Businesses are constantly challenged by the ever-evolving landscape of labor and employment law, with new legislation and judicial developments occurring almost daily fueling a seemingly never-ending stream of litigation. For companies operating in multiple states, complying with this patchwork of federal, state, and local laws and developments can be daunting. Knowing these issues are a top concern for management and in-house counsel, Morrison Foerster keeps pace with this rapidly evolving landscape. MoFo ELC equips our clients with the most up-to-date and relevant information on employment and labor law issues covering key judicial, litigation and legislative developments, their implications for employers, and strategies to ensure compliance and avoid lawsuits.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Co-Chair, Global Employment and Labor Practice

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Andrew Turnbull represents companies on a broad range of labor and employment litigation and counseling matters. He has successfully defended clients in complex employment litigation before federal and state courts and administrative agencies. A primary focus of his practice involves helping companies navigate the unique employment issues that arise when doing business with the federal government, including advising on all aspects of OFCCP compliance, creating and implementing affirmative action plans, defending OFCCP audits and onsite investigations, conducting mock pay equity audits, drafting and developing business ethics policies and programs, and complying with the Service Contract Act, E-Verify, and the Drug Free Workplace Act.

Andrew Turnbull

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MoFo ELC equips our clients with the most up-to-date and relevant information on employment and labor law issues, covering key judicial, litigation, and legislative developments, their implications for employers, and strategies to ensure compliance and avoid lawsuits. To learn more about our capabilities, please visit the <a href="https://www.mofo.com/capabilities/employment-labor" target="_blank">Employment + Labor</a> practice page and read about our <a href="https://www.mofo.com/people?practices=Employment%20%2B%20Labor" target="_blank">Team</a>.

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Fourth Circuit Stays Injunction of Trump DEI Executive Orders

President Trump Rescinds Affirmative Action for Federal Contractors and Requires Enforcement Plan to End Unlawful DEI at Private Companies

FAR Council Withdraws “Pay Equity and Transparency” Proposed Rule

The “Preventative Duty”: New Law Places Active Duty on Employers in the UK to Prevent Sexual Harassment in the Workplace

Good News for Employers: Texas Court Blocks FTC’s Non-Compete Ban

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With a record breaking 4.5 million Americans quitting their jobs in March 2022, the Great Resignation has created a tension between meeting the increased business demand for talent, and compliance with the growing patchwork of pay equity and transparency laws. Numerous states and localities have passed, or are considering passing, laws requiring companies to disclose their pay ranges to applicants and employees and submit data to government agencies on their pay equity practices. This trend follows after many states amended their laws in the last few years to make it easier to pursue class and individual pay discrimination claims. Governmental enforcement agencies, such as OFCCP and EEOC, are also continuing to make pay discrimination a key enforcement priority. In the war for talent, some employers are being forced to let their pay equity compliance take a back seat to the increasing need to attract and retain employees. Join us as we explore these compliance challenges and discuss practical solutions for navigating them in the current competitive labor market. Topics to be discussed include:<ul><li>The impacts of the Great Resignation on pay equity practices;</li><li>The trend of pay equity, transparency, and reporting laws, including laws in California, Colorado, Illinois, New York City, Massachusetts, Washington, and more;</li><li>Trends in enforcement of pay discrimination claims at EEOC, OFCCP, and state agencies; and</li><li>Practical steps for navigating compliance and employee relations issues arising from these trends during a hot job market.</li></ul><div><a target="_blank" href="https://www.veracast.com/webcasts/mofo/mcle-programs/b17D2K.cfm">On-Demand Replay</a></div>

Andrew co-chairs the firm’s Global Employment and Labor Group. He represents companies on a broad range of labor and employment litigation and counseling matters, successfully defending clients in number complex matters before federal and state courts and administrative agencies.

