EEOC Updates COVID-19 Technical Assistance Q&A

In its updated Q&As, the EEOC addresses some significant and current issues such as reasonable accommodation, hiring and onboarding, pandemic-related harassment, return to work, age discrimination, pregnancy discrimination, and sex discrimination regarding employees with caretaking/family responsibilities. I would recommend that you read the entirety of the Q&As. You can find them here:

Addressing an issue that has been presented to me several times in the past few weeks, the EEOC specifically addresses whether an accommodation is required for an employee who is not disabled, but whose family member may be at high risk for contracting COVID-19 due to underlying health or condition. Q&A D.13 states:

D. 13 Q: Is an employee entitled to an accommodation under the ADA in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition?

D. 13 A.: No. Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment. The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated.

For example, an employee without a disability is not entitled under the ADA to telework as accommodation in order to protect a family member with a disability from potential COVID-19 exposure.

Of course, an employer is free to provide such flexibilities if it chooses to do so. An employer choosing to offer additional flexibilities beyond what the law requires should be careful not to engage in disparate treatment on a protected EEO basis.

So, it is the EEOC’s position that you do not have to accommodate an employee’s concerns about returning to work because they have a family member who is at an elevated risk of a negative outcome from a COVID-19 infection. Regardless of how you respond to such a request, you should consider your previous responses to similar requests and make sure that you do not inadvertently discriminate against an employee with a disabled family member.

Employers Should Prepare to Submit Their Component 2 Pay Data By September 30, 2019

Related imageOn April 25, 2019, a U.S. District Court for the District of Columbia ruled that employers who are required to file EEO-1 reports must submit Component 2 pay data for calendar years 2017 and 2018 by September 30, 2019. (This generally applies to EEO-1 filers with 100 or more employees; both in the private industry and federal contractors and subcontractors.) You may recall that the OMB initially approved pay data collection, and then stayed its permission, in 2017. Advocacy groups filed suit in the D.C. Circuit court to vacate the OMB’s self-imposed stay, which the Court granted in April. Continue reading “Employers Should Prepare to Submit Their Component 2 Pay Data By September 30, 2019”

The EEOC Issues Guidance on Avoiding Retaliation Claims

Late last week, the Equal Employment Opportunity Commission issued its final Enforcement Guidance on Retaliation and Related Issues, an accompanying Q&A, and a Small Business Fact Sheet. If you have not read all three, you should. They will provide you with a number of steps that you can take to minimize your risk of facing a retaliation claim. Continue reading “The EEOC Issues Guidance on Avoiding Retaliation Claims”

The EEOC Takes Sexual Orientation Discrimination Seriously

employmentThe EEOC has recently filed several lawsuits alleging that employers discriminated against employees based upon their sexual orientation. (This is a link to the EEOC’s press release about these suits.

This week Pallet Companies/IFCO Systems agreed to settle their suit by paying $202,200.00. The former employee will be paid $182,000.00 and the remainder of the settlement proceeds will be donated to the Workplace Equality Program of the Human Rights Campaign, an LGBT advocacy group. Pallet Companies has also agreed to provide training to its employees developed by an LGBT expert and it will be under a consent decree for two years. Continue reading “The EEOC Takes Sexual Orientation Discrimination Seriously”

The EEOC, DOL and OFCCP Announce Deadlines for Final Rules

I – The EEOC says that it will issue its final “wellness” rules by February, 2016

The Equal Employment Opportunity Commission (EEOC) indicated in its November regulatory agenda that it plans to finalize two rules governing employer wellness programs under the Americans with Disabilities Act (ADA) and the Genetic Information Non-Discrimination Act (GINA) by February 2016.

As you may recall, one of these proposed rules will amend the EEOC’s ADA regulations to address the interaction between Title I of the ADA and the financial inducements that are commonly contained in wellness programs offered through employer health plans. This will have the effect of limiting how much of a financial benefit employers can offer to their employees to join such wellness programs. Continue reading “The EEOC, DOL and OFCCP Announce Deadlines for Final Rules”

EEOC Issues Another NPR Regarding Employee Wellness Programs

Recently, the EEOC issued a Notice of Proposed Rule Making (NPRM) to amend Title II of the Genetic Information Nondiscrimination Act (GINA) regarding employee wellness programs that are part of group health plans. (Title II of GINA generally protects job applicants, employees and others from employment discrimination based on their genetic information. It also restricts employers from obtaining and using genetic information in making decisions about employment, including information about an employee’s spouse.)  An exception to the limitations on an employer’s use of genetic information applies when an employee voluntarily accepts health services offered by an employer, including services as part of a wellness program. Continue reading “EEOC Issues Another NPR Regarding Employee Wellness Programs”

US Department of Labor Releases New FMLA Forms

Those of you who have been losing sleep because the previously issued US Department of Labor FMLA forms had expired can rest easy. (You did know that they had expired, right?) The DOL has finally issued shiny new FMLA forms.

The new forms (WH-380-E, WH-380-F, WH-381, WH-382, WH-384, WH-385 and WH385V) can be located and downloaded from the DOL’s website here. For those of you who geek out on this kind of stuff, you should note May 31, 2018 on your calendars. That is the expiration date of the new forms. By then our federal government will have probably amended the FMLA again to further protect employee’s rights or intrusively over-burden employers, depending upon your point of view. Continue reading “US Department of Labor Releases New FMLA Forms”

EEOC Initiates Paperless Online Charge System

On May 6, 2015, the EEOC announced that a dozen of its field offices will initiate a beta test of an online system for the filing of Charges. Under the new program employers will only receive an email notifying them that a Charge has been filed. They will not receive a paper copy of the Charge or Notice of Charge. The electronic notice will provide a link to an online site containing information about the Charge. Continue reading “EEOC Initiates Paperless Online Charge System”

EEOC Finally Issues Notice of Proposed Rulemaking Regarding Application of ADA to Employer Wellness Plans

On April 16, 2015 the EEOC finally issued its long-promised Notice of Proposed Rulemaking (“NPRM”). The NPRM may be viewed at: Members of the public have 60 days to submit comments. After this time, the rule may become final.

The NPRM offers guidance regarding how wellness programs offered as part of an employer’s group health plan can comply with the ADA and the Health Insurance Portability and Accountability Act (HIPAA), as amended by the Affordable Care Act. Continue reading “EEOC Finally Issues Notice of Proposed Rulemaking Regarding Application of ADA to Employer Wellness Plans”

May an Employer Require a Medical Examination When an Employee Transfers from One Position to Another

medical examEmployees often transfer from one position within a company to another. And, employers occasionally want to require these employees to undergo a medical examination as part of their transfer just as they would a new-hire. Doing so may run afoul of the Americans With Disabilities Act prohibition against medical inquiries and examinations.

As with many employee-related issues, the answer to whether or not an employer may require a transferring employee to submit to a medical examination is a definite “maybe.” Continue reading “May an Employer Require a Medical Examination When an Employee Transfers from One Position to Another”