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On June 15, 2020, the US Supreme Court changed the face of federal workplace anti-discrimination laws. In Bostock v. Clayton County, the Court ruled that Title VII’s prohibition against job discrimination on the basis of “sex” includes sexual orientation and gender identity. Though Title VII of the Civil Rights Act of 1964 has long-prohibited employers from discriminating on the basis of color, national origin, race, religion, and sex, the question of whether sexual orientation and gender identity were included in the definition of “sex” went unsettled — until now.

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” Justice Neil Gorsuch wrote for the court in the 6-3 opinion. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” Justice Gorsuch and fellow conservative Chief Justice John Roberts joined liberal Justices Breyer, Ginsburg, Kagan, and Sotomayor in the majority.


Continue Reading Support for LGBTQ Rights, with a Signal for Religious Liberty: What Does Bostock Actually Mean for Employers?

We hope you have found our video chat series helpful and informative. We are continuing this series of quick and bite-sized video chats, where our employment partners team up with practitioners in various areas of law to discuss the most pressing issues for employers navigating the return to work. Each 15-minute Q&A session offers targeted

On June 11 and June 17, 2020, the EEOC updated “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” its Q&A technical assistance guidance for COVID-19 related issues. The new guidance expands its previous guidance, answering additional questions on several topics, including COVID-19 antibody tests, “high risk” employees (which we blogged about here), accommodations for employee screenings, how to handle national origin discrimination, and whether an employer’s safety concerns permit the exclusion of pregnant or older people from the workplace. We have summarized the new Q&A below.

Disability-Related Inquiries and Medical Exams

A.7. CDC said in its Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace.” In light of this CDC guidance, under the ADA may an employer require antibody testing before permitting employees to re-enter the workplace?

No. An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA. Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test). The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.

The EEOC will continue to closely monitor CDC’s recommendations, and could update this discussion in response to changes in CDC’s recommendations.


Continue Reading More on the Return to Work: the EEOC Issues New COVID-19 Related Guidance

We hope you have found our video chat series helpful and informative. We are continuing this series of quick and bite-sized video chats, where our employment partners team up with practitioners in various areas of law to discuss the most pressing issues for employers navigating the return to work. Each 15-minute Q&A session offers targeted

Not surprisingly, summer internships look a bit different this year. Some are cancelled outright, others cut short, and many are virtual. Amidst these changes, we know employers have more than a few questions . . .

Q. If my company is cancelling its planned summer internship, do we have to provide any cash compensation?

A. Not unless there is a contract in place to do so. Nonetheless, we’ve seen a number companies offer to pay a portion of the expected wages (and a few very generous employers have sought to pay the entire amount).

Q. And, if we want to pay our intern some amount for the lost opportunity, do we have to put them on the payroll?

A. Yes. The IRS takes the position that, from a tax perspective, paying any amount, in lieu of wages to a prospective employee who is never actually employed is nonetheless wage income subject to income tax withholding, social taxes, etc. Some employers are a little stumped by how they can set somebody up on the payroll just to make this one lonesome payment. But, it is doable. It requires some administrative tasks like getting the required federal and state withholding forms and setting the person up in the employer’s payroll system. For federal purposes, the required form is the Form W-4 that an employee fills out during onboarding for a new job, which form will require the employee to provide a social security number (or other taxpayer identification number) and other information needed for the payment to be properly reported on Form W-2 and withheld upon.


Continue Reading FAQs About Summer Internships During the Pandemic

Are you ready to protect employees at higher risk for severe illness from COVID-19 as you reopen? That’s a question the CDC asks in its recently-released guidance for employers considering reopening. And the EEOC recently issued three new Q&As in the “Return to Work” section of its technical assistance guidance for COVID-19, instructing employers on managing “high risk” employees in compliance with the Americans with Disabilities Act (ADA). The below Q&A provides direction for employers regarding “high risk” employees returning to the workplace and reasonable accommodations to help keep those employees safer at work.

What is my employee required to do to request a reasonable accommodation if the employee has a medical condition the CDC says could put the employee at higher risk for severe illness from COVID-19?

The employee (or the employee’s representative, such as the employee’s doctor) must let you know the employee (i) needs a work accommodation (ii) for a reason related to the medical condition. The request can be made in conversation or writing, and does not need to use the term “reasonable accommodation” or even reference the ADA. Therefore, to ensure you don’t unintentionally run afoul of the ADA by missing a request for a reasonable accommodation, we recommend you review every communication from an employee (or employee’s representative) stating that the employee has a medical condition requiring a change at work as one that may require a reasonable accommodation. It is also important to train managers to be aware of these requests and to immediately inform HR if an employee mentions needing a change at work because of a medical condition.


Continue Reading From Safer-at-Home to Safer-at-Work: the EEOC Issues Guidance to Help Reopening Employers Manage “High Risk” Employees

We hope you found last week’s video chat series helpful and informative. Due to popular demand, we are continuing this series of quick and bite-sized video chats, where our employment partners team up with practitioners in various areas of law to discuss the most pressing issues for employers navigating the return to work.

This series

Welcome to Baker McKenzie’s Labor and Employment video chat series! In these quick and bite-sized video chats, our employment partners team up with practitioners in various areas of law to discuss the most pressing issues for employers navigating the return to work.

This series builds on our recent client alert and webinar on reopening for

This webinar recording covers government orders, creating a timeline, workplace safety and prevention strategies, testing and health screening, labor agreements, workforce communication, managing employee concerns, and litigation mitigation.

Please see below the webinar materials as well as additional resources.

On April 27, 2020, Texas Governor Greg Abbott announced details of his plan to reopen Texas businesses in phases, so long as the COVID-19 outbreak can be sufficiently contained in the process. In conjunction with the release of the “Open Texas” strategic plan, Governor Abbott also issued three executive orders on April 27, 2020, each aimed at balancing measures to reopen sectors of the state while maintaining sufficient protections. Below are key provisions of the Open Texas strategic plan and the related executive orders. Please use the following links to access the full text of the Open Texas strategic plan and each of Governor Abbott’s executive orders.

Continue Reading Texas Reopens: What Businesses Need To Know