October 2020 E-Update

Click here to view entire E-Update as a PDF

More Employees in Quarantine? CDC Expands Definition of “Close Contact” with an Individual with COVID-19

In revising its definition of who is considered to be in “close contact” with a person infected with COVID-19, the Centers for Disease Control and Prevention (CDC) significantly expanded the universe of individuals who might be required to self-isolate. This has an impact on whether exposed employees will be able to report to the workplace. For more, click here.

OSHA Clarifies COVID-19 Reporting (Not Recording) Requirement

The Occupational Safety and Health Administration issued new FAQs regarding the reporting of work-related COVID-19 cases, providing much-needed clarification to employers. For more, click here.

EEOC Proposes Changes to Its Conciliation Process to Provide More Information to Employers

The Equal Employment Opportunity Commission has issued a Proposed Rule to amend its conciliation process, for the stated purpose of enhancing its effectiveness and accountability in resolving findings of unlawful discrimination by employers. For more, click here.

EEOC Clarifies No Cause Finding ≠ No Merit. In issuing a Final Rule that authorizes the digital transmission of charge-related documents, the Equal Employment Opportunity Commission also took the opportunity to explain that a “no cause” finding at the conclusion of its investigation into an employee’s charge of discrimination is not necessarily a finding that the charge has no merit. For more, click here.

Employees May Be Disciplined for Abusive Conduct, Even in Context of Protected Activity. Affirming that employees may be disciplined for abusive conduct that might otherwise be protected by the National Labor Relations Act (NLRA), the National Labor Relations Board remanded a case to the administrative law judge (ALJ) to analyze whether the employee in this case was lawfully disciplined for his inappropriate conduct during a safety meeting. For more, click here.

OFCCP Provides More Resources for Government Contractors. Continuing with its spate of activity, the Office of Federal Contract Compliance Programs has issued a number of new resources for government contractors and subcontractors. For more, click here.

A Voluntary Transfer Is Not an Adverse Employment Action. The U.S. Court of Appeals for the Fourth Circuit affirmed the rather obvious point (although apparently not to the employee) that when an employee voluntarily requests – and the employer agrees – to a transfer, the employee has not experienced an adverse employment action for purposes of the Americans with Disabilities Act. For more, click here.

Montgomery County Vastly Expands Definition of “Harassment.”  Employers with employees in Montgomery County should be aware that illegal “harassment” is now defined more broadly than under Maryland state or Federal law. For more, click here.

What Temporal Proximity Supports an Inference of Causation for a Retaliation Claim? The U.S. Court of Appeals for the Fourth Circuit provided some guidance on this issue in a recent case involving an employee’s claims of discrimination and retaliation. For more, click here.

Different “Economic Realities” Tests Exist for Determining Independent Contractor Status. As we previously noted in discussing the Department of Labor’s Proposed Rule on determining independent contractor v. employee status, there are many versions of the test across agencies and courts, leading to much confusion for employers – and the latest demonstration of this comes out of the U.S. Court of Appeals for the Sixth Circuit. For more, click here.

Shared Services Does Not Necessarily Make Affiliated Companies a Single Title VII Employer. The U.S. Court of Appeals for the Seventh Circuit refused to allow an employee to sue a dealer network with which his employer was affiliated, finding no evidence to support the employee’s attempt to pierce the dealerships’ corporate veils and combine them for purposes of Title VII coverage. For more, click here.

“Me Too” Evidence May Be Admissible for Discrimination Claim. Employers should be warned that other employees’ accounts of their own experiences with discrimination may be admissible to support a plaintiff’s individual discrimination claim. For more, click here.

Election Day is Tuesday, November 3, 2020, and many states require employers to provide employees with paid or unpaid leave to vote. Although early voting or vote-by-mail has been implemented in numerous states, employers may still need to provide leave on Election Day. For more, click here.