November 2021 Screening Compliance Update

ClearStar

November 2021 Screening Compliance Update

Federal Developments

CFPB Issues Advisory Opinion On Name-Only Matching
On November 4, the Consumer Financial Protection Bureau (CFPB) issued an advisory opinion, stating that a consumer reporting agency (CRA) that engages in name-only matching violates the Fair Credit Reporting Act’s (FCRA) reasonable procedures requirement, 15 U.S.C. § 1681e(b). Although styled as an advisory opinion, the CFPB made clear that the opinion is considered an “interpretive rule” issued under the CFPB’s authority to interpret the FCRA. The opinion will be published at 12 C.F.R. Part 1022 and will become effective as of the date of publication.

Background on Name-Only Matching
The opinion opens with a general background discussion on matching procedures that CRAs utilize to assemble and prepare consumer reports and the importance of ensuring accuracy in this process. The opinion focuses on the process of name-only matching, defined as “matching information to the particular consumer who is the subject of a consumer report based solely on whether the consumer’s first and last names are identical or similar to the first and last names associated with the information, without verifying the match using additional identifying information for the consumer.” Op. at 11. However, the opinion also takes the opportunity to express particular concern regarding the harm that inaccurate reporting might have on consumers seeking to financially recover in the wake of the COVID-19 pandemic.

The opinion concludes that matching on name only (first and last name) will likely lead to inaccuracies in consumer reports. The opinion cites census data regarding the frequency of common names to state that “it is not unlikely that thousands, or even tens of thousands, of consumers, might share a particular first and last name combination.” Id. at 6-7. The opinion references several FTC and CFPB enforcement actions related to name-only matching, as well as U.S. Circuit Court decisions involving this issue. See Ramirez v. TransUnion LLC, 951 F.3d 1008, 1032 (9th Cir. 2020), rev’d on standing grounds, 141 S. Ct. 2190 (2021); Cortez v. Trans Union, LLC, 617 F.3d 688 (3d Cir. 2010).

The opinion further highlights a potential increased risk of inaccuracy when name-only matching is used for Hispanic, Asian, and Black consumers, based on census data showing less last-name diversity in these populations. Id. at 7-8. The CFPB’s reference to this possible demographic disparity is interesting to note, as this opinion was released the same week the CFPB also released a report, indicating credit report disputes more commonly occur among consumers residing in majority Hispanic or Black areas.

The opinion further suggests that for consumers with common names, even using an additional identifier, such as a date of birth or address, may still allow for a “heightened risk” of inaccuracy because “commonly named individuals might share the same first and last name and date of birth or address.” Id. at 8. In fact, the opinion specifically references the CFPB’s 2019 settlement against a consumer reporting agency regarding the company’s matching of criminal records to job candidates using only first and last name and either a date of birth or an address. Id.

Although many CRAs have moved away from pure name-only matching, the opinion asserts that some CRAs continue to engage in this practice, citing a 2019 report by the National Consumer Law Center (NCLC) as support. Id. at 10–11. In fact, it was the NCLC and other consumer rights and civil rights groups that requested the CFPB issue an advisory opinion on this topic.

CFPB’s Analysis of Section 1681e(b)
After explaining the practice of name-only matching and its risks, the CFPB’s opinion analyzes the language of 15 U.S.C. § 1681e(b) to determine whether name-only matching satisfies that provision. Section 1681e(b) requires a CRA preparing a consumer report to “follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.” Focusing particularly on the phrase “concerning the individual about whom the report relates,” the opinion concludes this requirement includes “as an integral component that the information in fact pertains to the consumer who is the subject of the report.” Id. at 12.

The opinion further states this conclusion is consistent with the FCRA’s core purpose, the statute’s definition of “consumer report,” and the statute’s provision regarding permissible purposes for using and disclosing consumer reports. A consumer report is intended to provide information “bearing on a consumer’s credit worthiness” or other personal characteristics for the purpose of establishing the consumer’s eligibility for credit, employment, or other purposes. 15 U.S.C. § 1681a(d)(1). The CFPB reasoned that information related to a different consumer would not serve this purpose. Likewise, the opinion reasons that since many of the permissible purposes for disclosing consumer reports are tied to the specific consumer, 15 U.S.C. § 1681b, this demonstrates Congress’s intent that the information in a consumer report relate to the specific consumer.

Based on this analysis, the opinion concludes that “it is not a reasonable procedure to use name-only matching to match information to the consumer who is the subject of the report in preparing a consumer report.” Op. at 14. The opinion supports that conclusion on “the high risk that name-only matching will result in the inclusion of information that does not pertain to the consumer who is the subject of the report and the relative lack of burden on a consumer reporting agency associated with utilizing additional identifiers or not including name-only matched information in a consumer report.” Id.

Impact of the Advisory Opinion
This advisory opinion announces the CFPB’s position that name-only matching violates the FCRA. As an interpretive rule exempt from the Administrative Procedure Act’s notice-and-comment rules, the opinion technically does not carry the force of law, but rather is meant “only to ‘advise the public’ of how the agency understands, and is likely to apply, its binding statutes and legislative rules.” Kisor v. Wilkie, 139 S. Ct. 2400, 2420 (2019). Nevertheless, such a rule promulgated by the CFPB may carry authority in the courts to the extent that is independently persuasive and will likely be identified by plaintiffs’ counsel as regulatory guidance that could inform a finding of a willful violation of the FCRA. Thus, CRAs should take note.

Although the opinion makes clear that the CFPB considers name-only matching a violation of Section 1681e(b), it leaves several other open questions. First, the entire opinion refers consistently to “matching” procedures, but it does not address whether it is a reasonable procedure for a CRA to provide an “unmatched” record based only on an identical name if the CRA makes clear to the intended user the information has not been matched, and the user must take additional steps to investigate whether the record concerns the subject. The Eleventh Circuit recently addressed this very question in Erickson v. First Advantage Background Services Corp., 981 F.3d 1246, 1253 (11th Cir. 2020), and concluded that this procedure was reasonable under the facts of that case.

Second, the opinion does not address CRA concerns over “false negatives,” whereby a record that is attributable to the subject of a report is not identified due to overly restrictive matching criteria when compared to the often very limited personal identifiers made available in the public record, and which are often constrained from publication by state and local privacy laws. While the opinion focuses on the claimed harm to consumers, it does not address the other significant harms that can result from underreporting.

Third, the CFPB does not address how many or what types of additional identifiers are necessary to comply with the FCRA. Although the opinion suggests the use of a date of birth or an address alone may still allow for a high risk of inaccuracy in the case of common names, it does not provide further guidance on this question. In its press release announcing the advisory opinion, however, the CFPB stated that “the advisory opinion does not create a safe harbor to use insufficient matching procedures involving multiple identifiers. Other practices, for instance name combined with a date of birth, could also lead to cases of mistaken identity.” Put another way, while the CFPB identifies a practice that it considers to be insufficient under the FCRA, the CFPB does not simultaneously provide any guidance as to what it would consider to be sufficient. This puts CRAs — and the companies that depend on them — in a very difficult position. At a time when states are limiting the information available in public records, the CFPB is taking the position that matches based on this limited information may be unreasonable.

CRAs should take note of the CFPB’s hardline position that name-only matching violates the FCRA. Additionally, given the opinion’s ambiguity regarding how many and what types of additional identifiers are necessary when a consumer has a common name, CRAs should evaluate their common name policies in light of the specific concerns raised here. Further, given the CFPB’s position that name-only matching has a significant effect on racial and ethnic minorities, the CFPB’s guidance also could be seen as a harbinger of disparate impact enforcement actions and a claimed need to institute common name matching policies that account for the screened individual’s race or ethnicity and/or the geographic location where the screening occurs.
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New Federal Contractor COVID-19 Vaccine Mandate FAQs Provide Additional Guidance, Including Expanded Scope Of Requirements To Affiliated Companies
As instructed, the Safer Federal Workforce Task Force has modified and updated its guidance on implementation of Executive Order 14042: Ensuring Adequate COVID Safety Protocols for Federal Contractors. Most recently, the Task Force released new FAQs providing additional guidance for contractors working to implement the requirements of the Executive Order. A number of the FAQs significantly expand the vaccination requirement to employees and workplaces of companies “affiliated” with federal contractors, and others allow more leeway in enforcement by contracting agencies and options for unvaccinated employees to continue working. Others provide guidance for addressing employees who refuse to be vaccinated or are in the process of requesting an accommodation. Importantly, during an informational webinar hosted today by the Administration, it was emphasized that contractors’ good faith efforts towards compliance will be acknowledged.

Expanded Coverage
The new FAQs addressing expand coverage based on corporate affiliation are located under the “Scope and Applicability” section of the Taskforce online FAQs and read as follows:

  • NEW Q: If a corporate affiliate of a covered contractor does not otherwise qualify as a covered contractor, are the employees of that affiliate considered covered contractor employees subject to COVID-19 workplace safety protocols for Federal contractors established through Task Force Guidance?
  • A: For purposes of Task Force Guidance, business concerns, organizations, or individuals are affiliates of each other if, directly or indirectly: (i) either one controls or has the power to control the other; or (ii) a third-party controls or has the power to control both. Indicia of control include, but are not limited to, interlocking management or ownership, identity of interests among family members, shared facilities and equipment, or common use of employees. An employee of a corporate affiliate of a covered contractor is considered a covered contractor employee if the employee performs work at a covered contractor workplace.

While this FAQ appears to give a nod to OFCCP’s “single entity” test, it appears to be broader and more inclusive and highlights the fact that the analysis for coverage of this executive order differs from that used to establish affirmative action obligations and corresponding OFCCP jurisdiction.

