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No Slowing Down: Employers’ Recap of the Trump Administration’s First 50 Days

March 24 - Posted at 1:19 PM Tagged: , , , , , , , , , , , , ,

Courtesy of Fisher Phillips

While new presidents are typically judged based on their actions in their first 100 days, the current Trump administration has moved at such a rapid speed that we think another recap is needed at the halfway point. Here’s your employer cheat sheet on Trump’s first 50 days.

Immigration

  • Trump signed 10 immigration orders on day one (Jan. 20). These executive orders, among other things, declared a national emergency at the U.S.-Mexico border, reinstated the “remain in Mexico” policy, terminated the asylum related mobile app, and designated Mexican criminal cartels as terrorist organizations. Read more here. Trump also tried to end automatic birthright citizenship for children of undocumented immigrants, but this order has been blocked nationwide by federal judges in Washington and Maryland while legal challenges play out in court.
  • DOJ announced an aggressive immigration stance (Feb. 5). According to a memo from Attorney General Pam Bondi, the Department of Justice will use “all available criminal statutes to combat the flood of illegal immigration . . . and to support the DHS’s immigration and removal initiatives.” Read more here.
  • DHS shortened the duration of Haiti’s TPS (Feb. 20). Department of Homeland Security (DHS) Secretary Kristi Noem scaled back a previous decision made by Biden-era DHS officials that had extended Temporary Protected Status (TPS) for Haitian nationals who are in the United States. As a result, the TPS designation period for Haitian nationals will end on August 3 (rather than February 3, 2026).
  • DHS unveiled plans for expanded alien registration (March 7). A new DHS rule, which is set to take effect on April 11, significantly expands foreign national registration enforcement by requiring certain noncitizens to register with the government, provide biometric data, and carry proof of registration. This new enforcement push is expected to impact 3.2 million foreign nationals. Read more here.
  • Anything else? The Trump administration has been carrying out its plans for mass deportations and widescale enforcement activities, including workplace raids. Read more here. Changes to nation’s immigration policy have a particularly big impact on the high-tech sector, which has long been reliant on foreign professional skilled workers.

DEI and Equal Opportunity Compliance

  • Trump issued a far-reaching order against “gender ideology” (Jan. 20). The executive order requires the federal government to recognize only two biological sexes (male and female, as determined at conception) and removes the concept of “gender identity” from federal anti-discrimination laws – a stance that seemingly runs counter to the Supreme Court’s Bostock ruling on Title VII’s definition of “sex.” The order also calls for reversals of any policies that allowed gender-identity-based access to single-sex spaces (like bathrooms), and rescinds many Biden-era actions, including 2024 EEOC workplace harassment guidance that expanded protections for pregnant and LGBTQ+ workers. Read more about Trump’s gender ideology order here.
  • Trump issued a sweeping anti-DEI order (Jan. 21). The same order that dismantled key affirmative action standards for federal contractors also barred OFCCP from allowing or encouraging DEI programs and directed federal agencies to combat “illegal” corporate DEI programs in the private sector. Read more about the order here (federal contractors) and here (private sector) – and read below for its current (court-halted) status.
  • Trump fired two Democrat members of the EEOC (Jan. 27). The unprecedented move enabled Trump to quickly install a majority of Republican commissioners rather than having to wait until their normal terms expire over the next two years.
  • Group of plaintiffs sued Trump and his administration (Feb. 3). Chief diversity officers, professors, a restaurant group, and the city of Baltimore filed a complaint in a Maryland federal court, claiming that Trump’s Jan. 21 anti-DEI order is unconstitutional.
  • States started to push back (Feb. 13). Sixteen Democratic state attorneys general issued joint guidance reaffirming their position that workplace DEI remains legal and important to the modern workplace.
  • Federal judge temporarily blocked Trump’s order (Feb. 21). The district court agreed with the plaintiffs who filed the Feb. 3 complaint that certain parts of the order are unconstitutional, and that they were ultimately likely to succeed on the merits of their claims. The court halted enforcement of the order while the lawsuit plays out in court.

Affirmative Action and Federal Contract Compliance

  • Trump dismantled key affirmative action standards (Jan. 21). Trump revoked a 1965 executive order that required federal contractors to engage in race and gender affirmative action – and directed the Office of Federal Contract Compliance Programs (OFCCP) to immediately cease enforcing it. Read more here.
  • Labor Department follows suit (Jan. 24). Acting Secretary of Labor Vince Micone ordered all OFCCP employees to cease and desist any and all investigative and enforcement activity under the revoked 1965 executive order. Read more here.

Labor Relations

  • Trump summarily dismissed two key NLRB figures (Jan. 27). While the dismissal of National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo was widely anticipated, the unprecedented firing of Board Member Gwynne Wilcox raises significant procedural and policy questions for the federal labor agency in the short term and beyond.
  • Trump appointed William Cowen as NLRB Acting General Counsel (Feb. 3).
  • Wilcox launched a legal challenge to her termination (Feb. 5).
  • Cowen signaled a new policy direction (Feb. 14). The NLRB’s Acting GC rescinded more than a dozen policies endorsed by previous leadership, including positions on the legality of non-competition agreements and stay-or-pay provisions, whether college athletes should be considered employees, and more.
  • Anything else? These recent shakeups have created compliance confusion for some employers. Here’s what employers need to know about the current state of the NLRB – but stay tuned, because a federal judge reinstated Wilcox on March 6. While the Board can resume certain activities with a three-member quorum back in play, the Trump administration immediately appealed this decision, and this matter seems destined for a date at the Supreme Court for a final resolution.

Department of Labor + Workplace Safety

  • Trump nominated new OSHA and MSHA leaders (Feb. 12). Trump recently nominated David Keeling, a workplace safety veteran with experience at UPS and Amazon, to lead Occupational Safety and Health Administration, and Wayne Palmer, a former executive for an industrial minerals trade association, to take the helm at the Mine Safety and Health Administration.
  • The Senate confirmed Lori Chavez-DeRemer to lead the DOL (March 10). Trump surprised the business community in November just weeks after the election when he announced Chavez-DeRemer as his nominee to lead the U.S. Department of Labor. Her selection was met by skepticism by some in the employer community because she positions herself as a supporter of unions and labor rights.

Employee Defection and Trade Secrets

  • FTC committed to targeting noncompetes (Feb. 26). In a somewhat surprising development, the Federal Trade Commission announced that it intends to continue scrutinizing noncompete agreements and more. Federal Trade Commissioner Andrew Ferguson unveiled plans for a Joint Labor Task Force that will identify and prosecute labor-market practices the agency deems to be “deceptive, unfair, and anticompetitive” and harmful to workers. Read more here.

Artificial Intelligence

  • Trump appointed a new AI Czar (Dec. 5). David Sacks, a Big Tech veteran, Silicon Valley insider, and vocal advocate for deregulation, now shapes federal policy on emerging technology. As the nation’s first “AI & Crypto Czar,” Sacks will likely oversee a seismic transformation in how AI will be regulated and integrated across industries.
  • Trump rescinded Biden’s AI Order (Jan. 20). One of Trump’s first executive actions was revoking Executive Order 14110 (Biden’s comprehensive AI policy, which aimed at ensuring safe and ethical AI deployment). Read more here.
  • Trump announced huge AI infrastructure investment (Jan. 21). The day after Inauguration Day, Trump announced a $500 billion private-sector-led AI infrastructure investment. Read more here.
  • Trump issued a new AI order (Jan. 23). Trump’s AI executive order calls for a group of regulators to craft a new AI policy within six months intended to ensure “global AI dominance.”

Education

  • Trump’s first-week actions impacted K-12 schools (Jan. 20-24). The flurry of executive orders signed by President Trump during his first few days of his second administration not only touch on immigration issues and potential raids or enforcement activities on K-12 school campuses but also demand a revisitation of DEI policies, bathroom and locker room access rules, and gender ideology studies.
  • Feds rescind Title IX guidance impacting college athletic programs (Feb. 12). The U.S. Department of Education’s Office of Civil Rights (OCR) announced that Name, Image, and Likeness (NIL) payments will not be subject to Title IX gender equity requirements.
  • Education Department kicked off a new era of Title VI Enforcement (Feb. 14). The department’s OCR also promised to begin cracking down, starting February 28, on “overt and covert racial discrimination” in educational institutions receiving federal funding. The agency’s Feb. 14 “Dear Colleague” letter created compliance confusion for many schools across the country, especially regarding their diversity-related activities.

Conclusion

The Trump administration has showed no signs of slowing down, and we expect that to continue throughout the next 50 days and beyond.

A Whirlwind Start: Employers’ Recap of First 21 Days of the Trump Administration

February 11 - Posted at 2:30 PM Tagged: , , , ,

President Donald Trump is just 21 days into his second term in office, but you might already be struggling to keep up with the number of changes and policy shifts coming from the new administration. While new presidents are typically judged based on their actions in their first 100 days, Trump’s whirlwind first three weeks warrant taking a pause to make sure you’re caught up on all the changes impacting key workplace issues. Major policy shifts have already affected immigration, DEI programs, equal employment opportunity, labor relations, and artificial intelligence. Here’s your 21-day recap:

1. Immigration

  • What happened? President Trump took swift immigration action, signing 10 executive orders relating to immigration policy on day one. Among other things, those orders declared a national emergency at the U.S.-Mexico border, reinstated the “remain in Mexico” policy and terminated the asylum-related mobile app, and designated Mexican criminal cartels as terrorist organizations. Another one ended automatic birthright citizenship for children of undocumented immigrants, but this order has been blocked nationwide by federal judges in Washington and Maryland while legal challenges play out in court.
  • Anything else? The Trump administration has begun carrying out its plans for mass deportations, which could have impacts on multiple key industries. U.S. Immigration and Customs Enforcement (ICE) has started conducting widescale enforcement activities, including workplace raids. And K-12 schools should be prepared for ICE activity on campus and check out our school-focused Immigration Enforcement FAQs.
  • What should you do? Ramp up your I-9 compliance efforts, consider using the E-Verify system, and establish a rapid response plan. Take these five steps to prepare for anticipated enforcement activities. If you are subject to a DHS raid, contact our new Employers’ Rapid Response Team at (877) 483-7781 or DHSRaid@fisherphillips.com. Work with your immigration counsel to keep up with continuing policy shifts, develop proactive compliance strategies, and consider ways to support any impacted employees.

2. Affirmative Action and Diversity, Equity, and Inclusion (DEI)

  • What Happened? This January 21 executive order not only dismantled key affirmative action and DEI standards for federal contractors but also directed federal agencies to combat “illegal” corporate DEI programs. Days later, the Department of Labor announced it was ceasing all pending investigations and enforcement activity under the now-rescinded Executive Order 11246, which had required federal contractors to meet certain race and gender affirmative action obligations since the 1960s. A lawsuit filed February 3 alleges that Trump’s anti-DEI efforts are unconstitutional.
  • What should federal contractors do? Stay tuned for more information from the Office of Federal Contract Compliance Programs (OFCCP), track legal challenges to the administration’s actions, and reach out to your attorney to develop a game plan to comply with evolving requirements. You also must continue to participate in other required compliance filings (as applicable), such as EEO-1 and VETS-4212, and state pay data reporting.
  • What should employers in the private sector do? Review or assess your hiring, training, and promotion practices in light of these new federal anti-DEI initiatives.  

3. “Gender Ideology” and the Equal Employment Opportunity Commission

  • What happened? Within hours of taking office, Trump signed a sweeping executive order requiring the federal government to recognize only two biological sexes (male and female, as determined at conception) and removing the concept of “gender identity” from federal anti-discrimination laws – a stance that seemingly runs counter to the Supreme Court’s Bostock ruling on Title VII’s definition of “sex.” The order also calls for reversals of any policies that allowed gender-identity-based access to single-sex spaces (like bathrooms), and rescinds many Biden-era actions, including 2024 EEOC workplace harassment guidance that expanded protections for pregnant and LGBTQ+ workers. And you can click here to read about how the “gender ideology” order impacts K-12 schools.
  • Anything else? Trump took the unprecedented step of firing two Democrat members of the EEOC on January 27, enabling him to quickly install a majority of Republican commissioners rather than having to wait until their normal terms expire over the next two years.
  • What’s next? We expect Trump to appoint at least one EEOC replacement member so that the agency can began taking action that align with his plans. You can expect to see DEI programs on the chopping block, a rescission of the 2024 Pregnant Workers Fairness Act rules, expanded rights for religious workers, restricted approaches to gender identity and worker bathroom access, stronger “reverse discrimination” principles, and overall reduced EEOC enforcement and outreach. But you can also expect uncertainty due to the likely litigation over the two EEOC Commissioner firings and the potential for a court to strike down any steps taken by the agency in the interim.

4. Labor Relations

  • What happened? In a series of swift and game-changing moves, President Trump summarily dismissed two key figures at the National Labor Relations Board (NLRB). While the General Counsel Jennifer Abruzzo’s dismissal was widely anticipated, the unprecedent firing of Board Member Gwynne Wilcox raises significant procedural and policy questions for the federal labor agency in the short term and beyond. President Trump also just appointed William Cowen as NLRB Acting General Counsel on February 3.
  • What’s next? We expect that in the coming weeks and months Trump will appoint and the Senate will approve at least one more NLRB Member, though Wilcox has already launched a legal challenge to her termination. As the Board takes shape, we also expect a big shift away from its recent pro-labor stance. We expect the Board to expand employer authority over employee activities while limiting the scope of federal labor law to exclude gig workers and independent contractors. Here’s everything you need to know about the current state of the NLRB and your best practices moving forward.

