EEOC Issues COVID-19 Update!

In July 2022, the EEOC issued another COVID-19 update. (You can find it here.) Although the update is not groundbreaking, the highlights are worth noting:

  • This is probably the most notable change contained in the update. 
    • Prior EEOC Guidance indicated that mandatory workplace COVID-19 testing always met the ADA “job related and consistent with business necessity” standard. The new Guidance changes that: now, an employer can require a COVID-19 viral test when deciding whether an employee or applicant is safe to be in the workplace only if the employer can show that the viral test is “job-related and consistent with business necessity.” 
    • Generally, viral test requirements will meet this standard if they are consistent with current guidance from the CDC, the Food and Drug Administration, or “state and local public health authorities.” Other justifications for requiring a viral test include the level of community transmission, the vaccination status of employees, the accuracy and speed of processing for different types of COVID-19 viral tests, the degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations, the ease of transmissibility of the current variant(s), the possible severity of illness from the current variant, what types of contacts employees may have with others in the workplace or elsewhere that they are required to work (e.g., working with medically vulnerable individuals), and the potential impact on operations if an employee enters the workplace with COVID-19.
    • As with most issues we discuss, it is going to be important that you document the process of requiring the viral test and the information (CDC, FDA, etc..) that you relied upon in doing so.
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EEOC Issues Guidance Addressing Discrimination Against Transgender Employees

The EEOC has issued a “technical assistance document” addressing employment discrimination based on sexual orientation or gender identity.  You can find the document here: .

The EEOC made clear in the guidance that employers may not discriminate against, or segregate employees based upon perceived or actual customer preference.  This applies to both actual sexual preference and transgender status as well as the fact that an employee may not conform to stereotypes related to their biological sex. 

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Three for One Friday!

Congratulation! For today only I am having a special three for one deal. For the low low price of nothing, you get three of my hot-off-the press updates.

1.EEO-1 Reports are due by July 19, 2021.

This is more of a reminder. If you are an employer who is required to file an EEO-1 Component 1 report for 2019 or 2020, you must file both reports with the EEOC by July 19, 2021. Don’t wait too long or forget to file for 2019 if you are required to do so.

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Get Ready to Submit Your EEO-1 Component 1 Data to the EEOC

On March 29, 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced that qualifying employers will be required to file 2019 and 2020 workplace diversity data, (aka EEO-1 Component 1) between April 26, 2021 and July 19, 2021. Qualifying employers, generally those with at least 100 employees and federal contractors with 50 or more employees, should begin to prepare their filings.

You may recall that in May of 2020 the EEOC announced the delay of the 2019 EEO-1 Component 1 data collection in light of the COVID-19 public health emergency. Consequently, EEO-1 filers will have to submit data for both 2019 and 2020 in this year’s data collection. The EEOC has indicated that more information and resources regarding updates on the data collection will be available on a new dedicated website and that they will provide a Filer Support Team to respond to inquiries. You can vising this site for additional information: