Listen to our discussion on what employers can do to keep a calm, cooperative workplace even with the stress of the current political climate. This quick chat takes into account recent political tensions that have been roiling for some time now and hit an all-time high last week when armed rioters stormed the Capitol Building
Businesses engaging independent contractors have new guidance from the Department of Labor (DOL) for determining whether an individual is an employee or independent contractor, but the guidance may never take effect. On January 6, 2021, the DOL issued a final rule for determining whether an individual is an employee or independent contractor. The rule focuses on whether workers are economically dependent on another business–making them more likely to be an employee of that business, and entitled to the minimum wage and overtime under the Fair Labor Standards Act (FLSA)–or are economically dependent upon themselves, making them true independent contractors.
Continue Reading DOL Announces Final Rule for FLSA Worker Classification Focused on Economic Dependence-But Its Future is Uncertain
California Gov. Gavin Newsom (D) closed this most recent legislative season by signing dozens of new bills into law that affect California employers. Though some were emergency bills and took effect upon signing, the remainder take effect on Jan. 1, 2021.
The laws are wide-ranging, encompassing topics from pandemic-related measures, to the first board of…
On December 16, 2020, the EEOC posted a new section on vaccinations in its COVID-19-related technical assistance Q&As, only five days after the FDA granted its first Emergency Use Authorization for a COVID-19 vaccine. Section K of the EEOC’s COVID-19 Q&As (“Vaccinations”) updates and expands the EEOC’s publication “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” providing information to employers and employees regarding the impact legal requirements under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA) may have on whether and how COVID-19 vaccines can be utilized in the workplace.
The Q&As are linked here, and copied below for ease of reference.
The availability of COVID-19 vaccinations may raise questions about the applicablilty of various equal employment opportunity (EEO) laws, including the ADA and the Rehabilitation Act, GINA, and Title VII, including the Pregnancy Discrimination Act (see Section J, EEO rights relating to pregnancy). The EEO laws do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidelines and suggestions.
1.1 ADA and Vaccinations
K.1. For any COVID-19 vaccine that has been approved or authorized by the Food and Drug Administration (FDA), is the administration of a COVID-19 vaccine to an employee by an employer (or by a third party with whom the employer contracts to administer a vaccine) a “medical examination” for purposes of the ADA? (12/16/20)
No. The vaccination itself is not a medical examination. As the Commission explained in guidance on disability-related inquiries and medical examinations, a medical examination is “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.” Examples include “vision tests; blood, urine, and breath analyses; blood pressure screening and cholesterol testing; and diagnostic procedures, such as x-rays, CAT scans, and MRIs.” If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.
Although the administration of a vaccination is not a medical examination, pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability. If the employer administers the vaccine, it must show that such pre-screening questions it asks employees are “job-related and consistent with business necessity.” See Question K.2.
In the somewhat-near future, US employers actually may be able to replace face coverings, social distancing markers, plexiglass barriers and Zoom calls with face-to-face interaction and handshakes. At least two COVID-19 vaccines are expected to be issued Emergency Use Authorizations (EUA) by the FDA before the end of 2020, following closely behind the footsteps of the UK, which began vaccinations on December 8, 2020.
While this is good news for the country, the change won’t be felt immediately for most US employers. On December 1, a Centers for Disease Control and Prevention (CDC) panel advised that the first vaccine doses should go to health-care workers and long-term care facility residents. The next group up is reportedly other “high risk” groups: bus drivers, factory workers, teachers, older people and people with underlying conditions. At this point, widespread availability of COVID-19 vaccines is not expected until spring or summer of 2021. So, what should US employers whose workforce may not be eligible for vaccinations until later in the year be doing now to prepare?
After the fastest reported increase in coronavirus cases since the start of the pandemic- with new infections doubling in the past 10 days-California Governor Newsom “sound[ed] the alarm,” announcing on November 16 that 40 counties are moving in the wrong direction under the state’s reopening plan. Twenty-eight counties moved into the state’s most restrictive purple tier under California’s Blueprint for a Safer Economy, signifying that the coronavirus is “widespread.” Now, 41 of the state’s 58 counties are purple, a stark contrast from only 13 purple tier counties last week.
