The Biden administration has been preoccupied with fighting COVID-19, distracting it from broader policy objectives. As a result, the Equal Employment Opportunity Commission (EEOC), the federal agency charged with interpreting and enforcing employment- related civil rights laws, has not yet pivoted substantially from the Trump administration. Change, however, is coming, particularly as more EEOC commissioner positions turn over in 2022.

With the impact of the pandemic still on its mind, the Biden administration has previewed some changes in EEOC priorities. First, the EEOC has noted COVID-19’s disproportional impact on people of color. Consequently, we can expect race and national origin discrimination claims to be an enforcement priority moving forward. Furthermore, the EEOC is concerned about discrimination against, and harassment of, Asians based on beliefs regarding the origins of COVID-19.

Following the mass layoffs and furloughs in response to the economic slowdown, the EEOC seems particularly interested in claims arising out of the hiring context. Industries and employers hit hard by the pandemic will be under scrutiny as they hire back to pre-pandemic levels. Related to that, the EEOC will be on the lookout for pay disparity claims as employees return to work.

Not all forthcoming priorities will stem from the pandemic. For example, in June 2020, the Supreme Court ruled that Title VII of the Civil Rights Act protects employees from sexual-orientation and gender-identity discrimination. This outcome effectively expanded the EEOC’s jurisdiction, as sexual orientation claims were mostly left to the states, which ranged from offering comprehensive protection to no protection. It seems likely that the new EEOC will issue enforcement guidance for this evolving area.

The EEOC probably will try again to expand the scope of employer EEO-1 reporting. Such reporting historically has only included race and gender data, but the EEOC has attempted to require disclosure of compensation data to enable sophisticated pay equity audits and analysis. The Biden administration may attempt to push this forward again.

The commission appears interested in exploring disparate impact claims based on employers’ use of algorithms and other artificial intelligence to assist in winnowing applicant pools and hiring. This comes on the back of the EEOC’s scrutiny of employers’ use of Facebook and other social media to target potential applicants.

Additionally, the commission may take a fresh look at the Older Workers Benefits Protection Act, which impacts how employers structure and execute reductions in force. In particular, it may push for even greater transparency in the decision-making process, despite the frustration from management that current disclosure requirements infringe on employee privacy and are administratively burdensome.

Finally, the Biden administration EEOC will likely turn back to employee classification issues that were center stage during the Obama administration: joint employment and independent contractors.

Joint employment implicates the use of temporary workers, and the EEOC will want to ensure that both the temp agency and its employer-client are equally responsible for employment law compliance. The topic of independent contractors, brought to the public eye through high-profile gig-economy companies like Uber, affects businesses in all industries.

Many federal and state agencies are scrutinizing employers’ use of contractors, resulting in violations and penalties ranging from the Internal Revenue Service to unemployment offices. The EEOC expands its jurisdiction by restricting the use of contractor status, and it is sure to revisit this timely issue.

If any of these priorities strike a chord with you as you evaluate your organization’s compliance, don’t hesitate to reach out to us.

David James and Joe Schmitt are shareholders in the labor and employment group at Nilan Johnson Lewis. Association members are entitled to 60-minute, no-cost, confidential consultations with the attorneys. Call the firm at (612) 305-7500.

This story appeared in the winter issue of Ag Innovator magazine, which published last week. Find it at .

President Joe Biden signed two executive orders earlier this month and broadly signaled efforts to require employers to take significant steps to curb COVID-19.

While the pronouncements impact numerous workplaces, such as federal offices and health care settings, the most notable impact for Association members are the regulations for federal contractors and private employers with more than 100 employees. Guidance for these two groups is forthcoming, but we wanted to share what we know thus far.

Private Sector Employers with at Least 100 Employees

Presidents can get around including Congress in regulatory decisions for the private sector by using existing federal agencies such as the Equal Employment Opportunity Commission or the National Labor Relations Board. In this case, Biden selected the Department of Labor’s Occupational Safety and Health Administration (OSHA) in the name of workplace safety.

