Legislative Updates

The U.S. Equal Employment Opportunity Commission (EEOC) today released a technical assistance document, “The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Law,” and an update to its COVID-19 “What You Should Know” explaining discrimination against employees and job seekers with family caregiving responsibilities.

The technical assistance provides pandemic-related examples of discrimination against caregivers. For example, it would be illegal if an employer refused to hire an applicant who is the primary caregiver of an individual with a disability who is at higher risk of complications from COVID-19 out of fear that the employer’s healthcare costs would increase. It also would be unlawful for an employer to refuse to promote a woman based on assumptions that, because she was female, she would focus primarily on caring for her children while they quarantined or attended school remotely.  

Additionally, the technical assistance document addresses situations in which caregivers may encounter illegal harassment, retaliation, or discrimination based on pregnancy, gender, association with someone who has a disability, or other bases protected by EEOC-enforced laws. 

In addition to this new technical assistance document and related “What You Should Know” updates, the EEOC also released a short video explaining caregiver discrimination in English and Spanish. More information about caregiver discrimination is available in the EEOC’s caregiver discrimination policy guidance, associated fact sheet, and employer best practices document.

The U.S. Supreme Court today blocked the Occupational Safety and Health Administration's (OSHA's) emergency temporary standard requiring businesses with at least 100 employees to ensure workers are vaccinated against the coronavirus or wear masks and undergo weekly COVID-19 testing. But it allowed the federal government to require COVID-19 vaccination for health care workers at Medicare- and Medicaid-certified providers and suppliers.

The first decision criticized OSHA's rule as a "blunt instrument" that "draws no distinctions based on industry or risk of exposure to COVID-19." It also called the rule a "significant encroachment into the lives—and health—of a vast number of employees." The Occupational Safety and Health Act does not plainly authorize the rule, the court stated.

In the second decision, the court noted that "health care workers around the country are ordinarily required to be vaccinated for diseases." 

While the U.S. Supreme Court has not yet issued a decision on whether or not to enforce it, the Iowa Division of Labor stated it will not.

“As a state plan state, the Iowa Division of Labor is charged with protecting the health and safety of those in the workplace and has the authority to enforce workplace safety and health standards for Iowa businesses,” explained Iowa Labor Commissioner Rod Roberts. “Iowa doesn’t have a standard requiring the Covid-19 vaccine or testing. But after closely reviewing the federal OSHA Vaccine Mandate, Iowa has determined it will not adopt the federal standard. Iowa has concluded that it is not necessary because Iowa’s existing standards are at least as effective as the federal standard change.”

With Commissioner Roberts’ decision, Iowa employers and their employees are not required to comply with the federal OSHA Vaccine Mandate.

The IRS have confirmed there will be an automatic extension of time to provide employees with forms 1095-B and 1095-C. The automatic extension will provide an additional 30 days to provide the forms. The deadline is usually January 31st, but with the extensions, the deadline for 2022 is delayed to March 2, 2022. In future years, if the 30-day extension falls on a weekend, the due date will be the next business day following that weekend.

Note, there is no extension of the good faith standard for 2021 filings, so employers will want to make sure to thoroughly review forms for accuracy and correct any errors as soon as possible.

The Occupational Safety and Health Administration (OSHA) is withdrawing all but the record-keeping requirements under a COVID-19 emergency temporary standard (ETS) that applied only to health care workers.

The health care ETS, which was issued in June, focused on settings where coronavirus patients are treated, including hospitals, nursing homes and assisted living facilities. The directive required covered employers to implement certain COVID-19-related safety measures and provide workers with paid time off to get vaccinated.

The CDC is shortening the recommended time for isolation from 10 days for people with COVID-19 to 5 days, if asymptomatic, followed by 5 days of wearing a mask when around others. The change is motivated by science demonstrating that the majority of SARS-CoV-2 transmission occurs early in the course of illness, generally in the 1-2 days prior to onset of symptoms and the 2-3 days after. Therefore, people who test positive should isolate for 5 days and, if asymptomatic at that time, they may leave isolation if they can continue to mask for 5 days to minimize the risk of infecting others.

The U.S. Equal Employment Opportunity Commission (EEOC) updated its COVID-19 technical assistance today adding a new section to clarify under what circumstances COVID-19 may be considered a disability under the Americans with Disabilities Act (ADA) and the Rehabilitation Act.

EEOC’s new questions and answers focus broadly on COVID-19 and the definition of disability under Title I of the ADA and Section 501 of the Rehabilitation Act, which both address employment discrimination. The updates also provide examples illustrating how an individual diagnosed with COVID-19 or a post-COVID condition could be considered to have a disability under the laws the EEOC enforces.

Key information includes:

• In some cases, an applicant’s or employee’s COVID-19 may cause impairments that are themselves disabilities under the ADA, regardless of whether the initial case of COVID-19 itself constituted an actual disability.
• An applicant or employee whose COVID-19 results in mild symptoms that resolve in a few weeks—with no other consequences—will not have an ADA disability that could make someone eligible to receive a reasonable accommodation.
• Applicants or employees with disabilities are not automatically entitled to reasonable accommodations under the ADA. They are entitled to a reasonable accommodation when their disability requires it, and the accommodation is not an undue hardship for the employer. But, employers can choose to do more than the ADA requires.
• An employer risks violating the ADA if it relies on myths, fears, or stereotypes about a condition and prevents an employee’s return to work once the employee is no longer infectious and, therefore, medically able to return without posing a direct threat to others.

On Friday, November 19, the House of Representatives voted 220-213 to pass H.R. 5376, the Build Back Better Act. The bill now awaits consideration in the Senate, where significant changes are expected. 

Some proposals in the Build Back Better Act are likely to exacerbate the impact of the pandemic during a time when many businesses are recovering financially and facing historic talent shortages.

The paid leave provision in this legislation is misaligned with the Family Medical Leave Act and out of touch with the diversity of this country’s workplaces. Additionally, the bill includes provisions that would increase health care costs and upset the balance of labor-management relations.  It also proposes exorbitant civil liabilities for employers of all sizes.

Click here to take action with SHRM on the Build Back Better Act and contact your senators or text SHRM to 52886.

Congress can find more balance by acknowledging that meeting the needs of our country’s workplaces requires flexibility. Balanced legislation also requires an acknowledgement that employers are committed to meeting the needs of their employees in a manner that also meets the needs of the business.

Thank you for helping us create better workplaces for a better world.

Sincerely,

Emily M. Dickens
Chief of Staff, Head of Government Affairs and Corporate Secretary

Effective January 30, 2022, the U.S. Department of Labor's final rule, in conjunction with Executive Order 14026:

• Increases the hourly minimum wage for certain federal contractors to $15 beginning January 30, 2022, with future inflation-based increases. 
• Eliminates the tipped minimum wage for federal contractors by 2024.  
• Ensures a $15 minimum wage for workers with disabilities performing work on or in connection with covered contracts.  
• Restores minimum wage protections to outfitters and guides operating on federal lands.