5. Artificial Intelligence

  • What happened? The White House enacted a sweeping shift in AI policy by rescinding President Biden’s executive order on artificial intelligence and announcing a massive private-sector-led AI infrastructure investment. The moves signal a sharp departure from the prior administration’s regulatory approach, replacing AI oversight with a focus on economic growth and national competitiveness. President Trump also appointed David Sacks as the new “AI & Crypto Czar.” Sacks – a Big Tech veteran, Silicon Valley insider, and vocal advocate for deregulation – will likely oversee a seismic transformation in how AI will be regulated and integrated across industries.
  • What’s next? Employers and AI industry leaders must now deal with an evolving landscape where AI regulation is loosened and investment in AI development is skyrocketing. The emphasis will be on innovation and industry collaboration, and for employers, this means a flurry of new workplace AI tools that you’ll need to track and integrate. But you should also note that we’re starting to see a patchwork of various state and local laws regulating the use of AI in the workplace. Click here to review all of the laws, regulations, guidance documents, and court action that impact employers and their use of AI.

Conclusion

President Trump’s second term kicked off at a rapid pace, and we expect to see a lot more to come during his first 100 days and beyond. We will continue to monitor developments related to all aspects of workplace law.

Courtesy of Fisher Phillips

EEOC Issues New Guidance on Wearable Technologies: Key Points for Employers

January 14 - Posted at 9:00 AM Tagged: , , , , , ,

As more employers incorporate wearable technology in the workplace, including those enhanced by artificial intelligence, the Equal Employment Opportunity Commission (EEOC)’s new fact sheet “Wearables in the Workplace: The Use of Wearables and Other Monitoring Technology Under Federal Employment Discrimination Laws,” offers important considerations for employers.  The EEOC explains how employers can navigate the complexities of using wearable technologies while ensuring compliance, primarily, with the Americans with Disabilities Act (ADA), the Pregnant Workers Fairness Act (PWFA), and to a lesser extent, Title VII and GINA.

What Are Wearable Technologies?

Wearable technologies, or “wearables,” are electronic devices that are designed to be worn on the body. These devices are often embedded with sensors that can track bodily movements, collect biometric information, monitor environmental conditions and/or track GPS location. Common examples of wearables include:

  • Smartwatches
  • Fitness Trackers
  • Wearable Cameras
  • Continuous Glucose Monitors
  • Smart Rings
  • Environmental or Proximity Sensors
  • GPS Devices
  • Other aids

Other examples of wearables that are beginning to be used in the workplace include smart glasses and smart helmets that can measure electrical activity of the brain referred to as electroencephalogram or “EEG” testing or detect emotions.  Exoskeletons are also being used to provide physical support and reduce fatigue.

Wearables in the workplace may implicate federal and state employment, data privacy, AI, and potentially other laws when employers require employees to wear them or if the information collected from the employee’s wearable is reported to the employer.

Key Considerations From the EEOC Guidance

The EEOC’s new guidance outlines several important considerations for employers using wearable technologies with employees:

  1. Medical Examinations and Disability-Related Inquiries: Employers using wearables to collect information about an employee’s physical or mental conditions, such as blood pressure monitors or eye trackers, may be conducting “medical examinations” under the ADA. Similarly, directing employees to provide health information in connection with using wearables may constitute disability-related inquiries. Under the ADA, medical examinations and disability-related inquiries are strictly limited to situations where they are job-related and consistent with business necessity such as in connection with a request for reasonable accommodation, in connection with a concern about whether an employee’s ability to perform essential job functions is impaired by a medical condition, or when there is a concern the employee may pose a direct threat of serious harm to their own or others’ health or safety due to a medical condition. In addition, medical examinations and inquiries are also permitted when required under a federal law or safety regulation (i.e. DOT or OSHA requirements), when conducted as part of a periodic examination of employees working in certain positions affecting public safety that are narrowly tailored to address specific job-related concerns (i.e. police officers, firefighters), or when made as part of voluntary wellness programs. A disability-related inquiry is a question(s) that is likely to elicit information about a disability. There are a variety of factors considered in determining whether a test or procedure is a medical examination, but generally speaking, a medical exam is defined by the EEOC as a procedure or test that seeks information about an individual’s physical or mental impairments or health.
  2. Confidentiality: Any medical or disability-related data collected from wearable devices must be kept confidential and stored separately from the employee’s personnel file. This information should only be shared with individuals who need to know it for legitimate business reasons consistent with the requirements of the ADA and PWFA.
  3. Non-Discrimination: Employers must ensure that the use of wearable-generated information does not lead to discrimination based on a protected characteristic such as race, color, religion, sex, national origin, age, disability, or genetic information. For example, the EEOC explains that using heart rate data to infer pregnancy and then making adverse employment decisions based on that information could violate EEO laws.
  4. Reasonable Accommodation: Employers may need to make exceptions to a wearables policy as a reasonable accommodation under Title VII (religious belief, practice, or observance), the ADA (disability), or the PWFA (pregnancy, childbirth, or related medical conditions). For example, this could include providing an alternative for employees needing accommodation due to pregnancy, disability or a conflicting religious belief.
  5. Accuracy and Validity of Data: Employers should consider the accuracy and validity of the data collected by wearables, especially across different protected bases. Inaccurate data that disproportionately affects certain groups could lead to discriminatory practices. For example, the EEOC explains that relying on wearable technology that produces less accurate results for individuals with dark skin could lead to adverse employment decisions against those workers.

This overview highlights the key points from the EEOC’s new guidance. Employers should review the full guidance to ensure compliance and consult with legal counsel if they have specific questions or concerns. In addition to compliance with discrimination laws, the adoption of wearables and other emerging technologies in the workplace to manage human capital raises a number of additional legal compliance challenges including privacy, occupational safety and health, labor, benefits and wage-hour compliance to name a few.  

Courtesy of Jackson Lewis P.C.

EEOC Issues Final Regulations to Implement the Pregnant Workers Fairness Act

April 16 - Posted at 1:21 PM Tagged: , , , ,

The Equal Employment Opportunity Commission (EEOC) has issued final regulations and Interpretative Guidance to implement the Pregnant Workers Fairness Act (PWFA). The PWFA went into effect on June 27, 2023. The PWFA requires that employers with at least 15 employees provide reasonable accommodations, absent undue hardship, to qualified employees and applicants with known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.

The PWFA required the EEOC to publish final regulations by December 29, 2023. However, the EEOC did not issue final regulations until April 15, 2024.  The final regulations are slated to be published in the Federal Register on April 19, and will go into effect 60 days after publication.  The final regulations were issued after over 100,000 public comments were submitted in response to  the proposed regulations.

In the final regulations the EEOC clarifies, and in some instances, expands upon the circumstances in which an employer must reasonably accommodate an employee, absent undue hardship. The following is a list of some of the issues addressed in the 400+ pages of final regulations.

