July 2021 E-Update
President Biden’s Vaccine Push: Paid Leave for Family Member Vaccinations and Federal Contractor Mandates
On July 29, 2021, President Biden announced additional efforts to increase COVID-19 vaccinations in the U.S. Of interest to employers, these efforts include (1) reimbursements to small and medium-sized employers to provide paid leave for family member vaccinations; and (2) certain vaccine-related mandates applicable to on-site federal contractors, with the intention of expanding those requirements to all federal contractors. For more, click here.
DOL Officially Rescinds Joint Employer Rule, Expanding Pay Protection for Workers
On July 29, 2021, the U.S. Department of Labor issued a final rule rescinding the joint employer rule issued under the prior administration. With the rescission of the rule, the DOL returns to its prior approach, making findings of joint employer status – with the concurrent obligations for employers under the Fair Labor Standards Act – more likely. For more, click here.
The White House, HHS and DOJ Assert that “Long COVID” May Be A Protected Disability
As part of its statement commemorating the anniversary of the Americans with Disabilities Act, the Biden-Harris administration released a package of guidance and resources to support individuals experiencing long-term symptoms of COVID-19 (i.e. “Long COVID”). Among this is joint guidance from the Health and Human Service’s Office of Civil Rights and the Department of Justice, as well as a new webpage from the Department of Labor’s Office of Disability Employment Policy, which offers resources on accommodations for long COVID. For more, click here.
Employers May Not Disparately Enforce E-mail Policies to Prohibit Union Activity
In a case applicable to unionized and non-unionized employers alike, the U.S. Court of Appeals for the D.C. Circuit found that an employer unlawfully discriminated against an employee under the National Labor Relations Act (NLRA) by reprimanding her for sending facility-wide e-mails seeking employee support for a union, supposedly in violation of the company’s e-mail policy prohibiting the mass distribution of non-business e-mails. For more, click here.
DOL Issues Proposed Rule Increasing Minimum Wage Rate for Federal Contractors
As we discussed in our April 2021 E-Update, President Biden signed an Executive Order (EO) increasing the minimum wage rate applicable to government contractors and subcontractors to $15 an hour – a significant increase from the current rate of $10.95. For more, click here.
More on the Minimum Wage in the Mid-Atlantic
Although the federal minimum wage remains $7.25, most states in the mid-Atlantic region have implemented higher minimum wage rates. In addition to the proposed rule increasing the minimum wage for federal contractors, discussed elsewhere in this E-Update, there were several other relevant developments in July. For more, click here.
Warning – Attempts to Diversify Can Result in Liability for Race Discrimination. An employer’s attempt to diversify its day shift by reassigning a Black employee to a less-desirable night shift resulted in a violation of Title VII, according to the U.S. Court of Appeals for the Sixth Circuit. For more, click here.
Rats! NLRB says Unions May Use Scabby the Rat to Target Neutral Employers. The National Labor Relations Board held that a union’s use of a large inflatable rat – infamously known as “Scabby” and standing 12-feet tall with red eyes and claws – and banners targeting a “neutral” employer does not, without more, violate the National Labor Relations Act. For more, click here.
Too Short? Too Bad – Just Being Short Is Not a Disability. Unless the individual’s lack of height – or other physical characteristic – is tied to a physiological disorder, the Americans with Disabilities Act does not apply, as the U.S. Court of Appeals for the Eleventh Circuit recently explained. For more, click here.
An Employee’s Dissatisfaction Does Not Make The Employer’s Response to Harassment Unreasonable. In response to a complaint of co-worker harassment under Title VII, an employer is required to take action that is “reasonably calculated to end the harassment.” Whether the response is reasonable will depend on the circumstances and, as the U.S. Court of Appeals for the Sixth Circuit held, an employee’s dissatisfaction with the employer’s actions alone does not mean the response was unreasonable. For more, click here.
“Piggybacking” on Another Employee’s Charge of Discrimination? Before an employee can file suit for discrimination under federal law, they must first file a charge of discrimination with the Equal Employment Opportunity Commission (the “administrative filing requirement”). But there are times when an employee may “piggyback” on another employee’s charge, as the U.S. Court of Appeals for the First Circuit recently explained. For more, click here.
OSHA Revises Its National Emphasis Program. Through this program, originally issued in March 2021, OSHA focuses its enforcement efforts on companies placing the largest number of workers at serious risk of COVID-19 infection, and prioritizes employers who retaliate against whistleblowing employees. For more, click here.
Pennsylvania Employers Alert – Security (And Other?) Screening Time Is Compensable. The Pennsylvania Supreme Court recently held that workers must be paid for the time spent waiting in line and undergoing a security screening process. Of note, the principles in this holding have broader application and, in the context of the pandemic, would likely require Pennsylvania employers to pay for COVID-19 screening time. For more, click here.
As we discussed in our May 14, 2021 blog post, “Back to Normal for the Fully Vaccinated? What the CDC’s Latest Guidance Means for Employers,” the CDC had previously stated that fully-vaccinated individuals could essentially resume their pre-pandemic, maskless lifestyles, subject to applicable state or local mandates. For more, click here.