On Tuesday, the DOL issued an Opinion Letter explaining how an employer should calculate the amount of leave for an employee who takes leave under the Family Medical Leave Act (“FMLA”) during a week that includes a holiday. The letter also provides guidance on how employers can properly convert the twelve weeks of FMLA leave provided to eligible employees to an hourly equivalent.

According to a recent study by the Society for Human Resource Management, nearly 80% of HR departments using AI and other algorithm-based tools rely on these tools during the hiring process, and over 10% use these tools when making promotion or succession planning decisions.

Employers looking for a respite from the drastic workplace changes of the past few years did not find it in 2022. The year saw multiple judicial, legislative, and executive actions of pivotal and historical proportions, including the Supreme Court’s decision regarding abortion rights and hearings on two related cases regarding affirmative action; and laws passed at the local, state, and federal levels affecting sensitive topics, such as marijuana usage, gun control, pay transparency, and sexual assault and sexual harassment.

Since the start of the pandemic, employers have worked diligently to navigate the maze of regulations impacting their employee workforces. New EEOC guidance just added several new twists.

On July 12, 2022, the EEOC revised its prior guidance on What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (“Revised Guidelines”). The Revised Guidelines make several important changes, most notably, changing the standard for when employers may permissibly test employees for COVID-19.

What happened?

On November 5, the Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) giving companies with at least 100 employees two choices: 1) require all employees except those with religious or medical accommodations to become fully vaccinated (which does not include receiving a booster shot) before January 4; or 2) require employees who are not fully vaccinated to begin wearing a face covering when indoors or when occupying a vehicle with another person for work purposes after December 5 and undergo weekly COVID-19 testing after January 4.[i] Through the ETS, OSHA intends to preempt any State or local requirements that ban or limit an employer’s authority to require vaccination, face-covering, or testing.

On September 9, 2021, President Biden announced a six-pronged national strategy to combat the COVID-19 pandemic.1 Several of these initiatives will significantly impact employers, the most notable being that all companies with 100 or more employees (including private employers) must require their employees to be vaccinated or submit to weekly COVID-19 testing.2 Large employers must also provide paid time off to employees for the time it takes for workers to get vaccinated or recover post-vaccination.3 While many large employers, including Google, Facebook, McDonald’s, Walmart, and Microsoft, had already announced some form of vaccine mandates, many other employers are still grappling with the decision. For better or worse, President Biden has taken the decision away from those employers subject to his action plan.

Legal Bulletin
Only months after issuing guidance excusing most employers (outside of the healthcare and transportation industries) from taking steps to protect their workforce from COVID-19 exposure, the Department of Labor’s (“DOL”) Occupational Health and Safety Administration (“OSHA”) seemingly backtracked. Based on increased risks associated with the Delta variant of the virus and updated direction from the Centers For Disease Control and Prevention (“CDC”), OSHA updated its prior COVID-19 safety guidelines on August 13, 2021 (“OSHA’s Update”). We address what OSHA’s Update provides; its legal/regulatory impact; and its impact on employers generally.

Legal Bulletin

On June 10, the Department of Labor (“DOL”) issued updated COVID-19 safety guidelines for all employers1 and a long-awaited Emergency Temporary Standard (“ETS”)2 containing safety requirements to protect workers who face the highest COVID-19 hazards – workers in healthcare settings treating suspected or confirmed COVID-19 patients. The updated guidelines were anticipated in light of the CDC’s updated guidance regarding safety protocols for fully vaccinated individuals. Employers in healthcare in particular should take note of the new standards.