Employment Law Update for October, 2020
Employment law is constantly evolving. Changes in this area can dictate, among other things, what policies businesses need to put in place, how a company must accommodate the needs of its employees, what language to include in contracts, and how to hire and fire. Accordingly, it is critical for Pennsylvania employers to stay up-to-date.
The following are a few important legal updates from October, 2020:
OSHA clarifies COVID-19 Employer Reporting Obligations
OSHA recently provided some clarification on reporting related to COVID-19 via its dedicated site for frequently asked questions.
Under OSHA regulations, employers are required to report in-patient hospitalizations to OSHA if the hospitalization “occurs within twenty-four (24) hours of the work-related incident.” The term “incident” includes an exposure to COVID-19 in the workplace. Therefore, to be subject to the reporting requirement, an in-patient hospitalization must occur within 24 hours of exposure to COVID-19 in the workplace. If an employer later becomes aware that the hospitalization was COVID-19 related, the case must be reported within 24 hours of the employer’s determination.
Notably, this 24-hour limitation only applies to reporting to OHSA. Employers are still required to record work-related confirmed cases of COVID-19. This is a challenge for employers because of the difficulty of determining whether a COVID-19 case is work-related. Some employers are recording all cases of employees having COVID-19 out of caution, and others are not recording cases unless and until they can clearly establish the case is work-related to avoid exaggerating their numbers.
EEOC Issues Proposal aimed at Improving Pre-Suit Conciliations
The EEOC proposed new regulations this month to modify its pre-suit conciliation process. A conciliation is an informal process through which the EEOC tries to secure voluntary compliance from an employer before initiating a lawsuit against the employer. In short, the proposal would establish new disclosure requirements that make it “more likely that employers have a better understanding of the EEOC’s position in conciliation”. This disclosure would include the EEOC providing the employer with a “written summary of the known facts and non-privileged information that the Commission relied on in its” finding that unlawful discrimination occurred, including “identifying known aggrieved individuals”, unless the individual(s) have requested anonymity”.
Amazon sued by Transgender man for Pregnancy Discrimination
According to a lawsuit filed in the New Jersey federal court, online retailer Amazon discriminated against a New Jersey transgender man who worked in an Amazon warehouse after the employee informed his supervisor that the employee was pregnant. The employee claims, among other things, that his supervisor assigned him to a role that required heavy lifting duties that the employee never had before the disclosure, declined the employee’s requests for accommodations that were supported by the employee’s physician, and subjected the employee to unfair criticism of the employee’s job performance. The Supreme Court of the United States ruled in July, 2020, that discrimination against individuals because of their transgender status violates Title VII’s prohibition on discrimination because of sex.
New Jersey sits in the Third Circuit Court of Appeals along with Pennsylvania and Delaware. This case could produce new law that could influence judges sitting in Pennsylvania federal district courts.
Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff also represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment.