May 2020 E-Update


Click here to view entire E-Update as a PDF


CDC Issues Interim Reopening Guidance for Employers of High Risk Employees, As Well As Industry-Specific Recommendations

The Centers for Disease Control has issued a lengthy document in support of the President’s Plan for Opening America Up Again, containing specific Interim Guidance documents for employers with high-risk workers, as well as for child care programs, schools, bars and restaurants, and mass transit. For more, click here.

OSHA Revises COVID-19 Enforcement and Workplace Illness Recording Policies

After initially easing its enforcement and recording rules in light of the COVID-91 pandemic, the Occupational Safety and Health Administration has reversed direction, with increased in-person workplace inspections and recording obligations.  For more, click here.

SBA Issues Two Additional Final Rules on PPP Loan Forgiveness

On May 22, 2020, the Small Business Administration (“SBA”) issued two interim final rules providing guidance on the requirements for loan forgiveness and loan review procedures and related borrower and lender responsibilities under the Paycheck Protection Program (“PPP”).  For more, click here.


EEOC Delays Annual EEO-1 Filing Period Due to COVID-19.  The Equal Employment Opportunity Commission announced that it is delaying the submission of this year’s EEO-1 forms until March 2021 because of the COVID-19 pandemic.  For more, click here.

DOL Updates Its Model COBRA Notices. The Department of Labor’s Employee Benefits Security Administration published updated COBRA notices that may be used to notify eligible individuals of their rights to continued healthcare coverage following a triggering event, such as a termination of employment or a reduction in hours – events that are becoming more frequent in light of the COVID-19 pandemic.  For more, click here.

NLRB Permits Employer to Prohibit Cell Phones in Working Areas.  In Cott Beverages, the National Labor Relations Board held that employer rules prohibiting cell phones on the production floor and in the warehouse were lawful.  For more, click here.

DOL Issues Religious Freedom Directive. In support of President Trump’s Executive Order 13798, “Promoting Free Speech and Religious Liberty,” the Secretary of Labor issued a directive to advance religious liberty protections in the Department of Labor’s daily operations. For more, click here.

ADA Permits Employers to Require Medical Examinations for Problematic Behavior.  Two federal appellate courts this month affirmed the right of employers under the Americans with Disabilities Act to require a medical examination to assess an employee’s fitness for duty based upon troubling conduct. For more, click here.

Powerpoint Presentation Statements Support Claim for Uncapped Commissions.  An employee’s claims that his employer unlawfully “capped” his sales commissions was allowed to proceed, despite language in the governing Incentive Plan Letter (IPL) that the employer reserved the right to adjust the plan’s terms.  For more, click here.

False Statements in Connection with Protected Actions Are Not Immunized from Discipline.  The fact that an employee’s misconduct occurred in the context of otherwise legally protected conduct does not insulate him from discipline, according to the U.S. Court of Appeals for the 6th Circuit. For more, click here.

Employee Need Only Show that Comparator Engaged in Similar – Not the Same – Misconduct.  The U.S. Court of Appeals for the 6th Circuit emphasized that, while a plaintiff alleging discriminatory discipline must show that comparators received more favorable treatment, the misconduct need not be identical for purposes of comparison.  For more, click here.

Request for FMLA Leave Must Actually Qualify for Such Leave to Be Protected.   An employee requesting leave under the Family and Medical Leave Act is only entitled to the protections of the Act if she actually has a qualifying serious health condition, according to the U.S. Court of Appeals for the 11th Circuit.  For more, click here.

EEOC Issues First Opinion Letter, on Work Opportunity Tax Credit Form.   The Equal Employment Opportunity Commission issued its inaugural Commission Opinion Letter, addressing the legality of an IRS form used for the federal Work Opportunity Tax Credit (WOTC) program. Formal opinion letters have been used by other federal agencies, like the Wage and Hour Division of the Department of Labor, to reflect official agency positions on topics of (more or less) general interest to businesses that may then be relied upon as official guidance.   For more, click here.

Federal Contractor Update – New Self-ID of Disability Form, Ombuds Service, VEVRAA Focused Review Guidance, Webpage on Past Drug Use, Indian and Native American Employment Rights Program.   There have been a slew of developments at the Office of Federal Contract Compliance Programs this past month.   For more, click here.

New D.C. Laws – Voting Leave and Transportation Benefits.   The District of Columbia has recently passed two employment laws, requiring employers to provide leave to vote and benefits to encourage the use of shared or public transportation – although they are not likely to take effect until 2022.   For more, click here.

TOP TIP: Privacy Implications of Workplace Temperature Screening

Federal government agencies, including the Centers for Disease Control and Prevention and the Equal Employment Opportunity Commission, and many state and local governments have approved of the use of temperature screening as part of a business’s return-to-work strategy during the COVID-19 pandemic.  For more, click here.