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Fourth Quarter Labor and Employment Outlook | Clark Hill PLC

In 2022, Congress and federal administrative agencies continued to introduce new HR guidelines and legislation. In particular, employers should be aware of the following:

Time to review your COVID testing protocols: Equal Employment Opportunity Commission warns employers can no longer automatically test all employees for COVID

At the start of the COVID-19 pandemic, the EEOC determined that all COVID viral tests were permitted under the Americans with Disabilities Act (“ADA”). On July 12, 2022, the EEOC updated its COVID Technical Assistance Questions and Answers to reflect the current state of COVID. The EEOC says employers can still require employees to submit to COVID-19 testing before entering the workplace as long as the employer can demonstrate that the need for testing is “job-related and compliant. business necessity”, which is the ADA standard for performing medical examinations. According to the EEOC, employers should consider the following factors when determining whether COVID-19 testing is “job-related and consistent with business necessity:”

  • CDC and other relevant guidelines;
  • The level of community transmission;
  • The vaccination status of employees;
  • The accuracy and speed of processing different types of COVID-19 viral tests;
  • The extent to which breakthrough infections are possible for employees who are “up to date” with vaccinations;
  • The ease of transmissibility of the current variant(s);
  • The possible disease severity of the current variant;
  • What types of contact employees may have with other people in the workplace or elsewhere where they are required to work (for example, working with medically vulnerable people); and the potential impact on operations if an employee enters the workplace with COVID-19.

The EEOC also reiterated that antibody tests do not meet the ADA standard for medical examinations.

Updates to plans and policies are likely: legislation banning discrimination based on hair, requiring reasonable accommodation for pregnancy and impacting pension plans could be enacted soon

The Creating a Respectful and Open World for Natural Hair Act of 2022, HR 2116, is currently before the Senate after being passed by the House of Representatives. Among other things, if passed, this law would prohibit discrimination in employment on the basis of an individual’s hair texture or hairstyle, if the texture or style is commonly associated with a race or particular national origin. Enforcement would be incorporated into Title VII of the Civil Rights Act.

The Pregnant Workers Equity Act, HR 1065, also passed the House and was received by the Senate more than a year ago, but was referred to a Senate committee. This bill has bipartisan support and prohibits discriminatory employment practices with respect to reasonable accommodations for qualified employees affected by pregnancy, childbirth or related medical conditions.

SECURE Act 2.0, HR 2954, as passed by the House and now before the Senate, impacts employers and their pension plans, including accelerating the eligibility of part-time employees for 401(k) plans , raising catch-up contribution limits to $10,000 for those ages 62 to 64, but requiring all catch-up contributions to be taxable Roth contributions, allowing employees to have matching contributions from the designated as Roth Contributions, allowing employers to make matching contributions based on student loan repayments, and allowing for required planning time and staged minimum distributions (73 to 75 over the next ten years).

The National Labor Relations Council and the unions remain very active

Over the past five months at the NLRB, (1) NLRB General Counsel Jennifer Abruzzo has both advanced a protocol allowing a party to the prosecution or witness to ask the NLRB to request assistance from immigration for employees at a job site if necessary to protect employees who participate in NLRB processes or exercise their rights under the NLRA and have also asked the Board to prohibit captive audience speech, (2 ) the Office of Public Affairs issued a press release touting that in the first nine months of fiscal 2022, petitions for union representation filed at the NLRB increased by 58%, and (3) the Board s is partnered with the Department of Justice and the Federal Trade Commission to prevent employers from engaging in anti-competitive and unfair labor practices. It’s safe to say that the General Counsel, the Democratic Majority Council and the unions will continue to be very active in 2022 and beyond. Clark Hill labor attorney Mario Bordogna warns employers that it is imperative that their labor relations teams remain vigilant in their compliance with national labor relations law to try to avoid accusations of practices unfair labor practices and scrutiny by the NLRB.

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