Several Bay Area and Southern California counties are affected:
- Alameda, Contra Costa, Santa Clara, Napa and Solano counties are reverting to the purple tier, while San Francisco, Marin and San Mateo counties are stepping back into the second-most restrictive red tier (indicating “substantial” virus spread).
- Orange and Ventura counties-which improved to red in September and October, respectively-are retreating to purple, joining Los Angeles, Orange, Riverside, Ventura, Santa Barbara, and San Bernardino counties in the purple tier.
California employers and employees are already feeling the effects. Purple status severely limits indoor activity, including:
- Restricting capacity at retail establishments and malls (open indoors at 25% capacity);
- Moving fitness centers, family entertainment, and movie theaters to outdoor only;
- Limiting restaurants and wineries to limited outdoor-only service;
- Closing bars and breweries;
- Requiring schools to remain online only; and
- Requiring non-essential offices to work remotely.
With 94% of the state’s population now in the purple tier, talk of curfews, and restrictions being one step away from the stay-at-home orders that swept the US in March, the scaled back reopening undoubtedly will have devastating economic impacts on businesses and their employees.
As the clock strikes midnight on New Year’s Eve 2020, sweeping amendments to California’s Family Rights Act (CFRA) will take effect. Both the federal Family and Medical Leave Act (FMLA) and the current version of CFRA entitle eligible employees to take up to 12 weeks of unpaid, job-protected family or medical leave during a 12-month period. This statutory leave right provides employees with time off from work for the birth, adoption or foster care placement of a child, to care for an immediate family member (spouse, child or parent) with a serious health condition, or when the employee cannot work because of a serious health condition.
Effective January 1, 2021, however, not only will the CFRA apply to more employers (covering employers with as few as five instead of the current 50 employees), but CFRA’s expanded definition of “family members” also will authorize certain employees to take a total of 24 weeks of family and medical leave, effectively doubling the currently available 12 weeks of leave available, in each 12-month period.
We highlight the key changes to the CFRA and employer considerations below.
On October 7, 2020, the US Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) issued its initial FAQ regarding President Trump’s Executive Order 13950, Executive Order on Combating Race and Sex Stereotyping (“Executive Order”). As discussed in our recent blog post, the Executive Order prohibits federal contractors from conducting workplace training during the performance of a government contract that inculcates certain “divisive concepts” in employees, and requires federal contractors to impose the same prohibition on their subcontractors and vendors.
The guidance provides some clarity to the Executive Order, which has been widely described as difficult to understand and implement. We highlight some of the guidance’s key points below.
On September 22, 2020, President Trump issued an Executive Order on Combating Race and Sex Stereotyping (“Executive Order”), following a September 4, 2020 White House memorandum criticizing federal agencies for having “divisive, un-American” training sessions on “critical race theory,” “white privilege,” and other training teaching individuals that the US or any race or ethnicity is inherently racist. The September 4 memorandum instructed federal agencies to cease the funding of any training that fit the description.
The September 22 Executive Order brings federal contractors into the fold, prohibiting them from using any workplace training during the performance of a government contract that inculcates in their employees certain “divisive concepts,” and requiring them to carry those imperatives down to their subcontractors and vendors. Though the Executive Order was “effective immediately” as of September 22, the requirements for contractors affect federal prime contracts entered into on or after November 21, 2020, leaving some time for federal contractors to prepare-or watch as expected legal challenges to the Executive Order play out.
Despite the uncertainty surrounding the Executive Order, federal contractors can take steps to prepare in case the Executive Order applies come November. Here’s what federal contractors need to know now.
The US Supreme Court significantly altered federal anti-discrimination law in its landmark June ruling in Bostock v. Clayton County. This week’s video chat provides practical advice for employers following Bostock’s extension of anti-discrimination protections to LGBTQ employees and its interaction with employees’ religious beliefs.
Please click below to watch the video chat: