May 2021 E-Update


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The DOL Offers Guidance on the ADA’s Interaction with COVID-19 Vaccines

The U.S. Department of Labor, through its Office of Disability Employment Policy (ODEP)-funded Job Accommodations Network (JAN), has recently added a number of resources for employers on COVID-19 and reasonable accommodations under the Americans with Disabilities Act to its COVID-19 webpage. These include frequently asked questions on COVID-19 Vaccination and the ADA. We summarize these FAQs as follows. For more, click here.

The DOL Offers Guidance on Reasonable Accommodations for Long-Haulers Under the ADA

Among the new resources that the U.S. Department of Labor’s Job Accommodations Network (JAN) recently added to its COVID-19 webpage is included frequently asked questions on COVID-19 Long Haulers and the ADA. For more, click here.

No More No-Match Letters – But Employers Should Not Ignore SSN Discrepancies!

The Social Security Administration has discontinued its practice of mailing “educational correspondence” (aka EDCOR or “no-match” letters) to employers where Social Security number information reported on employees’ Forms W-2 do not match the SSA’s records. This, however, does not relieve an employer of the responsibility to address no-match situations of which it becomes aware. For more, click here.

NLRB Finds No-Recording Policy Remains Lawful Even Where Unlawfully Applied to Restrict Protected Activity

The National Labor Relations Board (“NLRB” or the “Board”) held that a lawful rule or policy applied to restrict employee rights provided by the National Labor Relations Act (“NLRA”) did not automatically render the rule unlawful to maintain. For more, click here.

Fourth Circuit Expands Evidentiary Routes for Establishing Same-Sex Harassment

The U.S. Court of Appeals for the Fourth Circuit joined several sister circuits in finding that a plaintiff has routes beyond the three identified by the Supreme Court in its Oncale v. Sundowner Offshore Servs., Inc. decision to establish a same-sex harassment claim. For more, click here.


DOL Officially Withdraws Independent Contractor Rule

On May 6, 2021, the U.S. Department of Labor formally withdrew the independent contractor Final Rule that had been issued in the waning days of the prior administration, which it had previously proposed to do and we discussed in our March 2021 E-Update. For more, click here.

FMLA Does Not Excuse Employees From Complying with Call-In Requirements

A recent case reminds employers that employees can usually be held accountable for complying with call-in requirements, even when the Family and Medical Leave Act may apply to their absences. Moreover, when calling in, employees must provide sufficient information to trigger FMLA. For more, click here.

Be Consistent and Thorough with Termination Reasons!

The failure to do so can result in liability – or at least the costs and aggravation of extended litigation – under anti-discrimination statutes, as an employer recently found to its great dismay. For more, click here.

Minor Acts Are Not Sufficient to Support a Discrimination or Harassment Claim

In order to sustain a claim of race discrimination under Title VII, a plaintiff must allege that they were subjected to an adverse employment action – but minor changes or actions do not constitute such actions. Similarly, such actions do not constitute illegal workplace harassment unless they affect the terms, conditions or privileges of employment. For more, click here.

But Minor Acts Can Add Up to Retaliatory Harassment

While minor acts may not serve to support a claim of race discrimination or workplace harassment, as discussed elsewhere in this E-Update, they can be considered for purposes of assessing a claim of retaliatory workplace harassment, as explained by the U.S. Court of Appeals for the Sixth Circuit in Davis v. Metro Parks and Recreation Dept. For more, click here.

TOP TIP: ADA and FLMA Do Not Necessarily Excuse Attendance Requirements

Employers often struggle with managing unpredictable attendance for employees with health conditions. A recent case from the U.S. Court of Appeals for the Eighth Circuit, Evans v. Cooperative Response Center, Inc., offers some insight in what employers can and cannot do under the Americans with Disabilities Act and the Family and Medical Leave Act. (Because this discussion is rather lengthy, we note that practical pointers can be found at the end of this article). For more, click here.