This week, President Biden moved the National Labor Relations Board one step closer towards having a majority of members with pro-union backgrounds. This occurred after Biden nominated his second new member to fill one of the NLRB’s five seats. Biden selected David Prouty, an attorney who has spent his career representing labor unions. If Prouty is confirmed, he will fill the seat that becomes vacant when Republican William Emanuel’s term expires this August. Continue Reading
From our Capital Thinking blog, our public policy colleague Stacy Swanson shares the latest federal employment law developments in in the legislative and executive branches during the week of June 14, 2021.
This is a weekly post spotlighting labor topics in focus by the US legislative and executive branches during the previous week. In this issue, we cover:
- Labor Department’s Spring 2021 Regulatory Agenda
- Biden Administration Labor Leadership Updates
- Senate HELP Republican Leaders Press for a Hearing on the President’s Budget Proposal
- House Education & Labor Subcommittee WIOA Hearing
- House Republicans Challenge Ethics Waivers for Union Individuals
- OSHA Grants Announced for Non-Profit Organizations
- Labor Department Grants Related to Female Workers
- GAO Report on Racial & Ethnic Disparities and Unemployment Insurance Benefits
Squire Patton Boggs Summer Associate Taylor Hamel summarizes guidance recently released by the U.S. Equal Employment Opportunity Commission relating to Sexual Orientation and Gender Identity Discrimination.
On June 15, 2020, the U.S. Supreme Court issued its landmark decision in Bostock v. Clayton County, holding that the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 includes employment discrimination based on sexual orientation or transgender status. The Court reached that conclusion because, in its opinion, an employer who fires or otherwise discriminates against an individual simply based on their sexual orientation or gender identity does so “because of… sex.” The Bostock case was one of three consolidated cases—two that dealt with sexual orientation discrimination by an employer and one in which the employer discriminated based on the employee’s transgender status. The Court’s decision was driven by its reasoning that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.” Our prior blog post with a detailed review of the decision can be found here. Continue Reading
In our webinar last week we looked at the law around whistleblowing with particular reference to how what is now quite an old legal concept may be used for the best or worst of reasons by employees returning to the office. The good faith airings of concerns around gaps in the employer’s Covid precautions must be welcomed, but we anticipate considerable resistance in other quarters to a return to full office-based working, and little puts a spoke in the employer’s wheels on that front quite so effectively as a health and safety-related complaint. After all, there is little that is definite in the precautions that any given employer must take, merely all those that are reasonably practicable. As the issue of reasonable practicability is to some extent a matter for the eye of the beholder and the risk from covid so obvious if proper precautions are not taken, it is rarely difficult for an employee to claim that something more could be done or have been done and therefore that the employer is in breach. Is that a grievance, an objection under Sections 44 or 100 (see Dealing with health and safety fears of returning to the workplace (UK)), a protected disclosure or all three? Does it matter? We expect an upswing in all of them, perhaps combined tactically with flexible working applications to remain WFH for so long as possible.
Squire Patton Boggs Summer Associate Sydney Finley summarizes a recent opinion from the United States Court of Appeals for the Fourth Circuit addressing an employers’ obligation to provide job-sharing as a reasonable accommodation under the Americans with Disabilities Act.
The United States Court of Appeals for the Fourth Circuit—which covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia – clarified in an opinion issued on June 8, 2021, that the Americans with Disabilities Act (“ADA”) does not require employers to create an entirely new position to accommodate an employee’s disability. More specifically, the Court held that a new, part-time job-sharing position that requires managerial approval to create is not a reasonable accommodation because the ADA does not require companies to create new positions to accommodate their employees with disabilities.
Squire Patton Boggs Summer Associate Gabrielle Martin summarizes substantial changes to Illinois’ Freedom to Work Act included in recently-passed legislation which will impose significant new requirements and limitations on the use of non-competition and non-solicitation covenants in Illinois.
Joining an emerging trend among the states to place statutory limits on the ability of employers to both enter into and to enforce agreements requiring employees to refrain from post-employment competition and solicitation, on May 31, 2021, the Illinois legislature passed Senate Bill 672 which will impose substantial restrictions on when employers can enforce those agreements, also called restrictive covenants, against Illinois employees. The proposed law, which Governor Pritzker is expected to sign into law, amends the Illinois Freedom to Work Act to clarify previously unclear provisions of that law, establishes new requirements for agreements with restrictive covenants, and codifies standards and restrictions applying specifically to non-solicitation covenants. Continue Reading
On June 10, 2021 the Occupational Safety and Health Administration (OSHA) released long-awaited updated guidance on what actions employers should take to mitigate the spread of COVID-19 in light of an increasingly vaccinated population. The guidance supplements, and does not replace or diminish, any applicable state or local orders. Note also that OSHA released on the same day a separate (916-page!) Emergency Temporary Standard (ETS) applicable to certain healthcare employers, which we blog about here.
OSHA’s guidance indicates that employers (except for those covered by the ETS and in public transportation settings) generally do not need to implement any special COVID-19 mitigation measures to protect employees who are fully vaccinated. However, employers must still take steps to protect unvaccinated and at-risk workers. OSHA describes “at-risk” workers as individuals who may not get a full immune response to vaccination or cannot get fully vaccinated due to certain medical conditions (including those with weakened immune systems due to transplants, certain medications, and/or other medical conditions, per the CDC). Continue Reading
Since the outbreak of COVID-19, the Occupational Safety and Health Administration had limited itself to issuing general guidance concerning COVID-19, as opposed to specific rules or standards. On Thursday, however, OSHA announced that it will issue its first standard specific to COVID-19 for healthcare workers. Although the standard is temporary, it creates significant obligations for healthcare systems, assisted living facilities, home healthcare providers, and other OSHA-covered entities that employ healthcare workers. It also further signals that OSHA likely will issue specific COVID-19 standards for other industries in the near future. Continue Reading
The Forstater – v – CGD Europe gender identity case last week has attracted a great deal of coverage for its conclusion that beliefs that gender is fixed at birth and immutable are worthy of respect in a democratic society.
Actually, the key point to the case in practical terms is something else entirely, a matter of potentially significant impact to employers quite untroubled by gender identity issues.
Ms Forstater’s beliefs became the subject of Employment Tribunal litigation because her tenure as lecturer with CGD Europe was not renewed when colleagues found offensive some of her social media posts on the topic. She claimed that this decision was discriminatory, but for that, her belief that gender never really changed needed to be one protected under the Equality Act.
Less than a week after adopting a controversial proposal that would have required vaccinated employees to wear masks any time they were in a room with an unvaccinated person, the California Occupational Safety and Health Standards Board voted to withdraw the proposal. The Board plans to consider a new proposal at its next regular meeting on June 17. This proposal is to be prepared by CAL-OSHA staff in conjunction with the California Department of Public Health and will likely be more in line with that Department’s just-release updated face covering guidance. The new CDPH guidance substantially reduces the occasions when vaccinated individuals are required to wear masks outside of work settings.
If a new rule is adopted on June 17 as anticipated, it will be submitted for review by the Office of Administrative Law and likely will not take effect until June 28. In the meantime, the Emergency Temporary Standard adopted in November 2020 will continue in force. This means that while many rules in the State will loosen effective June 15, workplace rules subject to CAL-OSHA authority will remain unchanged until at least the end of June.