October 2021 E-Update


Click here to view entire E-Update as a PDF


Beyond Religious Accommodations – What Else Is New In The EEOC’s COVID-19 Vaccine Guidance!

The Equal Employment Opportunity Commission updated its guidance document, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, on October 13, 2021, to address vaccination developments and clarify certain issues. (On October 25, 2021, it also added a new section on Religious Accommodations, as separately discussed in our E-lert). While some of the October 13 changes are non-substantial, the following may be of interest to employers. For more, click here.

More Guidance for Federal Contractors on That Vaccination Mandate… 

As federal contractors know, President Biden issued an Executive Order requiring the insertion of a clause into certain new, renewed and extended contracts that mandates compliance with Guidance issued by Safer Federal Workforce Task Force. The Guidance, which was issued on September 24, 2021, requires the vaccination of most of a contractor’s employees, as we discussed in detail in our September 2021 E-Update. The Task Force has now added to its FAQs on the Guidance, addressing specific issues as follows. For more, click here.

Federal Appeals Court Upholds State Vaccine Mandate Without Religious Exemptions

In general, federal district courts have been rejecting challenges to employer vaccine mandates. The U.S. Court of Appeals for the First Circuit issued one of the strongest decisions yet, upholding Maine’s requirement for all state healthcare workers to be vaccinated against COVID-19. The requirement permits only medical exemptions and was challenged by workers seeking religious exemptions. For more, click here.

DOL Issues Final Rule Reinstating and Modifying 80/20 Rule for Tipped Workers

The U.S. Department of Labor has issued its final rule reinstating the 80/20 rules and further limiting the amount of an employee’s non-tipped work time for which the employer may take a tip credit. This final rule takes effect on December 28, 2021. For more, click here.


It’s a Turnover – NLRB GC Now Says Student-Athletes “Players” Are School Employees

The issue of whether “Players” are employees of an academic institution has taken another turn, with the GC of the National Labor Relations Board asserting in a memo that they are. (General Counsel Jennifer Abruzzo characterizes the term “student-athlete” as being intended to deprive those individuals of workplace protections). For more, click here.

OSHA Is Soliciting Public Comments for a Proposed Heat Injury and Illness Prevention Standard

The Occupational Safety and Health Administration has issued an advance notice of proposed rulemaking on Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings. In its notice, OSHA poses over 100 questions to obtain “additional information about the extent and nature of hazardous heat in the workplace and the nature and effectiveness of interventions and controls used to prevent heat-related injury and illness.”  This information will be used in developing a proposed standard, including with regard to the scope and types of controls. For more, click here.

Employees May Be Held Accountable for the Manner of Their Complaint

Although the fact of an employee’s complaint of discrimination may be protected under Title VII, the manner of the complaint may not be, as the U.S. Court of Appeals for the First Circuit recently held. For more, click here.

Disability Does Not Excuse Failure to Meet Conduct Standards

Even where the disability is the reason the employee cannot meet that standard, as the U.S. Court of Appeals for the Sixth Circuit explained. For more, click here.

Pre-Shift Time Spent Booting Up the Computer May Be Compensable

Even though the amount of time it takes to turn on the computer and launch software before officially starting work may be minimal, the U.S. Court of Appeals for the Tenth Circuit warned that it may still be compensable time under the Fair Labor Standards Act. For more, click here.

TOP TIP: Employers – HIPAA Does NOT Apply to Proof of Vaccination (or Other Employee Medical Records in Your Possession)!

Many employers and employees alike believe that the Privacy Rule of the Health Insurance Portability and Accountability Act (HIPAA) protects the employee’s vaccination information. It does not. In fact, the Privacy Rule does not apply to employee medical information in the employment context, as the U.S. Department of Health and Human Services recently explained in its Guidance, HIPAA, COVID-19 Vaccination, and the Workplace. Other laws, however, protect the confidentiality of employee medical information. For more, click here.