July 2022 E-Update

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The Novavax Vaccine May Mean Fewer Religious and Medical COVID Vaccine Exemptions

The FDA’s approval of the Novavax vaccine may be a game changer in the tumultuous COVID vaccine mandate situation. Unless limited by state law, employers may require employees to become fully vaccinated against COVID – subject to exemptions as reasonable accommodations for disability or religious needs. Many employees have invoked such exemptions – but the Novavax vaccine may reduce the number of employees who would be entitled to them. For more, click here.

Monkeypox in the Workplace: A Practical Guide for Employers

The World Health Organization has declared monkeypox to be a global health emergency – a designation currently held only by COVID-19 and polio. In the U.S., cases are rapidly rising, and the federal Centers for Disease Control and Prevention (CDC) has created a monkeypox website.. Although the total number of U.S. cases is currently less than 3000, our recent experience with COVID-19 is a lesson for employers to be proactive in preparing for yet another infectious outbreak. Many of the workplace considerations learned from COVID-19 are equally helpful in helping employers protect the workplace from monkeypox. For more, click here.

Federal Court Blocks Enforcement of EEOC Sexual Orientation and Gender Identity Guidance

In June 2021, the federal Equal Employment Opportunity Commission issued resources on workplace protections for LGBTQ+ employees, including a technical assistance document entitled “Protections Against Employment Discrimination Based on Sexual Orientation or Gender Identity,” which we discussed in a June 16, 2021 E-lert. A federal district court has now enjoined enforcement of that guidance – but not in all states. For more, click here.

US DOL Seeks Public Input on Long COVID. The U.S. Department of Labor is inviting the public to participate in an online dialogue about the workplace challenges related to long COVID – a condition where those infected by COVID experience new or lingering symptoms over weeks or months. Such symptoms can include shortness of breath, fatigue, brain fog, heart palpitations, headaches, anxiety, depression, and more. For more, click here.

EEOC Prohibits Employers from Requesting COVID Test Results for Family Members. The Equal Employment Opportunity Commission has engaged in a rather troubling expansion of the Genetic Information Nondiscrimination Act, as reflected in its July 6, 2022 announcement of agreement to resolve certain GINA claims against a private employer. For more, click here.

D.C. Enacts Employment Protections for Marijuana Users. The Mayor of the District of Columbia has signed a bill that protects marijuana/cannabis users from adverse employment actions for off-duty use, with certain exceptions. Following a typical period of Congressional review, the law will take effect upon the date of inclusion of its fiscal effect in an approved budget and financial plan or 365 days after the Mayor approves this Act, whichever is later (i.e. at least a year from now). Beyond the general prohibition, the Act specifically provides…For more, click here.

D.C. Eases Off Its Proposed Non-Compete Ban.  This month, the D.C. Council passed the Non-Compete Conflict of Interest Clarification Amendment Act of 2021, which narrowed the scope of the very broad ban on non-competition agreements pursuant to the Ban on Non-Compete Agreements Amendment Act of 2020 (which we previously discussed here and here).  In an apparent recognition of the overbreadth of the law, the D.C. Council meaningfully narrowed the ban on non-competes in the following ways…For more, click here.

Be Accurate With Those Performance Reviews! A recent case reminds employers that performance reviews are compelling evidence – both positively and negatively – in employment discrimination cases. For more, click here.

Federal Agencies Partner to Combat “Anticompetitive and Unfair Labor Practices.” In furtherance of the strong pro-worker stance of the Biden administration, various federal agencies have entered into agreements that allow them to share information and partner on initiatives that promote workers’ rights. We had previously written about the commitment of the General Counsel of the National Labor Relations Board to better interagency cooperation, as well as the agreement between the NLRB and the Department of Labor. This month brings two more agreements. For more, click here.

A Job Coach Might Be a Reasonable Accommodation. The U.S. Court of Appeals for the Seventh Circuit rejected an employer’s request to find that a permanent, full-time job coach is never a reasonable accommodation under the Americans with Disabilities Act.  For more, click here.

Protected Activity Need Not Involve the Same Employer for Purposes of Retaliation Claim. A recent case highlights the fact that an employer may be found liable for retaliation under federal anti-discrimination laws even when the employee’s protected activity is against another employer…For more, click here.

As attorneys, of course we are delighted to answer questions from our clients – even basic ones. But the U.S. Department of Labor has provided many free resources for employers to educate them about and help them comply with their obligations under a multitude of workplace laws. A particularly useful tool that many employers may not know about is the elaws Advisors. Although the elaws Advisors are directed at workers and small employers, they provide an excellent overview of numerous federal employment laws for employers of all sizes…For more, click here.