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EEOC Issues Updated Guidance on Avoiding Discrimination Against Transgender Employees

Last week, on the first anniversary of the U.S. Supreme Court’s decision in Bostock v. Clayton County, in which the Court held that Title VII’s prohibition on discrimination on the basis is “sex” encompasses sexual orientation and transgender status, the EEOC issued some updated guidance regarding the treatment of transgender employees in the workplace. “All people, regardless of sexual orientation and gender identity, deserve an opportunity to work in an environment free from harassment or other discrimination,” EEOC Chair Charlotte A. Burrows said.

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supreme court building, blue sky, sunset

Religious Liberty vs. LBGTQ Rights: Narrow Supreme Court Decision Fails to Resolve Many Questions

One of the most eagerly anticipated decisions coming from the U.S. Supreme Court this term was Fulton v. Philadephia, a case involving a Catholic charity’s challenge to a Philadelphia ordinance that excluded it from part of the city’s foster-care program because the charity would not help place children with same-sex couples. The charity argued that the ordinance violated its First Amendment right to religious freedom, and the U.S. Supreme Court, in a unanimous decision, agreed. However, the Court’s decision focused very narrowly on the ordinance at issue and did not address the bigger question of what happens when religious liberty and anti-bias laws collide. Thus, it is likely that we will see more litigation on these issues.

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EEOC Updates Guidance on Vaccinations, and Yes, Employers Can Require Employees to Be Vaccinated

Late last week, just before most of us enjoyed a long holiday weekend, the EEOC issued some additional guidance addressing questions arising under the federal equal employment opportunity laws in regard to employees and COVID vaccinations. Considering that the distribution of vaccines started in February, the EEOC is a little late to the party, but better late than never. Employers have had a lot of questions about employees and vaccines, and this latest guidance answers some of them.

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Let’s Talk About HIPAA

A lot of people talk about HIPAA, but how many of them have actually read the law? Not very many, from what I have seen and heard people say about HIPAA. Let’s set the record straight.

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Vaccine Clinic parking

Can An Employer Ask for Proof of COVID Vaccination?

Today, the CDC issued new guidance regarding persons who have been fully vaccinated aganst COVID-19. Now, fully vaccinated people no longer need to wear a mask or physically distance in any setting, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance. [People are considered to be fully vaccinated approximately two weeks after receiving the second of a 2 shot series (Pfizer or Moderna), or two weeks after receiving the one J&J shot.]

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exit sign

Have You Reviewed Your Emergency Action Plan Lately?

Now is a great time to review your company’s emergency action plan.  Why?  We have the Atlantic hurricane season starting on June 1, and we have more workers returning to the physical workplace from their remote locations, thanks to mass vaccination.  So let’s make sure everyone knows what to do in the event of an emergency.  Note also that this is something that OSHA is likely to look for when it visits your establishment.

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counting cash, indoors

US Department of Labor Withdraws Independent Contractor Rule That Never Went Into Effect

Today, to absolutely no one’s surprise, U.S. the Department of Labor formally withdrew the Independent Contractor Rule that had been implemented by the previous administration. The withdrawal is effective on May 6, 2021. After a long, strange trip, the Rule never went into effect. It should be noted, however, that some employer groups have filed a lawsuit seeking to undo the withdrawal of the Rule.

Why does this matter? Because the requirements of the Fair Labor Standard Act (FLSA), such as the payment of a minimum wage and overtime, apply to “employees” and not to “independent contractors.” The misclassification of a worker as an “independent contractor” rather than an “employee” could be a very expensive mistake for an employer, which could be liable for unpaid minimum wages and/or overtime (and double the amount if the violation is deemed “willful”) and attorneys’ fees.

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a couple embracing outside while wearing masks

The Costs of Not Taking COVID-19 Seriously

By all accounts, the number of COVID-19 infections (and deaths) are on the rise and are likely to increase even more after Thanksgiving. At the same time, there is a great political divide as to how seriously folks take the virus. Politics aside, what are some of the potential costs to your business if you fail to take COVID-19 seriously?

As an initial matter, when I talk about taking COVID-19 seriously, I mean that your business is following CDC guidelines, which provides strategies and recommendations for employers responding to COVID-19, which include disinfecting, hand washing, social distancing, and the wearing of masks. Employers should also be familiar with OSHA guidance, which focuses on jobs classified as having low, medium, high, and very high exposure risks, and provides specific recommendations for employers and workers within specific risk categories.

So what are some of the potential business consequences of failing to take COVID-19 seriously?

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Jurors Say the Darnedest Things

During a trial, lawyers can be so focused on the law and facts of a case that they may not recognize that jurors may be focused on different things entirely. A federal case out of Connecticut makes this point quite nicely. (SEC v. Westport Capital Markets, LLC, No. 3:17-cv-02064 (JAM)(D.C. Conn., 10/26/20). It is not a labor or employment case, but the conduct of a particular juror is so interesting I had to write about it.

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voting stickers scattered on the table

Do I Need To Give My Employees Time Off to Vote?

Election Day is one week away, so it is a good time for employers to review the laws governing voting leave in the states where they do business. Chances are that you may be required to give employees some time off to vote.

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