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Eric has experience defending class action, labor and employment, and intellectual property matters, including developing procedural strategies for clients preparing for trial, as well as examining in

Eric Gebert

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Navigating Pay Equity and Transparency Compliance During the Great Resignation

What You Need to Know About Restructuring and the Energy Crisis

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With a record breaking 4.5 million Americans quitting their jobs in March 2022, the Great Resignation has created a tension between meeting the increased busine

Navigating Pay Equity and Transparency Compliance During the Great Resignation

On December 7, 2021, the U.S. District Court for the Southern District of Georgia ordered a nationwide injunction of Executive Order 14042 (the EO or EO 14042), temporarily suspending the EO’s vaccination, masking, and social distancing requirements and all implementing guidance. Although the Georgia court’s nationwide injunction likely will remain in effect for the immediate future, federal contractors and subcontractors should consider continuing some efforts to prepare for compliance with the EO in case the injunction is overturned. They should balance such efforts with the patchwork of seemingly conflicting state and local mandates, including mandatory masking and social distancing laws on the one hand and anti-vaccination laws on the other hand.  To learn more, read our <a href="https://www.mofo.com/resources/insights/211208-georgia-court-issues-nationwide-injunction.html">client alert</a>.

J. Alex Ward is co-chair of Morrison Foerster’s Government Contracts and Public Procurement group. 

J. Ward

Alex is co-chair of Morrison Foerster’s Government Contracts and Public Procurement practice. His practice covers a full range of government contracts matters, including bid protests, claims, investigations, corporate transactions, and counseling.

J. Alex Ward

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Georgia Court Issues Nationwide Injunction of Executive Order 14042—How Should Contractors Respond?

New Guidance on COVID-19 Protocols for Contractor Employees at Federal Facilities

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On December 7, 2021, the U.S. District Court for the Southern District of Georgia ordered a nationwide injunction of Executive Order 14042 (the EO or EO 14042),

Georgia Court Issues Nationwide Injunction of Executive Order 14042—How Should Contractors Respond?

Since our October 14, 2021 webinar, much has developed in the rapidly evolving compliance world of <a href="https://www.whitehouse.gov/briefing-room/presidential-actions/2021/09/09/executive-order-on-ensuring-adequate-covid-safety-protocols-for-federal-contractors/" target="_blank">Executive Order 14042</a>, Ensuring Adequate COVID Safety Protocols for Federal Contractors (“EO” or “EO 14042”). In case you missed it, we issued two prior alerts on some of these developments (available <a href="https://govcon.mofo.com/labor-employment/new-task-force-guidance-signals-some-flexibility-for-contractors/" target="_blank">here</a> and <a href="https://www.mofo.com/resources/insights/211108-federal-court-temporarily-halts-osha-ets-eo" target="_self">here</a>), the latest of which discusses the Occupational Health and Safety Administration (OSHA) November 4, 2021 emergency temporary standards (ETS) currently stayed by the U.S. Court of Appeals for the Fifth Circuit. These standards impose similar—but separate—COVID-19 vaccination and testing requirements for companies with 100 or more employees, regardless of whether or not the companies are federal contractors.To learn more, read our <a href="https://www.mofo.com/resources/insights/211112-untangling-the-vaccine-mandate.html?utm_source=publication&utm_medium=email">client alert</a>.

Of Counsel

Jim Tucker is of counsel in Morrison & Foerster’s Government Contracts and Public Procurement Practice Group and is based in the firm’s Washington, D.C. office.
Jim’s practice runs the gamut of litiga

James A. Tucker

Jim maintains an active practice in bid protests before the Government Accountability Office and contracting agencies and counsels clients in contract disputes and compliance obligations.

James Tucker

Untangling the Vaccine Mandate – Updates and Answers to Frequently Asked Questions

Since our October 14, 2021 webinar, much has developed in the rapidly evolving compliance world of Executive Order 14042, Ensuring Adequate COVID Safety Protoco

Untangling the Vaccine Mandate – Updates and Answers to Frequently Asked Questions