This expanded view is also being applied to covered contractor workplaces:

  • NEW Q: If the workplace where a covered contractor’s employees perform work on or in connection with a covered contract is a location owned, leased, or otherwise controlled by a corporate affiliate of a covered contractor that does not otherwise qualify as a covered contractor under Task Force guidance, is the workplace considered a covered contractor workplace?
  • A: …If any employee of a covered contractor working on or in connection with a covered contract is likely to be present during the period of performance for a covered contract at a workplace controlled by a corporate affiliate of that covered contractor, that workplace is considered a covered contractor workplace.

This FAQ covers at least two scenarios. If a covered contractor shares a workplace/building with an affiliated company, the employees of the affiliate are also subject to the Guidance. Moreover, if a covered employee of a federal contractor visits a facility of an affiliate – or is even likely to be present – the employees of the affiliate at that facility are also subject to the Guidance. These FAQs appear contradictory to definitions in the Guidance itself with respect to covered workers and workplaces, which state specifically that the touchstone of employee and workplace location coverage is the entity holding a covered government contract.

Other new FAQs in the Vaccination and Safety Protocols section are more helpful by offering a softer enforcement approach, as the below reflect.

  • NEW Q: Do all requests for accommodation need to be resolved by the covered contractor by the time that covered contractor employees begin work on a covered contract or at a covered workplace?
  • A: No. The covered contractor may still be reviewing requests for accommodation as of the time that covered contractor employees begin work on a covered contract or at a covered workplace. While accommodation requests are pending, the covered contractor must require a covered contractor employee with a pending accommodation request to follow workplace safety protocols for individuals who are not fully vaccinated as specified in the Task Force Guidance for Federal Contractors and Subcontractors.
  • NEW Q: What steps should an agency take if a covered contractor does not comply with the requirements in the Task Force’s Guidance for Federal Contractors and Subcontractors?
  • A: Covered contractors are expected to comply with all requirements set forth in their contract. Where covered contractors are working in good faith and encounter challenges with compliance with COVID-19 workplace safety protocols, the agency contracting officer should work with them to address these challenges. If a covered contractor is not taking steps to comply, significant actions, such as termination of the contract, should be taken.

Regarding unvaccinated employees the new FAQs provide additional guidance around compliance:

  • NEW Q: What steps should a covered contractor take if a covered contractor employee refuses to be vaccinated?
  • A: A covered contractor should determine the appropriate means of enforcement with respect to its employee at a covered contractor workplace who refuses to be vaccinated and has not been provided, or does not have a pending request for, an accommodation. This may include the covered contractor using its usual processes for enforcement of workplace policies, such as those addressed in the contractor’s employee handbook or collective bargaining agreements. One model for enforcement among employees with respect to non-compliance with a vaccination requirement is that being followed by Federal agencies. Guidance for Federal agencies is to utilize an enforcement policy that encourages compliance, including through a limited period of counseling and education, followed by additional disciplinary measures if necessary. Removal occurs only after continued noncompliance. Guidance for Federal agencies is that employees should not be placed on administrative leave while the agency is pursuing an adverse action for refusal to be vaccinated but will be required to follow safety protocols for employees who are not fully vaccinated when reporting to agency worksites. During the time period of enforcement, the covered contractor must ensure the covered contractor employee at a covered contractor workplace is following all workplace safety protocols for individuals who are not fully vaccinated. An agency may determine that a covered contractor employee who refuses to be vaccinated in accordance with a contractual requirement pursuant to EO 14042 will be denied entry to a Federal workplace, consistent with the agency’s workplace safety protocols.
  • NEW Q: When a covered contractor employee is not vaccinated because a covered contractor has provided the employee with an accommodation, what workplace safety protocols must the employee follow while in a Federal workplace?
  • A: The Federal agency will determine the workplace safety protocols that individuals who are not fully vaccinated must follow while in a Federal workplace. As noted in Task Force guidance, in most circumstances individuals who are not fully vaccinated need to follow applicable masking, physical distancing, and testing protocols. However, there may be circumstances in which an agency determines that the nature of a covered contractor employee’s job responsibilities at a Federal workplace, or the location of their work at a Federal workplace, requires heightened safety protocols. Further, in some cases, an agency may determine that the nature of a covered contractor employee’s responsibilities at a Federal workplace are such that no safety protocol other than vaccination is adequate—in that case, covered contractor employees who are not fully vaccinated would be unable to perform the requisite work at the Federal workplace. Such circumstances do not relieve the contractor from meeting all contractual requirements. In order for agencies to assess appropriate safety measures for contractor employees in Federal workplaces, contractors subject to a contractual requirement for maintaining COVID-19 workplace safety protocols pursuant to Executive Order 14042 should generally notify their contracting officers when one of their employees who works onsite at a Federal workplace has received an exception to the requirement to be fully vaccinated.

Along these lines, we suggest that covered federal contractors – including those who have received a request to modify an existing contract to include the clause – proactively contact their contracting officers regarding challenges they face in implementing the vaccine requirement. As reflected in this FAQ, that may allow the contracting officer to provide some leeway in compliance.
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Vaccine Rule For Larger Employers, Federal Contractors And Certain Health Care Workers To Take Effect January 4
The Biden administration announced Thursday that its vaccine rules applying to private businesses with 100 or more employees, certain health care workers and federal contractors will take effect January 4.

The rules stipulate that employees that fall into those groups will need to have received the necessary shots to be fully vaccinated, either two doses of Pfizer or Moderna’s vaccine or one dose of Johnson & Johnson’s vaccine, by January 4.

The January 4 deadline also means that the deadline for the federal contractor vaccine requirement is getting pushed back. It had previously been scheduled to take effect on December 8.

The announcement also makes clear that the vaccine rules will preempt any state or local laws aimed at banning vaccine mandates or other measures to limit the spread of Covid-19. Texas and Florida have been among the states that have been attempting to pass their own laws to restrict such mandates.

“Both OSHA and CMS are making clear that their new rules preempt any inconsistent state or local laws, including laws that ban or limit an employer’s authority to require vaccination, masks, or testing,” a fact sheet outlining the rule said in part.

A second senior administration official, discussing the rules legal authority, said that “the OSH Act gives OSHA the authority to act quickly in an emergency where the agency finds that workers are projected to a grave danger and a new standard is necessary to protect them.”

“A virus that has killed more than 745,000 Americans, with more than 70,000 new cases per day currently, is clearly a health hazard that poses a grave danger to workers. The new emergency temporary standard is well within OSHA’s authority under the law and consistent with OSHA’s requirements to protect workers from health and safety hazards, including infectious diseases,” the official continued.

The OSHA rule does allow for employees to remain unvaccinated if they so choose, but the employee must provide a verified negative test to their employer on at least a weekly basis and must wear face masks in the workplace. The rule from CMS does not provide a testing option for workers to remain unvaccinated as there is “a higher bar for health care workers given their critical role in ensuring the health and safety of their patients,” according to one of the officials discussing the rules.

A third official said OSHA will be enforcing this rule just like the agency enforces any of the other rules that are in place, and violations could include fines of up to nearly $14,000 per violation, though that fine increases if there is a “willful” violation.

That official said the agency will have planned inspections of some workplaces to ensure they are in compliance with the rule but will also rely on complaints from workers in order to best enforce the new rule.

Enforcement and penalties for health care facilities that do not come into compliance with the rule could range from monetary penalties, denying the facilities payments and possible termination from the Medicare and Medicaid program.
https://www.cnn.com/2021/11/04/politics/vaccine-rule-large-employers-federal-contractors-health-care-workers/index.html

The Fifth Circuit Issues A Stay Of The Emergency Temporary Standard Requiring Mandatory Vaccines Or Testing For All Employers With 100 Or More Employees
On November 4, 2021, the Occupational Health and Safety Administration (“OSHA”) issued its highly anticipated Emergency Temporary Standard (the “ETS” or the “Mandate”) requiring U.S. employers with 100 or more employees to either (a) implement a mandatory COVID-19 vaccination policy for employees; or (b) adopt a policy allowing employees to choose between vaccination or weekly COVID-19 testing. While we will describe the ETS and its requirements as issued below, the courts have already been asked to consider myriad legal challenges filed by both private employers and 26 states seeking to enjoin and declare the ETS unconstitutional. Based on the first ruling issued in response to these legal challenges, the future of the ETS is very much in doubt, at least as issued.

The Stay of the ETS
On Saturday, November 6, 2021, the Fifth Circuit Court of Appeals (the “Fifth Circuit”) in B.S.T. Holdings, L.L.C.  et al. v. Occupational Health and Safety Administration et al., No. 21-60845, granted the petitioners’ emergency motion to stay the enforcement of the ETS, citing to “grave statutory and constitutional issues with the Mandate.” The Fifth Circuit did not provide any further explanation of its specific concerns, notwithstanding its very conscious choice of the adjective “grave” in its very short, unpublished opinion. As part of the expedited judicial review of the ETS, the Fifth Circuit gave the government until the close of business on Monday, November 8, 2021, to file a response brief to the petitioners’ motion to stay and then gave the petitioners until the close of business on Tuesday, November 9, 2021, to file their reply brief. Presumably, the Fifth Circuit will then hold oral argument and issue an opinion that can then be the basis of an attempted appeal to the Supreme Court of the United States.

In addition to the proceedings before the Fifth Circuit, other challenges are pending before the Sixth, Eighth, and Eleventh Circuits of Appeal. The proceedings before the Eighth Circuit were brought by a number of states (Missouri, Arizona, Nebraska, Montana, Arkansas, Iowa, North Dakota, South Dakota, Alaska, New Hampshire, and Wyoming) and private entities arguing that the ETS goes beyond workplace safety and into issues of general public health and, therefore exceeding OSHA’s scope of authority. The proceedings before the Sixth and Eleventh Circuits make similar challenges. Even with the stay issued by the Fifth Circuit, the other legal challenges should progress rapidly before the various courts so that arguments that may be raised before the Supreme Court are crystallized.

