Equal Employment Opportunity Commission

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Vaccine PassportAt the start of summer, Governor Ron DeSantis declared that Florida is “no longer in a state of emergency.” This statement preceded a bill banning vaccine passports, and two executive orders suspending local government COVID-19 restrictions.

For employers, this doesn’t mean you should rush to discard your face marks requirement, nor should it impact your decision to mandate vaccines. Employers remain free to implement safety features they feel needed.

New York vs. Florida

Many Northeastern states have begun experimenting with COVID passports. For instance, New York City now requires at least one dose of a COVID-19 vaccine for entry to indoor dining, gyms, and entertainment performances. For better or worse, Florida has gone in the opposite direction. Florida law now prohibits businesses from implementing these measures with respect to customers. Specifically, the new law says that “business entities,” including for-profit and not-for-profit entities, cannot require that patrons or customers provide documentation certifying that they received the COVID-19 vaccine or certifying that they have recovered from the virus to enter or receive a service from the business.

EEOC’s View

Continue Reading What Florida employers need to know about the vaccine passport ban

COVID-19 VaccineWith three coronavirus vaccines approved for use in the United States, an end to the pandemic appears in sight. But returning to normal comes with plenty of unknowns. For employers looking to reduce (or eliminate) virtual working, several pertinent questions are now surfacing.

Can I ask employees if they have been vaccinated?

The law generally prohibits employers from probing into an employee’s medical history. It is acceptable for a supervisor to ask if an employee is feeling OK or can complete work for the day. However, it is another story when an employer starts asking questions to determine if an employee is pregnant, diabetic, or suffering from some illness. The Americans with Disabilities Act (ADA) prohibits employers from forcing an employee to disclose disabilities or serious medical conditions.

Thankfully, the Equal Employment Opportunity Commission (EEOC) has removed any uncertainty about how the ADA applies in this context. According to recent guidance from the EEOC, employers are permitted to ask employees if they have been vaccinated and for documentation of the vaccine. Employers should, however, avoid health inquiries that probe into other areas not related to the vaccine, as this could run afoul of other employment laws relating to discrimination and disability.

Can I offer incentives for my employees to be vaccinated?

Continue Reading Coming Back to Work – Common Coronavirus Questions by Employers

webinar photoKeeping up with the employment law changes under the Biden Administration can be a challenge. Members of Henderson, Franklin, Starnes & Holt, P.A. and Marks Gray, P.A.’s legal teams will host a virtual one-hour session to help business owners, human resource professionals, and in-house counsel understand what these changes mean for employers now, and how to prepare for what might be on the horizon. Click here to download the program brochure.

Program Overview

Guest speaker Giselle Carson, an immigration and compliance attorney with the Marks Gray law firm in Jacksonville, will kick-off the session. She will provide an update on H1B caps, travel bans and consulate processing, as well as I-9 flexibility.

Next, Employee Benefits Attorney David Ledermann will provide an overview on COBRA changes. These include the new federal COBRA subsidy under the American Rescue Plan Act and related notice requirements, interaction with the extended time periods previously granted relating to the pandemic-related national emergency, potential subsequent availability of special enrollment rights in the Health Insurance Marketplace, and considerations relative to Florida’s mini-COBRA law.Continue Reading 100 Days In: Update on Biden Employment Policies

photo of HR Policies and ProceduresAs the nation begins the slow recovery from the COVID pandemic, businesses will start to return to some level of “normalcy.” But that normalcy will be in a vastly different governmental environment. During the Trump years, businesses benefited from the administration’s pro-business attitude. The Biden administration has made it clear it intends to adopt a pro-employee, pro-union stance. In its first 100 days, the administration has begun to set the pieces for its long-term goals.

What impact will the Equality Act, if passed, have on employers?

One of the more visible areas of change is coming in the civil rights arena. President Biden fired the Equal Employment Opportunity Commission’s general counsel in March when she refused to resign. The EEOC general counsel, who sets the tone for the number and types of cases the Commission pursues, had been relatively modest in her enforcement efforts during the Trump administration. That should be changing. One area that will likely be a red flag issue with the Biden-era EEOC is LGBTQ+ rights.Continue Reading Employers need to pay attention to sexual orientation and gender identity protection policies

Henderson Franklin’s Employment Law and Workers’ Compensation teams invite business owners, HR professionals, in-house counsel and those wanting to stay up-to-date on issues impacting the workplace to attend the 28th Annual HR Law & Solutions Seminar on Thursday, March 26, 2020, at the Marriott Sanibel Harbour Resort & Spa in Fort Myers, Florida. For more details, please click here to view or download the seminar brochure.

The day will kick-off with registration and a continental breakfast at 7:15 a.m. sponsored by Sanibel Captiva Community Bank. After the morning session, attendees will enjoy a plated lunch, sponsored by BKS-Partners, and conclude around 3:00 pm after an incredible inspiring session delivered by former US Black Hawk Helicopter Pilot, Elizabeth McCormick, sponsored by Contemporary Business Resources. Topics and speakers include:

A Day in the Life: Practical Tips for Today’s Employers

Continue Reading Registration for Henderson Franklin’s 28th Annual HR Law & Solutions Seminar is Open

Title VII Requires Administrative Exhaustion

Before an employee alleging employment discrimination under Title VII may file a lawsuit in federal court, she must first exhaust administrative remedies by bringing formal charges with the Equal Employment Opportunity Commission (EEOC) or an equivalent state agency. This administrative-exhaustion process is designed to allow the EEOC to step in, and also gives the parties an opportunity at early settlement. If the EEOC decides not to take the case, it must issue a “right-to-sue letter,” which is evidence that the administrative exhaustion requirement has been satisfied. The employee then has 90 days to file suit.

There has long been a circuit split on how to treat discrimination claims that were never raised with the EEOC but later find their way into a plaintiff’s lawsuit. Several appeals courts treated this failure as an affirmative defense that could be waived by the employer if not timely asserted. The competing approach was to treat administrative exhaustion as a jurisdictional requirement. Meaning the defense could not be waived, thereby permitting employers (and the court) to raise the issue at any time. Prior to the Supreme Court weighing in the on the matter, the Eleventh Circuit fell into the latter camp. See, e.g., Bloodworth v. Colvin, 17 F. Supp. 3d 1245, 1250 (N.D. Ga. 2014) (“[I]n the Eleventh Circuit, administrative exhaustion is a jurisdictional prerequisite to Title VII actions.”) (citing Crawford v. Babbitt, 186 F.3d 1322, 1326 (11th Cir.1999)).

Background – Fort Bend County v. Davis, No. 18-525

Continue Reading Supreme Court Decides Important Procedural Question under Title VII