  • Like the proposed regulations, the final regulations cover a wide range of conditions related to pregnancy, including, fertility and infertility treatments, carpel tunnel, menstruation, postpartum depression, lactation (including both breastfeeding and pumping in the workplace), changes in hormone levels, abortion, miscarriage, stillbirth, and preeclampsia.
  • The final regulations significantly maintained the list of reasonable accommodation requests that will almost never impose an undue hardship, including permitting employees to carry or keep water nearby, take breaks as needed to eat and drink, and permitting work to be done while sitting instead of standing or vice versa.
  • The final regulations clarify the definition of a “qualified individual” as one who can perform the essential functions in the near future.  In the case of a pregnant employee, the presumption is the employee can perform the essential functions “in the near future,” within 40 weeks of suspension of the job function.  For conditions other than current pregnancy, the regulations do not impose a 40-week limitation.  However, the final regulations clarify a request to indefinitely suspend an essential function is not “in the near future” so as to entitle an employee to an accommodation.
  • The final regulations further restrict the documentation and information an employer may require to support a request.
  • The final regulations state it is a best practice to provide an interim accommodation to an employee under the PWFA, and may mitigate against a claim of delay by an employee.
  • The final regulations also clarify there is no right to a reasonable accommodation under the PWFA based upon an individual’s association with someone else who may have a PWFA-covered limitation, or even if the individual themselves has a physical or mental limitation arising out of someone else’s pregnancy, childbirth or related medical condition.
  • The final regulations clarify that time for bonding or for childcare is not covered by the PWFA.
  • The final regulations also include extensive Interpretative Guidance as an Appendix, which address the major provisions of the PWFA and explain and illustrate how the final regulations will apply.  

If you have any questions about the PWFA or the implications of the regulations for your organization please let us know.

Reminder: Update Your EEOC Poster and Start Complying with the Pregnant Workers Fairness Act

June 23 - Posted at 9:16 AM Tagged: , ,
The Pregnant Workers Fairness Act (PWFA) goes into effect on June 27, 2023. The PWFA requires employers to post a notice describing the various protections under the new law.  On June 27th, employers should remove their old EEOC “Know Your Rights” posters and replace them with the updated version. Please let us know if you need a copy of the updated English or Spanish posting to comply with the PWFA.

EEOC’s Latest AI Guidance Sends Warning to Employers

May 23 - Posted at 9:00 AM Tagged: , , ,

Employers using or thinking about using artificial intelligence (AI) to aid with workplace tasks received another reminder from the federal government that their actions will be closely scrutinized by the EEOC for possible employment discrimination violations. The federal agency released a technical assistance document on Thursday warning employers deploying AI to assist with hiring or employment-related actions that it will apply long-standing legal principles to today’s evolving environment in an effort to find possible Title VII violations. What are the five things you need to know about this latest development?

1. EEOC Confirms That Employers’ Use of AI Could Violate Workplace Law

The EEOC started by confirming its crystal-clear position in its technical assistance document: an improper application of AI could violate Title VII, the federal anti-discrimination law, when used for recruitment, hiring, retention, promotion, transfer, performance monitoring, demotion, or dismissal. The EEOC outlined four instances where the use of AI during the hiring process – and one example during an employment relationship – could trigger Title VII violations:

  • resume scanners that prioritize applications using certain keywords;
  • “virtual assistants” or “chatbots” that ask job candidates about their qualifications and reject those who do not meet pre-defined requirements;
  • video interviewing software that evaluates candidates based on their facial expressions and speech patterns;
  • testing software that provides “job fit” scores for applicants or employees regarding their personalities, aptitudes, cognitive skills, or perceived “cultural fit” based on their performance on a game or on a more traditional test; and
  • employee monitoring software that rates employees on the basis of their keystrokes or other factors.

The agency didn’t say that these are the only types of workplace-related AI methods that could come under fire – or that these types of tools are inherently improper or unlawful. It did say, however, that preexisting agency regulations (the Uniform Guidelines on Employee Selection Procedures) that have been around for over four decades can apply to situations where employers use AI-fueled selection procedures in employment settings.

The agency said this is especially true in “disparate impact” situations – where employers may not intend to discriminate against anyone but deploy any sort of facially neutral process that ends up having a statistically significant negative impact on a certain protected class of workers.   

2. “Four-Fifths Rule” Can Be Applied to AI Selections

The EEOC pointed out that employers can use the “four-fifths” rule as a general guideline to help determine whether an AI selection process has violated disparate impact standards (and we apologize in advance for the impending use of math). The test checks to see if a selection process is having a disparate impact on a certain group by comparing the selection rate of that group with the most “successful” selection rate. If it’s less than four-fifths of that selection rate, then you might be subject to a disparate impact challenge. If that sounds confusing to you, here is the example provided by the EEOC.

Assume your company is using an algorithm to grade a personality test to determine which applicants make it past a job screening process.  

  • 80 White applicants and 40 Black applicants take the personality test.
  • 48 of the White applicants advance to the next round (equivalent to 60%).
  • 12 of the Black applicants advance to the next round (equivalent to 30%).
  • The ratio of the two rates is thus 30/60 (or 50%).
  • Because 30/60 (or 50%) is lower than 4/5 (or 80%), the four-fifths rule says that the selection rate for Black applicants is substantially different than the selection rate for White applicants – which could be evidence of discrimination against Black applicants.

Note, however, that the EEOC said that this kind of analysis is merely a rule of thumb. It’s a rudimentary way to draw an initial inference about the selection processes. If you end up finding problematic numbers, it should prompt you to acquire additional information about the procedure in question, according to the EEOC, and isn’t necessarily indicative of a definitive Title VII violation. Similarly, just because your numbers clear the four-fifths hurdle doesn’t mean that the particular selection procedure is definitely lawful under Title VII. It can still be challenged by the agency or a plaintiff in a charge of discrimination.

3. EEOC Encourages Proactive Self-Audits

In a statement accompanying the release of the technical assistance document, EEOC Chair Charlotte Burrows said that employers should test all employment-related AI tools early and often to make sure they aren’t causing legal harm. This doesn’t mean just using the four-fifths rule, but also using a thorough auditing process involving a variety of potential examination methods on all AI functions. “I encourage employers to conduct an ongoing self-analysis to determine whether they are using technology in a way that could result in discrimination,” she said.  

But not mentioned by the EEOC: a reminder that you should approach any self-audit with the help of legal counsel. Not only can experienced legal counsel help guide you about the best methodologies to use and assist in interpreting the results of any audit, but using counsel can help cloak your actions under attorney-client privilege, potentially shielding certain results from discovery. This can be especially beneficial if you identify changes that need to be made to improve your process to minimize any unintentional impacts.

4. You’re On the Hook For Problems Caused by Your AI Vendors

The agency also noted quite clearly that you can’t duck your responsibilities by using a third party to deploy AI methods and then blaming them for any resulting discriminatory results. It said that you may still be responsible if the AI procedure discriminates on a basis prohibited by Title VII even if the decision-making tool was developed by an outside vendor.

“In addition,” said the EEOC, “employers may be held responsible for the actions of their agents, which may include entities such as software vendors, if the employer has given them authority to act on the employer’s behalf.” This may include situations where you rely on the results of a selection procedure that an agent administers on your behalf.

The EEOC recommends that you may want to specifically ask any vendor you are considering to develop or administer an algorithmic decision-making tool whether steps have been taken to evaluate whether that tool might cause an adverse disparate impact. And it also recommends asking the vendor whether it relied on the four-fifths rule of thumb or whether it relied on a standard such as statistical significance that is often used by courts when examining employer actions for potential Title VII violations.

5. EEOC’s Guidance is Part of Bigger Trend

This technical assistance document is part of a bigger trend we’re seeing from federal agencies that are increasingly interested in the ways that AI may lead to employment law violations. Just last month, in fact, EEOC Chair Burrows teamed up with leaders from the Department of Justice, the Federal Trade Commission and the Consumer Financial Protection Bureau to announce that they would be scrutinizing potential employment-related biases that can arise from using AI and algorithms in the workplace.

And within the past year, the EEOC teamed up with the DOJ to release a pair of guidance documents warning that relying on AI to make staffing decisions might unintentionally lead to discriminatory employment practices, including disability bias, followed by the White House releasing its “Blueprint for an AI Bill of Rights” that aims to protect civil rights in the building, deployment, and governance of automated systems.

While none of these guidance documents create new legal standards or can be relied upon with the force of law like a statute or regulation, they do carry weight, may signal where the agencies are focusing their enforcement efforts, and can be cited to by agencies and plaintiffs’ attorneys as best practices that employers should follow.  And states have gotten into the action too, with New York City’s law set to take effect in July, and a new bill advancing towards the Governor in California. And for that reason, you should take this guidance seriously and adapt your employment practices as necessary to stay up to speed with the pace of change that is rapidly unfolding before our eyes.

 

The Feds Are Coming, Is Your Business Ready? Part 1: New DOL Outreach

June 08 - Posted at 8:31 AM Tagged: , , , , , , , , , ,

The Department of Labor (DOL) has launched a new concentrated outreach initiative. For business owners, that means the DOL has promised to actively reach out via radio announcements, social media platforms and neighborhood posters informing employees of their rights under the Fair Labor Standards Act (FLSA). 

You may now be thinking “What does that have to do with me? I pay my employees to work”.  While this may be mostly true, often we (or our managers) inadvertently allow or encourage our employees to work off the clock.  Before your internal defenses kick into high gear, let me provide a few examples of how this could occur: 

  • Have you or one of your managers ever interrupted an employee during lunch to ask a “quick” work related question?
  • Do you auto deduct time for lunch each day?
  • Do your managers understand that if they need to reach out to employees before or after hours, even if it is a quick text or phone call, they should ensure the employee accounts for that time on their timesheet?
  • Do non-exempt employees have access to their work email on their personal phone?
  • How do you confirm time worked for remote employees is accurate?
  • Do you have a policy for your employees to report unauthorized or unapproved overtime?

Over the past year, business owners and managers have dedicated their time, energy and focus to keeping the essential business doors open or attempting to reopen and get employees back in the office.  To allow employees to safely return to work, you have had to operate/reopen your business within CDC guidelines, transition your business to accommodate a remote workforce, follow OSHA’s recommendations, keep up with Federal Equal Employment Opportunity Laws related to the COVID-19 pandemic, as well as the interaction between the Americans with Disability Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA).  It is no wonder some of our focus on day-to-day compliance may have slipped. 

My company’s mission is to be The Employer Advocate.  Under the new administration, changes are happening at lightning speed and, as your advocate, we are here to help you navigate through changes as they occur.  Administrators Advisory Group (AAG) is a benefits brokerage that works with small to mid-size businesses, specializing in human resources compliance.  We work alongside your human resource team to keep you up to date with the latest workplace rules and regulations.

The Department of Labor (DOL) campaign is the first in our four-part series designed to let you know what changes have taken place that may affect your business. In the following weeks, we will cover changes regarding the Family First Coronavirus Response Act (FFCRA) as amended under the CARES Act, changes occurring within OSHA, and a new federal taskforce created whose goal is to unionize your employees. 

While Wage & Hour rules have not changed, the informational outreach by the DOL has just begun.  The biggest change comes in the form of visibility and accessibility of the information, beginning with the revamp of their website.  The DOL has promised to proactively reach out to employees using radio public service announcements, national webinars, social media messages, and posters. 

Reminding employers and employees alike that employees must be paid for ALL hours worked is the center of this outreach!  Even if you don’t ask an employee to work overtime, even if it’s done remotely, and even if you aren’t aware (but should have been), the employee is entitled to be paid.

Wage & Hour rules can be one of the many landmines that employers have to navigate on a daily basis. With AAG on your side, we will help you ensure you are prepared in case the DOL shows up on your doorstep. Let us know if you have questions or would like to review some of your existing practices or policies.

 

Unmasking the Challenges: 7 Options for Managing a Partially Vaccinated Workforce

June 02 - Posted at 9:00 AM Tagged: , , , , , , , , ,

Now that most states, the CDC, and OSHA have (or may soon) lift mask mandates for vaccinated workers, what is an employer to do about revealing an employee’s vaccination status? Under any relaxed masking guidance applicable to those who are fully vaccinated, customers, visitors, and co-workers are likely to draw their own conclusions about the vaccination status of everyone else in the workplace based upon whether or not they are wearing a mask. This addresses some of the legal and practical considerations for employers dealing with a partially vaccinated workforce and provides seven options for you to consider as you navigate this rapidly evolving area.       

The Push to Unmask

Anxious to get back to normal after more than a year of mask mandates and social distancing, employers and employees are ready to do away with COVID-19 restrictions. Employees in certain industries (such as health care workers and educators) will likely continue to be required to mask up and social distance for the foreseeable future. However, other employers are developing various approaches and policies to lift masking requirements for employees (and others) who are fully vaccinated following new CDC and OSHA guidance.   

  • For a summary of the CDC’s guidance on scrapping mask mandates for fully vaccinated workers and a seven-step blueprint for employers to overcome risks and hurdles, click here.
  • For a summary of the three options that employers have in light of OSHA’s subsequent unmasking announcement, click here.

Unmasking Employees Based On “Proof” of Vaccination

“Proof” of vaccination status is and will continue to be a significant consideration for employers when lifting mask mandates. Indeed, many employees are under the mistaken belief that an employer cannot ask vaccine status. However, per the guidance of the EEOC and other state agencies, you are permitted to request vaccination status. In California, local health authorities such as in Santa Clara County, have already mandated that businesses and government entities ascertain the vaccination status of all employees, independent contractors, and volunteers who are or will be working at a facility or worksite in the county.

Indeed, the inquiry may be required to determine which employees can and which employees cannot unmask. As an example, the Oregon Occupational Safety and Health Administration has already issued guidance that requires employers to “verify the vaccination status” of workers before permitting them to unmask. The CDC, OSHA, and many state authorities agree that only those employees who are fully vaccinated can follow relaxed COVID-19 protocols, while those who are not fully vaccinated must continue to observe safety protocols such as mask wearing and social distancing. During COVID-19 inspections, OSHA will likely require employers to show how they have documented or “verified” vaccination status where employees are permitted to work under the relaxed COVID-19 safety protocols.  

In determining an employee’s vaccine status, however, you must carefully limit any vaccine-related inquiry only to vaccination status and not inquire further, as such follow-up could improperly elicit information about an employee’s medical disability or other family medical information. Given that this is likely considered medical information, such information should be kept separate and confidential. Additionally, employers subject to the CCPA in states such as California need to understand that collecting vaccine-related information triggers the CCPA notice obligation.