Understanding that how these challenges may ultimately play out is still very much uncertain, the ETS, as drafted, required employers with 100 or more employees to achieve full vaccination status or implement mandatory testing for unvaccinated employees by January 4, 2022. With the stay of the ETS, it is unclear whether and when this mandate may come into effort, but employers still should consider planning for the contingency that the ETS will be effective at some point in the future, including as early as January 4, 2022.

Who Is Covered by the ETS?
The ETS, as issued, applies to any employer that has 100 or more employees at any time while the ETS is effective. Notably, the threshold includes all employees, company or firm-wide, even if some of those employees are ultimately exempted from vaccine or testing due to individual circumstances, as discussed below. For example, an employer with 50 locations that each has only two employees would still be covered by this ETS. The threshold also includes any seasonal, temporary, and part-time employees but not any independent contractors. If an employer’s workforce fluctuates throughout the duration of the ETS, its provisions will apply to the employer during any period in which it has 100 or more employees.

Are There Any Exceptions to Employer Coverage?
Certain employers who are covered by other federal vaccine and testing mandates are excluded from the new ETS. Specifically, employers that are subject to the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors or healthcare providers that are subject to the Centers for Medicaid and Medicare Services (CMS) COVID-19 rule are not covered by the ETS.

Are There Any Exceptions to Employee Coverage?
Although all employees count toward the 100-employee threshold, some employees are exempt from the ETS’ requirements even if their employer is covered. Namely, employees who: (1) do not report to a workplace where other individuals (either customers or co-workers) are present; (2) work from home; or (3) work exclusively outdoors are not subject to vaccination or testing requirements. However, if these individuals who, for example, work from home, do occasionally come into the office or interact with other individuals indoors, then they will be subject to the ETS’ requirements discussed below.

Employees who have a disability or medical reason for refusing or delaying vaccination or who have sincerely held religious beliefs preventing vaccination are also still exempt from any vaccination requirement but are otherwise subject to testing and/or mask-wearing.

I’m a Covered Employer. How Do I Comply With the ETS?
If the ETS is declared enforceable, covered employers will be required to develop and implement a policy for their employees that either (a) requires vaccination of all employees (subject to the limited exceptions); or (b) requires vaccination or weekly testing and face coverings.

The ETS has four main requirements for employers:

1.Implement a Compliant Mandatory Vaccine or Vaccine/Testing Policy for Employees
A covered employer’s first option for complying with the ETS is to implement a policy that requires all employees (other than those who are exempt because of, for example, a disability or religious accommodation) to be fully vaccinated. Fully vaccinated status is defined as receiving both doses of either the Moderna or Pfizer vaccine or a single dose of the Johnson & Johnson vaccine. OSHA has not yet determined whether fully vaccinated status will require any booster shots in the future.

If employers do not want to adopt a mandatory vaccination policy, the ETS provides a second option for compliance: a vaccination/testing policy. If a covered employer chooses this option, the employer can give employees a choice between: (1) getting fully vaccinated; or (2) submitting to regular COVID-19 testing and wearing a face covering at the workplace. Importantly, employers can choose different policies for different portions of their workforce. For example, if a retail company has a customer-facing workforce and a portion of the workforce that works exclusively in offices, then the company could require mandatory vaccination for the customer-facing employees and give the vaccine/testing option to those employees who do not interact with customers.

Regardless of which policy the employer chooses, employers must determine employees’ vaccination status by requesting proof from employees. Acceptable proof includes (a) the Centers for Disease Control and Prevention (“CDC”) vaccination card; (b) records of immunization from a healthcare provider, pharmacy, or public health immunization system; (c) medical record reflecting vaccination; (d) another official document that contains the required information; or (e) a signed attestation by an employee who cannot provide another form of proof. If an employer previously determined the vaccination status of its employees prior to November 5, 2021, the employer does not have to re-evaluate vaccination status, but must still maintain such records and determine the status of any new employees.

If an employer chooses the vaccination/testing option, there are stringent requirements pertaining to the timing of the tests:

  • For employees who report at least once every seven days to a workplace where other individuals (co-workers or customers) are present, they must be tested at least once every seven days and must provide documentation of their most recent test no later than the seventh day after they last provided a result; and
  • For employees who do not report at least once every seven days (i.e., those who work from home for extended periods of time), they must be tested within seven days before their return to the office and provide the results either prior to or upon their return to the office.

The ETS sets out specific guidance on what form of testing for COVID-19 is acceptable. Unvaccinated employees must not be allowed to return to the workplace until they provide acceptable proof of a negative test. Furthermore, employees who remain unvaccinated (and subject to weekly testing) also are required to wear face coverings with limited exceptions (i.e., while eating or drinking or working alone in an enclosed room).

It is important to note that if an employer chooses to allow the vaccine/testing option, the ETS does not require it to pay for any of the costs associated with the required testing. However, employers can choose to pay for some or all of this cost and may be required to do so by state or local law, by contract, or any applicable collective bargaining agreements.

Regardless of which option is chosen, employers must maintain the applicable records of tests or vaccination as medical records separate from regular personnel files. These records must be maintained as long as the ETS is in effect. They also must be available to employees or their authorized representatives by the next business day following a request by the employee or their authorized representative. Not only that, but covered employers must make the number of vaccinated employees at a workplace along with the total number of employees available to employees by the next business day and to the government within four hours of any request. All other required information must be available to the government by the next business day.

2. Provide Required Information to Employees
In conjunction with whichever ETS-compliant policy covered employers adopt, employers also are obligated to provide certain information to their employees. Employers must relay the following in a language and literacy level that is appropriate for their workforce:

  • The requirements of the ETS and the employer’s policies implemented in response;
  • Information about the safety and efficacy of the COVID-19 vaccine provided by the CDC;
  • The requirements of 29 CFR 1904.35(b)(1)(iv), which prohibit discrimination and retaliation under the Occupational Safety and Health Act; and
  • The penalties under OSHA for knowingly providing false documentation (i.e., falsified vaccination records).

3. Provide Support for Employee Vaccination
Although covered employers are not required to pay for COVID-19 testing (if they choose to allow the vaccination/testing option), the ETS requires employers to allow paid time off for employees to be vaccinated. This includes both time to get the vaccine and to recover if necessary. Specifically employers must provide up to four hours of paid time off, including travel time, at the employee’s regular pay rate for employees to get the COVID-19 vaccine. These four hours cannot be offset by any other leave that the employee has accrued, such as sick leave or vacation leave. If the employer chooses to provide vaccines on site, they must pay the employee for the time he or she spends getting the vaccine.

In addition to time off to receive the vaccine, employers must also provide reasonable paid sick leave for employees to recover from any potential side effects. Employers can require employees to take available sick leave for this purpose, but if an employee does not have any or enough sick leave available, they must still be provided the necessary time off.

4. Follow Required Guidelines to Deal With Positive COVID-19 Tests
The ETS also includes requirements regarding how employers must handle positive COVID-19 cases in the workplace. Most importantly, employers must maintain a policy that requires employees to report a positive COVID-19 diagnosis to the employer.

If an employee tests positive for COVID-19 (regardless of vaccination status), that individual must immediately be removed from the workplace. Employees who test positive for COVID-19 may only be allowed to return to work in the following circumstances:

  • Receiving a negative result on a confirmatory nucleic acid amplification test following a positive antigen test;
  • Meeting the requirements for returning to work set out in the CDC’s “Isolation Guidance”; or
  • Being authorized to return to work by a licensed healthcare provider.

Employers are not required to provide paid time off for positive COVID-19 diagnoses under the ETS but may be required to do so pursuant to other laws or collective bargaining agreements.

If a positive COVID-19 diagnosis results in an employee’s hospitalization or death and is workplace related, the employer must report the incident to OSHA. For a fatality, the employer must report within eight hours of learning of it. For hospitalizations, the employer has 24 hours to report.

What if an Employer’s State Government Has a Conflicting Law?
A number of states and other political subdivisions have passed laws or ordinances prohibiting employers from requiring vaccination, testing, or face coverings. Given the political realities of the ETS, OSHA included express language that the ETS preempts all state or local rules relating to face coverings, testing, or vaccinations in the workplace. Therefore, pursuant to the ETS, covered employers cannot prohibit the wearing of face coverings (by employees or customers) and must require testing or vaccination even if their state, city, or municipality says otherwise.

Planning Ahead
Notwithstanding the Fifth Circuit’s stay, we recommend that employers who otherwise are covered by the ETS do two things: (1) continue to monitor pending proceedings, particularly those by the appellate courts with jurisdiction over their workforce; and (2) make conditional plans to comply with the ETS, knowing that it still could be effective, either as issued or as later modified by OSHA to address legal challenges.

If you have any questions about the new ETS and/or the status of the various challenges to the ETS, please contact one of the members of AGG’s Employment team.
https://www.agg.com/news-insights/publications/not-so-fast-osha-the-fifth-circuit-issues-a-stay-of-the-emergency-temporary-standard-requiring-mandatory-vaccines-or-testing-for-all-employers-with-100-or-more-employees/

The Sixth Circuit Will Hear The Many Lawsuits Challenging The Now-Stayed OSHA ETS
On November 16, 2021, the United States Court of Appeals for the Sixth Circuit (“Sixth Circuit”) was selected to hear the many legal disputes relating to OSHA’s recent Emergency Temporary Standard (“ETS”) that proliferated in the days following OSHA’s announcement of the ETS on November 4, 2021. On its face, the ETS requires private employers with 100 or more employees to, among other things, ascertain the vaccination status of their workers by December 5, 2021, and implement a mandatory vaccination policy or require their unvaccinated workers to submit to weekly COVID testing by January 4, 2022. Immediately following the publication of the ETS, multiple states, trade associations, and private employers sought injunctions to stay the ETS and declare it unconstitutional, with unions and other groups filing lawsuits seeking to uphold the ETS. On November 6, 2021, the United States Court of Appeals for the Fifth Circuit (“Fifth Circuit”) stayed the ETS, and reaffirmed that holding on November 12, 2021, finding that the ETS is likely unconstitutional for a number of reasons.

