Management Update

Volume 12, Issue 11

COVID-19 On the Rise: What Should Employers Do?

By: Philip Giorlando and Fred Preis

With the school year now in full swing, people finding their sweaters in the back of their closets, and COVID-19 cases and hospitalizations rising across the United States, employers should prepare for a potential increase in employees taking sick days and using medical leave under the Family and Medical Leave Act. To prepare, policies and procedures should be reviewed to possibly be revised to ensure that they are in compliance with all laws and should consider the updated COVID-19 guidelines.

Family and Medical Leave Act

Policies should be reviewed/amended and supervisors should be trained to address the possibility that COVID-19-related symptoms and illnesses could rise to the level of a “serious health condition” such that it is covered under the Family and Medical Leave Act. In the event that an employee or dependent for whom the employee cares becomes severely sick with COVID-19 and must receive medical treatment, it is possible that the employee will be entitled to take the leave provided under the Family and Medical Leave Act.

Supervisors should also be trained on the sick leave policy, which could provide expanded benefits to employees to take leave for any illness, including COVID-19.

Testing and Masking

As the case has been since the COVID-19 pandemic was at its peak, COVID-19 remains a contagious virus, and employers should encourage employees to get tested to avoid exposing others in the workplace to the virus. In the event an employee tests positive, current guidelines state that employees should remain home for five days and can return to work if they have been symptom-free for 24 hours.

Additionally, current guidelines advise that those who test positive should wear a mask for 11 days when indoors. This means that, if an employee returns to work following a five-day isolation period, employers should ensure that returning employee wears a mask for 6 additional days.

Possible Accommodations

As has been the case since the beginning of COVID-19, employers should ensure that their COVID-19 policies and guidelines consider the legal obligations on employers to accommodate employees on the basis of a disability or a religious belief.

While COVID-19 has fortunately decreased in its severity and scope, it remains a medical concern and will likely be a continuing reason for employees to take sick leave or leave under the Family and Medical Leave Act. Employers should maintain up-to-date policies , procedures, and training regarding leave, and should ensure their policies are up-to-date to prevent the spread of COVID-19 in the workplace.

Harassment Redefined: EEOC's Progressive Approach to Workplace Harassment

By: Kayla M. Jacob and Fred Preis

In this era of evolving workplace culture, marked by significant shifts due to legislative changes, pivotal Supreme Court decisions, the transformative #MeToo movement, and the disruptive impact of COVID-19, the Equal Employment Opportunity Commission (EEOC) has chosen not to be left behind. In response to these developments, the EEOC has issued proposed guidance which provides its contemporary interpretation of workplace harassment.

While this proposed guidance, if adopted, will not automatically have the force and effect of law, the guidelines should be used by employers when updating and drafting workplace policies.

Expansive Definition of Workplace Harassment to Protect Gender Identity

The proposed EEOC guidance expands the definition of sex-based harassment to extend protection to the LGBTQIA+ community. Based on a 2020 Supreme Court decision, sex-based discrimination extends to a person's sexual orientation and gender identity.

As the new guidance makes clear, harassment based on sex could include using epithets regarding sexual orientation or gender identity; intentionally and repeatedly using a name or pronoun inconsistent with an employee's gender identity (misgendering); denying an employee access to a bathroom or other sex-segregated facility consistent with the employee's gender identity; harassing an employee due to their not presenting her in a manner that would stereotypically be associated with that person's gender.

Expansive Definition of Workplace Harassment to Protect Women's Reproductive Rights

Harassment based on sex now includes harassment based on pregnancy, childbirth, or related medical conditions, such as lactation. This change harmonizes the proposed EEOC guidance with the recently enacted Federal Pregnant Workers Fairness Act.

Additionally, harassing a woman based on her reproductive right decisions, such as her use or non-use of contraceptives or decisions concerning abortions, may also constitute unlawful conduct under Federal anti-discrimination laws.

Expansion of Places Where Workplace Harassment May Occur

The EEOC's proposed guidance clarifies that harassment may include conduct that occurs in a work-related context outside of an employee's regular workplace. Per the guidance, an employer could be responsible for harassment occurring during an annual holiday party in a private restaurant, or at an employer-required training that is not conducted at the employer's place of business.

Similarly, conduct within a virtual work environment or conveyed using work-related systems, such as an employer's email, instant messaging, video conferencing, or intranet, could give rise to a harassment claim.

Even conduct that is not work related may constitute harassment if such conduct has an impact on the workplace. The proposed guidance suggests that employee encounters outside the workplace and on social media platforms could create an unlawfully hostile work environment.

Key Takeaways

Overall, the proposed EEOC guidance is not a startling revelation, but merely a reflection of the current legal landscape impacting the modern workplace. The proposed guidance also serves as a signal to employers to regularly review and update policies/handbooks and to conduct supervisor and employee training to remain in compliance with the ever-changing Federal law and guidelines.

EEOC Guidance on Workplace Harassment and 2023 Litigation Statistics: What Employers Need to Know

By: Philip Giolando and Fred Preis

As the EEOC enters the final quarter of 2023, it recently issued two publications: its Proposed Enforcement Guidance on Harassment in the Workplace (“Harassment Guidance”) and its preliminary report on EEOC litigation for 2023. The Harassment Guidance details how the EEOC defines workplace harassment and provides detailed examples of what workplace harassment can look like on the basis of race, color, sex, gender identity, and other protected characteristics. Managers and Supervisors need to be trained about various scenarios to ensure that the employer does not become a target for the EEOC.

Preliminary 2023 Litigation Statistics Show EEOC's Enforcement Focus

The EEOC's preliminary 2023 litigation statistics show a substantial increase in litigation by the Commission. So far in 2023, the EEOC has filed 143 new lawsuits, a more than 50% increase in new lawsuits compared to 2022. One factor leading to this increase in lawsuits is the EEOC's focus on systemic discrimination, which is discrimination based on a “pattern or practice” of employer discrimination. In 2023, the EEOC filed 25 systemic lawsuits, the largest number of systemic lawsuits in the past 5 years. Additionally, the EEOC has filed another 32 lawsuits seeking relief for multiple harmed parties. The remaining 86 cases filed by the EEOC constituted lawsuits brought on behalf of individuals.

Normally, the EEOC's litigation efforts demonstrate a focus on a specific category of discrimination, such as sexual harassment, race discrimination, or discrimination regarding a specific benefit such as wages or leave. However, the preliminary 2023 litigation report provides that the EEOC's 2023 lawsuits challenged workplace discrimination under “all of the statutes” enforced by the EEOC and demonstrate a broad array of workplace issues. Therefore, as always, employers should be careful of violating any employment discrimination laws, and certainly any systemic violations which will continue to be a focus of the EEOC in 2024.

Workplace Harassment Guidance

On the heels of its 2023 litigation report, the EEOC also issued its Harassment Guidance for employers, which provides detailed examples of harassment in the workplace based on many different protected characteristics. While this Harassment Guidance is not a legal obligation, it does provide guidance on how the EEOC will likely categorize and handle workplace harassment situations, and can be an important tool for employers in training their workplace to avoid harassment claims.

One focus of the report is that the increase in virtual workplace activities, such as virtual meetings, electronic communications, and collaborative work performed across computer platforms, can lead to an increase in virtual workplace harassment.

The guidance also addresses examples of workplace harassment based on specific protected characteristics. One example of such workplace harassment is intentionally and repeatedly misgendering or misnaming someone inconsistent with their gender identity. The Harassment Guidance also gives an example of race-based harassment based on an employee's name, accent, cultural dress, and/or grooming practices. For sex-based harassment, the Harassment Guidance gives examples of both sexual harassment that is “same-sex” in nature, such as men sexually harassing another man, and opposite-sex harassment, with women facing sex-based epithets about women working in construction.

Employers should carefully review this Harassment Guidance and have supervisors trained to avoid such conduct, because the EEOC has demonstrated that it will likely target such conduct in future investigations, charges, and lawsuits. The EEOC is continuing to actively pursue and litigate all forms of discrimination, and employers should ensure that they have a proper preventive maintenance program in place to maintain compliance with discrimination and harassment laws and reduce exposure to lawsuits.