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Employers routinely strive to find innovative ways to recruit, retain, and manage top talent. Proponents of artificial intelligence (AI) advocate that it can be a powerful tool for such purposes given that AI can be used to collect and analyze massive amounts of candidate and employee data in many different ways and in a fraction of the time needed by human analysts. By way of example, AI may be used in the hiring process to analyze qualifications or mine data from resumes and other submissions by candidates. It also may be used to assess an individual’s perceived fitness for a particular job, including their personality, aptitude, cognitive skills, or other perceived qualities, based on their performance during screening tests, video interviews, or other virtual interactions. AI also may be used to monitor and analyze employees’ working patterns or productivity based on measurable output, including even the most fundamental of activities such as keystrokes. Employers might presume that, because this is data-driven, there is no risk of unlawful discrimination or bias.

Continue Reading EEOC issues guidance on employer use of AI under the ADA

OSHA issued its Emergency Temporary Standard (ETS) in early November. A series of challenges quickly ensued, resulting in a stay of the ETS and a consolidation of the cases before the Sixth Circuit. On December 17, 2021, the Sixth Circuit lifted the stay. OSHA has indicated that it will delay enforcement of the ETS deadlines

On December 17, 2021, the Sixth Circuit Court of Appeals dissolved the stay previously placed on OSHA’s so-called “vaccinate or test” Emergency Temporary Standard (ETS). Consequently, covered employers with 100 or more employees will now be required to comply with the ETS under the newly announced deadlines of January 10, 2022 for all non-testing requirements

Since its publication on November 5, 2021, employers have been reviewing the Occupational Safety and Health Administration’s (OSHA) 490-page Emergency Temporary Standard (ETS) and taking steps to create and update their employment policies to comply with it.

The National Labor Relations Board (NLRB or the Board) has added another item to the to-do lists of those employers covered by the ETS with unionized workforces. On November 10, 2021, NLRB’s operations management division issued a memo reminding unionized employers of their bargaining obligations under the National Labor Relations Act in connection with policy changes being contemplated in light of the ETS.

Continue Reading Complying with OSHA’s ETS? Don’t forget about your duty to bargain, says NLRB

Update – On November 6, 2021 the Fifth Circuit Court of Appeals issued a temporary stay of the ETS.

On November 4, 2021, OSHA issued an unpublished version of its long-awaited Emergency Temporary Standard (ETS) as to COVID-19 vaccination or testing requirements covering most private employers with 100 or more employees. The ETS is scheduled to be published and take effect on November 5, 2021. As summarized below, the ETS requires covered employers to establish either (1) a mandatory vaccination policy requiring that all covered employees be fully vaccinated against COVID-19, or (2) a vaccination policy that requires that employees choose between being fully vaccinated or submitting to regular and recurring COVID-19 testing. It should be noted that these are “minimum” requirements, such that employers are not prohibited from establishing more stringent policies, and do not supplant the requirements of a collective bargaining agreement.

Effective date

Employers will have 30 days, or until December 5, 2021, to comply with all non-testing requirements of the ETS, and 60 days, or until January 4, 2022, to comply with testing requirements for employees who have not received all doses required for primary vaccination. Under the Occupational Safety and Health Act (OSH Act), an ETS serves as a proposal for a permanent standard, and the OSH Act calls for the permanent standard to be finalized within six months after publication of the ETS (29 U.S.C. 655(c)(3)).

Covered employers

For purposes of the ETS, a covered employer is one with 100 or more employees “at any time” during the effective period of the ETS. This means that employers who meet this minimum threshold as of the effective date of the ETS are covered throughout the effective time of the ETS, even if the employer later falls under the minimum employee threshold. For any employer that falls short of 100 employees as of the effective date but reaches the threshold at any point that the ETS is in effect, the employer will become subject to the ETS requirements as of the date they meet the threshold and remain covered for the remaining duration of the ETS, even if the employer later reduces staff such that it falls under the threshold. To calculate the number of employees, all part-time and full-time employees must be accounted for, regardless of where they work (including those that work at home). However, independent contractors are not included in the calculation. Also, employees supplied to a customer site by staffing companies only count toward the staffing company’s employee total; they do not count toward the customer company’s total. Similarly, as to franchisee-franchisor relationships, their respective employees count only toward their own calculation, not the other party’s employee count (i.e., a franchisee’s employees count only toward the franchisee’s calculation, and not the franchisor’s count). The ETS excludes: (1) Employers that are covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors; and (2) certain settings where any employee provides healthcare services or healthcare support services.

