UPDATE: December 17, 2021

In a move that comes as no surprise, the EEOC has updated its COVID-19 technical assistance to provide guidance on when COVID-19 may be considered a “disability” under the ADA, making specific reference to the DOJ/HHS guidance discussed in the original blog below. The EEOC’s technical assistance focuses “more broadly on COVID-19” beyond just “long COVID,” and does so “in the context of Title I of the ADA and section 501 of the Rehabilitation Act, which cover employment.” However, the EEOC’s guidance clearly echoes the DOH/HHS guidance and states that long COVID or sustained symptoms of COVID may be a “disability” under the law.

In many states, long COVID could also qualify as a disability under state laws. So, employers should be ready for more claims into the future, even when the pandemic (finally) ends – from employees who suffer symptoms of COVID as a chronic illness.

THE GUIDANCE

What is Long COVID and when is it a disability?

The EEOC has reemphasized that determining whether COVID may be considered a “disability” under the law is a fact-intensive question, requiring an analysis of the extent to which COVID’s symptoms, its long-term effects, or the manner in which it exacerbated the symptoms of another condition “substantially limit a major life activity,” as discussed in the original blog below. This means that an individual suffering, even intermittently, from certain symptoms relating to long COVID can be considered to be “disabled” under the law.

The EEOC provides several examples of these impairments, including: “brain fog” and difficulty remembering or concentrating; substantially limited respiratory function; chest pains; or intestinal pain.

Importantly, the EEOC distinguishes these “substantially limiting” conditions from less-serious symptoms, such as “congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks,” which would not create a “disability.” But make no mistake: even these relatively insignificant symptoms may constitute a disability if they last or are expected to last for a significant period of time (i.e. more than six months).


Continue Reading UPDATE ON COVID CONSIDERATIONS: Long COVID Now an ADA Disability

To address growing cybersecurity risks to plan participants and their retirement assets, the Department of Labor (DOL) issued a set of guidance for retirement plan sponsors and fiduciaries, their service providers, and plan participants aimed at mitigating cybersecurity risks. The DOL has also begun examining plans’ cybersecurity programs. Its information requests, which are very detailed and encompassing, signal that the guidelines are not optional and that the DOL is serious about enforcing them. The below is a summary of the DOL’s guidance and items it has signaled will be reviewed in a cybersecurity audit.

DOL Guidance
The DOL released its guidance on April 14, 2021 in three pieces. The first piece, “Tips for Hiring a Service Provider,” is aimed at assisting plan sponsors and fiduciaries in choosing service providers with robust cybersecurity practices. The initial guidance makes clear that the DOL considers the management of cybersecurity risk – including the scrutinizing of service providers’ cybersecurity policies and practices – to be part of a fiduciary’s duties. The tips include:

  • Making sure that contracts with service providers require their ongoing compliance with cybersecurity and information security standards, and being wary of provisions that limit the service provider’s responsibility for IT security breaches;
  • Looking for contract provisions that give plan sponsors and fiduciaries the right to review the service provider’s audit results demonstrating compliance with industry security standards;
  • Examining the service provider’s track record in the industry, including public information regarding information security incidents;
  • Inquiring as to any past security breaches, how they came about, and how the service provider responded; and
  • Finding out whether the service provider has any insurance policies that would cover losses caused by cybersecurity and identity theft breaches, whether internal or external.
    Continue Reading DOL Issues Cybersecurity Guidelines and Begins Audits

Wednesday, September 22nd at 12:30pm ET

President Biden promised a 2021 “Summer of Joy” as the ongoing COVID-19 pandemic is brought under control. Instead, employers face continuing unpredictability in the face of a pandemic—and CDC guidance—that just keeps changing. With a pandemic that is not nearly behind us, what should an employer do now? Mandate

UPDATE: December 17, 2021

In a move that comes as no surprise, the EEOC has updated its COVID-19 technical assistance to provide guidance on when COVID-19 may be considered a “disability” under the ADA, making specific reference to the DOJ/HHS guidance discussed in the original blog below. The EEOC’s technical assistance focuses “more broadly on COVID-19” beyond just “long COVID,” and does so “in the context of Title I of the ADA and section 501 of the Rehabilitation Act, which cover employment.” However, the EEOC’s guidance clearly echoes the DOH/HHS guidance and states that long COVID or sustained symptoms of COVID may be a “disability” under the law.

In many states, long COVID could also qualify as a disability under state laws. So, employers should be ready for more claims into the future, even when the pandemic (finally) ends – from employees who suffer symptoms of COVID as a chronic illness.

THE GUIDANCE

What is Long COVID and when is it a disability?

The EEOC has reemphasized that determining whether COVID may be considered a “disability” under the law is a fact-intensive question, requiring an analysis of the extent to which COVID’s symptoms, its long-term effects, or the manner in which it exacerbated the symptoms of another condition “substantially limit a major life activity,” as discussed in the original blog below. This means that an individual suffering, even intermittently, from certain symptoms relating to long COVID can be considered to be “disabled” under the law.

The EEOC provides several examples of these impairments, including: “brain fog” and difficulty remembering or concentrating; substantially limited respiratory function; chest pains; or intestinal pain.

Importantly, the EEOC distinguishes these “substantially limiting” conditions from less-serious symptoms, such as “congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks,” which would not create a “disability.” But make no mistake: even these relatively insignificant symptoms may constitute a disability if they last or are expected to last for a significant period of time (i.e. more than six months).


Continue Reading COVID CONSIDERATIONS: Long COVID Now a Disability

As the number of COVID-19 infections in certain states continues to rise, so does the number of states added to the tristate area travel advisory.  Ten additional states were added to the existing list, including the following: Illinois, Kentucky, Minnesota, Puerto Rico and Washington D.C. Travelers from these states, as well as Alabama, Alaska, Arkansas,

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

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

The Non-Disclosure Agreement has been a hot topic in the news recently, with stories focusing on their use by President Trump, Harvey Weinstein and Presidential Candidate Michael Bloomberg. Putting the use of NDAs in perspective, partner Barbara Hoey, co-chair of Kelley Drye’s Labor and Employment practice group, was recently interviewed by Brut Media where

On Wednesday, December 4th, Barbara Hoey, Co-Chair of Kelley Drye’s Labor and Employment Practice and David Frulla, Chair of the firm’s Campaign Finance and Political Law Practice hosted a one hour webinar focused on best practices of handling all aspects of politics in the workplace. They reviewed federal and state rules regarding employees’ political activity

The fact-pattern is familiar to employers who have been on the receiving end of attorney litigation threats. A plaintiff’s lawyer calls, or writes a letter, outlining a potential claim by a client, makes a demand for damages, then perhaps throws in mention of the harm the company will suffer if the allegations become “public.” Just another run-of-the-mill litigation threat from a plaintiff’s attorney. Nothing to make a “federal case” out of it, right? Nothing criminal, right?

Well, maybe it is criminal. The recent charges filed by the United States Attorneys’ Office in the Southern District of New York against celebrity attorney Michael Avenatti highlight the lines that both management and plaintiff’s attorneys need to be aware of during communications involving threats of litigation.


Continue Reading Employers Should Look for Litigation Threats That Cross the Line Highlighted by Michael Avenatti’s Indictment