On Wednesday, December 16, the Equal Employment Opportunity Commission (EEOC) released new guidance (the Guidance) for employers regarding COVID-19 vaccinations. While the Guidance offers some insight for employers who are considering offering vaccinations to employees or requiring that employees get the COVID-19 vaccination, a number of questions still remain unanswered. The following are some key takeaways from the Guidance.
The COVID-19 pandemic has placed employers in a difficult position when it comes to complying with the Americans with Disabilities Act (ADA) and the Rehabilitation Act. New protocols for maintaining workplace safety necessitate inquiries about employees’ health that present privacy pitfalls. Moreover, widespread teleworking early in the pandemic has created new questions about reasonable accommodations as workplaces have reopened. On September 8, 2020, the Equal Employment Opportunity Commission (EEOC) supplemented its existing FAQs to provide additional guidance on some of these issues. The full guidance, including the recent additions, is available here. The most notable points from the September 8 additional guidance are summarized below.
On May 7, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) announced that it will delay the 2019 EEO-1 Component 1 data collection and the 2020 EEO-3 and EEO-5 data collections due to the COVID-19 public health emergency. The notice was published in the Federal Register on May 8.
On April 17, 2020, the Equal Employment Opportunity Commission (EEOC) issued updated guidance on COVID-19 in the workplace. The EEOC has been releasing information on the pandemic for employers since mid-March, and the most recent updates to the guidance primarily focus on how employers should accommodate employees during the pandemic as well as how to return individuals to work once the pandemic subsides.
On July 15, 2019, the EEOC issued the final protocols for enhanced EEO-1 reporting. Most private sector employers with 100 or more employees are now required to report, on or before September 30, 2019, pay and hours data on all employees for 2017 and 2018 by job category, gender, race, and ethnicity. Initially launched as part of the Obama administration’s initiative to address pay equity, the EEO-1 Component 2 requirements will impose short term burdens and potential long term risks for many employers.
On June 3, 2019, the United States Supreme Court unanimously ruled in the case of Fort Bend County, Texas v. Davis that the requirement under Title VII of the Civil Rights Act ("Title VII") to file an administrative charge with the Equal Employment Opportunity Commission ("EEOC") is a non-jurisdictional claim-processing rule. In other words, the Court held that a plaintiff's failure to file an EEOC charge does not automatically preclude a federal court from exercising jurisdiction over the complaint; instead, an employer must "promptly" raise the defense that the plaintiff failed to satisfy the procedural requirement of filing an EEOC charge. An employer's failure to raise such a defense promptly could result in forfeiture of the defense, and a federal court may exercise jurisdiction over the complaint despite the plaintiff's failure to file an EEOC charge.
The U.S. Equal Employment Opportunity Commission announced Friday in a press release that the opening of the EEO-1 Survey for 2018 has been postponed until March 2019 and the deadline for submitting EEO-1 data will be extended until May 31, 2019.
The EEO-1 report must be filed by: (1) private employers with 100 or more employees, excluding state and local governments, primary and secondary school systems, institutions of higher education, Indian tribes, and tax-exempt private membership clubs other than labor organizations; and (2) federal government contractors or first-tier subcontractors with 50 or more employees and a contract, subcontract, or purchase order amounting to $50,000 or more.
Filers should check the EEOC web page pertaining to the EEO-1 Survey in the coming weeks for details, instructions, and schedule updates.
On August 29, 2017, the Office of Management and Budget (“OMB”) suspended the implementation of the new EEO-1 form, pending a review of the effectiveness of those aspects of the EEO-1 form that were revised on September 29, 2016. The revisions to the EEO-1 form, which were scheduled to take effect in March 2018, included:
A modification of the “snapshot” data collection period for reporting to October 1 through December 31;
A requirement that employers who have a reporting obligation (employers with 100 or more employees and federal contractors with 50 or more employees) submit detailed information on compensation and hours worked; and
A change in the EEO-1 filing deadline for 2017 to March 31, 2018.
In the memorandum issued by OMB’s Office of Information and Regulatory Affairs (“OIRA”) to the Acting Chair of the Equal Employment Opportunity Commission (“EEOC”) regarding the suspension of the new wage data reporting requirements, OIRA stated that it was “initiating a review and immediate stay of the effectiveness of the new aspects of the EEO-1 form.” OIRA provided three reasons for its decision:
After OMB approved the revised EEO-1 form in September of 2016, the EEOC released data file specifications for employers to use when submitting EEO-1 data, which were not contained in the Federal Register notices as part of the public comment process or outlined in the supporting statement for the collection of information, so the public was denied an opportunity to comment on the method of data submission to the EEOC;
The EEOC’s estimates of the burden the new form would place on employers did not account for the use of the newly released data file specifications, which may have changed the initial burden estimates; and
Some aspects of the revised collection of information are contrary to the standards of the Paperwork Reduction Act, lack practical utility, are unnecessarily burdensome, and do not adequately address privacy and confidentiality issues.
In response to OIRA’s memorandum, the EEOC announced that employers should plan to file the earlier approved version of the EEO-1 form, without the compensation and hours worked data, by the filing date of March 31, 2018. Employers should still use the new “snapshot” period of October 1 through December 31, 2017, for the submission of the 2017 EEO-1 form.