In response to this ruling, the Biden Administration exercised its right to invoke Judicial Panel on Multidistrict Litigation procedures wherein the names of all of the federal circuit courts with pending lawsuits over the ETS (all of them) were placed in a drum, with one name then drawn at random. The “winner” of this lottery then would hear all pending legal challenges regarding the ETS. Yesterday, the lottery was conducted, and the Sixth Circuit, which includes the States of Kentucky, Michigan, Ohio, and Tennessee, was drawn.

As the winner of this lottery, the Sixth Circuit now will assign a panel of three judges, who will be selected randomly, to hear the challenges to the ETS. The Sixth Circuit’s bench is comprised of 28 judges, with 20 judges having been appointed by Republican presidents. The composition of the Sixth Circuit standing alone suggests that the Administration received a “tough” draw in its efforts to secure the repeal of the Fifth Circuit’s stay order and preserve the ETS.

The timeline on which the Sixth Circuit will consider this matter has not yet been announced, but the court will likely designate its three-judge panel and set a briefing schedule in the next few days. Regardless of the Sixth Circuit’s ultimate ruling on the ETS, the future of the ETS certainly will be appealed to the Supreme Court of the United States, understanding that the Supreme Court would have to agree to hear the dispute. In other words, Supreme Court consideration of the ETS is not certain.
https://www.agg.com/news-insights/publications/the-sixth-circuit-wins-the-lottery-and-will-hear-the-many-lawsuits-challenging-the-now-stayed-osha-ets/

OSHA Suspends Enforcement Of COVID-19 Vaccine Mandate For Businesses
The Occupational Safety and Health Administration (OSHA) is suspending enforcement of the Biden administration’s COVID-19 vaccine mandate for large private businesses after a federal appeals court upheld a stay on it last week. OSHA said in a statement published on its website Friday night that while it is confident in its power to protect workers amid the pandemic, it is suspending activities related to the mandate, citing the pending litigation.

“The court ordered that OSHA ‘take no steps to implement or enforce’ the ETS [Emergency Temporary Standard] ‘until further court order.’ While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation,” OSHA said.

President Biden announced in September that the administration was rolling out a new rule that would require all private employers with 100 or more employees to mandate vaccines or weekly testing for all personnel, a guideline that has the potential to impact nearly 80 million workers.

Earlier this month the administration set Jan. 4 as the deadline for qualifying private employers to start mandating the vaccine or requiring weekly testing. The rule was developed by OSHA.

In a 22-page ruling last week, the 5th U.S. Circuit Court of Appeals wrote that the administration’s COVID-19 vaccine and testing mandate was “fatally flawed” and ordered that OSHA not enforce the requirement “pending adequate judicial review” of a motion for a permanent injunction.

The court said OSHA should “take no steps to implement or enforce the mandate until further court order.”

The case originated when Texas Attorney General Ken Paxton (R), along with the states of Louisiana, Mississippi, Utah and South Carolina, filed a lawsuit against the Biden administration over the vaccine mandate in October, requesting a preliminary and permanent injunctive relief to stop the mandate from being enforced. The lawsuit also asked that the mandate be declared unlawful.

Earlier this month, the federal appeals court ordered a temporary halt on the mandate, but the Department of Justice then requested that the halt be lifted, contending that the administration has the legal authority to require COVID-19 vaccines or testing for larger companies and that the states that are challenging the mandate have not shown that their claims outweigh the harm of stopping of rule.

The court, however, upheld the stay, which prompted OSHA’s announcement that it is suspending enforcement of the rule.

More than two dozen state attorneys general and other groups are also challenging the mandate in court.

Despite the court’s ruling, however, the White House urged businesses to continue implementing the guidance for COVID-19 vaccines and testing.

“We think people should not wait. We say: Do not wait to take actions that will keep your workplace safe. It is important and critical to do and waiting to get more people vaccinated will lead to more outbreaks and sickness,” White House deputy press secretary Karine Jean-Pierre told reporters last week following the ruling. “We’re trying to get past this pandemic, and we know the way to do that is to get people vaccinated,” she added. The administration has said that it believes it is on firm legal footing even after the federal appeals court’s ruling, maintaining that it has the authority to mandate vaccination for workers in an effort to stop the spread of COVID-19. It is not clear how the White House will react to OSHA’s announcement.
https://thehill.com/policy/healthcare/582022-osha-suspends-enforcement-of-covid-19-vaccine-mandate-for-businesses

Conflicting Orders: Can State Laws Thwart Federal Vaccine Mandates?
With the federal government and several states taking opposing positions on workplace vaccine mandates, many employers are left wondering whether they can enforce vaccine requirements on their employees and what accommodations they must provide. With federal deadlines looming, employers must be clear on their obligations.

Conflicting Mandates
As previously reported, on September 9, President Biden announced extensive new measures to combat the spread of COVID-19, including nationwide workplace vaccine mandates for several categories of employers. Certain federal contractors and subcontractors, for instance, are now required to have all employees fully vaccinated by December 8, according to guidance released by the Safer Federal Workplace Task Force. A similar federal mandate is soon expected from the Occupational Safety and Health Administration (OSHA), which will publish an Emergency Temporary Standard (ETS) requiring all employers with 100+ employees to impose a workplace vaccine mandate or require weekly testing for unvaccinated employees. The OSHA ETS will reportedly include penalties of $14,000 per violation, while federal contractors who do not comply with their vaccine mandate may see their contracts cancelled and federal funding cease.

As the Biden Administration continues its vaccination plans, several states are starting to push back. Montana and Texas, for example, have taken steps to prevent employers’ enforcement of vaccine mandates in their states. On May 7, 2021, Montana Gov. Greg Gianforte signed Montana House Bill 702, which prohibits discrimination based on vaccination status. This includes a prohibition on any employer or government entity refusing employment to a person based on vaccination status or discriminating against any person in compensation or in a term, condition, or privilege of employment based on the person’s vaccination status.

Meanwhile, federal mandates will require most employees (e.g., 80 million employees are estimated to be impacted), and all federal contract employees, to be vaccinated, with limited exceptions. Federal law only requires employers to provide qualifying employees with workplace accommodations based on an employee’s disability (under the Americans with Disabilities Act) or sincerely-held religious belief (under Title VII) that prevent the employee from receiving the COVID-19 vaccine.

With a seeming conflict between state responses to federal mandates, as well as their respective exemptions, many employers are rightfully wondering what obligations they can mandate for their workforce and what accommodations they must provide to employees.

Federal Preemption
Some employers have already picked a side: a national air carrier, for example, recently announced they will be requiring employee vaccinations, stating that the “the federal vaccine mandate supersedes any conflicting state laws.” This sentiment strikes at the key legal question at issue: do federal mandates always supersede state mandates?

The simple answer, in most cases, is “yes” – federal law generally supersedes conflicting state law. Article VI, Paragraph 2 of the U.S. Constitution – the “Supremacy Clause” – generally establishes that federal law is “the supreme law of the land” and takes precedence over state laws and state constitutions. This same federal supremacy has been granted by Congress to federal agencies, who have the power to create regulations, in this case, vaccine mandates, that have the force of federal law. The OSH Act of 1970, for instance, which directed the creation of OSHA, also enabled the agency to write regulations that carry the power of federal law.

Therefore, while state laws may generally be more restrictive than their federal counterparts, they cannot be less restrictive – i.e., states cannot circumvent federal requirements with their own. Indeed, the September guidance for federal contractors directly states that the federal contractor requirements are “promulgated pursuant to Federal law and supersede any contrary State or local law or ordinance.” Meanwhile, the Pentagon released a statement on October 14 reiterating that the federal contractor mandate preempts local laws and ordering defense contractors to have their employees vaccinated. Several such contractors, including Raytheon and Boeing, will reportedly require employee vaccinations.

Likely Challenges
That is not to say, however, that such mandates will go unchallenged. Indeed, on October 22, Arizona’s Attorney General filed an amended lawsuit challenging the federal contractor vaccine mandate, alleging the mandate violates several provisions of the Constitution. And, although OSHA’s ETS has not yet been published, Attorneys General in 24 states have already stated they will immediately file suit to challenge the enforcement of the ETS.

OSHA, in particular, will face an uphill battle to demonstrate that their expected ETS is “necessary” to prevent a “grave danger” to workers – the standard that Section 6(c)(1) of the OSH Act requires any ETS to meet. Certainly, many states and large employers across the country are already preparing arguments and strategies to counteract these mandates.

Next Steps
Although federal vaccine mandates will likely face upcoming legal challenges, employers in any state(s) would be wise to consult with their counsel to consider and prepare for impending federal mandates and deadlines – especially the December 8 deadline for federal contractors. And, while the requirements of the anticipated OSHA ETS remain unclear, employers likely subject to the ETS (100+ employees) can better prepare their workplaces now by getting organized with their counsel, such as by considering necessary new workplace policies and reviewing their employee accommodation obligations.

Meanwhile, employers in states such as Montana and Texas should consult with counsel and proceed cautiously before taking adverse action against employees opposing workplace vaccine mandates.
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First Circuit Court Of Appeals Refuses To Enjoin Mass General Brigham’s Mandatory Vaccination Policy
On November 18, 2021, the First Circuit Court of Appeals upheld a ruling by the Federal District Court in Massachusetts denying Mass General Brigham (MGB) employees’ request for a preliminary injunction which would have prevented MGB from enforcing its mandatory COVID-19 vaccine policy for all workers.

In June 2021, MGB announced it would require its employees to obtain a COVID-19 vaccination. In light of the recent outbreak of COVID-19 cases caused by the Delta variant, MGB determined that such a vaccination policy was critical to keeping safe its medically vulnerable patient population, employees and visitors. MGB required that employees receive the COVID-19 vaccine by October 15, 2021. Employees were told that noncompliance with the policy would result in unpaid leave on October 20, 2021, and termination thereafter on November 5, 2021. The announcement explained that certain exemptions would be available for medical contraindications or sincerely held religious beliefs, but that accommodations such as testing and masking were not adequate to meet MGB’s urgent health and safety priorities and protect its vulnerable patient population.

MGB created two separate committees to review requests for exemption: the Religious Exemption Review Committee and the Medical Exemption Review Committee. A total of 2,402 employees submitted requests for exemptions. After review, 234 employee exemptions were granted. Plaintiffs – two hundred and thirty-seven (237) MGB employees – were denied requests for exemptions based on purported medical and/or religious reasons.

On October 17, 2021, plaintiffs brought a lawsuit in Federal District Court in Boston claiming that they suffered various disabilities (e.g., anxiety, pregnancy, PTSD and leukemia) and/or held sincere religious beliefs (e.g., a need to glorify God at all times by keeping the body pure of any foreign substances, an objection to the use of vaccines tested with aborted fetal cells, and opposition to vaccines that interfere with the body’s immune system that God created) that prevented them from being vaccinated. They requested that the Court intervene and find that MGB wrongly denied their requests.

In a November 12, 2021 decision, the District Court ruled that plaintiffs had no likelihood of success on the merits of any of their claims. In particular, with respect to plaintiffs’ medical exemption requests, the court held that there was “considerable doubt” that any of the plaintiffs had a “disability” that substantially limits them from working, and that none of the plaintiffs had shown a medical contraindication. The court went on to state that it was reasonable for MGB to conclude that the unvaccinated plaintiffs posed a “direct threat” to the health and safety of others in the workplace, and that an accommodation in the form of testing and masking was not reasonable and would pose an undue hardship on MGB, which must ensure the health and safety of its patients, staff and visitors. Lastly, the court held that because evidence in the record showed that MGB communicated with plaintiffs about their exemption requests, followed up for additional information as needed, and rendered individual decisions on accommodations in accordance with CDC guidelines, plaintiffs were unlikely to succeed on their claim that MGB failed to engage in an interactive process.

With respect to plaintiffs’ religious exemption claims, the court similarly held that MGB had shown that an accommodation in the form of testing and masking was not reasonable and would pose an undue hardship on MGB, and that permitting plaintiffs to continue to work at MGB without being vaccinated would materially increase the risk of spreading the disease and undermine public trust and confidence in the safety of its facilities. The court also held that where MGB formed a Religious Exemption Review Committee to evaluate requests for religious exemptions, and often sent follow-up requests for information, MGB had likely engaged in an interactive process in good faith as the law obligates.

Finally, the District Court ruled that plaintiffs could not show irreparable injury (a requirement to succeed on a request for an injunction), as any injury suffered could be addressed through the payment of money damages if plaintiffs succeeded in a trial on the merits of their lawsuit. The court also held that a balance of the equities (i.e, the economic hardship experienced by plaintiffs if they lose their jobs vs. MGB’s strong interest in protecting its patients, visitors and staff from exposure to COVID-19) favored MGB, and that enjoining MGB from enforcing a vaccination mandate intended to curb the spread of COVID-19 is not in the public interest.

On November 18, 2021, the First Circuit Court of Appeals upheld the District Court’s ruling on narrow grounds, stating that because plaintiffs have an adequate remedy in the form of money damages (should they prevail at a trial on the merits), an injunction was not appropriate. Although the First Circuit did not formally engage in an analysis of plaintiffs’ likelihood of success on the merits, it did reference, in a footnote, the district court’s factual findings and commented on the challenges plaintiffs face in succeeding in their case.

On November 23, 2021, the employees made an emergency petition to the United States Supreme Court seeking review of the First Circuit’s opinion. It is improbable, however, that the Court will use this opportunity in its so-called “shadow docket” to provide emergency relief since it declined to act on October 29, 2021 to enjoin the application of the mandatory vaccination for health care workers imposed by the State of Maine. Does v. Mills, 595 U.S. ____, Case No. 21A90 (Oct. 29, 2021). Absent action by the Supreme Court, the case will proceed on the merits in the Federal District court in Massachusetts.
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State Developments

New York DOL Issues FAQs On Recreational Cannabis – Guidance For Employers
On October 8, 2021, the New York State Department of Labor (“NYSDOL”) issued guidance in the form of Frequently Asked Questions (“FAQs” or the “Guidance”) to assist employers in navigating the Marijuana Regulation and Taxation Act (“MRTA” or the “Act”) and in understanding what they can and cannot do. As we previously reported, the MTRA, enacted on March 31, 2021, legalized recreational cannabis in the State. Of particular importance to employers, the Act amended New York Labor Law Section 201-D (“Section 201-D”) to create new legal protections for employees who engage in off-duty, off-premises cannabis use.

The FAQs address several common workplace situations related to recreational cannabis use by employees, which we summarize below.

Identifying “Specific Articulable Symptoms of Impairment”
As amended by the MRTA, Section 201-D prohibits employers from discriminating against employees based on their use of cannabis outside of the workplace, outside of work hours, and without use of the employer’s equipment or property. The law, however, permits employers to take employment action against an employee for cannabis use, provided the employee “manifests specific articulable symptoms of impairment” on the job that either (a) “decrease or lessen the employee’s performance of the employee’s tasks or duties”; or (b) “interfere with the employer’s obligation to provide a safe and healthy workplace as required by state and federal workplace safety laws.”

The Act does not define “impairment,” and the FAQs acknowledge that there is “no dispositive and complete list of symptoms of impairment.” The FAQs advise employers to determine whether an employee is evidencing articulable symptoms of impairment based upon “objectively observable indications that the employee’s performance of the duties . . . of their position are decreased or lessened.” As an example, the Guidance explains that operating heavy machinery in an unsafe or reckless manner could be an articulable symptom of impairment. Of note, the Guidance cautions employers that objectively observable indications of impairment could “also be an indication of a disability[,].” thus tacitly suggesting that employers proceed cautiously before taking adverse action because of presumed cannabis impairment.

The FAQs emphasize that signs an employee may have used cannabis that do not demonstrate impairment, for example, the smell of cannabis, cannot be relied upon as the sole evidence of an impairment and cannot be the sole reason for disciplinary action against an employee. Similarly, a positive drug test cannot alone serve as the basis for concluding that an employee was impaired at work by the use of cannabis.

In other words, mere indications of cannabis use, such as odor, are not the same as signs of impairment and alone are insufficient to support an adverse employment action. An employee’s use of cannabis during work hours or while using employer property, however, does constitute grounds for discipline, even without signs of impairment.

Drug Testing of Employees
The New York City Human Rights Law prohibits pre-employment testing for cannabis. Although the MRTA does not ban testing for cannabis, the FAQs confirm that New York employers (outside the City’s five boroughs) may not test employees for cannabis unless they can first point to an articulable symptom of impairment that lessens or decreases performance or has a bearing on workplace safety. Thus as a practical matter, the MRTA essentially bars pre-employment and random drug testing for cannabis in New York, except where federal or state law requires—not merely permits—it for the employee’s position (e.g., federally mandated drug testing for drivers of commercial motor vehicles). Reasonable suspicion testing, i.e., where the employee manifests specific articulable symptoms of impairment, is allowed. The Guidance does not address how the law applies to unionized workplaces that may have collective bargaining agreements or policies permitting random drug testing or have a lower standard for drug testing than what the Act requires.

Use or Possession During Work Hours or on Work Premises
The FAQs state that employers may prohibit cannabis use during “work hours,” which for the purposes of the Act means “all time, including paid and unpaid break and meal periods, that the employee is suffered, permitted or expected to be engaged in work, ‘on-call,’ and all time the employee is actually engaged in work.”

Employers may also prohibit employees from using, possessing or otherwise bringing cannabis onto the employer’s property at any time. An employer’s property includes leased or rented space, company vehicles, and areas used by employees within the employer’s property (e.g., lockers, desks, etc.).

In the hybrid or remote work environment, it is important to note that an employee’s private residence is not considered a “worksite” by the NYSDOL. Accordingly, an employer may only take action against an offsite remote employee if the employee exhibits articulable symptoms of impairment during work hours, and not for the employee’s use or possession at home.

Workplace Policies
The FAQs reiterate that amended Section 201-D generally does not permit employers to prohibit the use of cannabis outside of the workplace. New York employers may, however, continue to prohibit employees who work away from their employers’ premises (e.g., in the field or at a client’s location) from using cannabis at those locations.

The Guidance also explains that employers cannot require employees to waive their Section 201-D rights as a condition of hire or continued employment. Employers engaging in “last chance agreements” with employees should take particular note of this prohibition when drafting those agreements.

Applicability
The FAQs confirm that the MRTA applies to both public and private New York State employers and to all employees over the age of 21. The Guidance reiterates that the Act does not cover non-employees, such as independent contractors, volunteers, and students who are not employees.

