New York City Salary Range Transparency Law Takes Effect November 1

This is a reminder that the New York City Salary Range Transparency Law, originally scheduled to go into effect on May 15, 2022, will become effective on November 1, 2022.

By way of background, the new law amends the New York City Human Rights Law to require covered employers (those with 4 or more employees) who post a job, promotion, or transfer opportunity for a position that can or will be performed, at least in part, in New York City to disclose the minimum and maximum annual salary or hourly wage that the employer in good faith believes it would pay for the position.

What this Means for Employers

In preparation, it is recommended NYC employers review job descriptions for the jobs that will be advertised and include a good faith salary range with the position’s description.

Employers will need to include a salary range for any positions you anticipate advertising (or continuing to advertise) after November 1, for all covered job listings under the new law. Covered job listings are defined broadly to include any advertisement that includes a “written description of an available job, promotion, or transfer opportunity that is publicized to a pool of potential applicants” (which may include existing employees) and includes advertisements “on internal bulletin boards, internet advertisements, printed flyers distributed at job fairs, and newspaper advertisements.”

While not a technical requirement, you also may wish to consider internally documenting the factors used to determine the salary range for a given position and/or provide information in the job posting itself about the factors that may impact what salary within the stated range may be offered to any particular candidate (e.g., years of experience, level of education obtained, etc.).

Please note that under the new law, salary includes only the base annual or hourly wage or rate of pay and does not include other forms of compensation or benefits offered in connection with the advertised position. Thus, an advertisement does not have to include health insurance, time off, severance pay, overtime pay, commissions, tips, bonuses, stock, or 401(k) plans.

New York State

On June 3, 2022, the New York State Legislature passed a similar bill that would require private-sector employers to disclose the range of compensation in all advertisements for jobs, including remote positions, that can or will be performed, at least in part, in New York State. Employers will also be required to maintain all necessary records, including the history of compensation ranges and job description for each job, to comply with the new law. The New York State law is expected to take effect in March 2023, 270 days after it was passed, as long as it is not vetoed by the Governor.

California

California also has passed a wage transparency law scheduled to go into effect on January 1, 2023. Employers with 15 or more employees will need to include salary ranges on job postings, among other requirements. It is anticipated that California will issue updated guidance in the coming months on complying with the new law.

Gibney will continue to monitor the salary transparency trend for guidance updates. For employment-related questions, please contact Robert J. Tracy.

New York Salary Transparency Law Amended and Delayed Until November 2022

On April 28, 2022, the New York City Council amended the New York City Salary Range Transparency Act. As a result of the amendment, the effective date will be moved from May 15, 2022 to November 1, 2022. The amendment is expected to be signed into law by Mayor Adams.

On January 15, 2022, New York City enacted a first-of-its-kind law requiring employers to include a maximum and minimum salary in all job postings for positions located in New York City. The requirement also applies to internal job postings as well as posted transfers within a company. The new law was set to go into effect on May 15, 2022. However, following the City Council’s passage of an amendment to the law, the effective date will now be November 1, 2022. The law will apply to all employers with more than four employees but excludes temporary hiring firms. This means that virtually all employers with employees in New York City will need to comply.

The amendment revises the salary transparency law in the following ways:

  • Reinforces a limited exception to the requirements for positions that cannot or will not be performed, at least in part, in New York City. In other words, the requirement does not apply to locations outside of New York City including fully remote positions.
  • Clarifies that the language of the provision, specifically that the “minimum and maximum salary” in all job postings is the minimum and maximum annual salary or hourly wage for the advertised position, clarifying that the law covers hourly workers as well as salaried workers.
  • Creates a limited private right of action for an employee. The amendment states: “[E]mployee may bring such an action against their current employer for an alleged violation of this subdivision in relation to an advertisement by their employer for a job, promotion or transfer opportunity with such employer.”

Finally, under the amendment, monetary penalties will not be issued for an initial violation if the violation is cured (with proof that the violation was cured) within 30 days of service of the complaint.

What this Means for Employers

All New York City employers now have until November 1, 2022 to ensure compliance with the new pay transparency requirements. To prepare, employers are recommend to:

  • Begin to assess existing policies for determining salaries and make adjustments where appropriate
  • Develop a process to ensure that published information in connection with internal and external job postings includes required salary information; and
  • Consider an internal audit of current salaries by position as well as exempt/non-exempt classifications.

