconfident in assessing AI threats. Meanwhile, critical blind spots exist in HR and hiring tools oversight.

Our AI and corporate oversight survey report features insights from 500 US-based C-level executives who self-identified as part of the decision-making team responsible for their organization’s adoption, use and management of AI-enabled tools.

Click here to download a copy of our survey results to examine the critical blind spots that exist, key challenges with these gaps and how to address them.

You can also view our press release on the findings here.

Join us for an in-person event with special guest, EEOC Commissioner Keith Sonderling

Commissioner Sonderling is recognized for his thought leadership on inclusive AI. He is at the forefront of advocating for rational AI enforcement that meets the mandate of equality without disrupting innovation. He has noted the value of learning the perspectives of innovators, and legal and human resource professionals in this space through an open dialogue. A brief introduction video to Commissioner Sonderling can be found here.

Event Details

Date:
Thursday, October 27, 2022

Venue:
EL Prado Hotel, La Terraza Ballroom
Downtown Palo Alto, 520 Cowper Street

Parking:
Complimentary valet parking

Timing:
2:30 pm / Registration
3:00 – 4:00 pm / Interview and Q&A
4:00 – 5:30 pm / Cocktail & Networking Reception

US regulatory and enforcement agencies increasingly are taking a hard look at AI and its potential bias and unintended consequences. Simultaneously, many C-Suite executives are overconfident about the risk of AI-related threats, especially given the critical blind spots that exist in HR and the use of AI hiring tools.

Baker McKenzie, in collaboration with Coleman Parkes, recently surveyed C-Suite level executives on the use and management of AI-enabled hiring and promotion tools. The AI and Corporate Oversight in the US survey illuminated three significant gaps that require C-Suite attention.  A copy of our survey report is available for download here.

To better examine the AI-related challenges identified through our survey and the steps companies should take to address them, we invite legal, compliance, and human resource professionals, along with data scientists and innovators, to join in a conversation with our special guest, EEOC Commissioner Keith Sonderling, during which he will share his insights on key considerations for the use of employment-based AI tools, including best practices for the elimination of bias and the compliant deployment of AI under federal employment law.

Hosted by Baker McKenzie AI partner Bradford Newman, this invitation only event will be followed by a Q&A session and the opportunity to visit with the Commissioner in a casual setting.

We look forward to seeing you.

For more details on this event, click here.

To register click here.

California employers will need to review and confirm their employees’ exempt status and non-exempt hourly wage rates before the start of the new year because of an unusual change in the statewide minimum wage applicable to all California employees.

On July 27, 2022, the California Director of the Finance Department sent a letter to Governor Gavin Newsom stating that the minimum wage will be raised by $15.50 for all employers, regardless of headcount, on January 1, 2023. This change may take employers by surprise because the new minimum is higher than the scheduled increases published by the California Department of Industrial Relations, and applies regardless of employer size.

Most California employers are likely familiar with the Schedule for the California Minimum Wage rate 2017-2023 (see below) published on the California Department of Industrial Relations website.

However, this schedule is no longer accurate. A little-known provision of the California Labor Code (Cal. Lab. Code Section 1182.12) requires the Director of the Department of Finance to determine, each year, whether the minimum wage must be adjusted because of inflation. The mechanism takes into account the latest Consumer Price Index as set by the Bureau of Labor statistics. When inflation exceeds 7%, the minimum wage becomes the same for all employers, regardless of headcount, effective the following January 1. After determining that the US States Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) for the 12-month period from July 1, 2021 to June 30, 2022 increased by 7.9 percent compared to the 12-month period from July 1, 2020 to June 30, 2021, the Director certified a new minimum wage of $15.50/hour for all employers starting January 1, 2023.

This change will require California employers to increase the hourly rates paid to minimum-wage employees. It also will impact payments that are tied to the state minimum wage, such as split-shift premiums, certain overtime exemptions for CBA-covered employees, and non-productive time for piece rate workers.

