The Equal Employment Opportunity Commission is expected to release updated guidance to employers soon with regard to incentive plans that are appropriate with respect to wellness programs as they relate to COVID, as well as information related to harassment, COVID immunizations and employer policies following its April 28 hearing on the Civil Rights Implications of COVID-19.
During last week's America's Newspapers Workforce Management Academy, Camille Olson, a partner with Seyfarth Shaw, promised to keep members of America's Newspapers updated when that new guidance is issued.
Olson said, "COVID has not just affected wage-hour and paid leave issues." She said it has affected every aspect of the workplace, and has had a particular impact on various minority groups and women in the workplace.
During last Thursday's 45-minute webinar about equal pay issues and COVID-19 vaccines (what employers can and cannot do), Olson was joined by two additional partners with Seyfarth: Annette Tyman and Chantelle Egan.
Tyman traced three equal pay trends that she encourages publishers to watch in 2021: issues surrounding pay equity, a push toward greater transparency in terms of reporting in the U.S., and action at the federal level.
"It is now more important than ever," she said, for employers to understand their pay equity practices and how those practices may impact women and minorities.
Legal requirements are being watched closely in several impacted jurisdictions: California, Colorado (with some far-reaching implications), Maryland, Ohio (specifically, in Toledo and Cincinnati) and Washington State. View a chart from Seyfarth showing a Summary of State Pay Disclosure Laws from those areas.
At the federal level, Tyman expects that pay equity laws and enforcement will accelerate under the Biden Administration. She noted that the Paycheck Fairness Act (H.R. 7) passed the House on April 15 and is making its way through the Senate process.
If passed into law, this legislation would:
COVID vaccines
With employers starting to bring more employees back into the workforce, questions concerning vaccines and what employers can and cannot do in the workplace to ensure safety, especially in terms of masking and social distancing, also were discussed during this webinar.
Egan told publishers that they may ask for proof of vaccination (subject to local and state restrictions), to require mandatory vaccines (with certain exceptions) and to continue requiring employees to wear masks. What employers cannot do is ask employees who choose not to get vaccinated why they made their decision. "That's where it crosses over into an area that is impermissible," she said. If you do ask, the reason for asking must meet the "job related and consistent with business necessity" standard.
While it has been made very clear that, in the workplace, employers can continue to ask employees to wear a mask, she acknowledged that — in terms of trends and as more and more people are vaccinated — it will become harder to enforce mask-wearing and social distancing.
The safest course, she suggested, is to require proof of vaccination so the employer has the information needed to ensure a safe workplace and to enforce discipline, if necessary.
Egan said the EEOC says mandatory vaccines are permitted if:
She said asking for proof of vaccination is not considered a disability-related inquiry and, if asked to provide physical proof of vaccination, such as a vaccine card, employees should be informed not to provide any medical information as part of the proof.
For more information
