Fourth Quarter Labor and Employment Industry Outlook

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In 2022, Congress and the Federal Administrative Agencies have continued to introduce new guidance and legislation for Human Resources. In particular, employers must be aware of the following:

It’s Time to Review Your COVID Testing Protocols: Equal Employment Opportunity Commission Cautions that Employers Can No Longer Automatically Test All Employees For COVID 

At the outset of the COVID-19 pandemic, the EEOC determined that all COVID viral testing was permissible under the Americans with Disabilities Act (“ADA”). On July 12, 2022, the EEOC updated its COVID Questions and Answers technical assistance to reflect the current status of COVID. The EEOC instructs that employers may still require employees to submit to COVID-19 testing prior to entering the worksite so long as the employer can demonstrate that the need to test is “job-related and consistent with business necessity,” which is the ADA standard for conducting medical examinations. According to the EEOC, employers should consider the following factors to determine if COVID-19 testing is “job-related and consistent with business necessity:”

  • CDC and other relevant guidance;
  • The level of community transmission;
  • The vaccination status of employees;
  • The accuracy and speed of processing for different types of COVID-19 viral tests;
  • The degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations;
  • The ease of transmissibility of the current variant(s);
  • The possible severity of illness from the current variant;
  • What types of contacts employees may have with others in the workplace or elsewhere that they are required to work (e.g., working with medically vulnerable individuals); and the potential impact on operations if an employee enters the workplace with COVID-19.

The EEOC also reiterated that antibody testing does not meet the ADA standard for medical examinations.

Plan and Policy Updates Are Likely: Legislation Prohibiting Discrimination on the Basis of Hair, Requiring Reasonable Accommodations for Pregnancy, and Impacting Retirement Plans May be Enacted Soon

Creating a Respectful and Open World for Natural Hair Act of 2022, H.R. 2116, is currently referred to the Senate after having passed the House of Representatives. Among other things, if passed, this Act would prohibit discrimination in employment on the basis of the individual’s hair texture or hairstyle, if the texture or style is commonly associated with a particular race or national origin. Enforcement would be incorporated into Title VII of the Civil Rights Act.

The Pregnant Workers Fairness Act, H.R. 1065, also passed the House, and was received by the Senate over a year ago but has been referred to a Senate Committee. This bill has bipartisan support and prohibits employment practices that discriminate against making reasonable accommodations for qualified employees affected by pregnancy, childbirth, or related medical conditions.

The SECURE Act 2.0, HR 2954, as passed by the House and now before the Senate, impacts employers and their retirement plans, including by accelerating part-time employee eligibility for 401(k) plans, increasing the catch-up contribution limits to $10,000 for those age 62 to 64 but mandating that all catch-up contributions be taxable Roth contributions, allowing employees to have employer matching contributions designated as Roth contributions, authorizing employers to make matching contributions based on student loan payments, and allowing a delay to plan required minimum distributions in stages (age 73 to 75 over the next ten years).

The National Labor Relations Board and Unions Remain Very Active

In the last five months at the NLRB, (1) NLRB General Counsel Jennifer Abruzzo has both advanced a protocol allowing a charging party or witness can to ask the NLRB to seek immigration relief for employees at a worksite if it is necessary to protect employees who are participating in NLRB processes or exercising their rights under the NLRA and also asked the Board to prohibit captive audience speeches, (2) the Public Affairs Office issued a press release touting that during the first nine months of Fiscal Year 2022, union representation petitions filed at the NLRB increased 58%, and (3) the Board joined forces with the Department of Justice and Federal Trade Commission to prevent employers from engaging in anti-competitive and unfair labor practices. It is safe to say that the General Counsel, the democratic majority Board, and unions will continue to be very active in 2022 and beyond. Clark Hill labor attorney Mario Bordogna cautions employers that it is imperative that their labor relations teams stay vigilant in their compliance with the National Labor Relations Act to attempt to avoid unfair labor practice charges and scrutiny by the NLRB.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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