But most importantly, the increase of the minimum wage will impact the minimum base salary required for the so-called “white collar” exemptions:

  • Certain white-collar exemptions in California rely, in part, on the minimum wage: in addition to performing tasks and duties in line with the executive, administrative, and professional exemptions, most white-collar employees must earn at least twice the applicable minimum wage for full-time employment (40 hours per week) (i.e., currently for larger employers, at least $62,400 annually). By contrast, the federal Fair Labor Standards Act requires all exempt employees be paid at least $684 per week (at least $35,568 annually) in order to be exempt from overtime. The increase in the minimum wage to $15.50 next year will raise the minimum salary level to $64,480.
  • Similarly, under California law, commissioned inside salespeople are exempt from overtime if, among other things, they earn more than half of their compensation from commissions (measured over different time periods) and at least 1.5 times the minimum wage (on a workweek-by-workweek basis).

And California is not an anomaly. At least a dozen other states–including Illinois, New Jersey and Virginia–are raising their minimum wage in 2023. Most states have mechanisms to raise their minimum wage based on inflation or other similar indices (such as the cost of living, employment costs, etc.). We expect to see more states and localities raise their minimum wage rates higher or earlier than anticipated.

US employers should prepare for possible increases and conduct a review now to determine whether impending new minimum wage rates may change the exempt status of employees or require raising salary levels. A prompt review will give employers time to decide whether they wish to treat formerly exempt employees as non-exempt employees starting January 1, 2023, or whether they prefer to adjust affected exempt employees’ base compensation to ensure those employees continue to qualify for the applicable exemption. For assistance with California’s new minimum wage rates and their impact on the exempt status of your employees, and for all of your employment needs, contact your Baker McKenzie employment attorney.

As we pass the 2.5 year mark since many of us were sent to work from home for “two or three weeks” in early 2020, a number of employers are getting closer to having formal policies to address remote work and hybrid work arrangements. One of the more enduring consequences of the pandemic for employers is the focus on providing flexibility in employee work locations. This was confirmed in a recent client survey indicating that the majority of employers offer flexible or fully remote work arrangements to their employees and new candidates (though often limited to certain positions and locations), as job seekers are demanding flexible work arrangements.

Only a small minority of companies are requiring all employees to return to the office on a full-time basis (though almost one fifth of responding employers are still developing their remote work policies, so this number could increase). For most employers, it is critical to not be out of step with their peers in the most difficult employee recruiting and retention environment in a generation. At the same time, employers are aware of the risks that can be created by having an employee working in another jurisdiction. These risks are not limited to corporate tax and payroll withholding considerations, but also implicate immigration compliance, IP confidentiality, various employment issues, data privacy and security, trade compliance, and compensation and benefit consequences.

As a result, we are seeing a general acceptance of remote work for some period, but with limits — either on the jurisdictions where employees can work remotely, which positions are eligible under the policy, or the time period the employee is permitted to work remotely. At this stage, respondents are relying less on location tracking software and more on employee self-reporting.

Looking ahead, for US employers, who have been primarily focused on employees moving locations within the US, we may see cross-border remote work increase as countries continue to eliminate the pandemic travel restrictions which were a barrier during the last few years, and as countries use “digital nomad” type visa programs to attract the remote workforce to their jurisdiction.

Labor unions seem to be having a resurgence after being on the decline for many years. Employers are concerned with this shift, and are wondering what they can do within the bounds of the law to keep a direct relationship with their workforce.

In this Quick Chat video, our Labor & Employment lawyers discuss the current labor union landscape, what’s causing this wave of union activity, and some steps employers can take to get out in front of the escalation in union organization.

Click here to watch the video.

 

Special thanks to Ma. Rosario Lombera, Manuel Antonio Calderón, Marco Rojas and Juan Valles.

In this Quick Chat video, our Labor & Employment and Tax lawyers discuss some of the most frequently asked questions regarding the Subcontracting Reform’s 2022 Inspection Program, through which authorities from the Ministries of Labor, Social Security and Tax plan to ensure that companies providing and contracting services comply with the regulations of the Subcontracting regime.

