02 Jul

June 2020 Federal HR Updates

Posted at

10:48am

in

Supreme Court Affirms LGBTQ+ Protection Against Discrimination

What happened?
On June 15, 2020, the Supreme Court ruled 6-3 that the Civil Rights Act of 1964 protects gay, lesbian, and transgender employees from discrimination based on sex.

What are the details?
The U.S. Supreme Court has ruled that according to Title VII of the Civil Rights Act of 1964 gay, lesbian, and transgender employees will be protected from discrimination in the workplace. The Civil Rights Act of 1964 still allows some exemptions to this, as noted by Justice Neil Gorsuch. Justice Gorsuch points to the 1993 Religious Freedom Restoration Act as a prime example of an exemption. 

Further details about the ruling can be found here.

What do employers need to do?
Employers should review their policies to ensure they are not discriminating against members of the LGBTQ+ community. Managers and supervisors should receive training about these changes. Employee handbooks should be updated to reflect changes to EEO and anti-discrimination policies.

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EEOC Denies the Use of Mandatory Antibody Tests for COVID-19

What happened?
The EEOC has issued new guidance regarding use the use of mandatory antibody tests before employees can return to work.

What are the details?
The EEOC has determined that due to a lack of information about COVID-19 antibodies, mandatory testing does not meet the ADA’s requirement for a medical examination to be “job related and consistent with business necessity.” Note that this is only applicable to antibody testing due to a lack of information at this time and may change in the future. Mandatory COVID-19 testing, to determine if an employee is positive or negative before returning to work, is still allowed.

The EEOC Guidelines regarding antibody testing can be found here.

What do employers need to do?
Employers should hold off on any planned antibody testing until more information becomes available. Employers who are requiring antibody testing before allowing employees to re-enter the workplace should cease doing so, as this is not allowed under the ADA.

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Nonimmigrant Visas Severely Restricted

What happened?
The Trump administration issued a proclamation on June 22, 2020, severely restricting several nonimmigrant visas to help alleviate domestic unemployment related to COVID-19.

What are the details?
The Trump administration has issued severe restrictions on nonimmigrant visas. The following visas will likely be declined upon request:

  • H-1b
  • H-2b
  • L-1
  • J Visa

o  Specifically, for interns, trainees, teachers, camp counselors, au pairs, and summer work travel participants

The restrictions do not impact existing visa holders. Those that have existing visas may still petition to have it extended but are advised to not travel internationally, as they may be barred from entry upon returning.

Exemptions apply for the following individuals:

  • Lawful permanent residents (Green Card holders)
  • Spouses and children of U.S. citizens
  • Foreign nationals seeking to enter the United States to provide temporary labor or services essential to the U.S. food supply chain
  • Foreign nationals identified by the Secretary of State, the Secretary of Homeland Security, or their respective designees, to be of national interest.

The proclamation also acted as an extension of the April 22, 2020 proclamation that suspended most immigration into the U.S. without an existing visa.

More information about the proclamation can be found here.

The June 22, 2020 proclamation itself can be found here.

The April 22, 2020 proclamation can be found here.

What do employers need to do?
Employers that utilize nonimmigrant visa holding workers frequently should be aware of a possible labor shortage and update their hiring practices to reflect this.

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Remote I-9 Verification and E-Verify Temporary Policies Extended

What happened?
The Department of Homeland Security (DHS) extended the temporary rules which allow remote verification of identification for the I-9 and E-Verify program.

What are the details?
Due to the COVID-19 pandemic, the DHS has extended flexibility for employers and workplaces who are working remotely for an additional 30 days, until July 18, 2020.

What do employers need to do?
If still working remotely, employers may remotely verify I-9 identification forms. However, if employers have returned to work in person, the verification must be completed as normal.

A press release of the original order can be found here.

Further details regarding the temporary policies can be found here.

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