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At a union event on Labor Day in 2020, President Biden vowed to be “the strongest labor president you have ever had.”  Although he has only been in office a short time, his administration is already taking steps to honor that pledge.  Specifically, on February 4, 2021, House and Senate Democrats introduced the Protecting the Right to Organize (PRO) Act.   The PRO Act previously passed the House in February 2020 and President Biden has committed to sign it into law if passed in this Congress.  If enacted, the PRO Act will fundamentally reshape the American workplace.
Continue Reading Labor law under the Biden administration: A preview of the PRO Act

The recent decline in COVID-19 infections has led numerous states to begin contemplating a roll‑back of mask mandates and related COVID-19 restrictions. Most recently, on Tuesday, March 2, 2021, Governor Greg Abbott and Governor Tate Reeves announced the imminent elimination of mask mandates in Texas and Mississippi, respectively. Both Governors also removed all capacity limits for the businesses within their states. However, these changes pose a serious challenge to employers. On the one hand, they shift employee and customer expectations about the types of restrictions that are appropriate. On the other hand, they do nothing to reduce employer risks associated with potential outbreaks in the workplace. As a result, employers will now need to engage in a careful campaign to maintain workplace safety in the face of increased employee and customer resistance to masking and other similar precautions.
Continue Reading Employers face challenges as states lift COVID-19 safety measures

The release of the COVID-19 vaccine came as welcome news for employers. With it, however, employers will now confront myriad new questions about how the vaccine will affect workplace terms and conditions. The foremost question across all sectors has been simple: Can and should employers mandate that their employees get vaccinated? While issuing a mandate may seem appealing, doing so creates a variety of both legal and practical risks that, for many businesses, may militate in favor of a voluntary compliance program.

Faced with this reality, many employers have begun exploring incentive-driven voluntary programs, including offering additional PTO, gift cards, and even cash “bonuses” to employees who provide proof of vaccination.  While such a voluntary system avoids many of the pitfalls of a mandatory system, it also carries its own complexities and risks in an already complicated and unsettled area of law.  This post examines some of those risks while also highlighting the unique uncertainty surrounding this emerging issue. 
Continue Reading Managing the risks of incentivizing COVID-19 vaccines for employees

On January 7, 2021, the EEOC proposed two rules, under the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA), designed to clarify what incentives employers may offer employees and their family members for joining employer-sponsored wellness programs.  In the 2017 case AARP v. EEOC, the then-existing regulations on employer-sponsored wellness programs were revoked.  Since then, employers have lacked guidance on how to structure wellness programs without violating the requirements of both the ADA and GINA that individuals’ disclosures of health information be voluntary.  The EEOC’s new rules seek to balance the competing interests.  However, given the Biden Administration’s recently issued freeze on proposed rules that have not yet been enacted, employers should not act on the EEOC’s proposed rules yet.

Legal framework

Under the ADA, employers cannot require employees to disclose medical information that might enable employers to discriminate against them.  Similarly, under GINA, the disclosure of the health information of a family member of an employee must also be voluntary.  In 2016, the EEOC finalized rules that outlined how employers could incentivize employees and their family members to participate in wellness programs that required the disclosure of health information without violating the ADA or GINA.  Under the 2016 rules, an employer could offer an incentive of up to 30 percent of the total cost of self-coverage without the wellness program running afoul of the ADA and GINA.  However, in AARP v. EEOC, the United States District Court for the District of Columbia held that the EEOC had failed to provide a reasoned explanation for its 30 percent incentive limit, and as a result, the EEOC removed the incentive sections from the ADA and GINA regulations.Continue Reading EEOC proposes new rules on permissible incentives for employer-sponsored wellness programs

The Biden administration issued new guidance immediately following his Jan. 20 inauguration abrogating former U.S. President Trump’s Executive Order 13950 on Combating Race and Sex Stereotyping (the Order). Implementation of EO 13950 had previously been stayed by a preliminary nationwide injunction entered Dec. 22, 2020, in California federal court. As a result, federal contractors or organizations with a federal contract currently have no obligation to revise their diversity and equity training to omit the prohibited training topics set forth in EO 13950.

As previously discussed, EO 13950 sought to reshape the way government contractors performed diversity and equity training. It prohibited, among other things, restrictions on training about affirmative action, discussion of reparations and implicit bias, and guidance regarding limiting micro aggressions. Further, the Order mandated employer postings in the workplace as well as compliance communications with organized labor groups.Continue Reading DOL stops enforcing Executive Order 13950 on diversity training

On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) released updated and expanded guidance addressing questions related to the COVID-19 pandemic that arise under the Federal Equal Employment Opportunity Laws.  The publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” includes new guidance on the implications of the forthcoming COVID-19 vaccines on a number of federal laws.

The EEOC guidance provides a high-level overview of some of the basic concerns confronting employers as they attempt to navigate the intersection of vaccine necessity and the Americans with Disabilities Act (ADA), the Genetic Information and Nondiscrimination Act (GINA), and Title VII.  While the EEOC asserts that “[t]he EEO laws do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidelines and suggestions,” it also makes clear that employers will have to undertake careful efforts to comply with these statutes as they also seek to comply with public health authority instruction.Continue Reading EEOC releases updated and expanded COVID-19 guidance

On December 2, 2020, the CDC updated its guidance on COVID-19 quarantines. Previously, the CDC advised that asymptomatic individuals should quarantine for 14 days after their last exposure to someone who has COVID-19. The CDC’s prior guidance did not allow for the reduction of that 14-day period based on the receipt of a negative COVID-19

The Centers for Disease Control and Prevention (CDC) recently updated its definition for close contact in its COVID-19 guidelines. As a result, employers should immediately reevaluate both their social distancing protocols and their contact tracing protocols to ensure full compliance with CDC standards.

The updated definition clarifies that it is contact within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period. Further, close contact is relevant for contact tracing start two days before the onset of symptoms through the time the infected person is removed from the workplace. Likewise, close contact with asymptomatic individuals will trigger exclusion based on qualifying contact up to two days prior to the asymptomatic individual’s positive COVID-19 test. As a result of these changes, employers should evaluate two key issues.
Continue Reading New CDC close contact definition announced for contact tracing and worker exclusion

**Please note this blog has been updated as of January 25, 2021. Read our update here.

Beginning November 20, 2020, President Trump’s Executive Order 13950 On Combating Race and Sex Stereotyping (“EO 13950” or “The Order”) will fundamentally reshape the way government contractors conduct diversity training.  Signed September 22, 2020, the Order prohibits federal workplace trainings that “promote race or sex stereotyping or scapegoating.” Importantly for private employers, federal contractors also “will not be permitted to inculcate such views in their employees.” On October 7, 2020, the Department of Labor issued guidance in the form of “frequently asked questions” regarding EO 13950.
Continue Reading Executive Order 13950 on diversity training: Hidden traps for employers

On May 20, 2020, the U.S. Department of Labor (DOL) published a final rule explaining that bonuses and other incentive payments—paid in addition to an employee’s weekly salary—are compatible with the fluctuating workweek (FWW) method of calculating overtime under the Fair Labor Standards Act (FLSA). The final rule went into effect on August 7, 2020.

On August 31, 2020, the DOL issued an opinion letter confirming that an employee’s work hours do not have to fluctuate above and below 40 hours per workweek for an employer to use the FWW method of calculating overtime pay. The opinion letter also cautioned that employers who use the FWW method generally may not “deduct from an employee’s salary for absences occasioned by the employee.” Both developments are discussed below, following the FWW refresher.
Continue Reading DOL issues new final rule and updated guidance for employers who use the fluctuating workweek method to calculate overtime