Click here to watch the video.

 

Special thanks to guest contributor, Melissa Allchin

COVID-19 has been a mainstay for over two years now. Notwithstanding the pandemic’s devastating impacts, employers (and employees) have tired of thinking about COVID-19, and are ready to allocate their energy and resources to other pressing matters, such as the economic crisis or transformative geopolitical events.

Though it is clear that the pandemic is not yet receding, it does seem that we could finally be reaching equilibrium in the form of a new normal, as the world has largely emerged from COVID-19 restrictions and gotten back to work with some semblance of normalcy. Where does this leave employers who want to continue to protect the health and safety of their workforces while also turning their attention to other issues? Below (and in our video chat COVID-19: It’s Not Over Until It’s Over, Employers), we discuss the COVID-19 trends we’re seeing now, as well as practical tips for employers as they continue to navigate pandemic issues in the workplace.

  1. Contact tracing–should employers still do it?

Employers are still seeing COVID-19 cases in the workplace, and if anything, cases have increased considerably in many locations. Many employers are asking whether they still need to contact trace or track COVID-19 cases in their workforce. While some employers have stopped contact tracing, there are important considerations to think through before employers decide to do so.

What’s required and what’s recommended?

Employers should look at what’s required and what’s recommended in jurisdictions where they have employees and, based on requirements and recommendations, devise a best practice for their workforce. Many jurisdictions have done away with contact tracing requirements for employers, but contact tracing is still recommended or encouraged in other jurisdictions–and it’s still required in some.

At the federal level, though the Occupational Safety and Health Administration (OSHA) does not specifically require employers to conduct contact tracing, OSHA’s General Duty clause (Section 5(a)(1)) still obligates employers to provide workers with a safe and healthful workplace, which in turn requires employers to comply with state, local and federal recommendations and laws regarding workplace safety. OSHA has advised that employers must take appropriate steps to protect workers from exposure to COVID-19 in the workplace. These steps might include notifying workers to monitor themselves for signs or symptoms of COVID-19 if they have been exposed–which, of course, is a form of contact tracing.

California is an example of a jurisdiction that still requires contact tracing. The Cal/OSHA Emergency Temporary Standard (ETS) requires employers, after learning of one positive COVID-19 case at the worksite, to

(i) determine the day and time the COVID-19 case was last present in the workplace and, if possible, the date of the positive COVID-19 test(s) and/or diagnosis, and the date the COVID-19 case first had COVID-19 symptoms;

(ii) determine who may have had a close contact with the positive case; and

(iii) within one business day, notify employees and independent contractors who were in the same “worksite” as the positive COVID-19 case of their potential exposure without disclosing the infected individual’s identity.

There are additional Cal/OSHA requirements when there is an “outbreak” of three or more positive cases in the workplace within a 14-day period, including excluding COVID-19 cases and employees who had close contact until they test negative or the return to work requirements for COVID-19 cases are met. Of course, determining which employees must be excluded under these rules requires contact tracing.

Other states, such as Illinois, encourage employers to notify fellow employees of an infected individual of their possible exposure to COVID-19 in the workplace, while maintaining confidentiality as required by the ADA. And Wisconsin urges employers to notify the local health department after learning that a worker has tested positive for COVID-19 so that the health department has the option to initiate contact tracing procedures.