Navigating State Limitations on Requiring Proof of Vaccination Status

Even though some federal, state, or local agencies may require or request that employers track employee vaccine status, there is a growing move in some states to protect vaccine status as confidential, private information. States are literally all over the map when it comes to vaccine disclosure or use of so called “vaccine passports.” Some states have adopted or are considering laws that promote vaccine passports. New York, for example, launched a COVID-19 vaccine passport initiative known as the Excelsior Pass that allows users to provide proof of vaccination where required. Other states, like Hawaii, have or are considering similar passport systems that promote vaccine disclosure to assist in safe reopening of business and public access. 

However, many other states have gone in the opposite direction to protect individual privacy rights. These states have acted to restrict vaccine passports, with government entities and businesses barred from requiring proof of vaccinations. For example, Florida Governor Ron DeSantis recently signed into law a statute that prohibits the use of vaccine passports by government entities or businesses, stating that “in Florida, your personal choice regarding vaccinations will be protected and no business or government entity will be able to deny you services based on your decision.” Other states such as Alabama, Arizona, Idaho, Indiana, Iowa, Georgia, South Carolina, South Dakota, Texas, and Wyoming have also restricted vaccine passports or requirements. 

Arkansas and Montana have taken a more aggressive approach to address individuals’ privacy concerns and limit disclosure of vaccination status. Governor Hutchinson signed into law a statute that prevents state and local government entities from requiring proof of vaccinations as a condition of employment or to access goods and services. The law provides some exceptions for state-owned medical facilities. Montana Governor Gianforte has signed into law a statute that provides even greater protections for the unvaccinated, generally prohibiting employers from requiring any of the current vaccinations.   

Given the fluidity in this area, you should remain mindful of the need to monitor these developments and check with counsel before implementing any vaccine-tracking policies.

Additional Landmines if Fully Vaccinated Employees Unmask

Aside from the spate of state and local government restrictions and mandates, employers face other potential legal landmines and practical problems when tracking and/or disclosing an employee’s vaccination status. As mentioned above, you should consider the legal privacy considerations in requesting and maintaining the vaccination status of employees.

As employers move to allow fully vaccinated workers to unmask employees, there will likely be legal, privacy, and employee morale issues related to any express or perceived disclosure of employee vaccination status. Indeed, even without an explicit disclosure, others will likely be able to decipher the vaccination status of employees. While employees are choosing to voluntarily disclose their vaccination status to their co-workers, you should not adopt such a casual attitude. You should consider the ramifications of disclosure of vaccine status without employee consent or as a result of a “company policy” or practice. Such practices could potentially give rise to exposure in areas of breach of confidentiality, privacy, discrimination, retaliation, and more.  

Company disclosure of vaccine status may also inadvertently expose employees with legitimate disability issues or religious objections related to the vaccine. Employee morale could be compromised if employees believe they are being pitted against each other due to their vaccine status, especially if the company is somehow involved in the disclosures. Additionally, a policy of company-wide disclosure might even boomerang, potentially discouraging employees who do not want to be ridiculed or harassed by co-workers who are opposed to the vaccination.    

What Should Employers Do? 7 Options to Address a Partially Vaccinated Workforce

How to relax restrictions for those who are fully vaccinated while maintaining confidentiality and a safe workplace for all? How to balance the possible exposure and potential federal and state safety agency fines if you don’t get it right? While there are rarely clear answers, and legal liabilities remain unclear, below are some options employers have been adopting to deal with the dilemma of the partially vaccinated workforce.

  1. Continue to Mask Up. As noted, most jurisdictions can ease up on the COVID-19 safety protocols for those who are fully vaccinated (with certain exceptions such as healthcare workers). Nonetheless, some employers are choosing to require the entire workforce to continue to follow COVID-19 protocols. The protocols for all workers will remain in place until further guidance is issued. For non-healthcare employers, this may likely be an unpopular choice. But this option avoids landmines and morale issues created by a workforce that is partially masked and partially unmasked.
  2. Vaccine Mandate. In certain locations, you may have the option of adopting a vaccine mandate where permitted by state laws. Under this option, you would eliminate unvaccinated employees from the workplace and the remaining vaccinated workforce could unmask without concern. This option comes with increased legal risks and other practical issues in implementing the mandate, including exploring reasonable accommodations for those with protected reasons to remain unvaccinated. The mandates also create morale and employee defection issues. And your organization could be considered an outlier depending on your location and industry, as a recent FP Flash Survey revealed that fewer than one in 20 employers (4%) were mandating or considering mandating the vaccine.
  3. A Pure Honor System – Permit Fully Vaccinated to Unmask Without “Proof.” Employers who are choosing this option would not mandate the vaccination or require documentation to prove COVID-19 vaccination status. You would notify your workforce that fully vaccinated employees can ease up on COVID-19 safety protocols while all those who are not fully vaccinated are instructed to maintain the protocols and continue to mask up. This option comes with risk that employees who are not fully vaccinated will not appropriately follow the honor system. Without verification, this honor system may run afoul federal or state safety requirements. This option may also lead to employee morale issues and third-party liability concerns of those fully vaccinated workers, clients, or customers who do not trust the honor system. In addition, this is not a workable option in jurisdictions that require tracking of COVID-19 vaccination status.
  4. Employee Audits. Under this option, you would advise your workforce that fully vaccinated employees can dispense with relaxed COVID-19 protocols – subject to random audits of those employees who have dispensed with the relaxed COVID-19 protocols. If an employee is subject to a random audit, the unmasked employee would be required to provide proof of COVID-19 vaccination status. Effective management auditing and policing would be a key variable. This will not be a workable option in jurisdictions that require tracking of COVID-19 vaccination status.
  5. Employee Self-Certification. Another option is to allow employees to provide a self-certification of their COVID-19 vaccination status. Employees that self-certify they are fully vaccinated would be permitted to dispense with relaxed COVID-19 safety protocols. Those who certify that they are not fully vaccinated or decline to complete the self-certification would be required to maintain COVID-19 safety protocols. A template self-certification form may be found here. It is important to be mindful that self-certification may not be an acceptable form of “proof” in certain jurisdictions that have specific heightened criteria specifying what meets the verification or proof of COVID-19 vaccination standard.
  6. Requiring Certain “Proof” of Vaccination Status. For some employers that want to choose to permit employees to unmask, the above options may not go far enough. You could instead choose to require that all employees provide certain documented “proof” that they are fully vaccinated to designated personnel. Based upon the response, the employer will permit those who have provided the required proof that they are fully vaccinated to dispense with relaxed COVID-19 safety protocols. All others would be required to continue to follow COVID-19 protocols. Under this option, you would monitor and police employee violations. Obtaining proof and policing may limit liability concerns but also places a greater administrative burden on the employer.
  7. Requiring Proof and Disclosing Vaccine Status. Under this final option, you would request “proof” of vaccine status (similar to that required under option number 6) but would provide a sticker, badge, or lanyard to fully vaccinated employee once they submit “proof” of full vaccination. Those who have the company-issued sticker, badge, lanyard, etc. indicating they are fully vaccinated would be allowed to dispense with relaxed COVID-19 protocols, while all others are required to follow safety protocols. Unlike option number 6, you would take an affirmative step to identify those who unmask as fully vaccinated. Though this option provides greater clarity in the verification process and compliance with the policy, it also comes with greater risk of breach of privacy and confidentiality concerns – as well as potential employee morale issues. You should proceed with caution and consider obtaining written authorization from employees to disclose their vaccination status. It is also important to remain cognizant that some states such as California impose specific legal requirements that must be followed when asking for an employee’s consent to disclose confidential medical information such as vaccine status.

Conclusion

Each of these options come with some level of risk. You should explore the various paths available to you with your legal counsel before adopting any of them, especially in light of rapidly changing state and local laws in this area. Also, note that every option in which some employees are masked and some are unmasked includes the risk of employee conflict or harassment issues. This risk should be evaluated and addressed up front through training, ongoing communications emphasizing the importance of mutual respect in the workplace, adoption of written policies and procedures, and effective management oversight. 

Employers Now Have 2 Clear Options to Provide Vaccine Incentives Thanks to New EEOC Guidance

June 01 - Posted at 4:21 PM Tagged: , , , , , , , ,

The EEOC kicked off the unofficial start of summer with a bang by clearing the way for employers to offer their employees incentives to get the COVID-19 vaccine in new guidance released on the eve of the Memorial Day weekend. The May 28 updates to the agency’s COVID-19 Technical Assistance guidance now provides employers with two clear options, drawing a key distinction based on who administers the shot:

  1. If your employees voluntarily provide documentation confirming they have been vaccinated and got the shot on their own from a pharmacy, public health department, or other health care provider in the community, you can offer them any incentive you’d like with no apparent limitations.
  2. If your organization (or an entity acting on your organization’s behalf) administers the vaccine, you can still offer incentives – but they cannot be so substantial in value as to be considered coercive.

Regardless of which path you travel, there are still hoops to jump through if you want to provide vaccine incentives – providing accommodations, ensuring confidentiality, etc. – but you now have a clear direction to take to encourage your workers towards vaccination. What do you need to know about this critical update?

Why Was This Guidance Necessary?

Before we take a deeper dive into discussing the options and other considerations, some employers may be wondering why this guidance was even necessary. Couldn’t you just offer some cash or PTO or some other reward to induce employee behavior without concern about the legal ramifications?

The main sticking point troubling employers for months concerned wellness program rules. Historically, the EEOC has indicated it didn’t want employers to force employees to make medical-related decisions through the use of incentives. Until this latest guidance, the EEOC believed that too significant of an incentive could coerce employees to participate, thus leading to legal violations if employees are “forced” to disclose protected medical information to gain the incentive. Through rules, guidance, and federal litigation, the EEOC has taken steps to ensure that any employment decisions in this regard were genuinely voluntary.

Earlier this year, the EEOC issued a proposed rule expressly permitting only de minimis incentives as passing muster under participatory wellness programs. The proposed rule contained language referring to a permissible incentive as a “water bottle” or something of equivalent value. However, the Biden administration withdrew the proposed rule under a regulatory freeze typically seen when new leadership takes charge at the White House. The proposed rule is still pending review and it is unclear when or what form it may re-emerge. Against the backdrop of this uncertainty, employers have been attempting to navigate the thorny path of vaccine incentives, concerned that offering robust incentives could bring about a higher legal risk. At the urging of business groups seeking clarity on the matter, the EEOC finally heeded the call and provided the certainty that employers have been craving.  

Option 1: Unlimited Incentives

Under the first option, you are seemingly permitted to provide unlimited incentives to your workforce so long as your employees voluntarily provide you with documentation or other confirmation they received the COVID-19 vaccine, and they received the vaccination on their own from a third-party provider that is not an “agent” of your organization. The EEOC describes such third parties as pharmacies, public health departments, or other health care providers in the community.

Option 2: Restricted Incentives

On the other hand, if employees are voluntarily vaccinated by you or your “agent,” you can offer only incentives that are “not so substantial as to be coercive.” Which leads to two questions: what is an “agent,” and how substantial is “substantial”?

Definition of “Agent” and How to Avoid This Designation

  • The EEOC guidance defines “agent” as being an individual or entity having the authority to act on behalf of, or at the direction of, the employer (which could include an onsite nurse, onsite medical staff, and perhaps beyond).  
  • The agency further notes that the purpose for this distinction is that it would prefer employers to stay as far away from employee medical examinations as possible, and administering vaccines requires necessary pre-shot screening questions that could reveal information it would rather you not obtain. “When an employer asks employees whether they obtained a COVID-19 vaccine from a third party in the community, such as a pharmacy, personal health care provider, or public clinic,” the EEOC says, “the employer is not asking a question that is likely to disclose the existence of a disability.” Of course, care should continue to be taken not to ask follow-up questions such as why the employee has not been vaccinated or whether the employee suffered side effects of the vaccine.
  • Thus, to avoid the incentive limitation that arises in such a situation, you would want to do everything you could to keep a wall up between you and the healthcare provider offering the vaccines – especially if you are setting up a vaccine clinic at your worksite to make it as easy as possible for your workers to get inoculated. Unnecessary entanglements could arise if you gather medical information about your employees, assist with screening questions, or include an onsite nurse or other medical staff members to aid the healthcare provider in administering the shots. In a perfect world, you would limit your involvement to setting up a sign-up link to organize the schedule and giving your vaccine provider access to the information generated by the link. The “sign up” link and employee-facing communications should be self-serving in this regard. You could even state in the sign-up link that “Your responses cannot be shared with anyone, including your employer, without your authorization. This form is not such an authorization.” You may also want to consider an arms-length written agreement with the vaccine provider confirming that it does not have the authority to act on your behalf or at your direction.

Definition of “Substantial” and How to Avoid Violations

  • But if your organization or your agent is administering the vaccine, and you are interested in offering incentives, you will need to carefully thread the needle between offering a strong enough incentive to encourage employees but one not so strong that it could be considered coercive. You will want to tip the scale to help employees to choose to get vaccinated without twisting their arms.
  • Unfortunately, the EEOC does not provide detail or a definition regarding what might be considered too substantial, leaving you to navigate this terrain based on your own comfort and risk tolerance level. And this is not a term of art that the EEOC has often – if ever – used in this context. It appears that the term “substantial” would permit you to offer incentives at some level higher than a de minimis amount – higher than the “water bottle or its equivalent” level typically associated with incentives – but there is no clear answer about where to draw the line.
  • A rule of thumb to keep in mind: the higher the value, the greater the risk your program will be seen as unnecessarily coercive and therefore in violation of the EEOC’s rules. There are a number of factors to consider when making this determination, including your geographic location, your industry, the median pay of your workforce, and other relevant factors.

Other Considerations

Whichever path you take, there are several other considerations to keep in mind when offering vaccine incentives based on voluntary inoculations.

Accommodations

Some employees may have legitimate medical or religious reasons not to get vaccinated, and failure to provide them with the same types of incentives could lead to claims under the Americans with Disabilities Act (ADA) or Title VII. You will need to consider offering alternative means by which an employee can earn an incentive if they cannot be vaccinated due to a disability or sincerely held religious belief. Alternative ways to earn the incentive might be watching a workplace COVID-19 safety video or reviewing CDC literature on mitigating the spread of COVID-19 in the workforce.

Confidentiality

Once you gather information from employees about whether they have been vaccinated or not, you must maintain confidentiality. You should maintain the records as you would any other medical-related documentation (in a separate file, accessible to only those who need to know, etc.) and comply with all other state-specific privacy rules (such as in California).

Family Members

While you can offer an incentive to employees to provide documentation or other confirmation from a third party not acting on your behalf that their family members have been vaccinated, the EEOC confirmed that you may not offer incentives to your employees in return for their family members getting vaccinated by your organization or your agent. This would be considered a violation of the Genetic Information Nondiscrimination Act (GINA) Title II health and genetic services provision. Asking pre-screening medical questions would lead to you receiving genetic information in the form of family medical history of the employee, and GINA regulations prohibit employers from providing incentives in exchange for genetic information. However, you can still offer an employee’s family member the opportunity to be vaccinated by your organization or your agent if you take certain steps to ensure GINA compliance. 

Possible Incentives to Consider

If you are now considering what kind of incentives to offer your workforce in light of this new guidance, you might find comfort knowing that employers’ two most common incentive options include cash/gifts (38%) and paid time off (30%). This is according to an FP Flash Survey conducted earlier this year, which found that more than one in five employers were providing vaccine incentives. That number is bound to rise given that close to half of all respondents (43%) said they were unsure about whether to offer some form of incentive, many commenting that the then-current legal uncertainty fueled their hesitancy.

 

What Employers Need to Know About Vaccine Passport Ban and Updated Mask Requirements

May 06 - Posted at 12:37 PM Tagged: , , , , , , , ,

Declaring that the state is “no longer in a state of emergency,” Florida Governor Ron DeSantis signed a bill on Monday, May 3rd,  banning vaccine passports while issuing two executive orders immediately suspending and invalidating local government COVID-19 restrictions, including mask mandates. But the news doesn’t necessarily mean you should rush to ease up on your facemask requirements for workers or visitors, nor impact your decision to mandate vaccines for your workers. Below is a summary of the implications for Florida businesses.

Vaccine Passports Banned

As the vaccine rollout progresses, businesses and employers nationwide have been wondering if a “vaccine passport” – an official document certifying that an individual has been vaccinated against COVID-19 – can lead to a path back to normalcy. A Florida law now prohibits businesses operating in Florida from implementing those measures with respect to customers. The new law does not come as a surprise to most Floridians. On April 2, Governor DeSantis signed Executive Order 21-81 prohibiting vaccine passports. This new law, however, solidifies the ban and provides more guidance for businesses.

Specifically, the new law says that “business entities,” including for-profit and not-for-profit entities, cannot require that patrons or customers provide documentation certifying that they received the COVID-19 vaccine or certifying that they have recovered from the virus to enter or receive a service from the business. Licensed health care providers are exempt from this provision.

The law also provides that educational institutions, including both public and private schools, cannot require students or residents to provide documentation certifying that they received the COVID-19 vaccine or have recovered from the virus.

Importantly, the law does not prohibit private businesses from requiring that their own employees show proof of vaccination or certification that they recovered from the virus. Of note, recent guidance from the Equal Employment Opportunity Commission clarifies that it is generally permissible for employers to ask employees about whether they have been vaccinated, but employers should avoid further inquiries.

Further, the new law permits covered entities to continue to use screening protocols (such as temperature checks) in accordance with state or federal law to protect public health.

Governor Eliminates Current Local Restrictions After Florida Surgeon General Discourages Masks

On April 29, Florida State Surgeon General Dr. Scott Rivkees issued a Public Health Advisory rescinding prior public health advisories. Notably, the advisory states that fully vaccinated people should no longer be advised to wear face coverings or avoid social and recreational gatherings except in “limited circumstances.” Those limited circumstances are not defined, but the advisory appears to cover masking both indoors and outdoors.

Noticeably, the Surgeon General’s advisory is less restrictive than CDC guidance. Although the CDC recently announced that fully vaccinated people can forego masks in certain situations (for example, if they are indoors with other vaccinated people, indoors with unvaccinated people from the same household, or outdoors in spaces that are not crowded), the CDC generally recommends that fully vaccinated people continue to wear masks or face coverings in other scenarios.

To follow the Surgeon General’s advisory, Governor DeSantis issued a pair of executive orders on May 3 suspending and invalidating local government COVID-19 restrictions, including mask mandates. These orders effectively eliminate all existing coronavirus-related restrictions imposed by local governments. This means that local orders requiring, among other things, masks, sanitizing, and capacity limits are no longer effective. The orders do not affect restrictions issued by school districts.

Noticeably, the governor’s orders only prohibit local governments from issuing and enforcing COVID-19 restrictions using their emergency procedures. They specifically allow local governments to enact ordinances under regular enactment procedures. Thus, it is possible that local governments will counter the governor’s orders by enacting ordinances continuing to require such measures as masking and distancing.

However, the state’s guidance does not mean that private businesses cannot – or should not – enforce their own policies. The orders only prohibit local governments from issuing and enforcing restrictions on individuals or businesses using emergency powers. Local governments may still enact such procedures using regular procedures. Businesses can still generally enforce their own measures, including mask mandates, if they choose to.

What Should Employers Do Now?

Pushing forward to a new normal, Florida employers should be aware of how to proceed. Despite the state’s guidance, you should continue to enforce safety measures.

Florida recently passed a new COVID-19 liability protection law for businesses. Although very favorable to businesses, the law requires that businesses make a “good faith effort to substantially comply with authoritative or controlling government-issued health standards” to gain its protection. If there are different sources of guidance in effect, a business may follow any of them. This means that although they are different, a business can likely be protected from liability by following either Florida or CDC guidance. However, an employer may have stronger defenses and be able to undercut possible claims earlier by following CDC guidance, which takes a more conservative approach than current Florida guidance.

Further, OSHA requires that employers maintain a workplace free of recognized hazards. COVID-19 is such a recognized hazard. By not following CDC guidance, a Florida employer may open themselves to exposure under OSHA’s General Duty Clause, even in the absence of a state mandate.

Employers should also consider the business realities of having unmasked employees. Among other things, customers and vendors may not feel comfortable entering your business if they see employees unmasked, even if they are vaccinated.

Finally, because the Surgeon General’s recommendations only apply to fully vaccinated people, your business may have an inconsistent patchwork of some employees wearing masks while others are not. This may result in a situation where different standards apply to different employees depending on their vaccination status. Employers should avoid this, as OSHA has issued guidance stating that businesses should not treat unvaccinated employees differently than vaccinated employees. Additionally, inconsistency among employees wearing masks may inadvertently reveal who is and is not vaccinated, which may be disruptive and may unintentionally single out employees who do not get the vaccine, including for medical or religious reasons.

 

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