OSHA has been charged with developing rules that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on a weekly basis. The negative-test alternative likely will serve as accommodation for employees with religious or health-related objections.

In the coming weeks, OSHA will issue an emergency temporary standard to implement this requirement, which can remain in place for up to six months before more formal regulations must be installed. That six months will offer employers opportunities to comment.

OSHA is also directed to establish a rule that will require all such employers to provide paid time off to permit workers to get vaccinated or recover from post-vaccination side effects. This requirement previously applied to certain health care employers, but the rule would expand the requirement to all large employers.

While there almost certainly will be legal challenges to the regulations, OSHA’s authority to protect the safety of the workplace is broad, and employers should not assume implementation and enforcement will be tied up in the courts. For unionized workforces, federal law will limit a union’s ability to negotiate over implementation of a vaccine mandate, though there may be room for discussion about the consequences of this rule, often referred to as “effects bargaining.”

The federal government has not given us a preview of the forthcoming regulations, but it is not too early for applicable employers (i.e., those who are federal contractors and have 100-plus employees) to start considering whether to mandate vaccinations altogether or permit weekly testing as an alternative.

OSHA will likely provide guidance on who would bear the cost of such testing, but there is a reasonable chance that employers must do so, either pursuant to OSHA’s regulations or state law.

That said, some states offer free testing, including both on-site and kits to test from home. In the short term, members ought to consider the testing options available in your location, which may influence whether to mandate vaccinations altogether or permit this alternative.

Federal Contractors

Presidents have broad authority to regulate contractors through their procurement powers, effectively creating rules for the organizations with which they do business.

Biden established the Safer Federal Workforce Task Force in January, which issued guidance for federal workforces. His latest executive orders extend the task force’s jurisdiction to federal contractors. Furthermore, it directs the task force to implement “a program to require COVID-19 vaccination…with exceptions only as required by law.”

The exceptions are a nod to the requirements under Title VII of the Civil Rights Act to accommodate religious conflicts and under the Americans with Disabilities Act to accommodate health- related impediments to receiving the vaccine. But the directive does not appear to permit any other accommodations, such as weekly testing as an alternative, or relaxed requirements for teleworkers.

The task force’s guidance will arrive in the coming weeks. In the meantime, federal contractors should prepare for the requirement to mandate vaccinations in their workplace.

David James and Joe Schmitt are shareholders in the labor and employment group at Nilan Johnson Lewis. Association members are entitled to 60-minute, no-cost, confidential consultations with the attorneys. Call the firm at (612) 305-7500.

As vaccine distribution accelerates, however, so do questions from employers about whether they can require employees to be vaccinated.

Employment lawyers feared that the Equal Employment Opportunity Commission (EEOC) would be tone-deaf to the public health crisis. Surprisingly, the EEOC took a flexible view of mandatory vaccinations, with notable caveats.

The Americans with Disabilities Act (ADA), which the EEOC would interpret and enforce as part of the vaccine question, severely limits employers’ use of practices deemed “medical examinations” in the workplace.

The EEOC has concluded, however, that because a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination. The ADA does not restrict employers’ general ability to mandate vaccinations.

Of course, there are notable caveats. First, pre-screening inquiries—questions asked before the vaccine is administered—may implicate the ADA, as they may reveal information about the employee’s health. As a result, if employers engage a third-party health provider to administer vaccinations on site, it is important that management stay distant from that process and instruct the third-party not to share information regarding any of the pre-screening questions. If an employee attempts to receive the vaccination and reports to her manager that she was unable to do so, leadership should not ask why.

In a related matter, employers may require proof of vaccination before allowing employees back on site, but asking follow-up questions of an employee who cannot offer such proof creates a risk that employees may reveal medical information. To that end, employers should instruct employees up front that they should not provide any information to explain their proof or lack of proof of vaccination; it should be a simple yes/no question.

Next, employers should be prepared to accommodate employees who cannot receive a vaccination because of a disability. For example, management should consider whether there are other ways to reduce or eliminate the risk, such as PPE or an isolated work environment. And, if the job can be performed remotely, then working from home almost certainly would be required as a reasonable accommodation.