Excluded employees

The ETS specifies that the requirements apply only to employees who visit an employer’s indoor locations where other people are present. Employees who work exclusively at home, outdoors, or at a site where the employee is the only person present are not required to comply with the employer’s requirements. However, should such an employee later be required to, or seek to, visit one of the employer’s indoor facilities, the employee must satisfy the vaccination or testing requirements.

Reasonable accommodations/Exceptions to policy

The ETS requires employers to provide reasonable accommodations and exceptions for employees (i) for whom the vaccine is medically contraindicated; (ii) for whom medical necessity requires a delay in vaccination; or (iii) who are entitled to a reasonable accommodation due to a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.

As to the vaccination requirements, the employer is required to provide an employee with time to obtain and recover from a vaccination. Specifically, the employer must provide up to four hours of paid time, inclusive of travel time, at the employee’s regular pay rate, to obtain a vaccine. The employer must also provide reasonable paid time off to recover from any side effects of each dose of a vaccine.
Continue Reading OSHA issues COVID-19 ETS for large private employers

On May 27, 2021, Pennsylvania Acting Health Secretary Alison Beam announced at a press conference that Pennsylvania’s statewide masking order is slated to be lifted in its entirety effective June 28, 2021. This announcement comes on the heels of the Wolf Administration’s May 4, 2021 announcement that all COVID mitigation orders in Pennsylvania would be lifted effective May 31, 2021, except for the masking order. The May 27 announcement reflects a change of course that sets a firm expiration on the masking requirements, regardless of the Commonwealth’s vaccination rate at that time.

Pennsylvania’s masking order, which was amended March 17, 2021, incorporates by reference the CDC’s Guidance for Fully Vaccinated People under its exceptions from the statewide masking requirements. As such, the masking requirements under the order were effectively lifted for those who have been fully vaccinated (except for in certain limited circumstances, pursuant to CDC guidance), but still applied to those who were not fully vaccinated. At the May 27 press conference, Acting Health Secretary Beam stated that, even once the statewide masking order is lifted, Pennsylvania should continue to follow CDC guidance for wearing a mask. However, the lifting of the masking order indicates that such compliance will be recommended, but not required under state order. That certainly is an important point for which Pennsylvania employers will seek clarity as they eagerly take steps towards returning their workforce to the workplace.
Continue Reading Is that a smile that I see? Pennsylvania businesses adjust reopening plans as the statewide mask mandate is scheduled to be lifted

After more than a year of navigating the myriad orders impacting Pennsylvania businesses in response to the COVID-19 pandemic, the Wolf administration has announced that it will lift all mitigation orders, except masking, on May 31, 2021. Although the announcement was sparse on detail, its general nature suggests that the following mitigation mandates – which we have covered in detailed previously – will be lifted this Memorial Day.

  • Remote work

Although remote work was mandated unless impossible for a period of time, the Governor’s amended order of April 1, 2021 modified this requirement to only “strongly encourage” businesses to conduct their operations, in whole or in part, via telework. Effective May 31, 2021, businesses may be permitted to resume their normal in-person operations without restriction.

  • Business and building safety requirements for businesses with in-person operations.

Adhering to enhanced cleaning, sanitation, and operational requirements throughout the pandemic has presented a number of practical issues for businesses. Most recently, Governor Wolf’s November 27, 2020 Order set forth a number of enhanced cleaning and mitigation protocols for businesses maintaining in-person operations, including altering business hours to provide sufficient time to clean; wiping down carts and handbaskets before they become available to customers for use; staggering check-out counters and registers to allow for hourly cleaning; implementing temperature screenings before employees enter the business prior to the start of each shift; staggering employee break times; conducting meetings and trainings virtually; and scheduling handwashing breaks as necessary.
Continue Reading Pennsylvania businesses may need to finalize reopening plans

The City of Pittsburgh is expected to enact the new Temporary COVID-19 Emergency Paid Sick Ordinance (the “Ordinance”), which provides Pittsburgh employees with a new entitlement of up to two weeks of paid time off for qualifying absences related to COVID-19. While this legislation may be well intended, it presents potentially significant challenges for employers with Pittsburgh-based workforces that have spent the past several months adapting to what seems like an ever-evolving carousel of federal, state, and local laws enacted in response to the pandemic.

