Happy Thanksgiving! 7 Things for Which We Are Thankful – 2020 EditionMany of us are understandably anxious to put the year 2020 behind us and move onward and upward! But before we all sit down at the table and fill our plates and bellies to overflowing as we start the holiday season, we can all find some bright shining blessings in what has otherwise been a difficult year (to say the least). We are grateful to have weathered hurricanes, wildfires, global pandemics and a divisive election. We are hopeful for vaccines, social justice and the ability to gather with friends and family as we did once upon a time.

We are also grateful for many developments in employment law that occurred this year.

1. Clarity from the DOL on Joint Employer Status

The DOL gave us a final rule this year with updated guidance for determining joint employer status. The final rule:

  • Provides a four-factor balancing test to determine when a person is acting directly or indirectly in the interest of an employer in relation to the employee;
  • Clarifies that an employee’s “economic dependence” on a potential joint employer does not determine whether it is a joint employer under the FLSA; and
  • Specifies that an employer’s franchisor, brand and supply, or similar business model and certain contractual agreements or business practices do not make joint employer status under the FLSA more or less likely.

The rule also provides practical examples to demonstrate how the DOL would determine joint employer status under a variety of different factual situations. We like simple and straightforward, so we are thankful for this guidance in the final rule… for now.

2. The Ability to Screen Employees for COVID-19 under the ADA

Not to brown-nose the federal agencies, but we are also thankful for the EEOC’s guidance on the ADA and COVID-19. Given the uncertainty about so many things, it was nice to have relatively clear guidance from the EEOC that during this pandemic ADA-covered employers may lawfully:

  • Ask employees if they are experiencing symptoms of the pandemic virus and even take their temperatures;
  • Require that employees stay home if they have a confirmed case or are experiencing symptoms to prevent further spread; and
  • Administer a COVID-19 test to detect the presence of the COVID-19 virus when evaluating an employee’s initial or continued presence in the workplace and be assured that such testing, if consistent with current CDC guidance, will meet the ADA’s “job related and consistent with business necessity” standard.

We will have to continue to monitor regulations on this front as developments occur in our fight against the spread, but for now and the foreseeable future, we can do our part to keep employees safe and healthy in our workplaces.

3. “On The Basis of Sex” Includes Sexual Orientation and Gender Identity

In a landmark decision, Bostock v. Clayton County, the United States Supreme Court held that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because of their sexual orientation or gender identity. We have been preparing clients for this expansion for many years and are grateful that it is now clear that the protections under Title VII extend to and include all employees regardless of their sexual orientation or gender identity.

4. Sexual Harassment in the Workplace Continues to Be Exposed and Addressed

Since the Harvey Weinstein story broke, we have lost count of the growing number of perpetrators of similar offenses, and 2020 has been no exception. Victims, both male and female, are speaking out, and many of the accused have either admitted the behavior or have simply apologized. We are grateful for the opportunity to continue training employers, managers, and supervisors on this topic and helping our clients create better places to work.

5. Profanity-Laced Tirades and Other Abusive Conduct in the Workplace Is Actually Not OK

The current NLRB has modified the standard for addressing offensive outbursts — including profane, racist, and sexually unacceptable remarks — in the course of protected activity under Section 7. In General Motors LLC, 14-CA-197985 369 NLRB No. 127 (2020), the NLRB replaced a variety of setting-specific standards — one for encounters with management (Atlantic Steel), another for exchanges between employees and postings on social media (a “totality of the circumstances” test), and a third for offensive statements and conduct on the picket line (Clear Pine Mouldings) — and instead followed the landmark Wright Line decision as the proper standard to apply. This move means employers no longer have to tolerate abusive and offensive conduct in the workplace or reinstate employees after they are discharged for deeply offensive conduct, and that’s something to be grateful for.

6. Winter Is Coming… But So Is a Vaccine

The federal government, through Operation Warp Speed, has been working since the pandemic started to make one or more COVID-19 vaccines available as soon as possible. As of today, there are three vaccine candidates in Phase 3 trials: Moderna, AstraZeneca and Pfizer.  Experts expect that a COVID-19 vaccine might be available in the spring or summer of 2021, and the FDA has pledged their commitment to expediting the development of the vaccines but not at the expense of science. So hopefully we will see some light at the end of this pandemic tunnel soon, and that is something we can all be grateful for. When a vaccine is available, check with your lawyers on the best way to encourage and/or require employees to be vaccinated (but that is a topic for another day).

7. All of Our Readers!

We are so grateful to all of our readers, followers and subscribers. We do this for each of you, and we appreciate hearing from you about what is helpful or when you send our articles along to someone else in your network. Continue to read, like, follow, and retweet us!

Happy Thanksgiving from Bradley’s Labor and Employment Insights blog team!