WHAT THIS MEANS FOR EMPLOYERS
New York employers should review their drug-free workplace, conduct and substance abuse and other policies and procedures that may address cannabis use in the workplace, and revise them as needed to comply with Act’s prohibition of discrimination against off-duty, off-worksite use of cannabis. Employers suspecting cannabis impairment during an employee’s work hours must be able to point to objective indications of impairment, related to either decreased or lessened performance or workplace safety. Smell alone, for example, is not a sufficient indication of impairment.

Employers should also review their employee policies and practices concerning drug screening and testing, including random and reasonable suspicion-based drug testing. Employers may wish to consider eliminating pre-employment drug testing for cannabis unless it is required by state or federal law for the position. Further, employers with unionized workers should review their collective bargaining agreements and policies to determine what changes may be necessary in response to the Act and whether such changes will be subject to a duty to bargain with employees’ bargaining representatives.

Lastly, employers should monitor the Office of Cannabis Management website for guidance on identifying impaired workers.
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New York DOL Issues Guidance On Drug Testing For Marijuana
New York has become the first state to prohibit virtually all workplace testing for marijuana except in very limited circumstances. The New York Department of Labor (DOL) issued a document, Adult Use Cannabis and the Workplace: New York Labor Law 201-D, to provide clarification pertaining to recreational marijuana and the workplace.

The new law presumably pre-empts other New York laws, including a New York City ordinance that prohibits testing most job candidates for marijuana. The state-wide law prohibits testing candidates and employees for marijuana. While employers still have the right to prohibit employees from being impaired by marijuana while on the job, bringing marijuana into the workplace, and using marijuana while working, employers cannot require employees or candidates to promise or agree to abstain from marijuana use as a condition of employment.

Pertaining to drug testing policies, DOL states:

  • If an employer has an existing drug-free workplace policy that prohibits marijuana use, the policy is no longer permitted (unless an exception applies… see below), and the employer must update or amend their policy immediately.>
  • Employers cannot test for marijuana simply because it is allowed and not prohibited under federal law.
  • DOL clarifies that its guidance only applies to workers employed within the state of New York, but that it covers both public and private employers in the state.

Who Can Still Test for Marijuana?
According to the DOL guidance, there are circumstances in which an employer can test for marijuana, including:

  • If federal or state law requires drug testing for marijuana or makes it a mandatory requirement of a particular position. The DOL cites the following as examples:
    • Mandatory drug testing for drivers of commercial motor vehicles [and candidates for such a positions] in accordance with 49 CFR Part 382,
    • NY Vehicle and Traffic Law Section 507-a which requires mandatory drug testing for for-hire vehicle motor carriers in accordance with 49 CFR 382
  • When an employee’s actions [presumably while impaired on the job] would cause the employer to be in violation of federal law or the loss of a federal contract or federal funding.

Regarding impairment, the guidance states employers can take employment action against an employee if the employee is impaired by marijuana while at work, though taking action does not necessarily mean drug testing. The Act does not define what impairment is except to say that the individual in question manifests “specific articulable symptoms” of impairment. Further, an employer “cannot use a drug test as the basis for their determination that an employee was/is impaired by cannabis.”

Next Steps
The New York DOL guidance is extensive, and employers must comply immediately. Contact ClearStar for assistance in modifying your drug testing policy and removing marijuana from your drug-test panel if necessary.
Full text of the New York DOL guidance: https://go.pardot.com/e/837903/-p420-cannabisfaq-10-08-21-pdf/btzw7/327956648?h=zRwfjCgmZ06eIppoxQTbb-gqRelERobQq7yIpKS8ShM

NY Extends To Dec. 15 Designation Of Covid-19 As ‘Highly Contagious Communicable Disease,’ Continuing Employer Obligations Under HERO Act
On Oct. 31, 2021, New York Gov. Hochul issued an order extending until Dec. 15, 2021, the designation of COVID-19 as a “highly contagious communicable disease.” This designation, first announced Sept. 6, 2021, requires all employers to implement workplace safety plans under the New York Health and Essential Rights (NY HERO) Act governing the establishment of procedures for prevention and exposure to any diseases so designated by the governor. See previous GT Alerts, “New York Employers Must Activate Airborne Infectious Disease Exposure Prevention Plans Under NY HERO Act” and “New York State Publishes HERO Act Model and Industry Plans for Returning to Work,” and “NY Extends Designation of COVID-19 as ‘Highly Contagious Communicable Disease,’ Continuing Employer Obligations Under HERO Act.”

Illinois Governor Gives Employers Greater Authority To Impose COVID-19 Requirements As A Condition Of Employment
On November 8, 2021, Gov. J.B. Pritzker signed Senate Bill 1169, which amends the Illinois Health Care Right of Conscience Act to clarify that the Act was not intended to apply to COVID-19 requirements. The amendment therefore gives employers greater authority to impose COVID-19 requirements as a condition of employment. The amendment is simply a declaration of existing law and should not be understood as a new enactment or vaccine mandate.

The Health Care Right of Conscience Act was first enacted in 1977 to shield medical professionals from adverse consequences should they refuse to perform medical procedures, such as abortion, because of religious or moral beliefs. Employees have recently used the Act to skirt COVID-19 vaccine or testing mandates.

The pre-amended law broadly states:

It is the public policy of the State of Illinois to respect and protect the right of conscience of all persons who refuse to obtain, receive or accept, or who are engaged in, the delivery of, arrangement for, or payment of health care services and medical care.

The Act’s definition of “health care” includes testing, which has added to the uncertainty of whether it can bar employers from mandating COVID-19 vaccination or testing. With the passage of Senate Bill 1169, the Illinois legislature has put this ambiguity to rest. As noted, the amendment adds language to explain the Act does not apply to COVID-19 obligations. Specifically, the amendment provides that it is not a violation of the Act to enforce COVID-19 measures or requirements through “terminating employment or excluding individuals from a school, place of employment, or public or private premises in response to noncompliance.”

It is important for employers to remember, however, that employees can still cite to the federal exemptions for health and religious reasons. Employers should also be wary that their employees may continue to cite to the Act or take legal action until the amendment becomes effective on June 1, 2022.
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Alabama Employers Must Now Provide Vaccine Exemption Forms With Passage of SB9
On November 5, 2021, Alabama Governor Kay Ivey signed into law a bill (SB9) that permits Alabama employees to claim an exemption from COVID-19 vaccination requirements for medical reasons or because of sincerely held religious beliefs if they make the request to their employer using a standard exemption form provided by the bill. The new law also provides employees with an administrative appeal process if their exemption request is denied and employment terminated for failing to be vaccinated.

The new Alabama law requires employers to make the standard exemption form “readily available” to employees, along with directions for submitting the form. Employers are required to “liberally construe” the employee’s eligibility for an exemption in favor of the employee. There is a presumption under the law that the employee is entitled to the exemption if he/she submits a properly completed form.

What Are the Eligible Reasons for Exemption?
The exemption form sets out eight specific reasons for a medical exemption. The first reason, and the only one for which a healthcare provider must also sign the form, is a catch-all for the employee to claim that his/her provider has recommended that the employee “refuse the COVID-19 vaccination based on my current health conditions and medications.” The form does not require that the employee or provider describe those health conditions or medications with any specificity.

All of the other reasons on the form for a medical exemption may be self-reported by the employee, without any separate certification by a healthcare provider. They include that the employee has been previously diagnosed with COVID-19 within the past 12 months. The other permitted reasons are:

  • Previously suffered a severe allergic reaction, such as anaphylaxis, to a vaccination.
  • Previously suffered a severe allergic reaction to receiving polyethylene glycol or products containing it.
  • Previously suffered a severe allergic reaction to polysorbate or products containing it.
  • Have received monoclonal antibodies or convalescent plasma to treat COVID-19 in the last 90 days.
  • Have a bleeding disorder or taking blood thinners.
  • Severely immunocompromised such that the vaccine would cause a health risk.

In signing the exemption form, the employee is swearing and affirming that the information he/she has provided is true and accurate. The form further states that the employee understands that providing false or misleading information can be grounds for discipline, up to and including termination from employment.

What Is the Process for Challenging Denials of Exemptions?
The new law also sets up a procedure for the employee to challenge a denial of an exemption request by appealing to the Alabama Department of Labor (the “ADOL”) within seven days of the denial. The bill instructs the ADOL to adopt an emergency rule, not more than 21 days after the effective date of the act (which was November 5, 2021), to establish this appeal process. An Administrative Law Judge (“ALJ”) is required to issue a ruling within 30 calendar days of receiving the appeal. If the ALJ upholds a denial of an exemption request, the employee then has 14 days after such a ruling to appeal to the state Circuit Court.

What Limitations Are There on Employers If They Deny an Exemption?
If an employer denies a request for an exemption, then it may not terminate the employee on the basis of not being vaccinated from COVID-19 for a period of seven days after the denial to permit time for the employee to appeal. If an appeal is filed, then the employer may not terminate the employee until a final ruling is issued by the ALJ or Circuit Court Judge.

Employers must also continue to pay employees at their normal rate of compensation for a period of seven days after denying an exemption or, if an appeal is filed, until the ALJ issues a ruling in the employer’s favor. Note that this section of the law does not make any distinction for hourly employees, who normally are not paid if they are not working.

Unless extended by a subsequent act of the Legislature, this new law expires on May 1, 2023.

What Does SB9 Mean for Employers in Alabama facing Federal Vaccine Mandates?
The new law potentially puts Alabama employers in conflict with the federal vaccine mandates. The law will be of particular concern to Alabama federal contractors and healthcare providers because, unlike the OSHA rule, employees working for employers covered by President Biden’s executive order and the CMS rule do not have a testing option under those mandates. Also, the medical reasons for the exemption under the Alabama law, in particular the claim of prior COVID-19 immunity, also are potentially broader than those that would be expected to qualify for a medical exemption under the federal mandates.