With the federal Families First Coronavirus Response Act (FFCRA) set to expire on December 31, 2020, absent an extension by the federal government, the Ordinance appears to be the City’s effort to provide paid leave rights for qualifying reasons relating to COVID-19.

However, the Ordinance considerably exceeds the FFCRA in the scope of covered employers.  All Pittsburgh employers with 50 or more employees (including employers whose employees normally work in the City of Pittsburgh but are now teleworking from other locations as a result of the pandemic) are covered by the Temporary COVID-19 Emergency Paid Sick Ordinance.  By contrast, the FFCRA’s coverage was limited to only employers with fewer than 500 employees. As such, many larger employers with a workforce in Pittsburgh that were excluded from the FFCRA’s coverage will now immediately have to take steps necessary to provide for the requisite paid leave benefits. Further, even if an employer was subject to the FFCRA and previously took actions to provide for COVID-related paid leave, those employers should immediately update previously established policies to ensure compliance with the Ordinance.
Continue Reading Employers with Pittsburgh-based employees face new requirements to provide COVID-19-related paid sick leave

On November 23, 2020, Governor Tom Wolf issued the Order of the Governor of the Commonwealth of Pennsylvania for Mitigation, Enforcement and Immunity Protections, which establishes various mitigation measures that Pennsylvania businesses must implement effective November 27, 2020. Many of these measures are already familiar to Pennsylvania businesses that have been implementing the mitigation measures prescribed by the April 15 worker and business safety order, which we discussed in a previous article. Although this Order is, to some extent, a reiteration of many requirements in the April 15 order, it also includes several new and updated requirements that may require Pennsylvania businesses to update current policies and practices. This article highlights some of the most significant new requirements under the new Order.

Mandatory telework

Under the Order, Pennsylvania businesses are required to conduct their operations remotely through telework “unless impossible.” Where telework is impossible, in-person operation of the business may continue subject to the other workplace safety requirements stated in the Order, including, for example, enhanced cleaning protocols, social distancing, mask wearing, capacity limits, and workforce scheduling.

Neither the Order nor the updated FAQs for businesses offer guidance as to what would render telework “impossible.” As addressed in our prior articles here and here, a July 15 order had established mandatory telework “unless not possible,” which was clarified in later guidance to mean to the extent possible. It is unclear whether the wording change in the November 23 Order is intended to convey a stricter standard and, if so, what that standard is and how it applies to those positions for which telework is possible for certain job duties but impossible for others. Throughout the pandemic, Pennsylvania employers have faced telework requirements established under shifting standards and the related challenges in balancing the interests of complying with those telework orders and the business needs of completing in-person operations. Unquestionably, Pennsylvania employers would benefit from clearer and consistent guidance.
Continue Reading Pennsylvania employers may need to revise policies and practices within the workplace in response to new mitigation order by Governor Wolf

As addressed in Part 1 of this article, the Pennsylvania Department of Health (DOH) issued new orders on November 17, 2020 targeted at mitigating the recent surge of COVID-19 cases within the Commonwealth in recent weeks.  Part 1 focused on the new face covering requirements now imposed on all Pennsylvanians.  This article focuses on new the requirements for testing and quarantine following out-of-state travel established by the DOH and the impact that the new travel requirements might have on Pennsylvania employers.

New out-of-state travel requirements

The Order of the Secretary of the Pennsylvania Department of Health for Mitigation Relating to Travel, mandates that individuals traveling into the Commonwealth from any other state – regardless of whether the individual resides in another state and is travelling to Pennsylvania or the individual is a Pennsylvania resident returning from out-of-state travel – produce evidence of a negative COVID-19 test from a specimen collected within 72 hours prior to entering the Commonwealth.  Individuals who do not have a negative COVID-19 test are required to quarantine for 14 days, and may only leave their homes to receive testing or other necessary medical services.  Failure to comply with the order may result in the imposition of a fine ranging from $25.00 to $300.00.  These newly instituted requirements take effect on Friday, November 20, 2020.
Continue Reading Pennsylvania employers and employees receive the gift of new post-travel testing/quarantine requirements for the holiday season (Part II)