Less than three days after the Occupational Health and Safety Administration (“OSHA”) released its November 4, 2021 emergency temporary standards on COVID-19 vaccines and testing (the “ETS”), on November 6, 2021, the U.S. Court of Appeals for the Fifth Circuit temporarily stayed the ETS, citing the “grave statutory and constitutional issues with the Mandate.”  As <a href="https://www.mofo.com/resources/insights/211105-new-osha-ets-covid-19.html?utm_source=publication&utm_medium=email">previously reported</a>, the OSHA ETS mandates that by January 4, 2022, all employers with 100 or more employees have its employees be vaccinated or subject to COVID-19 testing and masking requirements by January 4, 2022.  The ETS also contains a host of other compliance obligations that employers would need to put in place by December 5, 2021, if the ETS survives legal challenge.To learn more, read our <a href="https://www.mofo.com/resources/insights/211108-federal-court-temporarily-halts-osha-ets-eo" target="_self">client alert</a>.Morrison & Foerster associate Samuel Ison contributed to the writing of this post.

Federal Court Temporarily Halts OSHA ETS—EO 14042’s New January 4, 2022 Vaccine Deadline Remains

Less than three days after the Occupational Health and Safety Administration (“OSHA”) released its November 4, 2021 emergency temporary standards on COVID-19 va

Federal Court Temporarily Halts OSHA ETS—EO 14042’s New January 4, 2022 Vaccine Deadline Remains

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) released its highly anticipated <a href="https://www.federalregister.gov/documents/2021/11/05/2021-23643/covid-19-vaccination-and-testing-emergency-temporary-standard">emergency temporary standards for COVID-19</a> (the “ETS”) along with a landing page on its website with various compliance materials, FAQs, and a pre-recorded webinar. As expected, the ETS mandates that all employers with 100 or more employees require its employees to be vaccinated or subject to COVID-19 testing and masking requirements by January 4, 2022. The ETS contains a host of other compliance obligations that employers will need to put in place by December 5, 2021, including having detailed written policies. Shortly after OSHA released the ETS, President Biden issued a <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/11/04/fact-sheet-biden-administration-announces-details-of-two-major-vaccination-policies/">Fact Sheet</a> announcing that the December 8, 2021, COVID-19 vaccination deadline under EO 14042 has been extended to January 4, 2022, to coincide with the OSHA ETS deadline for vaccinations. To learn more, read our <a href="https://www.mofo.com/resources/insights/211105-new-osha-ets-covid-19.html">client alert</a>.Morrison & Foerster associate Samuel Ison contributed to the writing of this post.

Unpacking the New OSHA ETS for COVID-19 Vaccines and Testing

On November 4, 2021, the Occupational Safety and Health Administration (OSHA) released its highly anticipated emergency temporary standards for COVID-19 (the “E

Unpacking the New OSHA ETS for COVID-19 Vaccines and Testing

In the wake of the U.S. Food and Drug Administration’s first grant of Emergency Use Authorization (EUA) for a COVID-19 vaccine, the Equal Employment Opportunity Commission (EEOC) updated its pandemic guidance to address the legal issues surrounding the intersection of the COVID-19 vaccine and Equal Employment Opportunity (EEO) laws. The guidance—in the form of Technical Assistance Questions and Answers called What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (“New Guidance”)—is the EEOC’s first substantive position statement on the requirements of EEO laws relative to vaccines since the 2009 H1N1 influenza pandemic and paves the way for COVID-19 vaccines in the workplace. During the H1N1 pandemic, EEOC advised employers, “Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it,” and noted that any employer requirement that employees take the influenza vaccine must allow for reasonable accommodations for disabilities and sincerely held religious beliefs under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (“Title VII”).In its New Guidance, EEOC has backed off of its recommendation of avoiding vaccine mandates but never squarely states that employers may require COVID-19 vaccines. Nevertheless, based on EEOC’s conclusion that vaccines are not regulated “medical examinations” and the inclusion in the New Guidance of an entire section devoted to the rules governing the administration of mandatory vaccine programs, it appears EEOC agrees that employers may indeed mandate vaccines, subject to a number of caveats.

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What Employers Need to Know: EEOC Serves Up COVID-19 Vaccine Guidance

Virginia Becomes the First State to Adopt COVID-19 Workplace Safety Mandates

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In the wake of the U.S. Food and Drug Administration’s first grant of Emergency Use Authorization (EUA) for a COVID-19 vaccine, the Equal Employment Opportunity

What Employers Need to Know: EEOC Serves Up COVID-19 Vaccine Guidance

On April 17, 2020 and April 23, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) again revised its guidance for employers dealing with the COVID-19 pandemic, this time providing advice involving disability accommodations under the Americans with Disabilities Act (ADA) and claims brought under Title VII of the Civil Rights Act (prohibiting discrimination on the basis of race, color, national original, religion and sex) and under the Age Discrimination in Employment Act. These guidelines apply to employees currently working in businesses permitted to remain open under the various stay-at-home orders in effect around the country and in jurisdictions with no stay-at-home orders and to employees who will return to work as the stay-at-home orders are lifted. Most notable, for the first time, the EEOC announced it is permissible for employers to test employees returning to work for the presence of the Coronavirus. Here are the key points:<h3>ADA Issues</h3>1.    During the pandemic, if an employee requests an accommodation for a medical condition either at home or in the workplace, may the employer ask for information to determine if the condition is a disability?Yes, if it is not obvious or already known. The employer may request medical documentation sufficient to determine whether the employee’s “disability” is covered by the ADA and whether the requested accommodation is required (including how the proposed accommodation will enable the employee to continue performing the “essential functions” of his or her position). Possible questions might include (1) how the disability creates a limitation, (2) how the requested accommodation will effectively address the limitation, (3) whether some other form of accommodation could effectively address the issue, and (4) whether the proposed accommodation will enable the employee to continue performing the essential functions of his or her position.2.    If there is some urgency to providing an accommodation or the employer has limited time to discuss the request during the pandemic, may the employer provide a temporary accommodation?Yes, during the pandemic. If the employer chooses to forgo or shorten the exchange of medical information discussed above (the interactive process), the employer may simply grant the request (with or without an end date). After governmental restrictions are partially or fully lifted, the need for accommodations may change, and there may be more requests for short-term accommodations. At that time, the employer may engage in the interactive process and fix an end date for the accommodation based on changing public health directives. These considerations could also apply to employees who have disabilities exacerbated by the pandemic.3.    May an employer ask employees now if they will need reasonable accommodations in the future when they are permitted to return to the workplace?Yes, for employees with known disabilities. The employer may inquire about accommodations the employees believe they may need when they return to the workplace and otherwise begin the interactive process.4.    Based on the circumstances of the pandemic, may a requested accommodation be denied because it poses an undue hardship?Yes, provided the employer can establish that the undue hardship is a “significant difficulty or expense.” For example, it may be significantly more difficult to provide temporary assignments. And budget concerns may be considered in light of the employer’s loss of income during the pandemic. Although an employer cannot reject a proposed accommodation simply because the accommodation costs money, the employer may consider its current budgetary constraints in reaching its conclusion. When possible, another no-cost accommodation should be sought.<h3>Civil Rights Issues</h3>5.    How can employers try to reduce and address workplace harassment that may arise as a result of the pandemic?Employers should expressly communicate to their workforces that fear of the COVID-19 pandemic should not be misdirected against individuals because of a protected characteristic such as national origin or race. Practical anti-harassment tools are provided by the EEOC and can be found <a target="_blank" href="https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm#_Toc453686319">here</a> and <a href="https://www.eeoc.gov/eeoc/task_force/harassment/risk-factors.cfm">here</a>.<h3>General Return to Work Issues</h3>6.    Can an employer make COVID-19 testing a requirement of return-to-work?Yes. The ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity. The EEOC previously stated that the presence in the workplace of an employee with COVID-19 (or an employee exhibiting symptoms associated with the virus) would pose a direct threat to the health of others. Applying these considerations to return-to-work circumstances, the EEOC has confirmed that “an employer may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus.”If an employer makes testing a condition of returning to work, the employer must ensure that the method(s) of testing are accurate and reliable. The EEOC recommends consulting <a href="https://www.fda.gov/medical-devices/emergency-situations-medical-devices/faqs-diagnostic-testing-sars-cov-2" target="_blank">guidelines</a> released by the U.S. Food and Drug Administration as to what testing method(s) are considered safe and accurate. Employers may also consult resources from the CDC and public health authorities for relevant information about safe and accurate tests. Employers are also encouraged to consider the incidence of false-positives and false-negatives associated with various different testing methods. Note that the EEOC only endorses testing employees to “determine if they have the virus,” and has not addressed testing for antibodies to the virus to determine whether an employee had the virus in the past. It may be that the EEOC intended its guidance to broadly apply to antibody tests also, but the omission may have been intentional because the presence or absence of antibodies does not indicate whether an employee currently presents a “direct threat” to the health and safety of employees in the workplace. Finally, the EEOC states that accurate testing only reveals if the virus is currently present, and a negative test does not mean the employee may not acquire the virus after undergoing the test.7.    With regard to the ADA, as government stay-at-home orders are modified or lifted, how will employers know what other steps they can take to screen employees for COVID-19 when entering the workplace?As indicated above, the ADA permits employers to make disability-related inquiries and conduct medical exams if job-related and consistent with business necessity, and employers are permitted to exclude employees with a medical condition that would pose a direct threat to health or safety. An employer’s conduct (for example, taking temperatures and asking about other symptoms) will be permitted by the ADA so long as that conduct is consistent with advice from the CDC and public health authorities for that type of workplace at that time.8.    If an employer requires returning workers to wear personal protective gear and engage in infection control procedures, must the employer grant an employee’s request for modification of the requirements?It depends. If an employee asks for an accommodation for a disability or religious reasons, the employer should accommodate the request whenever it can reasonably do so (that is, when the requested accommodation is feasible and not an undue hardship on the employer’s business operations). Examples provided by the EEOC for disability accommodation include non-latex gloves, modified face masks for interpreters or others who communicate with an employee who lip reads, or gowns designed for individuals who use wheelchairs. For religious accommodation, the EEOC gives the example of modified equipment due to religious garb. The EEOC acknowledges that these are just examples. The EEOC states that the employer and employee should discuss the matter, and the employer may provide an alternative if it is feasible and does not pose an undue hardship for the employer.Note: Although the EEOC has stated that an employer may require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (regular handwashing and social distancing), there are other privacy issues to consider. Some of these additional issues are discussed <a target="_blank" href="https://www.mofo.com/resources/insights/200420-should-employers-require-employees-to-wear-facemasks.html">here</a>.

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EEOC Issues "Return to Work" COVID-19 Guidelines for Employers

Practical Considerations for Requiring Employees to Report to Work in Light of COVID-19 Stay-at-Home Orders

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On April 17, 2020 and April 23, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) again revised its guidance for employers dealing with the COVID-19

EEOC Issues "Return to Work" COVID-19 Guidelines for Employers

In a welcome development for U.S. employers, the U.S. Equal Employment Opportunity Commission (EEOC) has issued an updated <a target="_blank" href="https://templatelab.com/ada-rehabilitaion-act-coronavirus/">announcement</a> and updated <a target="_blank" href="https://www.eeoc.gov/facts/pandemic_flu.html">guidance</a> for employers about what they can and cannot ask their employees as they seek to protect their workforces against COVID-19. These updates provide valuable clarity to employers about the EEOC’s position on the types of health-related inquiries that an employer can make in light of the “direct threat” posed by COVID-19, without running afoul of the restrictions typically imposed by the Americans with Disabilities Act (ADA). Below, we highlight key clarifications that the updated EEOC guidance provides to employers about how they can screen current employees for COVID-19:1) Can an employer take employees’ temperatures during the COVID-19 pandemic?Yes, but treat the information as confidential medical records. The ADA restricts an employer’s ability to take employees’ temperatures, but the EEOC’s updated guidance clarifies that the COVID-19 pandemic now rises to the level of a “direct threat” that allows employers to take employees’ temperatures as a screening measure during this pandemic.When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?Generally, measuring an employee’s body temperature is a medical examination. Because the CDC [Centers for Disease Control] and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees' body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.The EEOC cautions that the information collected from the temperature checks must be protected as a confidential medical record under the ADA, which restricts disclosure of such information.2) Can an employer ask employees whether they are experiencing symptoms consistent with COVID-19?Yes, but treat the information as confidential medical health records. The ADA typically limits what an employer can ask employees about medical conditions, but the EEOC’s updated guidance states that an employer can make certain inquiries if an employee calls in sick or reports feeling ill at work.How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic?During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.The EEOC’s guidance also suggests that an employer can make similar inquiries of employees who report feeling ill at work. Again, employers are required to treat such information as a confidential medical record under the ADA.3) Can an employer require an employee with COVID-19 symptoms to stay home?Yes, in fact the CDC says that you should do so. The EEOC’s new guidance provides that an employer can require an employee to stay home if the employee displays symptoms consistent with COVID-19.Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19? Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.The EEOC notes that if an illness is sufficiently serious that it poses a “direct threat,” like COVID-19 at present, an employer may send an employee home without violating the ADA.4) Can an employer require an employee returning from sick leave to provide a doctor’s note?Yes, but be flexible. The EEOC’s guidance states that an employer can require an employee returning from sick leave to provide a doctor’s note verifying the employee’s fitness to return to work, although the EEOC encourages employers to be flexible in seeking such verifications in light of the burden on healthcare providers.When employees return to work, does the ADA allow employers to require doctors' notes certifying their fitness for duty? Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.5) If a COVID-19 vaccine is developed, can employers require their employees to take the vaccine?No, if the employee requires accommodation for a disability or sincere religious belief. According to the EEOC, employers cannot implement an across-the-board requirement for employees to get a COVID-19 vaccine, if/when a vaccine is developed and available.May an employer covered by the ADA and Title VII of the Civil Rights Act of 1964 compel all of its employees to take the influenza vaccine regardless of their medical conditions or their religious beliefs during a pandemic?No. An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him [or her] from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him [or her] from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost" to the operation of the employer’s business, which is a lower standard than under the ADA).Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it. As of the date this document is being issued, there is no vaccine available for COVID- 19.In other words, the EEOC advises that employers may consider encouraging employees to receive an influenza vaccine, but that the ADA and Title VII of the Civil Rights Act will restrict employers from requiring all employees to receive a vaccine, even if/when one is available.Closing ThoughtsThe EEOC has underscored that this guidance is contingent on the current state of affairs and that the range of permissible inquiries by employers may expand or contract based on recommendations from the CDC and other public health officials. Although this guidance is not static, it provides valuable information to U.S. employers as they seek to protect their workplaces from COVID-19, particularly when they operate essential activities that require employees to continue reporting to the workplace.

EEOC Issues Updated Guidance for Employers on COVID-19

In a welcome development for U.S. employers, the U.S. Equal Employment Opportunity Commission (EEOC) has issued an updated announcement and updated guidance for

EEOC Issues Updated Guidance for Employers on COVID-19

Some prayers go unheard; others go to the Equal Employment and Opportunity Commission. Recently, employers in three states have faced actions from Muslim employees demanding increased accommodation for prayer in the workplace. In May, an employer in Minnesota refused to schedule prayer breaks requested by employees, and subsequently fired some workers who refused to comply with the work schedule. In response, the Council on American-Islamic Relations (CAIR) filed a complaint with the Equal Employment and Opportunity Commission (EEOC). Similar situations have recently arisen with employers in Wisconsin and Colorado.Read our <a target="_blank" href="https://media2.mofo.com/v3/assets/blt5775cc69c999c255/blt289da1d9dde7e5be/6273160e4886af2aa2be106e/170726-employment-law-commentary.pdf">newsletter</a>.

Let Us Pray: The Challenges of Accommodating Muslim Prayer in the Workplace

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Let Us Pray: The Challenges of Accommodating Muslim Prayer in the Workplace

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Some prayers go unheard; others go to the Equal Employment and Opportunity Commission. Recently, employers in three states have faced actions from Muslim employ