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EEOC updates guidance related to COVID-19 and ADA

By Mike O’Brien

The EEOC recently released updated guidance on the intersection between COVID-19 and major federal employment laws. In particular, the agency explained that COVID-19 may be considered an ADA-protected disability in certain cases. While mild or asymptomatic cases of the illness do not constitute an ADA-protected disability, other more severe cases, including “long COVID” presentations, may be a disability and thereby trigger the accommodation, non-discrimination, and non-retaliation components of that statute. Additionally, the EEOC’s guidance addressed employers’ obligations to provide religious exemptions for vaccination and masking requirements under Title VII. Employers must provide exemptions to employees with sincerely held religious beliefs.

NLRB signals possible reversal of Trump era board decisions

There’s a lot going on at the National Labor Relations Board (NLRB), the federal agency charged with enforcing the National Labor Relations Act (NLRA). With a 3-2 majority of Democrat-appointed members on the 5-person panel, the Board is preparing to revisit certain decisions made during the last administration. The Board has recently invited a briefing in a case called Stericycle, Inc., 371 NLRB 48 (2021) regarding the issue of what standard should be used to determine whether handbook rules are lawful under the NLRA. The Board invited all interested parties to weigh in through briefing. This development is significant. Longtime readers of these updates may recall that during the Obama administration, the NLRB took aim at handbook rules requiring civility and harmonious conduct, saying that such rules tended to chill employees’ exercise of rights under the NLRA to discuss terms and conditions of employment, and to act together to improve them. In 2017, the Board reversed course and held that certain categories of employer rules, including civility rules, are always lawful for employers to maintain. The Board’s invitation for briefing in Stericycle indicates yet another possible change in the standard used to evaluate the legality of handbook rules.

Similarly, the Board has invited a briefing in a case called The Atlanta Opera, Inc., 371 NLRB 45 (2021) about whether it should reconsider the test it adopted in 2019 to determine whether a worker is an independent contractor. The 2019 decision marked a return to prior precedent after the Board had adopted a more stringent test during the Obama era. Again, this signals a possible return to a test that makes it more difficult for a company to establish independent contractor status.

Finally, the Board’s General Counsel has instructed field offices to work with the Division of Advice on all cases presenting issues related to employee use of company-provided email for union organizing purposes (as well as other electronic platforms including Slack, Discord, GroupMe, etc.). In late 2019, the Board held that employers may prohibit the use of company email for organizing purposes as long as another non-work use was also prohibited. The General Counsel’s focus on this issue suggests that she believes that the 2019 decision should be revisited. Similarly, she has instructed that the Division of Advice should be involved in all cases related to confidentiality rules in the workplace, including workplace investigations. Stay tuned to these updates for further developments on these topics.









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