Employers should keep monitoring, because changes are still being made

Employers should continue to keep an eye out for changes because some jurisdictions are continuing to modify recommendations and requirements as case numbers change or new subvariants become dominant. For instance, California recently made changes to its definition of “close contact.” California used to define “close contact” as what’s become a familiar standard–being within six feet of a positive case for a cumulative total of 15 minutes or more over a 24-hour period. Early this month, the California Department of Public Health (CDPH) changed that definition to focus on “shared indoor airspace.” Now, “close contact” in California means someone sharing the same indoor airspace (such as a home, clinic waiting room, airplane, etc.) for a cumulative total of 15 minutes or more over a 24-hour period (which could include, for example, three individual five-minute exposures for a total of 15 minutes) during an infected person’s (laboratory-confirmed or a clinical diagnosis) infectious period. Though there is not much guidance on how large a shared indoor airspace can be, a “home” is one of the examples provided by CDPH, as is “work colleagues within the same office space.” Following a rule of reason, if employees are in the same room for a cumulative 15 minutes over the course of 24-hour period, they’ll most likely be considered a “close contact” in California, which will require notice–and contact tracing.

What if employers decide not to contact trace? Are there risks?

Employers who decide not to contact trace face potential liability.

For one thing, employers in states with liability shield laws may lose the protection of those laws if their health and safety practices do not line up with current COVID-19 guidance and/or requirements, because some states have conditioned their liability shield law protections on employers following both recommended and required safety measures for COVID-19.

For another, employers increasingly being sued by third parties in so-called “take-home cases”–and we expect to see even more of these. In the typical take-home case, a third party plaintiff alleges that an employee who contracted COVID-19 at work brought the virus home to their spouse or another individual who suffers severe illness or death. The spouse or third-party then sues the employer for damages. While the fundamental question of whether an employer can be liable for a third party’s injuries is not yet fully resolved, courts are beginning to address the issue.  For example, the US Court of Appeals for the Ninth Circuit recently certified questions to the California Supreme Court, seeking guidance on whether there could be third party liability (under a negligence standard) for take-home COVID cases and whether the workers’ compensation regimes will preempt that liability. While we await the answer to these questions, employers should consider the increased risk of liability in these types of cases if they choose not to contact trace. And employers should note that even if the workers’ compensation “exclusive remedy” defense is found to apply to third party claims, plaintiffs may still argue that the defense is not available to the employer and should be set aside if an employer knows an employee has been exposed to a harmful agent, but fails to notify the employee.

Key takeaway: Employers should revisit their policies and procedures around contact tracing, and make sure they are up-to-speed on any requirements or recommendations in locations where they have employees before determining whether to relax their contact tracing policies–and keep in mind that an inappropriate relaxation in contract tracing could lead to liability.

  1. Mandatory vaccination policies–do employers still need them?

Earlier in the pandemic, many US employers adopted mandatory COVID-19 vaccination policies (in jurisdictions where they are not prohibited) as a way of keeping the workplace safe. But then the OSHA COVID-19 Vaccine and Testing Emergency Temporary Standard (OSHA ETS)–which caused some employers to put mandatory vaccination policies in place in anticipation of its implementation–was enjoined by the US Supreme Court on January 13, 2022 and was subsequently withdrawn by the Biden administration. At the same time, most state and local vaccination requirements have been rolled back. One exception: New York City still technically requires employees who work in the city limits to be fully vaccinated. The requirement continues to be extended by 5-day increments (with the last Executive Order extending the requirement issued on July 10), and so it remains in effect, notwithstanding public comments by the Mayor of NYC that his administration is not enforcing the mandate.

Employers who currently have mandatory vaccination policies in place should revisit them to determine whether they are still permissible under state and local law and whether they are still prudent for their workforces. Key considerations include:

  • Patchwork policies. Employers with employees in multiple states have had to implement patchwork policies for vaccinations, since some states’ laws prohibit employers from requiring vaccinations or discriminating based on vaccination status (although most don’t). Keeping track of the laws and pending legislation in several jurisdictions, and constantly modifying policies and procedures accordingly, can be difficult.
  • Who is “vaccinated”? While a fully vaccinated workforce is still the best way to ensure that the workforce is as protected as possible, as the time increases between employees’ final doses or booster shots, immunity may wane, and as of now, there’s not an easy metric for employers to use to determine just how protected workers are at any given time. Employers who continue to implement mandatory vaccination policies should determine how they will require employees to keep vaccinations up-to-date, and what steps to take if today’s vaccinated employees don’t have effective immunity levels to combat surges down the road. There is some guidance on this point. For instance, the San Francisco County Health Officer recently clarified that the City’s definition of “up-to-date on vaccination” does not include any boosters beyond the first booster shot, but also mentioned that “future conditions may require a change.”
  • Religious accommodations. Employers have seen their fair share of accommodation requests from employees asserting religious beliefs in order to obtain an exemption from vaccination requirements. Determining whether an employee is entitled to a religious-based accommodation can be tricky. The Equal Employment Opportunity Commission (EEOC) explains that employers should generally assume an employee’s request for a religious accommodation is based on sincerely-held beliefs–even if the religious belief is unfamiliar to the employer or a nontraditional religious belief. The test under Title VII’s definition of religion is whether the beliefs are, in the individual’s “own scheme of things, religious.” Employers can reject religious accommodations if they determine the employee’s objection is based on “social, political, or personal preferences, or nonreligious concerns about the possible effects of the vaccine.” This will almost always require employers to make a difficult call and face the risk of litigation by disgruntled employees if accommodations are denied.
  • Employee lawsuits. Employers should balance the benefits of a mandatory vaccination policy against the detriment of possible employee lawsuits from employees who don’t want to be vaccinated. Especially now–with no OSHA ETS to provide protection and the lifting of indoor mask mandates and vaccination mandates across the country and elsewhere–employers will have to determine whether maintaining a mandatory vaccination policy (as opposed to, for instance, a policy that allows employees to choose between vaccination or regular testing) is worth it.

Key takeaways: Employers should revisit mandatory testing or vaccination policies in those locations where they are still requiring them, and determine whether they should make changes based on the considerations outlined above and other factors such as current COVID-19 levels in the communities where they have employees.

  1. Accommodation requestswhat can employers expect?

Employers returning employees to the office should be prepared to handle not only requests for accommodation from vaccination requirements, but also for “long COVID”– a term used by the CDC to describe various post-COVID-19 conditions where individuals experience new, returning, or ongoing health problems four or more weeks after being infected with the virus.

According to the EEOC’s COVID-19 Q&A technical guidance, “long COVID” can be an actual disability if it substantially impairs a major life activity. The EEOC has provided examples of individuals who suffer from ongoing health problems and are “substantially limited in major life activities” weeks after they are infected with COVID-19, including:

  • An individual diagnosed with COVID-19 who experiences ongoing but intermittent multiple-day headaches, dizziness, brain fog, and difficulty remembering or concentrating which the employee’s doctor attributes to the virus
  • An individual diagnosed with COVID-19 who initially receives supplemental oxygen for breathing difficulties and has shortness of breath, associated fatigue, and other virus-related effects that last, or are expected to last, for several months
  • An individual who has been diagnosed with COVID-19 and experiences heart palpitations, chest pain, shortness of breath, and related effects due to the virus that last, or are expected to last, for several months
  • An individual diagnosed with “long COVID,” who experiences COVID-19-related intestinal pain, vomiting, and nausea that lingers for many months, even if intermittently

Key takeaways: Employers should prepare for long-COVID accommodation requests by reviewing the EEOC guidance and CDC guidance on long COVID, reviewing their reasonable accommodation policies and procedures, and ensuring that managers, supervisors and HR are trained on long COVID and consider it a disability when processing reasonable accommodation requests.

  1. Travelwhat’s required?

Finally, international travelers flying to the US are no longer required to present proof of a negative coronavirus test taken within a day of their departure flight to the US. Just after midnight on June 12, 2022, the Biden administration lifted its requirement that all travelers test negative for coronavirus before flying to the US. The change will be reassessed by Centers for Disease Control and Prevention (CDC) in 90 days, according to a senior administration official. The CDC may decide to reinstate the requirement if a new variant of the virus emerges that is of concern.

