It feels like a lifetime has passed since the #MeToo movement gained significant traction in October 2017 and began reshaping the workplace. The movement helped sexual harassment victims speak out and be heard and resulted in a marked uptick in filed sexual harassment claims.
California is considering new regulations on the use of technology or artificial intelligence (AI) to screen job candidates or make other employment decisions. If the regulations become law, California would be the first state to adopt substantive restrictions specifically addressing this emerging, and often misunderstood, technology.
The U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ), on May 12, 2022, issued guidance advising employers that the use of artificial intelligence (AI) and algorithmic decision-making processes to make employment decisions could result in unlawful discrimination against applicants and employees with disabilities.
As we previously reported, the California Occupational Safety and Health Standards Board recently voted to adopt the proposed revisions to California’s COVID-19 emergency temporary standards (ETS). Reports initially stated that the Office of Administrative Law would likely approve the language for implementation by May 5, 2022. This date has since changed to May 6, 2022.
Despite a federal court ruling in April 2022 striking down federal mask mandates, major cities in the United States are keeping them in place amid a new wave of COVID-19 cases raising new considerations for private employers that have implemented workplace mask mandates.
The Fifth Circuit Court of Appeals recently issued a ruling concerning the discharge of Michael Harris from his position with the City of Schertz, Texas, as the city marshal. In doing so, the Fifth Circuit gave a bit more clarity on the situations in which comments made by an employer or agent of an employer amount to discriminatory pretext.
What’s top of mind for today’s employers in a post-pandemic era? According to Ogletree Deakins’ second annual benchmarking survey report, Strategies and Benchmarks for the Workplace: Ogletree’s Survey of Key Decision-Makers, remote work and the tight labor market are at the top of the list.
On March 28, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) released its Annual Performance Report and Enforcement and Litigation Statistics for fiscal year (FY) 2021 (October 1, 2020–September 30, 2021). As employers navigate the “new normal” of 2022, they might benefit from a glimpse into the agency’s enforcement efforts during the past year, with five top takeaways.
Talking to an employee about her retirement plans when considering the termination of her employment as discipline for a policy violation is not per se age discrimination, according to the U.S. Court of Appeals for the Sixth Circuit.
For the first time since Mexico’s federal government rolled out its pandemic monitoring system in June 2020, all of the nation’s thirty-two states have been given the green light to conduct social and business activities without restriction, although face masks are still required while using public transportation.
Mexico’s federal government has indicated that the National Health Council will soon decree the end of the pandemic in Mexico. The expected announcement comes on the heels of signs that COVID-19 cases are significantly waning, with community transmission levels low enough for the government to designate all but one of Mexico’s thirty-two states in green status under the biweekly pandemic monitoring system.
On March 9, 2022, the Ontario government announced a plan to bring an end to all COVID-19 restrictions by April 27, 2022. Here is a summary of the upcoming employment-related changes.
The Occupational Safety and Health Administration (OSHA) remains focused on the pandemic in certain workplaces as indicated by its announcement of a new National Emphasis Program (NEP) related to COVID-19. Interestingly, the focus of the NEP includes checking to confirm that certain elements of the COVID-19 healthcare emergency temporary standard (ETS) are in place.
Half of Mexico’s thirty-two states have been cleared by the federal government to fully reopen for business and social activities, a remarkable change from early February, when only four states were given the green light under the nation’s four-tiered pandemic traffic light monitoring system.
On February 23, 2022, the Los Angeles County Department of Public Health (LACDPH) issued an order, effective February 25, 2022, that slightly loosened the rules for wearing COVID-19 masks in the county. One day after the LACDPH order, on February 24, 2022, Los Angeles Mayor Eric Garcetti issued the interim “Public Order Under City of Los Angeles Emergency Authority” that mirrored the new Los Angeles County order. While these revisions make the orders from both the county and city much more similar to the California state masking rules currently in effect, they remain stricter than the current state rules.
On May 28, 2021, Massachusetts Governor Charlie Baker signed into law an act requiring eligible Massachusetts employers to provide emergency paid sick leave to employees who are unable to work for COVID-19–related reasons. On September 29, 2021, Governor Baker approved an extension of the law, titled “An Act Providing for Massachusetts COVID-19 Emergency Paid Sick Leave,” and increased its funding.
