April 2022 E-Update

Click here to view entire E-Update as a PDF

US Department of Justice Provides Guidance to Employers on Opioid Addiction and the ADA

In the context of the opioid crisis, the US DOJ has issued a Q&A guidance on how the Americans with Disabilities Act may apply to those in treatment for or recovery from opioid use disorder (OUD). The DOJ makes several points of significance to employers. For more, click here.

What the EEOC’s “Equity Action Plan” May Mean for Employers

Only days after being sworn into office, President Biden signed Executive Order 13985, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.” On April 14, 2022, the Equal Employment Opportunity Commission released its Equity Action Plan in accordance with that E.O., containing several items of interest or significance for employers.  For more, click here.

NLRB General Counsel Seeks to Do Away with “Captive Audience” Meetings

National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo is targeting so-called “captive audience” meetings and has asked the Board to find such meetings unlawful. Employers often hold these meetings during union organizing campaigns to present their views to assembled employees regarding unionization and other issues relating to employee working conditions. If the Board ultimately sides with the GC, employers will be found to have violated the National Labor Relations Act (NLRA) even if such meetings do not involve unlawful statements or activities.  For more, click here.

Do Not Include Arbitration Agreements in Your Employee Handbook. This was the lesson that a company recently and sadly learned, when the U.S. Court of Appeals for the Fourth Circuit found its arbitration agreement to be invalid because of the handbook disclaimer.  For more, click here.

RIF Criteria Should Be Clear and Consistent. When conducting a reduction in force, it is important to ensure that the criteria by which employees are either retained or selected for termination are clearly identified and applied consistently, as the U.S. Court of Appeals for the Fifth Circuit recently reminded employers. For more, click here.

Severity of Discipline May Be Based on the Employee’s Reaction to A Charge of Misconduct. The U.S. Court of Appeals for the Seventh Circuit rejected a race discrimination claim based on different levels of discipline received by two employees for the same misconduct, finding that more serious discipline was imposed not based on race but the employee’s conduct following the charge of misconduct. For more, click here.

Closely-Related Small Companies May Be Integrated Under the ADA. Although companies with fewer than 15 employees are not covered by federal anti-discrimination laws, including the Americans with Disabilities Act, the U.S. Court of Appeals for the Ninth Circuit found those that are sufficiently related may be combined to trigger ADA coverage.   For more, click here.

“I’m Working From Home” ≠ Request for FMLA Leave.  An employee must actually request leave (for a covered reason) in order to trigger the protections of the Family and Medical Leave Act – and saying that they are working from home is not a request for leave, as the U.S. Court of Appeals for the Third Circuit recently noted.  For more, click here.

OFCCP Compliance Evaluations Will Be More Challenging. The Office of Federal Contract Compliance Programs released a new directive that “will strengthen OFCCP compliance evaluations and reduce delay by promoting the timely exchange of information.” But what this really means for contractors is a less transparent and less cooperative process. For more, click here.

OFCCP Updates Hiring Benchmark for Protected Veterans. The Office of Federal Contract Compliance Programs released its annual update of the hiring benchmark for protected veterans to 5.5%, effective March 31, 2022, based on recently-released data from the Bureau of Labor Statistics.  For more, click here.

When taking disciplinary action against an employee, it is important for employers to ensure that the underlying evidence clearly supports the reason for such action. Sometimes, decisionmakers get caught up in the emotion of the moment and do not necessarily maintain objectivity, or they do not take the time to fully investigate and confirm the situation. This kind of tunnel vision can cause problems in defending such decisions, as the U.S. Court of Appeals for the Sixth Circuit recently found.  For more, click here.