EEOC Provides Insight on COVID/Vaccinations

During a recent webinar, the EEOC revealed the following information:

  1. Since April 2020, 30% of all COVID-related EEOC charges involved a vaccine dispute, but only around 11% of charges related to ADA claims, meaning that many COVID-related charges stem from religious accommodation requests or related discrimination allegations.
  2. The EEOC reaffirmed that confirmed an employer may ask employees their vaccination status without violating federal anti-discrimination laws (i.e., just yes/no).
  3. Employers should assume a request for a religious accommodation is legitimate – unless there’s objective basis to challenge.
  4. A reasonable accommodation for not getting vaccinated does not have to be the one chosen by the employee.
  5. Consider allowing remote work if it allows the employee to perform the essential functions of the job.
  6. Having COVID can be a disability under the ADA (such as long haulers).

NLRB Seeks To End “Captive Audience” Meetings

NLRB General Counsel Jennifer Abruzzo recently issued GC Memo 22-04 stating that employer scheduled “captive audience” meetings violate the National Labor Relations Act because they “force” employees to listen to free speech about union representation; instead, the NLRB would require attendance at such meetings to be wholly voluntary. Such meetings are common during a union campaign and for many years, employers have been permitted to hold such meetings during working time to address union representation.

CT Just Passed “Captive Audience” Meetings Law

On the state level, CT passed Senate Bill 163 (An Act Protecting Employee Freedom of Speech and Conscience), which goes into law on July 1, 2022 if signed by Governor Lamont. Essentially it bans employer “captive audience” meetings. CT would then join Oregon as the only states with bans on employer-sponsored meetings. The ban would be imposed if the primary purpose of that employer speech is to “communicate the employer’s opinion on religious or political matters”, which is defined as ““matters relating to elections for political office, political parties, proposals to change legislation, proposals to change regulation and the decision to join or support any political party or political, civic, community, fraternal or labor organization.”

NYC Council Postpones Effective Date of Pay Transparency Law

In January, NYC Council voted to require many ads for jobs in NYC to include salary ranges; however, the Council voted last Thursday to postpone the law for five months. After employers raised issues with the new law, the Council amended the legislation to exempt jobs carried out entirely elsewhere and shift the effective date from May 15 to Nov. 1. But the Council rejected other changes sought by businesses, such as exempting general “help wanted” signs and businesses with under 15 employees.

A Warning to Employers Who Place Arbitration Agreements in Handbooks

In Coady v. Nationwide Motor Sales Corp., the Fourth Circuit Court of Appeals (which includes North Carolina, South Carolina, and Virginia) concluded that an arbitration agreement contained in the company’s employee handbook did not bar employees from bringing a lawsuit over unpaid commissions (despite the employer’s motion to compel arbitration). While this case only has effect in the Fourth Circuit, it illustrates the importance of a properly drafted, standalone arbitration agreement.

EEO-1 Reporting Deadline?

A new FAQ from the EEOC stated that they will permit employers to submit their EEO-1 Reports after the May 17, 2022 deadline—during what EEOC is calling the “failure to file” phase:

“All filers who have not submitted and certified their mandatory 2021 EEO-1 Component 1 Report(s) by the Tuesday, May 17, 2022 published deadline will receive a notice of failure to file instructing them to submit and certify their data AS SOON AS POSSIBLE, and NO LATER THAN TUESDAY, JUNE 21, 2022. This additional time, through Tuesday, June 21st, 2022, will be available to ALL filers who have not submitted and certified their 2021 EEO-1 Component 1 Report(s) by the May 17, 2022 published deadline.

But, the FAQ cautions:

“Please be advised that AFTER the June 21, 2022 deadline passes, NO additional 2021 EEO-1 Component 1 Reports will be accepted, and eligible filers will be out of compliance with their mandatory 2021 EEO-1 Component 1 filing obligation.

However, even though the FAQ seems to provide additional time, the official submission deadline remains May 17th.

Gordon M. Berger


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