August 2021 E-Update


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What the FDA’s Regular Approval of the COVID-19 Vaccine Means for Employers

On August 23, 2021, Pfizer-BioNTech COVID-19 vaccine received regular approval from the Food and Drug Administration. Moderna has submitted its application for regular approval, and it is expected that such approval is forthcoming shortly. With these developments, certain legal hesitation regarding vaccine mandates – including by employers – has fallen away. For more, click here.

Title VII Does Not Prohibit Paramour Preferences

Although noting that, “[w]orkplace favoritism toward a supervisor’s sexual or romantic partner is certainly unfair to similarly situated workers and more than likely harms morale,” the U.S. Court of Appeals for the Ninth Circuit joined its sister circuits in holding that Title VII’s prohibition on sex discrimination does not encompass preferential treatment toward a supervisor’s sexual or romantic partner. For more, click here.

The Eleventh Circuit Provides Guidance to Successor Employers on Workforce Transitions Under the NLRA

In determining that the National Labor Relations Board’s decision finding that the Employer violated the National Labor Relations Act was not supported by substantial evidence, the U.S. Court of Appeals for the Eleventh Circuit provided some guidance to employers on workforce transitions from another employer. For more, click here.


EEOC Extends EEO-1 Filing Deadline. Citing the continuing challenges of the COVID-19 pandemic, the Equal Employment Opportunity Commission has announced an extension to the filing period – now ending on October 25, 2021- for the (typically) annual submission of EEO-1 workforce demographic information regarding employees’ race, ethnicity and sex. For more, click here.

OSHA Issues Revised Small Business Safety and Health Handbook. The federal Occupational Safety and Health Administration, in conjunction with the National Institute for Occupations Safety and Health, has revised its Small Business Safety and Health Handbook.  For more, click here.

Occasional Contacts Are Permitted During an Employee’s FMLA Leave. Although employees cannot be required to work while on Family and Medical Leave Act (FMLA) leave, occasional contact with those employees is not a violation of the law, as the U.S. Court of Appeals for the Sixth Circuit recently reiterated.  For more, click here.

Title VII Prohibits “Associational Discrimination,” Even for Distant Relationships. Under Title VII, employees are protected from discrimination and retaliation based on their association with persons of another race (i.e. “associational discrimination”), regardless of the closeness of the relationship, according to the U.S. Court of Appeals for the Third Circuit. For more, click here.

Employees with Disabilities Can Be Held to Performance Standards. But documentation is key, as the U.S. Court of Appeals for the Eighth Circuit noted in a recent case. For more, click here.

Whistleblowers Are Not Protected from the Consequences of Their Own Misconduct. Although employers may not take adverse action against an employee for whistleblowing activity, those employees are not protected from any and all adverse actions, as the U.S. Court of Appeals for the D.C. Circuit recently noted. For more, click here.

Racist Slurs in a Foreign Language Is Still Harassment. The use of racial slurs in a foreign language, particularly in connection with other problematic conduct, can create a hostile work environment, as the U.S. Court of Appeals for the Fifth Circuit recently held.  For more, click here.

D.C.’s Controversial Non-Compete Law Delayed Until April 1, 2022. As we discussed in our January 2021 E-Update, the District of Columbia passed arguably one of the most sweeping non-compete bans in the country. The effective date of this law, however, has been delayed until April 1, 2022. For more, click here.

TOP TIP: Timing Matters – Failure to Respond and Act Promptly Can Create Liability

A recent case emphasizes the importance of timing – both in terms of reacting to reports of employee misconduct and in imposing discipline (particularly termination). As the U.S. Court of Appeals for the Eighth Circuit recently found, terminating an employee, based on conduct that occurred months earlier, shortly after they complain of discrimination certainly seems suspect. For more, click here.