It is anticipated that the New York City Commission on Human Rights will issued updated guidance in the coming months. Gibney will continue to monitor this for guidance updates.

New Electronic Monitoring Requirements for New York Employers Starting May 7

Effective May 7, 2022, employers in New York State will need to provide written notice to new hires where the employer “monitors or otherwise intercepts [employee] telephone conversations or transmissions, electronic mail or transmissions, or internet” using “any electronic device or system.” The new state law applies to any private individual or entity with a place of business in the State of New York.

Any employer that electronically monitors telephones, emails, and/or internet usage must give prior written notice of that monitoring to all new employees and obtain a written acknowledgment in writing (which may be in electronic form). The notice must advise the employees that all telephone calls, emails, or internet access or usage may be subject to monitoring at any and all times and by any lawful means. With respect to existing employees, employers do not have to provide individual written notices or obtain written acknowledgments of the notices. However, New York employers must post such a notice in a “conspicuous place” readily available for viewing by employees subject to electronic monitoring.

The new law does not apply to processes designated to manage the volume or type of transmissions or performed solely for purposes of system maintenance or cybersecurity protection.

The New York State Office of the Attorney General has the authority to enforce the law. The law provides for the imposition of civil penalties, for violations of its requirements. Employers found to be in violation of the law are subject to civil penalties ranging from up to $500 for a first offense, $1,000 for a second offense, $3,000 for a third offense and for each subsequent offense. Significantly, there is no private right of action for affected individuals.

How Employers Can Prepare

To avoid civil penalties, New York employers should prepare for the law by taking the following steps:

  1. Review their electronic monitoring practices and update their employee handbooks and employee-facing website portals to ensure that they are providing adequate notice of such monitoring under the new law.
  2. Prepare an employee acknowledgment of electronic monitoring form to be included in onboarding documents for new employees.
  3. Prepare a notice and post it in a conspicuous place readily available for viewing by employees. Employers may elect to post the notice on their intranet site, employee handbook, and/or physically post it in the workplace. Employers also may wish to place the notice on the login page of the employer’s computer network.

New Federal Law Ends Forced Arbitration of Sexual Assault and Sexual Harassment Claims: What Employers Should Know 

On March 3, 2022, President Biden signed into law the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 (the “Act”). Significantly, the Act amends the Federal Arbitration Act (FAA) which allowed employers to enforce mandatory predispute resolution through arbitration. The Act invalidates all predispute arbitration agreements and class or claim waivers to the extent they are sought to be applied to any claim of sexual assault or sexual harassment, and provides that victims of sexual assault and/or harassment in the workplace, are given the option of bringing their claims in court.

How the Act Compares to New York Law

In 2018, New York State enacted Section 7515 of the New York Civil Practice Law and Rules (CPLR 7515) which invalidated predispute agreements to arbitrate sexual harassment claims “except where inconsistent with federal law.” In 2019, New York expanded the mandatory arbitration prohibition in CPLR 7515 to all claims of discrimination.

New York Courts have been split on whether CPLR 7515 was preempted by Federal law. With the passage of the Act, it is now clear that in New York, and across the nation, predispute agreements requiring mandatory arbitration of claims of sexual assault or sexual harassment are now prohibited.

New York’s CPLR 7515 is more restrictive than the Act since it prohibits predispute arbitration agreements for all claims of discrimination.  However, it remains to be seen whether New York Courts will interpret CPLR 7515 to invalidate mandatory arbitration provisions unrelated to sexual assault or sexual harassment claims, as New York’s broader arbitration prohibition may be ruled preempted by the FAA.

What Employers Need to Know:

  1. The Act applies to all claims of sexual assault or sexual harassment that arise or accrue after March 3, 2022, regardless of the date of the agreement at issue.
  2. The Act gives employees the option to invalidate arbitration agreements and class or collective action waivers with respect to sexual assault and sexual harassment claims. This means employees who have signed arbitration agreements now have the option to choose to arbitrate these claims or pursue them in court regardless of their contractual agreements with their employers.
  3. The Act does not affect arbitration agreements with respect to claims unrelated to sexual assault or sexual harassment.

How Employers Can Prepare

Based upon the new law, employers should review the arbitration provisions in their agreements to ensure compliance with the Act.

New York City to Require Salary Ranges in Job Postings: How Employers Can Prepare

On January 15, 2022, New York City enacted a first-of-its-kind law requiring employers to include a maximum and minimum salary in all job postings for positions located in New York City. The requirement also applies to internal job postings as well as transfers within a company. The new law will go into effect on May 15, 2022. The law will apply to all employers with more than four employees but excludes temporary hiring firms. This means that virtually all employers with employees in New York City will need to comply.

The law amends the New York City Human Rights Law, the anti-discrimination law governing New York City employers.  The statute specifically states “It shall be an unlawful discriminatory practice for an employment agency, employer, employee or agent thereof to advertise a job, promotion or transfer opportunity without stating the minimum and maximum salary for such position in such advertisement.”

While the law does not require employers to publicly advertise or internally post its open positions, should the employer choose to advertise or post, it must include the salary information.

Employers Can Expect More Guidance

  • New York City is expected to issue guidance on compliance with the law.  It is expected that more information will be provided as to what constitutes “salary” and whether the advertisement must state whether the position is exempt or non-exempt from overtime pay.
  • For employers considering the minimum and maximum salary for a particular role, the law provides only that “the range may extend from the lowest to the highest salary the employer in good faith believes at the time of the posting it would pay for the advertised job (internal and external listings), promotion or transfer opportunity.”  We can expect additional guidance on minimums and maximums as well.
  • Specific penalties against employers have not been detailed as of yet. However, employers who fail to include the minimum and maximum salary offered for any position located within New York City may be subject to penalties including damages, attorneys’ fees, and fines.

How Employers Can Prepare Now to Ensure Compliance

All New York City employers should take steps to ensure compliance with these new pay transparency requirements by May 15, 2022. To prepare, employers are recommended to:

  • Begin to assess existing policies for determining salaries and make adjustments where appropriate
  • Develop a process by which employers will ensure that published information in connection with internal and external job postings includes required salary information; and
  • Consider an internal audit of current salaries by position as well as exempt/non-exempt classifications.

Gibney will continue to monitor this for guidance updates. For questions, please contact Robert J. Tracy at rjtracy@gibney.com or email info@gibney.com.

Supreme Court Strikes Down OSHA’s Covid-19 Vaccination and Testing ETS: What This Means for Employers

On January 13th, the Supreme Court in National Federation of Independent Business v. Department of Labor, invalidated the Occupational Safety and Health Administration’s (OSHA) COVID-19 vaccine-or-test Emergency Temporary Standard (ETS) for large private employers (employers with 100 or more employees). The January 13 decision throws out the ETS issued by OSHA in November to require large employers to develop, implement, and enforce a COVID-19 vaccination-or-testing policy.

The Decision

In a 6-3 decision, the Supreme Court held that the Occupational Safety and Health Administration overstepped its authority by seeking to impose the vaccine-or-test rule on all U.S. businesses with at least 100 employees. “OSHA has never before imposed such a mandate,” the Court noted. “Nor has Congress. Indeed, although Congress has enacted significant legislation addressing the COVID–19 pandemic, it has declined to enact any measure similar to what OSHA has promulgated here.”

The Court ruled that OSHA lacked the authority to impose a vaccine mandate on private employers because the law that created OSHA “empowers the Secretary (of Labor) to set workplace safety standards, not broad public health measures.” The Court refused to uphold the mandate which effectively ordered 84 million Americans to either obtain a COVID-19 vaccine or undergo weekly medical testing at their own expense. The Supreme Court held that upholding the OSHA ETS “would significantly expand” OSHA’s authority beyond the limits Congress set.

What this Means for Private Employers

  • While the Supreme Court’s decision invalidated the ETS and narrowed OSHA’s authority, the decision does not limit the right of employers, states, or municipalities, if they so choose, to require employees to be vaccinated against COVID-19 (while giving consideration for proper religious and medical exemptions) or require the unvaccinated to be tested regularly.
  • Employers will now be subject to state and local guidelines and restrictions with respect to COVID-19 protocols in the workplace. Employers with multiple locations may be faced with inconsistent, and potentially contradictory, standards governing worksites in different states and localities.
  • Employers are advised to review their Covid policies in light of the now invalidated OSHA standards to ensure that they are compliant with state and local laws applicable to the locations where they operate.

What this Means for Health Care Employers

  • On the same day that the Supreme Court struck down the OSHA ETS applicable to all large employers, it upheld the vaccine mandate applicable to health care employers who receive federal payments from either Medicare or Medicaid.
  • In a 5-4 decision, the Court in Biden v. Missouri held that the vaccine mandate for health care workers was justified by the spending clause of the Constitution, which allows the federal government to impose conditions when it provides funding for programs like Medicaid and Medicare.
  • Health care provider employers that receive any Medicare or Medicaid payments will need to comply with the federal vaccine mandate for health care workers.
As always, we encourage employers to consult with counsel with their specific questions and concerns related to compliance with federal, state and local statutes and regulations related to Covid-19. For employment-related questions, please contact Robert J. Tracy, contact your Gibney representative or email info@gibn

Gibney Participates in InnovateNordics Summit 2021 for Emerging Businesses

Gibney is partnering with the Swedish American Chamber of Commerce for the InnovateNordics Summit 2021 & U.S. Acceleration Program on October 15, 2021.

InnovateNordics showcases top innovators focused on tackling today’s most pressing challenges while creating business and growth within the areas of clean- and foodtech from the collective Nordics including Sweden, Norway, Denmark, Finland and Iceland. The program is a deep dive into the tools and tricks for effective U.S. establishment and growth.

Gibney will discuss U.S. legal issues for emerging businesses. Attorney speakers include:

  • David Johnson – Immigration
  • Kristen Smith – Corporate
  • Maja Szumarska – Intellectual Property
  • Robert Tracy – Employment

Learn more.

Updated EEOC Guidance on Covid-19, the ADA and Other EEO Laws: What Employers Need to Know

The United States Equal Employment Opportunity commission (EEOC) updated its Technical Assistance Questions and Answers about COVID-19, the American with Disabilities Act (ADA) and other EEO laws on Thursday June 11 and again on Wednesday June 17, 2020.

The latest EEOC updates focus on a number of important subjects for employers including COVID-19 testing, responding to various requests for accommodations, offering flexible working arrangements, and steps to take to avoid discrimination claims based on age, sex and pregnancy in the context of reopening the employer’s business.

Employers May Not Require Employees to Undergo Antibody Testing

In light of CDC’s guidance that antibody test results should not be used to make decisions about returning persons to the workplace, the EEOC advised employers that an antibody test does not meet the ADA’s standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is prohibited under the ADA. Importantly, this change only applies to antibody testing and not testing for presence of the actual virus which is still allowed under certain circumstances.

The EEOC also stated that an employee entering the worksite and requesting an alternative method of screening due to a medical condition is making a request for reasonable accommodation under the ADA or Rehabilitation Act. Thus, if the requested screening alternative is easy to provide and inexpensive, the employer may choose to make it available. If the employee’s disability is not obvious or already known by the employer, the employer may ask the employee for information to establish that the condition is a disability and, if necessary, may request medical documentation of the disability and needed accommodation.

The ADA Does Not Require Employers to Consider Employee Requests for Accommodation to Avoid Exposure to Family Member with Disability

Significantly, the new EEOC guidance clearly states that while employers must make reasonable accommodations to employees with respect to the employee’s disabilities, the ADA does not require any accommodation in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19. The EEOC clarified that while the ADA does not require employers to accommodate employees based on the disability-related needs of a non-employee with whom the employee is associated, employers are free to provide flexibilities, but should be careful not to engage in disparate treatment on a protected EEO basis when providing additional flexibilities beyond what the law requires.

Employers May Not Involuntarily Exclude Older Workers and Pregnant Workers from the Workplace

The Age Discrimination in Employment Act (ADEA) prohibits an employer from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acts for reasons such as protecting the employee due to higher risk of severe illness from COVID-19. While the ADEA does not include a right to reasonable accommodation for older workers due to age, employers are free to provide flexibility to workers age 65 and older even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison. The EEOC noted that workers age 65 and older also may have medical conditions that bring them under the protection of the ADA, and as such may request reasonable accommodation for their disability as opposed to their age.

Similarly, the EEOC advised employers that they may not exclude an employee from the workplace involuntarily due to pregnancy. Even if motivated by benevolent concern due to the pandemic, an employer is not permitted to single out employees on the basis of pregnancy for adverse employment actions including involuntary leave, layoff, or furlough.

However, federal employment discrimination laws may trigger accommodation for employees based on pregnancy. Even though pregnancy itself is not an ADA disability, pregnancy-related medical conditions may themselves be disabilities under the ADA. Employers must consider requests for reasonable accommodation due to pregnancy-related medical conditions under the usual ADA rules. The EEOC reminded employers that Title VII requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability or work. Thus, a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided for other employees who are similar in their ability or inability to work.

Employers May Invite Employees to Request Flexibility in Work Arrangements in Advance of Employees Returning to Work

Employers are permitted to make information available in advance to all employees about who to contact to request accommodation for a disability that they may need upon return to the workplace, even if no date has been announced for their return. An employer may choose to include in such a notice all the CDC-listed medical conditions that may place people at higher risk of serious illness if they contract COVID-19, and explain that the employer is willing to consider on a case-by-case basis any requests from employees who have these or other medical conditions. If requests are received in advance, the employer may begin a discussion with the employee focused on whether the impairment is a disability and the reasons that an accommodation is needed.

An employer also may send a general notice to all employees who are designated for returning to the workplace, noting that the employer is willing to consider requests for accommodation or flexibilities on an individualized basis. Regardless of the approach, employers should ensure that whoever receives inquiries knows how to handle them consistent with the different federal employment nondiscrimination laws that may apply.

Employers May Not Treat Employees Differently Based on Sex or other Protected Characteristics When Offering Flexible Working Arrangements

The EEOC reminded employers that provide telework, modified schedules, or other benefits to employees with school-age children due to school closures or distance learning during the pandemic that they may not treat employees differently based on sex or other EEO-protected characteristics. The EEOC provided as an example that female employees cannot be given more favorable treatment than male employees because of a gender-based assumption about who may have caretaking responsibilities for children.

Employers Should be Watchful for Anti-Asian Discrimination and Harassment in the Workplace During the Pandemic, Including Through Electronic Means While Teleworking

Managers should be alert to demeaning, derogatory, or hostile remarks directed to employees who are or are perceived to be of Asian national origin, including remarks about the coronavirus or its origins. Management should understand that harassment may occur using electronic communication tools – regardless of whether employees are in the workplace, teleworking, or on leave – and also in person between employees at the worksite. An employer that learns that an employee who is teleworking is sending harassing emails to another worker should take the same actions it would take if the employee was in the workplace. Employers may choose to send a reminder to the entire workforce noting prohibition on harassment, reminding employees that harassment will result in disciplinary action, and inviting anyone who experiences or witnesses workplace harassment to report it to management.

As legal developments related to COVID-19 are evolving rapidly on the federal, state, and local level, employers are encouraged to keep aware of additional guidance and regulations that will be issued by federal and state departments in the coming days. As always, we encourage employers to consult with counsel with their specific questions and concerns related to COVID-19.

US Supreme Court Makes Landmark Ruling on Employment Discrimination Protections for Gay, Lesbian and Transgender Employees

On June 15, 2020, the United States Supreme Court held that Title VII, the federal law prohibiting employment discrimination because of sex, extends to gay, lesbian, and transgender employees. Thus, adverse action against employees because of their sexual orientation or identity is now barred by federal statute in all 50 states.

The United States Supreme Court determined in Bostock v. Clayton County, Georgia that employers violated Title VII of the Civil Rights Act of 1964, and its broad prohibition of employment discrimination because of sex, when they discharged employees for being gay or transgender.  The Court’s opinion also resolved the cases of Zarda v. Altitude Express, Inc. and EEOC v. R.G. &. G.R. Harris Funeral Homes, Inc.  The decision will allow people who claim they were discriminated against in the workplace based on their sexual orientation or gender identity, to file charges of employment discrimination and lawsuits, in the same way as people claiming race discrimination.

Understanding Title VII

Title VII of the Civil Rights Act of 1964 provides, in pertinent part, that Employers may not “fail or refuse to hire or . . . discharge any individual, or otherwise . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.”  The Court noted that the parties conceded that the term “sex” in 1964 referred to the biological distinctions between male and female. The Court further noted the parties’ agreement that the ordinary meaning of “because of’ is ‘by reason of’ or ‘on account of.’” The Court held that “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.”  Thus, Title VII incorporates the but-for causation standard, which means that a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment action so long as the employee’s sex was part of the decision.

What This Means

  • An employer violates Title VII when it intentionally discharges an individual employee based in part on sex, regardless of whether other factors besides the employee’s sex contributed to the decision.
  • Because discrimination on the basis of sexual orientation or transgender status requires an employer to intentionally treat individual employees differently because of their sex, employers who intentionally penalize employees for being homosexual or transgender violate Title VII.
  • Gay, lesbian, and transgender employees no longer need to rely on state and municipal protections which were only available in 24 of the 50 states and a number of cities.
  • Employees who suffer adverse employment actions due to their sexual orientation or sexual identity may now may assert federal claims, gaining access to the United States Equal Employment Opportunity Commission and the federal courts.

What Employers Should Now Consider

  • Employers who operate in states and localities that do not provide statutory protections from discrimination on the basis of sexual orientation or transgender status should update their employment policies, including their harassment policies and complaint forms, to ensure that they are in full compliance with Title VII as interpreted by the Supreme Court.
  • Employers should review decisions contemplating adverse employment action against an employee for economic or performance reasons to ensure that the employee’s sexual orientation or transgender status played no part in the decision making.
  • Employers that have not already done so, should add avoidance of discrimination based on sexual orientation and transgender status to their management and employee harassment avoidance trainings

As always, we encourage employers to consult with counsel with their specific questions and concerns related to compliance with Title VII or other federal, state and local employment discrimination statutes.

Updated EEOC Guidance on Covid-19 and the ADA: What Employers Need to Know

On Tuesday May 5, 2020, the United States Equal Employment Opportunity Commission (EEOC) further updated its Technical Assistance Questions and Answers about COVID-19, the American with Disabilities Act (ADA) and other EEO laws. The latest EEOC update focuses on accommodating an employee with an underlying medical condition that may place the employee at greater risk from COVID-19.

New Guidance on Addressing Requests for Reasonable Accommodation
The EEOC raised the practical question of what an employee needs to do in order to request a reasonable accommodation because of a medical condition identified by the CDC as one that may put the employee at higher risk for severe illness from COVID-19. The EEOC stated that an employee, or a third party such as a doctor, must let the employer know that the employee needs an accommodation for reasons related to a medical condition. The communication should let the employer know that the employee has a medical condition that necessitates a change to meet a medical need. The EEOC indicated that the request can be made orally or in writing, and that the term “reasonable accommodation” or a reference to the ADA does not need to be explicitly mentioned.

After receiving a request, the employer may seek medical documentation and ask follow up questions to help determine whether the employee has a disability and if there is a reasonable accommodation that can be provided without imposing an undue hardship on the employer.

Guidance for Employers In Absence of an Accommodation Request
The EEOC also addressed the situation where an employee has not requested an accommodation, but the employer is aware that the employee has one of the medical conditions identified by the CDC and is concerned that the employee’s health will be jeopardized upon returning to the workplace.

The EEOC first confirmed that if the employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action.

The EEOC then cautioned that “the ADA does not allow the employer to exclude the employee – or take any other adverse action – solely because the employee has a disability that the CDC identifies as potentially placing him at “higher risk for severe illness” if he gets COVID-19.” The only exception identified under the ADA, which the EEOC noted is a high standard, is where the disability poses a “direct threat” to the employee’s health that cannot be eliminated or reduced by reasonable accommodation.

The EEOC specifically stated that a “direct threat assessment cannot be based solely on the condition being on the CDC’s list.” Rather, the determination must be an individualized assessment based on a reasonable medical judgment about this employee’s specific disability. In making this determination, an employer is required to consider the duration of the risk to the specific employee, the nature and severity of the potential harm, and the likelihood and imminence of potential harm.

Even where an employer reasonably determines that an employee’s disability poses a direct threat to their own health, the EEOC makes clear the employer still cannot exclude the employee from the workplace unless the employer is unable to provide a reasonable accommodation without undue hardship to the employer. If there are no reasonable accommodations to remove the direct threat in the workplace, then the employer must consider whether accommodations such as telework, leave, or reassignment may be offered without undue hardship to the employer.

EEOC Offers Accommodation Examples
The EEOC provided specific examples of accommodation that, absent undue hardship, “may eliminate (or reduce to an acceptable level) a direct threat to the health of the employee.” These examples include:

  1. Additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace;
  2. Erecting a barrier that provides separation between an employee with a disability and coworkers/the public;
  3. Increasing the space between an employee with a disability and others;
  4. Elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position);
  5. Temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting);
  6. Moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).

The EEOC made clear that these are not an exhaustive list of examples, and encouraged employees and employers to be creative and flexible.

As legal developments related to COVID-19 are evolving rapidly on the federal, state, and local level, employers are encouraged to keep aware of additional guidance and regulations that will be issued by federal and state departments in the coming days. As always, we encourage employers to consult with counsel with their specific questions and concerns related to COVID-19.