On February 27, 2022, New York City Mayor Eric Adams announced that if COVID-19 indicators continue to display low risk levels, the “Key to NYC” will be lifted, effective March 7, 2022. Individuals will no longer be required to show proof of vaccination to enter certain covered establishments, such as indoor dining, entertainment, and fitness establishments. Former New York City mayor Bill De Blasio implemented the Key to NYC through Emergency Executive Order 225 on August 17, 2021.
As COVID-19 cases and hospitalizations fall and certain states and localities drop mask mandates, the U.S. Centers for Disease Control and Prevention (CDC) updated its mask guidance on February 25, 2022, dropping public indoor mask recommendations for the majority of groups of individuals.
Nearly all of Mexico’s central and northern states have been directed by the federal government to limit the number of people on-site for business and social activities to half their normal capacity in order to prevent the spread of COVID-19, according to the government’s latest pandemic tracking system update.
On February 4, 2022, Governor Tim Walz signed House File (H.F.) 1203 into law, which extends the presumption that certain frontline healthcare workers contracted COVID-19 at work if they test positive. The prior presumption had expired on December 31, 2021.
On February 10, 2022, Assembly Bill (AB) 1993 was introduced in the California legislature. This bill would amend certain COVID-19 vaccination requirements in employment settings and create a framework for California employers to be responsible for vaccination programs in their workplaces.
In the past, Germany’s Federal Social Court (Bundessozialgericht or BSG) has been reluctant to classify employee accidents that employees sustain in their homes as occupational accidents covered by the statutory accident insurance. A decision of the Federal Social Court on December 8, 2021 (file no. B 2 U 4/21) clarified that the initial journey from bed to a home office constitutes an occupational accident and thus is considered covered by the statutory accident insurance.
As the Omicron variant of COVID-19 spreads throughout Mexico, the federal government is directing more states to ramp up efforts to contain the virus, including directing Aguascalientes to allow only essential activities—the first time since last September that any state has operated under the country’s red traffic light pandemic control measures, the most stringent according to the national four-tiered COVID-19 monitoring system.
On February 7, 2022, the California legislature passed legislation reviving COVID-19 supplemental paid sick leave (SPSL). The law creates new California Labor Code Section 248.6 and takes effect ten days after Governor Newsom signs the legislation, which we expect is imminent. It applies to all employers with 26 or more employees and will be retroactive to January 1, 2022.
On February 4, 2022, the U.S. Department of Labor (DOL), U.S. Department of the Treasury, and U.S. Department of Health and Human Services (HHS) issued subregulatory guidance that provides greater flexibility and clarifies a few points on the required coverage of over-the-counter (OTC) COVID-19 tests, which took effect for employer health plans and health insurers on January 15, 2022. The guidance, in the form of frequently asked questions (FAQs), expands on the agencies’ prior guidance, which was issued last month. That initial guidance outlined the required coverage under section 6001 of the Families First Coronavirus Relief Act (FFCRA) and established enforcement safe harbors for plans and insurers.
On January 31, 2022, the Oregon Health Authority (OHA) published permanent rules relating to COVID-19 vaccination and masking requirements in healthcare settings, just a few days after issuing similar rules for K-12 schools. The permanent rules replaced temporary rules that expire after 180 days.
Nearly two years after declaring a public health emergency exists due to the COVID-19 pandemic, the U.S. Department of Health and Human Services (“HHS”) has extended that determination yet again. On January 14, 2022, U.S. Secretary of Health and Human Services Xavier Becerra announced the eighth consecutive renewal of the nationwide COVID-19 public health emergency.
Most employers are familiar with the long-standing U.S. Department of Labor (DOL) requirement to post summaries of applicable federal labor and employment laws in the workplace. As a general matter, employers must place posters where they are conspicuous to or “clearly seen” by employees, often in the break room or employee cafeteria. Providing workers access to posters ensures they are informed of their rights under various employment and labor laws.
On January 25, 2022, the U.S. Occupational Safety and Health Administration (OSHA) formally withdrew its November 5, 2021, emergency temporary standard (ETS), which applied to large employees. Since its issuance in November, the OSHA ETS has been the subject of numerous legal challenges, ultimately resulting in a decision by the Supreme Court of the United States to stay enforcement of the ETS indefinitely pending adjudication of legal challenges at the Sixth Circuit Court of Appeals.
On January 25, 2022, California Governor Gavin Newsom and California legislative leaders announced they have reached an agreement to require employers again to provide COVID-19 supplemental paid sick leave (SPSL), which expired on September 30, 2021.