November 2020 E-Update
Click here to view entire E-Update as a PDF
CDC Modifies Guidance on Essential Workers Exposed to COVID-19: Working is “a Last Resort.”
Back in April, the Centers for Disease Control and Prevention (CDC) issued guidance that permitted workers in critical infrastructure industries to continue working after exposure to COVID-19 (rather than quarantining) as long as they remained asymptomatic. The CDC has now revised its guidance to state that this should be used only as “a last resort and only in limited circumstances, such as when cessation of operation of a facility may cause serious harm or danger to public health or safety.” For more, click here.
OSHA Explains Common COVID-19 Citations and How to Avoid Them
The Occupational Safety and Health Administration has issued guidance identifying the violations of workplace standards most often found during COVID-related inspections, accompanied by a one-page summary identifying requirements that employers must follow. For more, click here.
Is Time Attending Voluntary Training Programs Compensable? The DOL Weighs In
In November 2020, the Department of Labor’s Wage and Hour Division issued several opinion letters under the Fair Labor Standards Act, of which one addressed the compensability of time spent by non-exempt employees attending voluntary training programs. Opinion letters respond to a wage-hour inquiry to the DOL from an employer or other entity, and represent the DOL’s official position on that particular issue. Other employers may then look to these opinion letters for guidance. For more, click here.
More from the DOL – When Is Travel Time Compensable?
As noted elsewhere in this E-Update, the Department of Labor’s Wage and Hour Division issued several opinion letters under the Fair Labor Standards Act (FLSA) this month, including this one on travel time for non-exempt employees. Opinion letters respond to a wage-hour inquiry to the DOL from an employer or other entity, and represent the DOL’s official position on that particular issue. Other employers may then look to these opinion letters for guidance. For more, click here.
Employers Have Discretion to Determine Essential Job Functions and What Accommodations are Reasonable
The U.S. Court of Appeals for the Fourth Circuit recently issued a decision that is remarkable for its focus on the need to balance the prerogative of employers to make decisions about the workplace in the context of accommodating employees with disabilities under the Americans with Disabilities Act. For more, click here.
NLRB Releases Advice Memo Regarding Civility Rules, As Well As Governmental Inquiries
In a recently issued Advice Memorandum, the National Labor Relations Board’s (NLRB) Office of the General Counsel (OGC) offered guidance to employers – both union and non-union – regarding the maintenance of rules relating to civility in the workplace, as well as when employees may be required to notify their employer about governmental inquiries or subpoenas. NLRB Advice Memoranda contain the recommendations of the OGC to Regional Offices on novel or complex issues. These memos may be publicly released years after issuance, but often contain helpful guidance for employers. For more, click here.
OSHA Issues COVID-19 Guidance on Ventilation in the Workplace. OSHA has released another in its series of COVID-related safety alerts – this one on ventilation in the workplace. For more, click here.
EEOC Issues Proposed Update to Guidance on Religious Discrimination. On November 17, 2020, the EEOC issued a proposed update to the agency’s guidance on religious discrimination in the workplace, taking account of the “altered legal landscape” in this area since 2008, when the guidance last was updated. For more, click here.
The Doctor – Not The Employee – Defines Applicable Medical Restrictions. An employer is entitled to rely upon the medical evaluation by a doctor over an employee’s own view as to his medical condition, according to the U.S. Court of Appeals for the Sixth Circuit. For more, click here.
Employee’s Own Perception of Her Performance Is Not Determinative, and What Is An Adverse Employment Action, Anyway? The U.S. Court of Appeals for the Fifth Circuit reaffirmed the principle that an employee’s subjective perception of her own performance does not support a discrimination claim, while also providing guidance on the types of actions that are or are not adverse employment actions necessary to establish a discrimination claim. For more, click here.
No Adverse Employment Action Is Required for a Failure to Accommodate Claim. In a classic discrimination case, the employee must show that they experienced an adverse employment action – but this is not required in a failure to accommodate claim under the Americans with Disabilities Act, according to the U.S. Court of Appeals for the Tenth Circuit. For more, click here.
FLSA’s “Willful” Standard Applies to FMLA. The U.S. Court of Appeals for the Ninth Circuit held that the definition of “willful” violations under the Fair Labor Standards Act should be applied to the Family and Medical Leave Act, which does not define the term. For more, click here.
OFCCP Update for Government Contractors. Continuing on with a busy year, the Office of Federal Contract Compliance Programs has engaged in additional actions of interest to government contractors and subcontractors. For more, click here.
With apologies to William Shakespeare, these past couple of weeks have been rather confusing, with two of the major federal agencies leading the battle against COVID-19 – the Centers for Disease Control and Prevention (CDC) and the Occupational Safety and Health Administration (OSHA) – issuing somewhat, well, inconsistent guidance on the use of cloth face coverings or masks. For more, click here.