Testing prior to air travel is still recommended. Moreover, foreign nationals still are required to be fully vaccinated against coronavirus to enter the country (whether traveling by air or by land), with limited exceptions.

The CDC has kept and expanded its travel advice based on the community spread of COVID-19 in the US, with protective cautionary measures relative to the level of community spread. For individuals traveling to areas with a high level of community spread, the CDC recommends wearing a mask in indoor public places, that individuals who are not up to date with their COVID-19 vaccines avoid travel to high level areas, and that unvaccinated individuals quarantine for five days upon returning home and test three to five days after returning home.

The CDC also still recommends all travelers:

  • Ensure they are up-to-date with COVID-19 vaccines (including boosters) before any planned travel
  • Self-monitor for COVID-19 symptoms, and isolate and get tested if they develop symptoms
  • Consider packing at-home COVID tests in case they develop symptoms while traveling
  • Bring a mask, because they may be required by individual airports, airlines, public transit agencies, and some businesses

Travel requirements for jurisdictions outside of the US continue to vary greatly. The United Kingdom has completely lifted its vaccination requirements for travelers, and other countries in Europe have as well. Many countries have a stoplight system–signaling that you don’t have to be vaccinated if traveling from a “green” country, but that if you’re traveling from red list countries you may have to be vaccinated or meet additional requirements. And countries with limitations on travel may have exceptions. For instance, the Netherlands won’t allow travelers to stay in the Netherlands if they’re not vaccinated, but if they’re simply transiting through the Netherlands to another location, they may be able to wait in the airport for a bit before moving on.

Key takeaways:

Know before you go (and make sure employees know before they go), because requirements for travel vary by jurisdiction, but at the moment fully vaccinated international travelers are not required to provide a negative test before boarding a plane to travel to the US.

  1. Formswhat should employers keep?

We don’t know whether another variant or surge will come along requiring employers to once again reinstate COVID-19 policies and procedures they may have started putting to the side. Though we all hope to never need them again, employers should not toss out all of the systems they have implemented to deal with the pandemic just because of COVID-19 exhaustion.

We think employers should hold onto these types of forms:

  • Documents for reasonable accommodation requests under the ADA and Title VII (and analogous state / local law), for both COVID-19 related and non-COVID-19 related requests–including request forms, request determination notifications, a guide to assist managers, supervisors and HR through the interactive and determination process, and response letter templates (both for granting accommodations and denying them). As we said before, we expect to see requests for accommodation continue, and having these forms handy will be helpful, especially with the expected uptick in accommodation requests as employers return employees to the office.
  • A plan for reopening / reopening checklist. We’ve learned from experience that depending on community levels or outbreaks in the workplace, employers may need to close the office for a week or two and then quickly pivot and reopen. A plan to reopen and an easy-to-follow checklist will help employers remain agile should we see more waves or surges.
  • Employee and visitor symptom / health check self-certification forms, requiring respondents to self-certify a lack of COVID-19 symptoms, close contact or diagnosis. In the case of increased COVID-19 case levels, these may again come into play.
  • Protocol for when an employee or visitor tests positive for COVID-19. Especially if employers operate for a while without a positive case in the workplace, this is a great reference should one occur. Make sure to update this with applicable CDC, state and local requirements and guidance.

Key takeaway: Employers should review and update their COVID-19 forms, policies and procedures, taking stock of what they have–and what they may need–to be able to change course at a moment’s notice.

So, in summary, employers should think through: 

  • Contact tracing-employers should continue to trace in accordance with applicable requirements or guidance, and fully understand the risks if they don’t
  • Testing and vaccination policies-employers should revisit these and determine what works best now, while following state and local requirements
  • Accommodation requests-employers will continue to deal with these, so make sure managers, supervisors and HR are up-to-speed
  • Travel-know before you go, because travel rules still vary greatly by jurisdiction
  • Forms-keep the ones we’ve outlined for a quick pivot if necessary

For assistance with these items and all of your employment needs, contact your Baker McKenzie employment attorney.