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Employment Law—Stay in the Know!

The month of May saw an abundance of activity affecting employers and their interactions with the workforce. A few such activities should be noted:

  • The National Labor Relations Board released a decision affecting employer rights to discipline employees for otherwise inappropriate “outbursts” made in the context of protected activity under the National Labor Relations Act. The decision established “setting specific” approaches to and limitations on employers’ responses to such conduct. Those settings include confrontations with management, social media posts or workplace conversations, and misconduct on picket lines. Importantly, in all contexts, the Board stressed that conduct occurring in the course of protected activity “must be evaluated as part of that activity – not as if it occurred separately from it and in the ordinary workplace context.” See Lion Elastomers, 16-CA-190681 (NLRB May 1, 2023).

  • The United States Supreme Court heard oral argument in an important case addressing how far employers must go to accommodate their employees’ “sincerely held religious beliefs.” Groff v. DeJoy, CA 21-1900. The case involved a USPS worker who refused to work on Sundays due to his religious observance of the Sabbath. USPS disciplined the employee who resigned and sued under Title VII which requires an employer to reasonably accommodate its employees’ religious practices except where the employer can demonstrate undue hardship. Presently, undue hardship under Title VII allows employers to avoid accommodations that would impose more than a de minimis cost or burden. The plaintiff has urged the Supreme Court to adopt instead the definition of undue hardship from the Americans With Disabilities Act, which requires proof of a more substantial difficulty or expense before denying accommodation.

  • On May 18, 2023, the Louisiana House Labor Committee advanced a bill that would protect employees who use medical marijuana in compliance with Louisiana law from being disqualified from receiving unemployment benefits. Despite legalizing medical marijuana use by qualified patients, the Louisiana medical marijuana law does not include specific protections for an employee taking advantage of the law, unless the employee works for the state, the latter protection having only become effective August 1, 2022. Interestingly, marijuana in any form remains a Schedule I prohibited substance under federal law, presenting tension between state and federal law on the issue of medical marijuana use under a state sanctioned regime. Multi-state employers should track carefully legislative developments at the state level, as the legal landscape is changing rapidly as it relates to protections for employees who use medical marijuana in compliance with state law.

  • The Equal Employment Opportunity Commission updated its guidance on balancing antidiscrimination laws with COVID-19 concerns in the workplace. The updated technical assistance guidance, issued May 15, 2023, can be found here. Citing a longstanding principle, the guidance emphasized that medical inquiries and examinations must be job related and consistent with business necessity. However, the EEOC also stressed its opinion that these terms are broad and may include consideration of whether an employee with COVID-19 poses a “direct threat” to the workplace under the ADA. Other key components of the guidance include common examples of potential accommodations for employees with “Long COVID,” the continuing obligation to assess employee need for reasonable accommodation through the interactive process, and tips for remaining alert to COVID-related harassment of individuals with a medical need to continue wearing a face mask or take other COVID-19 precautions at work. Employers should stay updated with relevant medical and public health authority guidance as interpretation of EEO laws can change accordingly.

  • The Department of Homeland Security and Immigration and Customs Enforcement clarified on May 4, 2023, that as of July 31, 2023, temporary relaxation of in-person review requirements for Form I-9 documents will end. The agencies noted a thirty-day grace period for compliance. Importantly, employers are required to physically examine I-9 documents for employees hired on or after March 20, 2020, whose documents were previously inspected remotely. If an employee’s immigration status changed, additional steps are required to update the I-9 Form.

  • Reminder: The Pregnancy Workers Fairness Act (“PWFA”) becomes effective on June 27, 2023. Employers should update policies and posters accordingly.

  • The Equal Employment Opportunity Commission issued additional guidance on May 18, 2023, concerning use of AI in the workplace. The new guidance discusses issues surrounding the assessment of whether there may be an adverse impact on a specific protected group through the use of software, algorithms and artificial intelligence used in employment selection procedures. The guidance, found here, also emphasizes the importance of monitoring traditional and algorithmic decision-making procedures to determine if they disproportionately disadvantage individuals based on a protected class. The guidance includes a set of Q&A intended to assist employers in that respect.

Employment Law—Stay in the Know!

The month of May saw an abundance of activity affecting employers and their interactions with the workforce. A few such activities should be noted:

  • The National Labor Relations Board released a decision affecting employer rights to discipline employees for otherwise inappropriate “outbursts” made in the context of protected activity under the National Labor Relations Act. The decision established “setting specific” approaches to and limitations on employers’ responses to such conduct. Those settings include confrontations with management, social media posts or workplace conversations, and misconduct on picket lines. Importantly, in all contexts, the Board stressed that conduct occurring in the course of protected activity “must be evaluated as part of that activity – not as if it occurred separately from it and in the ordinary workplace context.” See Lion Elastomers, 16-CA-190681 (NLRB May 1, 2023).

  • The United States Supreme Court heard oral argument in an important case addressing how far employers must go to accommodate their employees’ “sincerely held religious beliefs.” Groff v. DeJoy, CA 21-1900. The case involved a USPS worker who refused to work on Sundays due to his religious observance of the Sabbath. USPS disciplined the employee who resigned and sued under Title VII which requires an employer to reasonably accommodate its employees’ religious practices except where the employer can demonstrate undue hardship. Presently, undue hardship under Title VII allows employers to avoid accommodations that would impose more than a de minimis cost or burden. The plaintiff has urged the Supreme Court to adopt instead the definition of undue hardship from the Americans With Disabilities Act, which requires proof of a more substantial difficulty or expense before denying accommodation.

  • On May 18, 2023, the Louisiana House Labor Committee advanced a bill that would protect employees who use medical marijuana in compliance with Louisiana law from being disqualified from receiving unemployment benefits. Despite legalizing medical marijuana use by qualified patients, the Louisiana medical marijuana law does not include specific protections for an employee taking advantage of the law, unless the employee works for the state, the latter protection having only become effective August 1, 2022. Interestingly, marijuana in any form remains a Schedule I prohibited substance under federal law, presenting tension between state and federal law on the issue of medical marijuana use under a state sanctioned regime. Multi-state employers should track carefully legislative developments at the state level, as the legal landscape is changing rapidly as it relates to protections for employees who use medical marijuana in compliance with state law.

  • The Equal Employment Opportunity Commission updated its guidance on balancing antidiscrimination laws with COVID-19 concerns in the workplace. The updated technical assistance guidance, issued May 15, 2023, can be found here. Citing a longstanding principle, the guidance emphasized that medical inquiries and examinations must be job related and consistent with business necessity. However, the EEOC also stressed its opinion that these terms are broad and may include consideration of whether an employee with COVID-19 poses a “direct threat” to the workplace under the ADA. Other key components of the guidance include common examples of potential accommodations for employees with “Long COVID,” the continuing obligation to assess employee need for reasonable accommodation through the interactive process, and tips for remaining alert to COVID-related harassment of individuals with a medical need to continue wearing a face mask or take other COVID-19 precautions at work. Employers should stay updated with relevant medical and public health authority guidance as interpretation of EEO laws can change accordingly.

  • The Department of Homeland Security and Immigration and Customs Enforcement clarified on May 4, 2023, that as of July 31, 2023, temporary relaxation of in-person review requirements for Form I-9 documents will end. The agencies noted a thirty-day grace period for compliance. Importantly, employers are required to physically examine I-9 documents for employees hired on or after March 20, 2020, whose documents were previously inspected remotely. If an employee’s immigration status changed, additional steps are required to update the I-9 Form.

  • Reminder: The Pregnancy Workers Fairness Act (“PWFA”) becomes effective on June 27, 2023. Employers should update policies and posters accordingly.

  • The Equal Employment Opportunity Commission issued additional guidance on May 18, 2023, concerning use of AI in the workplace. The new guidance discusses issues surrounding the assessment of whether there may be an adverse impact on a specific protected group through the use of software, algorithms and artificial intelligence used in employment selection procedures. The guidance, found here, also emphasizes the importance of monitoring traditional and algorithmic decision-making procedures to determine if they disproportionately disadvantage individuals based on a protected class. The guidance includes a set of Q&A intended to assist employers in that respect.

Employment Law—Stay in the Know!

The month of May saw an abundance of activity affecting employers and their interactions with the workforce. A few such activities should be noted:

  • The National Labor Relations Board released a decision affecting employer rights to discipline employees for otherwise inappropriate “outbursts” made in the context of protected activity under the National Labor Relations Act. The decision established “setting specific” approaches to and limitations on employers’ responses to such conduct. Those settings include confrontations with management, social media posts or workplace conversations, and misconduct on picket lines. Importantly, in all contexts, the Board stressed that conduct occurring in the course of protected activity “must be evaluated as part of that activity – not as if it occurred separately from it and in the ordinary workplace context.” See Lion Elastomers, 16-CA-190681 (NLRB May 1, 2023).

  • The United States Supreme Court heard oral argument in an important case addressing how far employers must go to accommodate their employees’ “sincerely held religious beliefs.” Groff v. DeJoy, CA 21-1900. The case involved a USPS worker who refused to work on Sundays due to his religious observance of the Sabbath. USPS disciplined the employee who resigned and sued under Title VII which requires an employer to reasonably accommodate its employees’ religious practices except where the employer can demonstrate undue hardship. Presently, undue hardship under Title VII allows employers to avoid accommodations that would impose more than a de minimis cost or burden. The plaintiff has urged the Supreme Court to adopt instead the definition of undue hardship from the Americans With Disabilities Act, which requires proof of a more substantial difficulty or expense before denying accommodation.

  • On May 18, 2023, the Louisiana House Labor Committee advanced a bill that would protect employees who use medical marijuana in compliance with Louisiana law from being disqualified from receiving unemployment benefits. Despite legalizing medical marijuana use by qualified patients, the Louisiana medical marijuana law does not include specific protections for an employee taking advantage of the law, unless the employee works for the state, the latter protection having only become effective August 1, 2022. Interestingly, marijuana in any form remains a Schedule I prohibited substance under federal law, presenting tension between state and federal law on the issue of medical marijuana use under a state sanctioned regime. Multi-state employers should track carefully legislative developments at the state level, as the legal landscape is changing rapidly as it relates to protections for employees who use medical marijuana in compliance with state law.

  • The Equal Employment Opportunity Commission updated its guidance on balancing antidiscrimination laws with COVID-19 concerns in the workplace. The updated technical assistance guidance, issued May 15, 2023, can be found here. Citing a longstanding principle, the guidance emphasized that medical inquiries and examinations must be job related and consistent with business necessity. However, the EEOC also stressed its opinion that these terms are broad and may include consideration of whether an employee with COVID-19 poses a “direct threat” to the workplace under the ADA. Other key components of the guidance include common examples of potential accommodations for employees with “Long COVID,” the continuing obligation to assess employee need for reasonable accommodation through the interactive process, and tips for remaining alert to COVID-related harassment of individuals with a medical need to continue wearing a face mask or take other COVID-19 precautions at work. Employers should stay updated with relevant medical and public health authority guidance as interpretation of EEO laws can change accordingly.

  • The Department of Homeland Security and Immigration and Customs Enforcement clarified on May 4, 2023, that as of July 31, 2023, temporary relaxation of in-person review requirements for Form I-9 documents will end. The agencies noted a thirty-day grace period for compliance. Importantly, employers are required to physically examine I-9 documents for employees hired on or after March 20, 2020, whose documents were previously inspected remotely. If an employee’s immigration status changed, additional steps are required to update the I-9 Form.

  • Reminder: The Pregnancy Workers Fairness Act (“PWFA”) becomes effective on June 27, 2023. Employers should update policies and posters accordingly.

  • The Equal Employment Opportunity Commission issued additional guidance on May 18, 2023, concerning use of AI in the workplace. The new guidance discusses issues surrounding the assessment of whether there may be an adverse impact on a specific protected group through the use of software, algorithms and artificial intelligence used in employment selection procedures. The guidance, found here, also emphasizes the importance of monitoring traditional and algorithmic decision-making procedures to determine if they disproportionately disadvantage individuals based on a protected class. The guidance includes a set of Q&A intended to assist employers in that respect.

Employment Law—Stay in the Know!

The month of May saw an abundance of activity affecting employers and their interactions with the workforce. A few such activities should be noted:

  • The National Labor Relations Board released a decision affecting employer rights to discipline employees for otherwise inappropriate “outbursts” made in the context of protected activity under the National Labor Relations Act. The decision established “setting specific” approaches to and limitations on employers’ responses to such conduct. Those settings include confrontations with management, social media posts or workplace conversations, and misconduct on picket lines. Importantly, in all contexts, the Board stressed that conduct occurring in the course of protected activity “must be evaluated as part of that activity – not as if it occurred separately from it and in the ordinary workplace context.” See Lion Elastomers, 16-CA-190681 (NLRB May 1, 2023).

  • The United States Supreme Court heard oral argument in an important case addressing how far employers must go to accommodate their employees’ “sincerely held religious beliefs.” Groff v. DeJoy, CA 21-1900. The case involved a USPS worker who refused to work on Sundays due to his religious observance of the Sabbath. USPS disciplined the employee who resigned and sued under Title VII which requires an employer to reasonably accommodate its employees’ religious practices except where the employer can demonstrate undue hardship. Presently, undue hardship under Title VII allows employers to avoid accommodations that would impose more than a de minimis cost or burden. The plaintiff has urged the Supreme Court to adopt instead the definition of undue hardship from the Americans With Disabilities Act, which requires proof of a more substantial difficulty or expense before denying accommodation.

  • On May 18, 2023, the Louisiana House Labor Committee advanced a bill that would protect employees who use medical marijuana in compliance with Louisiana law from being disqualified from receiving unemployment benefits. Despite legalizing medical marijuana use by qualified patients, the Louisiana medical marijuana law does not include specific protections for an employee taking advantage of the law, unless the employee works for the state, the latter protection having only become effective August 1, 2022. Interestingly, marijuana in any form remains a Schedule I prohibited substance under federal law, presenting tension between state and federal law on the issue of medical marijuana use under a state sanctioned regime. Multi-state employers should track carefully legislative developments at the state level, as the legal landscape is changing rapidly as it relates to protections for employees who use medical marijuana in compliance with state law.

  • The Equal Employment Opportunity Commission updated its guidance on balancing antidiscrimination laws with COVID-19 concerns in the workplace. The updated technical assistance guidance, issued May 15, 2023, can be found here. Citing a longstanding principle, the guidance emphasized that medical inquiries and examinations must be job related and consistent with business necessity. However, the EEOC also stressed its opinion that these terms are broad and may include consideration of whether an employee with COVID-19 poses a “direct threat” to the workplace under the ADA. Other key components of the guidance include common examples of potential accommodations for employees with “Long COVID,” the continuing obligation to assess employee need for reasonable accommodation through the interactive process, and tips for remaining alert to COVID-related harassment of individuals with a medical need to continue wearing a face mask or take other COVID-19 precautions at work. Employers should stay updated with relevant medical and public health authority guidance as interpretation of EEO laws can change accordingly.

  • The Department of Homeland Security and Immigration and Customs Enforcement clarified on May 4, 2023, that as of July 31, 2023, temporary relaxation of in-person review requirements for Form I-9 documents will end. The agencies noted a thirty-day grace period for compliance. Importantly, employers are required to physically examine I-9 documents for employees hired on or after March 20, 2020, whose documents were previously inspected remotely. If an employee’s immigration status changed, additional steps are required to update the I-9 Form.

  • Reminder: The Pregnancy Workers Fairness Act (“PWFA”) becomes effective on June 27, 2023. Employers should update policies and posters accordingly.

  • The Equal Employment Opportunity Commission issued additional guidance on May 18, 2023, concerning use of AI in the workplace. The new guidance discusses issues surrounding the assessment of whether there may be an adverse impact on a specific protected group through the use of software, algorithms and artificial intelligence used in employment selection procedures. The guidance, found here, also emphasizes the importance of monitoring traditional and algorithmic decision-making procedures to determine if they disproportionately disadvantage individuals based on a protected class. The guidance includes a set of Q&A intended to assist employers in that respect.

Employment Law—Stay in the Know!

The month of May saw an abundance of activity affecting employers and their interactions with the workforce. A few such activities should be noted:

  • The National Labor Relations Board released a decision affecting employer rights to discipline employees for otherwise inappropriate “outbursts” made in the context of protected activity under the National Labor Relations Act. The decision established “setting specific” approaches to and limitations on employers’ responses to such conduct. Those settings include confrontations with management, social media posts or workplace conversations, and misconduct on picket lines. Importantly, in all contexts, the Board stressed that conduct occurring in the course of protected activity “must be evaluated as part of that activity – not as if it occurred separately from it and in the ordinary workplace context.” See Lion Elastomers, 16-CA-190681 (NLRB May 1, 2023).

  • The United States Supreme Court heard oral argument in an important case addressing how far employers must go to accommodate their employees’ “sincerely held religious beliefs.” Groff v. DeJoy, CA 21-1900. The case involved a USPS worker who refused to work on Sundays due to his religious observance of the Sabbath. USPS disciplined the employee who resigned and sued under Title VII which requires an employer to reasonably accommodate its employees’ religious practices except where the employer can demonstrate undue hardship. Presently, undue hardship under Title VII allows employers to avoid accommodations that would impose more than a de minimis cost or burden. The plaintiff has urged the Supreme Court to adopt instead the definition of undue hardship from the Americans With Disabilities Act, which requires proof of a more substantial difficulty or expense before denying accommodation.

  • On May 18, 2023, the Louisiana House Labor Committee advanced a bill that would protect employees who use medical marijuana in compliance with Louisiana law from being disqualified from receiving unemployment benefits. Despite legalizing medical marijuana use by qualified patients, the Louisiana medical marijuana law does not include specific protections for an employee taking advantage of the law, unless the employee works for the state, the latter protection having only become effective August 1, 2022. Interestingly, marijuana in any form remains a Schedule I prohibited substance under federal law, presenting tension between state and federal law on the issue of medical marijuana use under a state sanctioned regime. Multi-state employers should track carefully legislative developments at the state level, as the legal landscape is changing rapidly as it relates to protections for employees who use medical marijuana in compliance with state law.

  • The Equal Employment Opportunity Commission updated its guidance on balancing antidiscrimination laws with COVID-19 concerns in the workplace. The updated technical assistance guidance, issued May 15, 2023, can be found here. Citing a longstanding principle, the guidance emphasized that medical inquiries and examinations must be job related and consistent with business necessity. However, the EEOC also stressed its opinion that these terms are broad and may include consideration of whether an employee with COVID-19 poses a “direct threat” to the workplace under the ADA. Other key components of the guidance include common examples of potential accommodations for employees with “Long COVID,” the continuing obligation to assess employee need for reasonable accommodation through the interactive process, and tips for remaining alert to COVID-related harassment of individuals with a medical need to continue wearing a face mask or take other COVID-19 precautions at work. Employers should stay updated with relevant medical and public health authority guidance as interpretation of EEO laws can change accordingly.

  • The Department of Homeland Security and Immigration and Customs Enforcement clarified on May 4, 2023, that as of July 31, 2023, temporary relaxation of in-person review requirements for Form I-9 documents will end. The agencies noted a thirty-day grace period for compliance. Importantly, employers are required to physically examine I-9 documents for employees hired on or after March 20, 2020, whose documents were previously inspected remotely. If an employee’s immigration status changed, additional steps are required to update the I-9 Form.

  • Reminder: The Pregnancy Workers Fairness Act (“PWFA”) becomes effective on June 27, 2023. Employers should update policies and posters accordingly.

  • The Equal Employment Opportunity Commission issued additional guidance on May 18, 2023, concerning use of AI in the workplace. The new guidance discusses issues surrounding the assessment of whether there may be an adverse impact on a specific protected group through the use of software, algorithms and artificial intelligence used in employment selection procedures. The guidance, found here, also emphasizes the importance of monitoring traditional and algorithmic decision-making procedures to determine if they disproportionately disadvantage individuals based on a protected class. The guidance includes a set of Q&A intended to assist employers in that respect.