With the signing of SB9 into law, employers must act quickly to ensure their policies and procedures are in place for employees wishing to submit an exemption form and that employers comply with SB9 when evaluating vaccine exemption requests.
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International Developments

The COVID-19 Vaccine And Its Effects On Employment Relationships: The Landscape In Latin America

Chile
The COVID-19 crisis that has spread across the world has brought various challenges to every country, vaccination being one of them.

In Chile, vaccination is voluntary, since the vaccines developed to date have been considered experimental by the World Health Organization and consequently, they may only be used on people who freely decide to be inoculated.

In this scenario, the Chilean government has promoted a process for vaccinating the population using various mechanisms, and as a result, on September 11, 2021, 13,236,384 people had been fully vaccinated (single dose and second dose), which amounts to 87.08% of the target population.

In the context of employment, employers in Chile cannot ask their workers to be vaccinated against COVID-19 as a requirement for providing their services, because it is a voluntary measure. Including vaccination as a condition for returning to in-person work would amount to a breach of constitutional rights to life and physical and intellectual integrity (article 19 no 1 of the Political Constitution of the Chilean Republic), as well as of the right not to be discriminated against (article 19 no 16 of the Political Constitution of the Chilean Republic).

This was confirmed recently by the superior courts of justice in Chile, which acknowledged that having the COVID-19 vaccine is voluntary, and employers cannot ask workers to be inoculated, let alone make it a condition for continued employment (judgment by the Antofagasta Court of Appeals, Appeal Roll no 7596-2021, dated August 19, 2021).

Similarly, the Work Directorate – although it has not officially pronounced a decision on the subject – has said that the COVID-19 vaccination is a voluntary step by workers, in line with what has been determined by the Ministry of Health, and for that reason employers cannot prevent their employees from entering the workplace for the reason that they have not been vaccinated without the employer incurring a breach of their obligation to provide the covenanted work (Ordinary Decision no 1744 by the Work Directorate, on July 1, 2021).

Therefore, employers are not authorized to ask their workers to be vaccinated against COVID-19, either as part of the return program, or as a condition for hiring or to retain their employment contract with the employer. Employers are authorized, however, to adopt other measures designed to reduce the risks of COVID-19 infections, which are line with the health instructions delivered by the Health Ministry in Chile.

Similarly, employers do not have the right to end an employment contract with a worker, on the ground that the worker has freely chosen not to be vaccinated against COVID-19, or to restrict access by unvaccinated workers to their premises, because that would amount to a breach of workers’ constitutional rights.

Despite this, and in view of what other countries have done in relation to making vaccination a mandatory requirement (especially for individuals in certain target groups with specific health risks), it cannot be ruled out that, in the future, Covid19 vaccines may start to be required as a mandatory measure for anyone presenting certain types of risks.

Colombia
Colombia has not stayed outside the debate emerging from the COVID-19 pandemic, over whether vaccination should be mandatory among the working population.

In the period between the pandemic beginning and September 2021, COVID-19 vaccinations in Colombia have been strictly voluntary; and it does not appear – in the foreseeable future at least – that the legislation will adopt a stricter or more restrictive standard.

The Work Ministry in Colombia confirmed in Circular 047 on August 5, 2021 the view that vaccination is strictly voluntary, by stating that “(…) when faced with refusal to be vaccinated it is not feasible to make it a requirement to enter or remain in a job, because this would amount to a clear breach of workers’ fundamental rights”.

Having said that, and to strike a certain degree of balance, the same circular mentions that “(…) a strong information program is recommended on raising human awareness and on individual responsibility, focusing mainly on the protection of life, health and welfare for everyone, so that individuals will choose to have the vaccine as a fundamental component for returning to their activities, and guaranteeing that workers are able to attend vaccination centers in their working hours (…)”.

The balance that has been sought by the Work Ministry – between confirming the idea that vaccination is voluntary and inviting vaccination to be promoted among the working population – leaves serious doubts and question marks which are particularly important.

The first, and perhaps most obvious, is whether an employee may refuse to enter the workplace for in-person work if there is not sufficient certainty that all employees have been vaccinated. And whether, if this stance is adopted, the employer is able to make the refusing employee comply.

Additionally, and linked to these issues, a doubt arises as to what liability employers would be assuming by making their workers physically attend the workplace, even if a portion of the workforce has not been vaccinated; including where the employers have taken reasonable health protection measures, such as requiring masks to be worn all the time, staying at the necessary distance from others and installing washbasins and hand gel dispensers.

There are also doubts over the degree of liability that employers might be assuming where one of their workers – who has not been vaccinated against COVID-10 – enters a client’s premises to provide services and infects the client’s employees with COVID-19.

All of these concerns, and others, have to be resolved on the basis of principles of reasonableness and fairness, by seeking to keep the working population safe above all other considerations.

Mexico
It is not a mandatory requirement in Mexico to be vaccinated against COVID-19. The Mexican Federal Government has stated that nobody may be forced to be vaccinated against their will, nor may penalties be imposed for not being vaccinated.

In Mexico, the Mexican Vaccination Strategy commenced officially on December 24, 2020 with the vaccination of adults aged over 70. Between that date and September 2021, the program has continued by giving vaccines to the rest of the adult population; meaning anyone aged over 18. On the date of writing, more than 112 million doses have been given and slightly over 51 million people in Mexico been fully vaccinated, which is 40% of the whole population of Mexico.

The vaccines that have been given in Mexico – all with authorization for emergency use – are from a range of manufacturers (Pfizer-BioNTech, AstraZeneca, Cansino Biologic, Sputnik V, Sinovac, Johnson & Johnson and Moderna) and all were supplied by the Federal Government, a few were acquired directly from the manufacturers and others donated by the Government of the United States of America. Although the Government has not officially prohibited direct purchases of vaccines by private parties, until now it has not been possible to buy a vaccine in Mexico in the private sector, because they are only available for the Government.

Unlike in the United States, there is not a significantly sized anti-vaccine movement in Mexico; in actual fact, according to a survey published by Ipsos in March 2021, more than 80% of the adult population in Mexico expressed a wish to receive the COVID-19 vaccine. The problem is that vaccines have been in short supply in Mexico and many towns, especially those at a distance from large urban areas, have not received sufficient numbers of doses, which has slowed down the vaccination process, especially among the younger population.

In Mexico, the third wave is expected to end shortly so the Federal Government has decided to reduce restrictions preventing shops from opening and imposing social distancing throughout the country, and to allow larger numbers of people in all public places, offices, shops, social, sports, religious events, and the like.

In this scenario, a large portion of the private sector has decided it is time to return to workplaces with practically the whole of the regular workforce, to the extent allowed by the health rules. It is important to consider, however, that although it is desirable for everyone to be vaccinated, there are no provisions in Mexico that allow employers to ask their workers to be vaccinated. It must be remembered in fact that clinical records and information on the health of individuals are sensitive personal data as determined in the Federal Law on the Protection of Personal Data in the Possession of Private Parties, which means that workers could validly reserve the right to inform their boss or not as to whether they have had any of the vaccines against COVID-19. Moreover, if anyone is dismissed or not allowed to enter the workplace due to not being vaccinated, the employer could incur liability under labor law or even a criminal offense of discrimination, especially considering that in Mexico some people have not been vaccinated not because they did not want to be but because not enough vaccines were available.

Because of this, to prepare for employees returning to workplaces to work in person, companies may carry out pro-vaccination campaigns, give incentives and provide information to their employees on the risks and benefits of receiving the COVID-19 vaccine, although they must be careful not to impose sanctions for that reason.

Peru
Due to Peru being one of the hardest-hit countries by COVID-19, the Peruvian government has focused its efforts on vaccination processes for the population. Therefore, with the average fully-vaccinated figure nearing 27.29% of the population, the impact of these processes on employment relationships is imminent.

Under the National Universal Vaccination Program against COVID-19, on June 21, Law no 31255 was published, promoting the purchase and supply of vaccines against COVID-19 by the private sector so that they may be used for their employees, and for this to contribute to Vaccination Program and increase the pace of vaccinations among the country’s citizens. To date, however, the Regulations on this law have not been published and this alternative could not be put into practice.

Currently, vaccinations have been authorized for individuals aged over 18 in Lima, which could have a positive impact on a sector of the population that accounts for a large part of the economically active population. So, it would be prudent for employers to assess the potential impact of vaccination processes among their employees, placing particular emphasis on plans for returning to in-person working systems, the provision of vaccination incentives, or the processing of medical information – including vaccination information – of employees, among other issues.

A first point to take into account is that, under the Vaccination Program, vaccination is a free and voluntary choice so individuals have the right to be able to decide whether or not they want to receive the COVID-19 vaccine which may not imply an infringement or breach against public health or of the Program. In a labor law context, the “free and voluntary” choice rule could mean that workers, besides deciding not to be vaccinated, may refuse to disclose information on their vaccination status, which will complicate the implementation of procedures for returning to the workplace. Our recommendation on this point involves designing return plans with an attempt to include the various groups of workers, and with observance of the health and safety measures approved by the government.

The country’s measures to encourage vaccination among the population included the approval of Law no 31334, which gives public and private sector workers the right to time off work to attend a COVID-19 vaccination appointment. So, by coordinating with the company’s human resources department (with at least 48 hours’ advance notice), workers will be able to request paid leave of up to 4 hours on the day they have arranged to have a vaccine.