Even if no accommodation is feasible, it may be prudent to provide a leave of absence, rather than jump to termination, to allow (a) time for more data regarding the risks of partially vaccinated workplaces, and (b) other employees to proceed with their vaccinations, thereby reducing the risk of a workplace spreader event.

Finally, employers should be prepared to undertake a similar accommodation analysis if an employee states that he will not receive the vaccination for religious reasons. While the law only protects a sincerely held religious belief, judicial precedent has dramatically limited employers’—and courts’—abilities to second-guess an alleged conviction.

Thus, as a practical matter, the accommodation analysis should be the same for an individual with a disability and an individual claiming a religious prohibition.

If an employee refuses to receive a vaccination and does not indicate that the refusal is the result of a disability or religious conviction, then employers are free to prohibit returning the employee to on-site work and may consider termination. In exploring this option, a consistent practice will be essential.

For example, if management permits a top performer a leave of absence, and promptly discharges another employee, it opens the door for a variety of wrongful termination claims, such as discrimination or retaliation. When considering whether to mandate vaccinations, it is important to consider whether the organization will be willing and able to follow through with a consistent response to employees who refuse the vaccination without excuse.

Ultimately, the EEOC’s blessing of mandatory vaccination policies is a great development, but traps remain. If you adopt this policy, be sure that you are prepared to provide accommodations and treat those who refuse to vaccinate without a valid excuse consistently.

James and Schmitt are shareholders in the labor-and-employment group at Nilan Johnson Lewis. Association members are entitled to no-cost, 60-minute consultations with them. Call the firm at (612) 305-7500.

California employers are accustomed to a fast-changing regulatory landscape, but even by California standards, the 2020 regulatory onslaught has been fierce. Association members should be careful to stay abreast of these new legal obligations. Among the most important:

COVID-19 Requirements

California adopted a new COVID-19 statute, effective immediately, which requires larger employers (generally those with more than 500) to provide additional paid sick leave. In addition, effective Jan. 1, all California employers will be required to post a notice in their workplace within one business day if they have information that there has been a potential exposure to COVID-19.

The employer notice must provide details regarding the exposure, information about benefits available to the employees, and data regarding the employer’s remediation plan. The statute also requires employers to notify the local public health agency of the potential exposure within 48 hours. Finally, the statute prohibits employers from requiring employees to disclose medical information, prohibits retaliation against employees for disclosing a positive test result, and allows employees to file retaliation complaints.

Worker’s Compensation

California enacted a statute, effective immediately, that creates a presumption that any essential employee who tests positive for COVID-19 is entitled to worker’s compensation coverage. The employer may rebut this presumption by showing that the employee contracted COVID-19 outside of the workplace, but absent evidence of such exposure, the employee will receive worker’s compensation benefits, and those costs will be attributed to the employer.

Kin Care

Effective Jan. 1, California employers must allow employees to determine whether they wish to use sick leave. Thus employers may no longer designate time off taken by employees as sick leave; only the employee may make that decision. As a practical matter, this means that employees may take time off, classify that time as something other than sick leave, and save the sick leave. Notably, the federal Department of Labor has taken the opposite position regarding federal FMLA leave, leaving employers to navigate this conflict.

Independent Contractors

California moved in two directions on the independent contractor front. The legislature adopted a new statute, known as AB5, that significantly restricts the circumstances under which a business may classify a worker as an independent contractor. The legislature essentially adopted the so-called Dynamex test, which, among other things, precludes a business from classifying a worker as an independent contractor if that worker is providing services integral to the employer’s business.

Meanwhile, the public voted for an industry-sponsored bill limiting the application of the Dynamex test and allowing businesses in certain industries (notably, ride-sharing and delivery) to treat workers as independent contractors. Unfortunately, those exceptions are unlikely to apply to Association members. We recommend against classifying workers in California as independent contractors unless you have consulted with an attorney.

Pay Data

Effective Jan. 1, California employers with more than 100 employees will be required to provide pay data to the state government.

Board of Directors Representation

Effective Dec. 31, 2021, all publicly held corporations with their principal executive offices in California must have a member of an underrepresented community on their board of directors.

Amazingly, these are only the highlights of the new statutes and regulations in California. Association members with California employees are well-advised to carefully monitor new legislative and regulatory activity.

David James and Joe Schmitt are shareholders in the labor and employment group at Nilan Johnson Lewis. Member companies are entitled to 60-minute, no-cost consultations with the attorneys. Call the firm at (612) 305-7500.

In general, an employee’s exclusive remedy for work-related illness stems from the state’s workers compensation laws, which provide medical expenses, lost wages and rehabilitation costs for employees injured in the course and scope of their employment.

In general, an employee’s exclusive remedy for work-related illness stems from the state’s workers compensation laws, which provide medical expenses, lost wages and rehabilitation costs for employees injured in the course and scope of their employment.

COVID-19 has led to questions about what exactly constitutes an “injury” or “occupational disease” in workers compensation claims. In many states, workers compensation coverage does not include “ordinary diseases of life.” While employers should review work comp laws in their states, an “ordinary disease of life” is commonly defined as an illness to which the public is equally exposed, thus it is not unique to the nature of an employee’s job. Consequently, many states have moved quickly to try to clarify and/or expand workers compensation to afford protection if employees become infected.

COVID-19 has led to questions about what exactly constitutes an “injury” or “occupational disease” in workers compensation claims. In many states, workers compensation coverage does not include “ordinary diseases of life.” While employers should review work comp laws in their states, an “ordinary disease of life” is commonly defined as an illness to which the public is equally exposed, thus it is not unique to the nature of an employee’s job. Consequently, many states have moved quickly to try to clarify and/or expand workers compensation to afford protection if employees become infected.

Some states, like California, have gone as far as creating a rebuttable presumption that workers who contract COVID-19 are presumed to have a workplace injury that is covered. However, in states where COVID-19 is not covered by workers compensation, the exclusive remedy provision does not apply, and employees may be more likely to sue their employers.

As a result, employers may consider trying to limit their exposure to liability by having employees sign waivers releasing claims that the company did something negligent that caused infection.

Some states prohibit waivers. In other states, however, it has not yet been tested if such waivers might be enforceable, which leaves some employers wondering whether they should ask employees to sign one, particularly in situations where the employee is traveling by car or plane and therefore outside of the office space where the employer has implemented its safety protocols and can manage compliance.

Imagine, for example, a situation where someone flies from New York to Iowa for a masked and socially distanced business meeting, then after returning, finds out he or she has contracted COVID-19.

If the employee had signed a waiver, would that provide protection for the employer in a state where workers compensation laws don’t cover COVID-19? What if the employee had gone to an indoor bar or crowded public space with no mask after the business meeting ended?

The answer is maybe, but there are other important considerations to balance.

First, enforceability of this type of waiver will be questioned because of the unequal bargaining power between the employer and the employee.

Second, in states that enforce liability waivers, they typically are limited to negligence and will not be enforced to the extent they purport to waive liability for conduct that rises above ordinary negligence.

Third, a waiver cannot protect employers from OSHA complaints or enforcement actions when a workplace is dangerous, even in light of recent regulation making exceptions for employees who attempt in good-faith to follow agency regulations during the pandemic.

And fourth, the use of a waiver cannot replace the need for the employer to maintain a safe workplace and to comply with evolving laws, guidance and regulations at the state and local level, as well as from the CDC, OSHA and the EEOC.

Businesses also should consider the optics of asking employees to sign waivers. They risk discouraging employees from continuing to return to work, creating the appearance the business is looking out for its own interests more than its employees, poor morale, and even potential publicity concerns.

Companies will want to weigh these potential risks against the possible protections that a travel waiver will provide in the event an employee contracts COVID-19 or other illness.

Christy Mennan and DJ Warden are shareholders at Nilan Johnson Lewis. They specialize in product liability/mass tort. Warden also specializes in business litigation.