Archive
Federal EEOC Issues New Workplace Guidelines Related to Employee Vaccinations and Employee Safety
By: Matthew Mitchell & Amanda Thibodeau
On May 28, 2021, the U.S. Equal Employment Opportunity Commission (“EEOC”) published two guidelines intended to assist employers and employees transition to “post-COVID” work environments:
- The Technical Assistance provides instruction that applies the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”) to employer policies that either mandate or incentivize employee vaccinations.
- An Employee Resource provides a basic overview of federal anti-discrimination laws that apply to employees in need of leave or job modification due to COVID-19 illness.
The EEOC’s new COVID-19 guidelines highlight complexities that are attendant to the management of worksites and employees, that employers are now facing. An overview of these new guidelines can be found in our COVID-19 Alert.
EEOC Issues New Employer Guidance on COVID-19 Vaccines – Private Employers Poised To Play Front Line Role in Government’s Mass Vaccination Effort
By: Matthew Mitchell & Amanda Thibodeau
On December 16, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued new guidance to employers related to mandatory COVID-19 vaccination programs for employees (the “Guidance”). In broad terms, the Guidance instructs that, subject to certain limits:
- Federal law does not prohibit mandatory employee COVID-19 vaccination programs; and
- Under certain circumstances, employers may bar employees who refuse COVID-19 vaccinations from the workplace.
A summary of what employers need to know about the “Guidance” can be found in our COVID-19 Alert.
EEOC Updates COVID-19-Related Employer Guidance on Antibody Testing
The U.S. Equal Employment Opportunity Commission (“EEOC”) again updated its employer guidance related to COVID-19 late last week, this time with guidance related to employers requiring antibody testing before allowing employees to return to the workplace.
The EEOC previously released guidance allowing employers to conduct temperature checks on employees and to inquire about COVID-19-related symptoms as part of their outbreak mitigation strategies. The EEOC also advised employers that they could require employees to test for COVID-19 prior to returning to the workplace. These are temporary practices that are typically disallowed by the Americans With Disabilities Act (ADA).
The EEOC clarified now, however, that based on guidance from the Centers for Disease Control (CDC), employers cannot require antibody testing before allowing employees to return to the workplace. Antibody testing, the EEOC advises, is considered a medical examination under the ADA and does not meet the “business necessity” standard. Employers may still require viral testing to determine of an employee has an active COVID-19 case, but antibody testing is strictly disallowed.
Morse is focused on assisting our clients through these unprecedented and challenging times. Please contact the Firm should you have questions concerning this subject, or any other COVID-19 response matters.
EEOC Updates COVID-19-Related Employer Guidance
The U.S. Equal Employment Opportunity Commission (“EEOC”) again updated its employer guidance related to COVID-19 late last week, this time with guidance related towards warning employers against falling into traps related to age discrimination or age bias when bringing employees back to work facilities, as well as discrimination based on other factors such as race or national origin, and pregnancy and sex.
Learn about the EEOC’s specific guidance related to age discrimination, harassment and discrimination based on race or national origin, and pregnancy and sex discrimination in our COVID-19 Alert.
EEOC Announces Delay in EEO Data Collections
The U.S. Equal Employment Opportunity Commission (“EEOC”) announced that it will delay the collection of 2019 EEO-1 Component 1 data and the 2020 EEO-3 and EEO-5 data due to COVID-19. The EEOC stated that it recognizes the challenges that EEO filers are currently facing, and that delaying the collection will assist with the filers’ ability to provide accurate and timely data.
The EEOC expects that the collections may begin in March 2021, but will notify filers of the exact date when it is determined.
Morse is focused on assisting our clients through these unprecedented and challenging times. Please contact the Firm should you have questions concerning this subject, or any other COVID-19 response matters. You can find our complete COVID-19 resource collection here.
EEOC Issues Guidelines with Respect to COVID-19 “Higher Risk” Employees
The Centers for Disease Control and Prevention has identified certain groups of individuals as “higher risk” for severe illness from COVID-19.
A growing number of states have effected, or have announced, plans that relate to an easing of shelter-in-place and business closure orders. Many of these plans incorporate specific instructions that relate to higher risk employees, including instructions that exclude higher risk employees from worksites, under certain circumstances.
As emphasized in a recent federal Equal Employment Opportunity Commission (“EEOC”) guidance, state re-opening standards that relate to higher risk employees must be interpreted, and applied by employers, in accordance with federal Americans with Disabilities Act anti-discrimination standards.
Employment law attorneys Matt Mitchell and Amanda Thibodeau summarize the EEOC Guidance in our COVID-19 Alert.
U.S. Supreme Court Rules EEOC Charge is Procedural Requirement, Not Jurisdictional
By: Amanda Thibodeau
As we have discussed previously, Title VII of the Civil Rights Act of 1964 (“Title VII”), is a federal statute that prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin. It also prohibits retaliation against individuals who assert rights under the statute. To assert a claim under Title VII, the statute outlines that as a precondition to filing suit in federal court, a person must file a formal charge with the Equal Employment Opportunity Commission (EEOC) within 180 or 300 days of the alleged violation. But what happens if an individual fails to file such a charge, or fails to list every alleged violation in that charge?
On June 3, 2019, the U.S. Supreme Court answered that question with its ruling in Fort Bend Cty. v. Davis. In Davis, the plaintiff filed an initial charge with the EEOC alleging retaliation for reporting sexual harassment to her employer. While the EEOC case was pending, Ms. Davis contends she was fired for refusing to work on Sundays based upon her religious commitments. Ms. Davis attempted to add to the initial EEOC charge by handwriting “religion” on an EEOC intake questionnaire, but her EEOC charge was never formally amended. She then went on to file her case in federal court, alleging discrimination based upon religion and retaliation.
Several years into the litigation, Fort Bend filed a motion to dismiss based upon Ms. Davis’ failure to file an EEOC charge alleging religious discrimination. Fort Bend alleged the federal court did not have jurisdiction over the claim because Ms. Davis failed to meet Title VII’s charge requirement. The district court granted that motion. The U.S. Court of Appeals for the Fifth Circuit reversed, holding that Fort Bend waived the issue by waiting too long to raise it with the court.
The U.S. Supreme Court then weighed in this week affirming the Fifth Circuit’s opinion, holding that Title VII’s charge requirement is procedural rather than jurisdictional. The Court said Title VII’s charge requirement “is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts.” In short, while Title VII requires an individual to file a charge with the EEOC, the filing itself is not necessarily the act that triggers jurisdiction over the claim, and thus failing to file the charge is not necessarily fatal.
The Court’s ruling does not mean that plaintiffs are free to ignore such claim-processing requirements, however. The Court was clear that the failure to follow such requirements may still be fatal to plaintiffs’ claims; however, defendants must be careful to raise the issue early on – preferably in the answer or an early motion to dismiss. Otherwise, the procedural defects are deemed waived.
For more information on Title VII or other discrimination issues, please contact Matthew Mitchell or Amanda Thibodeau.
UPDATED: Federal District Court Reinstates EEO-1 Pay Data Reporting Requirements (For Now)
By: Amanda Thibodeau
As we previously reported, in March 2019 the U.S. District Court for the District of Columbia issued a ruling concluding that the White House Office of Management and Budget (“OMB”) did not have a sufficient basis to stay pay reporting data requirements (known as “Component 2”) previously announced by the U.S. Equal Employment Opportunity Commission (“EEOC”).
On April 3, 2019 the OMB filed a brief with the U.S. District Court for the District of Columbia proposing a September 30, 2019 deadline for the EEOC to complete the Component 2 pay data collection, which was approved by the Court later that month.
On May 1, 2019, the EEOC announced it expects to begin collecting the Component 2 pay data for both 2017 and 2018 calendar years in mid-July 2019 in anticipation of the September 30, 2019 deadline. The EEOC expects to open a submission portal for employers to submit that data this summer. A copy of the published announcement can be found here.
Employers are still expected to submit their 2018 Component 1 data by the May 31, 2019 deadline.
The Morse Employment Law Group will continue to monitor this issue and provide updates as they become available.
For more information, please contact Matthew Mitchell or Amanda Thibodeau.
Federal District Court Reinstates EEO-1 Pay Data Reporting Requirements (For Now)
By: Matthew Mitchell
In September 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced plans to collect employee compensation data as a component to its annual EEO-1 employer information reporting requirement. This pay data reporting requirement – known as “Component 2” – was slated to go into effect in March 2018, and would have required all private employers with over 100 employees, and certain smaller, government contractors, to report W-2 wage information and total hours worked, for all employees, by race, ethnicity, and sex, within 12 proposed pay bands. Component 2 was an aspect of Obama-era reforms aimed at strengthening EEOC capacity to identify and prevent pay discrimination.
In August 2017, the White House Office of Management and Budget (“OMB”), under the Trump Administration, stayed the implementation of Component 2, indicating that Component 2 disclosure requirements were unreasonably burdensome for employers – the U. S. Chamber of Commerce estimated that Component 2 would result in $400 million in additional administrative costs to employers. That action by the OMB prompted a lawsuit by the National Women’s Law Center and the Labor Counsel for Latin American Advancement against the OMB and the EEOC.
On March 4, 2019, the U.S. District Court for the District of Columbia issued an opinion reinstating Component 2, concluding that the OMB did not have a sufficient basis to support its decision to stay Component 2. The Court’s decision may have significant implications for employers. The current EEO-1 Report filing deadline is on May 31, 2019, and it is unclear whether Component 2 pay data disclosures will be required for the May 31 reporting cycle.
It remains to be seen whether the ruling is appealed, whether the EEOC issues any special instructions in light of the ruling, or whether the EEOC takes steps to revise its EEO-1 reporting guidelines (although the EEOC does not presently have a quorum to effect such a change). Morse Barnes-Brown Pendleton’s Employment Law Group will continue to monitor this issue, and will provide updates as they become available.
For more information, please contact Matt Mitchell.
The #1 Type of Employment Claim Filed with the EEOC is Again Retaliation
By: Robert M. Shea
The federal Equal Employment Opportunity Commission (“EEOC”) has just released its statistics for fiscal year 2014 and for the fifth straight year charges alleging unlawful retaliation by employers was the leading type of discrimination alleged. Retaliation claims accounted for 42.8% of the charges filed with the EEOC, up almost two percent from 2013 to the highest percentage ever. Retaliation was followed by race discrimination (35%), gender, including sexual harassment and pregnancy discrimination (29.3%), disability discrimination (28.6%), and age discrimination (23.2%). The EEOC’s enforcement and litigation statistics for FY 1997 through 2014 are found here.
For an explanation of why retaliation claims have become so common, and guidance on steps employers should take to avoid claims, please refer to this March 2013 article.
Please contact the Employment Law team for more information.
Employment Law Clip: Retaliation Claims and Steps Employers Can Take to Avoid Them
According to the federal Equal Employment Opportunity Commission’s (“EEOC”) statistics, 2013 was the fourth straight year when charges alleging unlawful retaliation by employers was the leading type of discrimination alleged. Retaliation claims accounted for 41.1% of the charges filed with the EEOC in 2013, up three percent from 2012. Retaliation is now the most common type of discrimination alleged nationally, topping both race and gender. What are retaliation claims and what steps can employers take to reduce their risks?
Still need more information? Try one of our other resources:
- Avoiding Employee Claims of Unlawful Retaliation
- Retaliation Once Again Is the Top Type of Claim Filed with the EEOC
Please feel free to contact any member of our Employment Law Group with any questions.
MBBP’s Employment Law Clip Series provides quick, easy-to-digest snapshots of common Employment issues, as well as practical information on how to avoid complicated, expensive and time-consuming pitfalls. Visit our YouTube page to see all Employment Law Clip videos.
Retaliation Once Again Is the Top Type of Claim Filed with the EEOC
By: Robert Shea
The federal Equal Employment Opportunity Commission (“EEOC”) has released its statistics for fiscal year 2013 and for the fourth straight year charges alleging unlawful retaliation by employers was the leading type of discrimination alleged. Retaliation claims accounted for 41.1% of the charges filed with the EEOC, up three percent from 2012. Retaliation was followed by race discrimination (35.3%), gender, including sexual harassment and pregnancy discrimination (29.5%), disability discrimination (27.2%), and age discrimination (22.8%). The EEOC’s enforcement and litigation statistics for FY 1997 through 2013 can be found here.
For more information on this topic please contact any member of our Employment Law Group.
Scott Connolly Presents on Defending Discrimination Claims
On September 26, 2013, MBBP employment attorney Scott Connolly spoke on a panel at Boston College Law School on the subject of defending discrimination and retaliation claims before the Massachusetts Commission Against Discrimination (MCAD). Scott, who has been defending employers against such claims for more than 12 years, presented to a panel of third-year law students on case evaluation, witness interviews, procedure, development of defenses, and preparation of employer Position Statements.
Employers with questions about responding to charges of discrimination or retaliation at the MCAD or the federal Equal Employment Opportunity Commission should feel free to contact Scott about this area of practice.
Massachusetts Employment Law Blog 