In relation to the processing of medical information – including any vaccination information – the data protection authority, in Consultative Opinion no 32-2020/JUS-DGTAIPD specified that whenever vaccination data are collected and processed by employers for the purpose of fulfilling the legal duty to monitor workers’ health, the workers’ consent will not be required, which simplifies this process significantly. It needs to be noted that the absence of “prior consent” does not restrict the need for obligations such as the implementation of the appropriate security measures for data of this type, safeguarding the confidentiality of the data, informing the workers of the purpose of collecting their data, and processing and storing their data, in addition to any procedural obligations that might apply in each case.

In these cases, our recommendation involves putting in place a procedure for collecting employees’ vaccination data, in virtual or physical formats, informing them of the purpose of collecting that data and the characteristics of the processing that will be done by the company, as part of the actions that are being carried out to ensure a safe return to the workplace.

And a last element to think about is that vaccination is a determining point in relation to returning to the workplace. It is not the only factor to be considered, however, and an assessment must be made of all of the factors that will be important for the company’s activities and workers. One thing that is certain is that vaccination must not cause discrimination under any circumstances. Although we continue to be a long way from the long-awaited “return to normality”, we believe that the arrival of new lots of vaccines and the encouragement measures implemented by the government will ultimately trigger the final return to the workplace of vaccinated employees, creating a new “normality”.
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Employee Rights In The Bahamas: Mandatory Covid-19 Testing And Vaccination

Can an employer make covid-19 testing mandatory?
In The Bahamas, the Health and Safety at Work Act(1) stipulates that it is the duty of an employer to reasonably ensure the health, safety and welfare of all its employees.(2) An employer also has a common law duty to provide employees with a safe work environment and a safe system of work.(3) An employee is obliged under the Health and Safety at Work Act(4) to take reasonable care of the health and safety of themselves and of others who may be affected by their acts or omissions at work. Also, an employee must cooperate with their employer’s efforts to fulfil its duty to ensure the health and safety of workers. It is generally accepted that covid-19 tests would be deemed a health and safety at work measure under the Health and Safety at Work Act. Therefore, it is widely felt that an employer could make covid-19 testing mandatory given that it would be considered a part of its health and safety responsibilities and employees would be obliged to comply with the testing policy.

Can an employee require that employees pay for covid-19 tests?
Under the Health and Safety at Work Act, an employer must not charge an employee for anything done in pursuance of its statutory health and safety obligations.(5) In this regard, requiring that an employee pay for a covid-19 test could be deemed a statutory violation. Also, mandating that employees pay for covid-19 tests may be a breach of the employment contract. At common law, a material variation by an employer of an employee’s contract of employment without the employee’s consent could give rise to a breach of contract, which would entitle the employee to resign and claim constructive dismissal against their employer. Upon being successful in such a claim, an employee could receive damages similar to termination pay. Requesting that an employee pay for covid-19 tests is likely to be deemed a fundamental change in the contract of employment, and the employee could commence legal proceedings on the ground of constructive dismissal.

Should the government wish to formulate regulations that require employers to fund employee covid-19 testing, legislators could review the laws in other jurisdictions which already have specific regulations that require employers to provide covid-19 testing free of charge.(6) It is felt that the implementation of such laws in The Bahamas would likely be met with great resistance from employers, particularly those with large staff complements, whose associated costs would be relatively high. As has recently been proposed, the government could provide free covid-19 testing for residents, in which case the issue of mandating that employees pay for covid-19 would become moot.

Can an employer make covid-19 vaccination mandatory?
There are no laws in The Bahamas that require the vaccination of employees generally or within specific professions. While covid-19 testing may be deemed a reasonable health and safety measure under the law, the legal position on covid-19 vaccinations is not as clear. It has long been recognized that employers in some fields, such as the medical profession, could make it obligatory for their staff to receive vaccines because of the inherent risks to employees of contracting communicable diseases. This was affirmed in a recent US case,(7) which appears to be the first US court decision on mandatory covid-19 employee vaccination. This ruling is somewhat consistent with long-accepted vaccination policies in other jurisdictions, such as the United Kingdom.

It is uncertain whether mandatory employee vaccinations in other professions that do not have the same level of risk as the medical field would be deemed reasonable. In requiring that its employees take the covid-19 vaccine (“the vaccine”), a non-medical employer could argue that mandatory vaccination is reasonable under the Health and Safety at Work Act and the common law because of the high risk of serious illness that the disease poses to employees. The pandemic has caused significant financial loss to numerous businesses, many of which have been reluctant to reopen, notwithstanding the relaxation of curfews and other restrictions. It seems some employers believe the financial costs and reputational risks associated with a possible outbreak at their business would be greater than any benefits that could be derived from reopening their establishments, so they have decided to remain closed. For many establishments that have reopened, the loss of workers due to illness has reduced productivity. An employer might posit that requiring employees to be vaccinated could provide some protection against the transmission of covid-19 among employees, and between customers and workers. This may reduce any adverse effects of operating during the pandemic.

Those not in favor of vaccination may argue that the vaccine would not be a reasonable safety measure because it is invasive, as it would involve a medical injection. Also, many still consider the vaccine to be unsafe because of possible side effects that could cause serious illness. Further, the vaccine has not been proven to be fully effective in preventing the spread of covid-19. Notwithstanding the gravity of the pandemic, these factors may make it difficult for an employer to prove that requiring employees to take the vaccine is a reasonable health and safety measure. In the absence of any government regulation or judicial pronouncement, an employer may not have a strong legal basis for making the vaccine a mandatory requirement for employees. If an employer implements a mandatory vaccination policy, its employees may have grounds for commencing legal action for breach of contract. Mandatory vaccination may be deemed a breach of contract because it would impose a new condition that would not have been agreed by the employee.

Even if the vaccine were deemed reasonable or legal, there may be a number of legitimate reasons why an employee may not comply with a requirement to take the vaccine. There may be employees who have disabilities or pre-existing health conditions for whom vaccinations could cause severe ailments. Making it obligatory for these employees to take the vaccine could give rise to discrimination claims against the employer under the Persons with Disabilities (Equal Opportunities) Act.(8)

At present, there seems to be no precedent in The Bahamas or any other common law jurisdiction in which the courts have held that an employer’s policy of mandatory employee testing and vaccination would be reasonable. In the near future, there may be a judgment on the legality of mandatory employee covid-19 testing and vaccinations, but, until then, interested parties can only formulate opinions on this issue in the context of current laws.
https://www.lexology.com/commentary/private-client-offshore-services/bahamas/lennox-paton/employee-rights-mandatory-covid-19-testing-and-vaccination?utm_source=Lexology%2bDaily%2bNewsfeed&utm_medium=HTML%2bemail%2b-%2bPro%2bEmbed%2b-%2bGeneral%2bsection&utm_campaign=ACC%2bNewsstand%2bsubscriber%2bdaily%2bfeed&utm_content=Lexology%2bDaily%2bNewsfeed%2b2021-11-05

 

Miscellaneous Developments

EEOC Prepares To Tackle Artificial Intelligence And Algorithmic Bias
On October 28, 2021, Equal Employment Opportunity Commission (“EEOC”) Chair Charlotte A. Burrows announced that the agency is launching an initiative to ensure that artificial intelligence (“AI”) used at all stages of the employment cycle comply with federal anti-discrimination laws. The EEOC also issued a press release on that same day outlining the agency’s plans under the new initiative.

The announcement comes as employers are increasingly using AI and other algorithmic tools to automate their recruiting process. From using “chatbots” to communicate with job candidates to schedule interviews, ask screening questions, and even using AI to review and screen resumes, the proliferation of these tools has steadily grown in recent years.

As these AI tools have enjoyed wider adoption, researchers have raised concerns that this technology has the potential to generate biased or discriminatory results due to, inter alia, its reliance on datasets that may reflect past biases and biases which may be embedded in the coding process. In response to these concerns, as early as October 2019 the EEOC was investigating at least two cases claiming that algorithms underlying AI tools used by employers were having a discriminatory impact. Similarly, on December 8, 2020, several U.S. senators sent a joint letter to then-Chair of the Equal Employment Opportunity Commission inquiring about whether the agency had ever used its authority to “investigate and/or enforce against discrimination related to the use of hiring technologies.” Likewise, the letter also inquired about, among other things, the agency’s authority “to study and investigate the development and design, use, and impacts of hiring technologies absent an individual charge of discrimination.” As recently as September 1, 2021, EEOC Commissioner Keith Sonderling stated in an interview that employers using these AI tools require guidance from the EEOC to combat the risk of potential discrimination.

Per the EEOC’s press release, the agency plans to:

  • “establish an internal working group to coordinate the agency’s work on the initiative;”
  • launch a series of “listening sessions with key stakeholders” regarding AI tools and their impact in employment;
  • collect information regarding the “adoption, design, and impact of hiring and other employment-related technologies;”
  • “[i]dentify promising practices;” and
  • publish technical assistance to “provide guidance on algorithmic fairness and the use of AI in employment decisions.”

Further, EEOC Chair Burrows commented on the initiative, noting that “[w]hile the technology may be evolving, anti-discrimination laws still apply. The EEOC will address workplace bias that violates federal civil rights laws regardless of the form it takes and the agency is committed to helping employers understand how to benefit from these new technologies while also complying with employment laws.”

While governments at all levels have slowly begun to regulate the use of this technology by employers, the EEOC’s initiative will be the first sweeping attempt by the agency to examine the technology and enforce compliance with currently existing anti-discrimination laws such as Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. Employers utilizing these new tools should carefully audit them to ensure that this technology is not creating discriminatory outcomes. Likewise, employers must remain closely apprised of any new developments from the EEOC and local, state, and federal legislatures and agencies as the trend toward regulation continues.
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