The Washington Report

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March 16, 2022

Note to Subscribers

While we do our best to provide timely updates, it is possible that the information shared in the newsletter may change after our publication deadline.

COVID-19

EEOC Releases Technical Assistance Document and Updated Guidance About Discrimination Against Caregivers Due to COVID-19
On March 14, 2022, the Equal Employment Opportunity Commission (EEOC) released a technical assistance document, The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws, and an update to its COVID-19 What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (Section I. Caregivers/Family Responsibilities) guidance explaining discrimination against employees and job seekers with family caregiving responsibilities. The technical assistance document provides COVID-19 examples of discrimination against caregivers. The updated What You Should Know (Section I. Caregivers/Family Responsibilities) section addresses the following questions:

If an employer provides telework, modified schedules, or other benefits to employees with school-age children due to school closures or distance learning during the pandemic, are there sex discrimination considerations?
How might unlawful caregiver discrimination related to the COVID-19 pandemic arise under the laws enforced by the EEOC?
Are these legal protections available only to workers caring for children, or are they also available to workers with other caregiving obligations?
Should employers and employees be aware of any other pandemic-related caregiver discrimination issues?

In addition to the new technical assistance document and related What You Should Know updates, the EEOC also released a short video explaining caregiver discrimination.

Please refer to all the updated guidance for specific details.

The news release is available here.

The technical assistance document, The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws, is available here.

The updated EEOC Section I guidance is available here.

EEOC Updates Guidance on Religious Objections to COVID-19 Vaccine Requirements
On March 1, 2022, the EEOC updated its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (Section L. Vaccinations – Title VII Religious Objections to COVID-19 Vaccine Requirements) guidance. The updated technical assistance questions address the following:

Do employees who have a religious objection to receiving a COVID-19 vaccination need to tell their employer? If so, is there specific language that must be used under Title VII?
Does an employer have to accept an employee’s assertion of a religious objection to a COVID-19 vaccination at face value? May the employer ask for additional information?
How does an employer show that it would be an “undue hardship” to accommodate an employee’s request for religious accommodation?
If an employer grants some employees a religious accommodation from a COVID-19 vaccination requirement because of sincerely held religious beliefs, practices, or observances, does it have to grant all such requests?
Must an employer provide the religious accommodation preferred by an employee if there are other possible accommodations that also are effective in eliminating the religious conflict and do not cause an undue hardship under Title VII?
If an employer grants a religious accommodation to an employee, can the employer later reconsider it?

Additionally, the EEOC shared its own internal accommodation request form to the public. The agency stated “As an example, here is how EEOC designed its own form for its own workplace. Although the EEOC’s internal forms typically are not made public, it is included here given the extraordinary circumstances facing employers and employees due to the COVID-19 pandemic. (Note: Individuals not employed by the EEOC should not submit this form to the EEOC to request a religious accommodation.)”

For additional information, please see the Aon bulletin, EEOC Updates Employer Guidance on Religious Objections to Employer COVID-19 Vaccine Mandates, in the Publications section of this newsletter.

The updated EEOC Section L guidance is available here.

The example of the EEOC accommodation request form is available here.

Retirement

DOL Releases Compliance Assistance Release on 401(k) Plan Investments in “Cryptocurrencies”
On March 10, 2022, the Department of Labor (DOL) released Compliance Assistance Release No. 2022-01, which focuses on 401(k) plan investments in "cryptocurrencies.” In the release the DOL stated that “At this early stage in the history of cryptocurrencies, the Department has serious concerns about the prudence of a fiduciary's decision to expose a 401(k) plan's participants to direct investments in cryptocurrencies, or other products whose value is tied to cryptocurrencies.” The DOL cited that these investments present significant risks to participants' retirement accounts, including risks of fraud, theft, and loss.

The DOL concluded that it expects to “conduct an investigative program aimed at plans that offer participant investments in cryptocurrencies and related products, and to take appropriate action to protect the interests of plan participants and beneficiaries with respect to these investments.”

Compliance Assistance Release No. 2022-01 is available here.

Other HR/Employment

DOL Issues Guidance on Prohibited Retaliation Against Employees
On March 10, 2022, the Department of Labor (DOL) issued Field Assistance Bulletin No. 2022-02, which provides information and examples about worker protections from retaliation under a number of labor laws, including: the Fair Labor Standards Act, the Family and Medical Leave Act, Visa programs, and Executive Orders 13706, (Establishing Paid Sick Leave for Federal Contractors); 13658, (Establishing a Minimum Wage for Federal Contractors); and 14026, (Increasing the Minimum Wage for Federal Contractors). Please refer to the guidance for specific details.

DOL Field Assistance Bulletin No. 2022-02 is available here.

DOL and Justice Department Sign Memorandum of Understanding to Strengthen Partnership to Protect Employees
On March 10, 2022, the DOL and Department of Justice signed a Memorandum of Understanding strengthening their partnership “to protect workers from employer collusion, ensure compliance with the labor laws and promote competitive labor markets and worker mobility.” The Memorandum cites that the two Departments will enhance enforcement with greater coordination, information-sharing, joint training, and outreach. The continued partnership supports the objectives of President Biden’s Executive Order on Promoting Competition in the American Economy, signed on July 29, 2021.

The news release is available here.

The Memorandum of Understanding is available here.

The July 2021 Executive Order is available here.

Aon Publications

EEOC Updates Employer Guidance on Religious Objections to Employer COVID-19 Vaccine Mandates
The Equal Employment Opportunity Commission (EEOC) has issued updated guidance for employers on how to handle religious objections to COVID-19 vaccinations and requests for accommodation under Title VII of the Civil Rights Act of 1964.