Monthly Archives: December 2020

December 22, 2020

Update: EEOC Issues Employer Guidance on COVID-19 Vaccinations

Mark Wiletsky

In the article, May Employers Mandate COVID-19 Vaccines?, we discussed legal and practical considerations for employers contemplating mandatory COVID-19 vaccines for their employees. We noted that the Equal Employment Opportunity Commission (“EEOC”) and other federal and state authorities might be providing updated guidance on this issue.

On December 16, 2020, the EEOC issued new guidance confirming that, although employers may likely mandate COVID-19 vaccines without violating federal anti-discrimination laws (and assuming accommodations are made for employees who cannot take vaccines for qualifying medical or religious reasons), the safest approach—at least for employers outside of certain high-risk fields like the healthcare industry—may be to make vaccinations voluntary, but highly encouraged. Read more >>

December 21, 2020

Rumors, Innuendo Lead Wyoming Highway Patrol to Face Sexual Harassment Trial

by Brad Cave

Brad Cave

Most people know overtly sexual comments are likely to violate their employer’s rules and could lead to sexual harassment claims. But many don’t understand the comments are a problem not just because they’re sexual. That’s because the sexual content can be used as evidence to show other nonsexual negative treatment was motivated by discriminatory intent. As a result, the sex-based misconduct is just one aspect of the working environment you must consider—whether overtly sexual or not—to determine whether an employee was subject to a hostile work environment.

In the following opinion from the 10th Circuit, you can learn more about how employees should be trained to avoid harassment and how supervisors should deal with rumors and other inappropriate behavior. Read more >>

December 15, 2020

Colorado’s Equal Pay for Equal Work Act effective January 2021

by Steven Gutierrez

Steven Gutierrez

Among the most significant employment-related bills passed by the Colorado General Assembly during its 2019 legislative session was Colorado’s new Equal Pay for Equal Work Act (EPEWA). The Act, which will go into effect January 1, 2021, for all public and private employers in Colorado, imposes equal pay obligations extending beyond those of the federal Equal Pay Act (EPA). The EPEWA is intended to “ensure that employees with similar job duties are paid the same wage rate regardless of sex” and reflects the Colorado General Assembly’s response to findings that the wage gap between men and women has long persisted even after the federal EPA attempted to eliminate it nearly 60 years ago.

Why was the EPEWA enacted?
Many employee organizations have long contended that despite passage of the federal EPA in 1963—which was intended to remedy pay disparities based on sex a year before the federal Civil Rights Act of 1964—unlawful pay disparities have nonetheless persisted. Many have attributed the persistence to the federal EPA’s catch-all provision permitting wage disparities based on any “factors other than sex,” which advocates contend is too vague and permits wage disparities for too many reasons. Read more >>

December 11, 2020

May Employers Mandate COVID-19 Vaccines?

By Steve Gutierrez

Steven Gutierrez

Given pending anticipated FDA approval of Pfizer’s COVID-19 vaccine, and encouraging vaccine results from Moderna and AstraZeneca, many employers are wondering whether they may legally mandate vaccinations for their employees. The answer is likely yes, subject to important qualifications. Mandatory vaccines have been commonplace in the healthcare industry for years, and the EEOC has issued past guidance suggesting that employers may mandate vaccines assuming they provide exemptions for employees who cannot take the vaccines for medical or religious reasons. OSHA has issued similar guidance.

While employers may likely mandate vaccinations for their employees, doing so raises a host of legal and practical considerations that employers must consider before any such programs are implemented. These include:

The need to accommodate employees who, because of a medical condition, cannot take the vaccine;
The need to accommodate employees who, because of a sincerely held religious belief, cannot take the vaccine;
Potential liability concerns under workers’ compensation and other laws if employees take the vaccine and develop an adverse reaction;
Potential labor law and related protections for employees who may oppose taking a vaccine based on perceptions that it is unsafe; and
Practical concerns like developing—and evenly enforcing—policies that discipline employees who do not take vaccines.