Employment Law—Stay in the Know!

The month of May saw an abundance of activity affecting employers and their interactions with the workforce. A few such activities should be noted:

  • The National Labor Relations Board released a decision affecting employer rights to discipline employees for otherwise inappropriate “outbursts” made in the context of protected activity under the National Labor Relations Act. The decision established “setting specific” approaches to and limitations on employers’ responses to such conduct. Those settings include confrontations with management, social media posts or workplace conversations, and misconduct on picket lines. Importantly, in all contexts, the Board stressed that conduct occurring in the course of protected activity “must be evaluated as part of that activity – not as if it occurred separately from it and in the ordinary workplace context.” See Lion Elastomers, 16-CA-190681 (NLRB May 1, 2023).

  • The United States Supreme Court heard oral argument in an important case addressing how far employers must go to accommodate their employees’ “sincerely held religious beliefs.” Groff v. DeJoy, CA 21-1900. The case involved a USPS worker who refused to work on Sundays due to his religious observance of the Sabbath. USPS disciplined the employee who resigned and sued under Title VII which requires an employer to reasonably accommodate its employees’ religious practices except where the employer can demonstrate undue hardship. Presently, undue hardship under Title VII allows employers to avoid accommodations that would impose more than a de minimis cost or burden. The plaintiff has urged the Supreme Court to adopt instead the definition of undue hardship from the Americans With Disabilities Act, which requires proof of a more substantial difficulty or expense before denying accommodation.

  • On May 18, 2023, the Louisiana House Labor Committee advanced a bill that would protect employees who use medical marijuana in compliance with Louisiana law from being disqualified from receiving unemployment benefits. Despite legalizing medical marijuana use by qualified patients, the Louisiana medical marijuana law does not include specific protections for an employee taking advantage of the law, unless the employee works for the state, the latter protection having only become effective August 1, 2022. Interestingly, marijuana in any form remains a Schedule I prohibited substance under federal law, presenting tension between state and federal law on the issue of medical marijuana use under a state sanctioned regime. Multi-state employers should track carefully legislative developments at the state level, as the legal landscape is changing rapidly as it relates to protections for employees who use medical marijuana in compliance with state law.

  • The Equal Employment Opportunity Commission updated its guidance on balancing antidiscrimination laws with COVID-19 concerns in the workplace. The updated technical assistance guidance, issued May 15, 2023, can be found here. Citing a longstanding principle, the guidance emphasized that medical inquiries and examinations must be job related and consistent with business necessity. However, the EEOC also stressed its opinion that these terms are broad and may include consideration of whether an employee with COVID-19 poses a “direct threat” to the workplace under the ADA. Other key components of the guidance include common examples of potential accommodations for employees with “Long COVID,” the continuing obligation to assess employee need for reasonable accommodation through the interactive process, and tips for remaining alert to COVID-related harassment of individuals with a medical need to continue wearing a face mask or take other COVID-19 precautions at work. Employers should stay updated with relevant medical and public health authority guidance as interpretation of EEO laws can change accordingly.

  • The Department of Homeland Security and Immigration and Customs Enforcement clarified on May 4, 2023, that as of July 31, 2023, temporary relaxation of in-person review requirements for Form I-9 documents will end. The agencies noted a thirty-day grace period for compliance. Importantly, employers are required to physically examine I-9 documents for employees hired on or after March 20, 2020, whose documents were previously inspected remotely. If an employee’s immigration status changed, additional steps are required to update the I-9 Form.

  • Reminder: The Pregnancy Workers Fairness Act (“PWFA”) becomes effective on June 27, 2023. Employers should update policies and posters accordingly.

  • The Equal Employment Opportunity Commission issued additional guidance on May 18, 2023, concerning use of AI in the workplace. The new guidance discusses issues surrounding the assessment of whether there may be an adverse impact on a specific protected group through the use of software, algorithms and artificial intelligence used in employment selection procedures. The guidance, found here, also emphasizes the importance of monitoring traditional and algorithmic decision-making procedures to determine if they disproportionately disadvantage individuals based on a protected class. The guidance includes a set of Q&A intended to assist employers in that respect.