March 2022 E-Update


Click here to view entire E-Update as a PDF


Do You Care? The EEOC Offers Guidance on Caregiver Discrimination and COVID-19

“Caregivers” (e.g. individuals who care for other family members) are not technically a protected class under current federal antidiscrimination law, but the Equal Employment Opportunity Commission has issued new guidance and updated its “What You Should Know About COVID-19” resource on when it believes that discrimination against caregivers may implicate Title VII and the Americans with Disabilities Act. This supplements previously-existing general guidance, a fact sheet, and best practices on caregiver discrimination. For more, click here.

The EEOC Provides Guidance on Religious Objections to the COVID-19 Vaccine

On March 1, 2022, the Equal Employment Opportunity Commission revised its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and Other EEO Laws resource to add new Q&As about requests for religious exemptions to COVID-19 vaccine mandates. Of significance are the following points…For more, click here.

The U.S. Department of Labor Provides More Anti-Retaliation Resources

Following the U.S. Department of Labor’s prior announcement of its joint anti-retaliation initiative with the Equal Employment Opportunity Commission and the National Labor Relations Board (as discussed in our November 2021 E-Update), the DOL has now released additional resources that it asserts are “to help combat retaliation against employees who assert their workplace rights or cooperate with investigations by the Wage and Hour Division.” These resources include…For more, click here.

The Trump Independent Contractor Rule Is Back In Effect – For Now

Continuing the chaos over the appropriate standard for determining independent contractor status, a federal judge has overturned the Biden administration’s attempt to withdraw the employer-friendly independent contractor rule issued in the waning days of the Trump administration. This means that the Trump Department of Labor’s rule is back in effect pending the undoubtedly forthcoming action from the Biden DOL. For more, click here.


Proposed Changes to OSHA’s Electronic Reporting Requirements for Occupational Injuries and Illnesses. The U.S. Department of Labor has announced some proposed changes to its current electronic reporting requirements for workplace injuries and illnesses. According to the DOL’s press release, while establishments with 20 or more employees in certain high-hazard industries would continue to be required to electronically submit information from their OSHA Form 300A annual summary, the proposed rule would…for more, click here.

A Supervisor’s Single Use of the N-Word Can Create a Hostile Work Environment. A supervisor’s sporadic use of offensive words normally is alone not sufficient to create a hostile work environment under Title VII – except for the N-word, as a recent case from the U.S. Court of Appeals for the Fifth Circuit makes clear. (This is different than co-worker conduct, as discussed in the next article). For more, click here.

But an Employer’s Prompt Response to Coworker Use of the N-Word Is a Defense to Liability. In contrast to the last article regarding supervisory misconduct, an employer can avoid liability under Title VII for a hostile work environment created by coworkers – even involving the N-word – by a prompt and effective response to a harassment complaint. For more, click here.

Employees May Be Terminated for Performance Issues Discovered During FMLA Leave. An employee is protected from termination for taking leave under the Family and Medical Leave Act, but not for performance issues that warrant termination, even if they are discovered while the employee is on FMLA leave, as the U.S. Court of Appeals for the Seventh Circuit recently reiterated. For more, click here.

Although Regular Attendance May Be an Essential Function, Leave May Still Be Required. The U.S. Court of Appeals for the Sixth Circuit rejected an employer’s argument that the employee was unable to perform any of her essential job functions, including attendance, as of the date of her termination, and was therefore not entitled to the protections of the Americans with Disabilities Act. As the Sixth Circuit noted, “To accept [the employer]’s supposed rule, an employee requesting medical leave could always be terminated if she were unable to work at the time of her request. But that cannot be the case because … medical leave can constitute a reasonable accommodation under the ADA.” For more, click here.

Be Careful Not to Assume That an Inquiry About Severance Is a Resignation. This was the lesson from a recent case, in which the U.S. Court of Appeals for the First Circuit found that the employer’s mistaken assumption resulted in a wrongful termination.  For more, click here.

OSHA Is Taking Additional Comments on a Proposed COVID Healthcare Standard. Back in June 2021, OSHA issued a COVID-19 Emergency Temporary Standard for healthcare employers that was then withdrawn in December (as we discussed in our December 2021 E-Update), with its six-month duration acting as a comment period for a possible final rule. In the aftermath of its unsuccessful attempt to implement a general COVID-19 ETS (the Vax-or-Test rule for larger employers), OSHA asserted that it was focusing on a permanent COVID-19 healthcare standard. It has now announced that it is scheduling an informal hearing and reopening the comment period on its ETS to solicit additional information on the following issues…For more, click here.

Federal Contractor Update. The U.S. Department of Labor and its Office of Federal Contract Compliance Programs was busy in March 2022 with various announcements of interest to federal contractors, including the following…For more, click here.

D.C.’s Noncompete Ban Is Delayed Until October 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. In order to consider some amendments to address serious concerns from the business community, however, the effective date of this law was previously delayed until April 1, 2022 (as we reported in our August 2021 E-Update) and, as the amendments are still pending, now has been further delayed until October 1, 2022. For more, click here.

TOP TIP: The Actions of a Single Employee Can Be Protected Concerted Activity

The National Labor Relations Act protects the rights of employees, whether unionized or not, to engage in “concerted” (i.e. group) activity for their mutual aid or protection. It does not protect an employee’s actions on their own behalf. But, as a recent case makes clear, employers should be aware that if that employee asserts that they are acting on behalf of coworkers – even if they are acting alone – that activity may be considered protected concerted activity under the NLRA if it arises in relation to prior concerted activity. For more, click here.