The EEOC again updated its Technical Assistance Questions and Answers (Q&A), which we have been following closely, and previously covered on June 11, 2020.

In its most recent update, the EEOC addressed specific questions related to administering COVID-19 tests (Q&A, A.7); permitting employees into the physical workplace, and permissible COVID-19 questions (Q&A, A.8, A.9, A.11, A.12, A.13, and A.14). The EEOC also updated its guidance regarding confidentiality of medical information (B.5, B.6, B.7, and B.8), as well as reasonable accommodations and teleworking (D.8, D.14, D.15, D.16, D.17, and D.18).
Continue Reading UPDATE: EEOC Updates COVID-19 Technical Assistance Publication with Q&A

JOIN US: TUESDAY, JULY 21, 2020 | 12:30PM EST

Four months ago, the Dow was close to 30,000, employment rates were at historic highs, the coronavirus was still “novel,” and millions had not yet taken to the streets in global protests against police brutality and racial inequality. The workplace we now return to exists in

In May, the Equal Employment Opportunity Commission (“EEOC”) announced that FedEx Ground Package System, Inc. (“FedEx”) will pay $3.3 million dollars and provide programmatic relief to resolve a disability discrimination charge against the company.

Allegations against FedEx

In its Complaint (Equal Employment Opportunity Comm’n v. FedEx Ground Package Sys., Inc., 15-cv-00256 (Western District of Pennsylvania, February 25, 2015) the EEOC alleged that FedEx violated the Americans with Disabilities Act (“ADA”) by discriminating against deaf and hard-of-hearing individuals who applied for and/or worked in the package handler positions with the company.  To be hired for such positions, applicants must be at least eighteen years old and pass a criminal background check.  Applicants attend a mandatory sort-observation tour (where they see an active package handling shift, observe loading and unloading delivery vehicles, the conveyor systems, scanning, sorting, and the routing of packages), and participate in an interview.


Continue Reading EEOC Delivers Hefty Fine for Disability Discrimination

Today the EEOC updated its Technical Assistance Questions and Answers (Q&A), “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”

Among the updates, the EEOC  provides Q&A guidance regarding: requests for accommodation (Q&A D.13, G.7); pandemic-related harassment in the context of telework (Q&A E.4); return to work guidance (Q&A G.6, G.7); and other questions related to age discrimination (Q&A H.1), pregnancy discrimination (Q&A J.1), and sex discrimination involving employees with caretaking or family responsibilities (Q&A I.1).

The EEOC also touches on an issue that all employers will undoubtedly face as employees return to work, namely, whether an accommodation is required for an employee who is not disabled, but whose family member may be at high risk for contracting COVID-19 due to an underlying condition. The EEOC’s June 11 Q&A D.13 states:


Continue Reading EEOC Updates COVID-19 Technical Assistance Publication with Q&A

As businesses all over the country prepare to open up and welcome employees back to work – even while the pandemic rages on – there remains a high degree of uncertainty concerning how to keep employees safe, especially those who may be at higher risk because of age or a medical condition.  Adding to employer angst over this issue, the EEOC, the agency charged with interpreting the discrimination laws, found it necessary last week to issue guidelines and then clarify its own statements within just two days.  On Tuesday, May 5, 2020, the EEOC issued new “Return to Work” guidance, but then pulled it down within 24 hours.  On May 7, 2020, it issued updated guidance, which focused on how employers should handle return to work issues, but with special emphasis on how they should treat “high risk” employees.

One major takeaway from the guidance is that employers cannot exclude high risk employees from the workplace just because there is a concern about COVID-19 exposure.  Andrew Maunz, EEOC Legal Counsel stated, “It is important that employers understand that the ADA does not allow them to act against employees solely because the employee has a CDC-listed underlying medical condition.”


Continue Reading Reentry Worries And The EEOC’S Latest Return To Work Guidance

With the reopening of state economies and return-to-work on the horizon, on April 23, 2020, the EEOC issued new guidance on workplace testing for COVID-19.

The EEOC’s guidance confirms that “employers may choose to administer COVID-19 testing to employees before they enter the workplace to determine if they have the virus” because “an individual

Although the U.S. is still in the thick of the COVID-19 crisis, this is exactly when employers who are deemed “non-essential” should be developing a careful, considered plan to bring their workforces back. Employers face a multitude of challenges in the planning process, including: (1) determining when and who comes back; (2) parting ways with employees with whom the business can no longer support or need; (3) sidestepping lawsuits that could otherwise arise after employee terminations; and (4) balancing employees’ legitimate concerns for themselves and their families’ with an increasingly imperative need to get your business up and running again.

This post briefly addresses issues employers should consider when bringing employees back. For a deeper dive of the issues covered in this post and more, check out a recording of Kelley Drye’s Part 1: Getting Back To Work: Preparations and Considerations for Employers webinar, and register for Part 2: Getting Back To Work: When the Rubber Hits the Road. Part 2 is scheduled for April 30, 2020 at 12:30 PM ET, click here to register.


Continue Reading COVID-19 and Returning to Work: For Employers, It’s Not Too Soon to Plan a Comeback

Last week, the FDA approved the use of telethermographic systems (essentially, heat-sensitive cameras) to detect human temperature during the COVID-19 public health emergency. The cameras can measure individuals’ temperatures in comparison to their surroundings to help identify fevers.

Companies considering using these devices should review the article, Finding Fevers: FDA Relaxes Rules On Temperature-Detecting Cameras, written by Kelley Drye partner, Kristi Wolff and consider the associated employment and privacy issues.   


Continue Reading Finding Fevers: Considerations Before Using Temperature-Detecting Cameras

On the evening of Monday, March 16, the House amended the Families First Coronavirus Response Act (“FFCRA”) (HR 6201) by amending the bill with what are being called “technical corrections.”

The previous bill, passed by the House on March 14, contained two main centerpieces: (1) new paid Family and Medical Leave to deal with the

JOIN US: Tuesday, March 17, 2020 at 12:30 PM EST

Employers are in uncharted territory with the COVID-19 pandemic, which has created complicated employment issues that continue to evolve by the hour. Join Kelley Drye’s Labor and Employment co-chairs Barbara Hoey and Mark Konkel and senior associate Diana Hamar as they share practical advice for