Update on Federal Agency Activity – EEOC, NLRB, OSHA, and DOL – Amidst the COVID-19 Crisis (US)
The COVID-19 pandemic has had a major impact on all aspects of life for all Americans and we are all still adjusting to this new “normal,” which is anything but normal. Federal administrative agencies and their employees of course have not been immune to the effects of the current crisis and they, like private sector employers and employees, are still acclimating as they try to balance safety needs with the statutory and regulatory responsibilities, including enforcement of various employment laws. In this post, we look at how certain federal agencies, including the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safety and Health Administration, and the Department of Labor have been impacted by the COVID-19 crisis and provide insight into what employers need to know in order to comply with .adapted policies and procedures.
Equal Employment Opportunity Commission (EEOC)
In an effort to consolidate relevant COVID-19 information and to answer questions from the public about federal EEO laws and COVID-19, the EEOC has established a new webpage summarizing the actions taken by the agency thus far and updating the public as new guidance arises. As we previously reported here, the EEOC is continuing to enforce employment antidiscrimination laws while making sure all its activities remain consistent with public health guidelines. To that end, the EEOC has made adjustments to its normal operating procedures. Like most American workplaces, in mid-March, the agency closed its physical offices to the public and implemented mandatory agency-wide telework for its employees. As EEOC employees continue to work from home, the agency is still serving the public, as demonstrated by a press release issued by the agency on March 30, 2020. In the release, the EEOC acknowledged that preserving access to filing mechanisms is important, particularly for private sector discrimination charges because the laws the EEOC enforces have deadlines within which individuals must file discrimination charges and responses. Accordingly, the press release explains the process for filing a charge through the EEOC’s online portal and provides a phone number and links for individuals and employers who are having trouble navigating the online system.
The EEOC also has temporarily stopped closing investigations and suspended the issuance of notices of “right-to-sue” letters, effectively giving workers additional time to file lawsuits against their employers.
On April 6, 2020, the EEOC’s Office of Federal Operations (OFO) issued instructions regarding the processing of federal sector EEO complaints covered by 29 C.F.R. Part 1614. The OFO explained that it must balance its duty to ensure that the EEO process continues efficiently and effectively, without compromising the safety of federal employees or the rights or safety of complainants. Further, the agency expects that EEO complaints will continue to be processed in a timely manner that will best preserve the legal rights of the parties involved, unless doing so would interfere with mission-critical operations for an agency.
In its memorandum, the OFO provides several instructions for processing federal sector EEO complaints. Specifically, the memorandum states that the regulatory timeframes set forth in the statute will be subject to equitable tolling, and absent mutual agreement, agencies and complainants will be required to document in the record the reasons why tolling is necessary. Moreover, the memorandum addresses the continued role of Administrative Law Judges in managing the hearing program, the preparation and distribution of appellate decisions, and the agency’s lack of access to the U.S. Mail. Finally, the OFO asks agencies not to issue final actions on any EEO complaints unless the investigation is complete and the complainant has requested that the final action be issued. The full list of the OFO’s issued instructions can be found here, and they will remain in effect until further notice.
Meanwhile, reported incidents of workplace discrimination and harassment related to COVID-19, particularly against Asian Americans, have continued to occur. In response, EEOC Chair Janet Dhillon issued a statement about unlawful national origin and race discrimination against Asian Americans and people of Asian descent in the workplace, urging employers and employees to be mindful of such instances of harassment, intimidation, or discrimination and to take action to prevent or correct this behavior.
National Labor Relations Board (NLRB or Board)
The NLRB’s operations also have been affected by the pandemic. Due to the extraordinary circumstances related to the COVID-19 pandemic, on March 19, 2020, the NLRB suspended all representation elections, including mail ballot elections, through April 3, 2020. The Board deemed this action necessary to ensure the health and safety of its employees and the public, and in light of the closure of several Regional Offices and significant telework at others, the Board determined it was not possible to effectively conduct elections at that time. However, on April 1, 2020, the NLRB announced that it would not extend its temporary suspension of the Board-conducted elections past April 3, 2020, and instead resumed representation elections on April 6, 2020. Board Chairman John F. Ring explained that, although the delay was originally necessary to ensure the safety of the Board’s employees and the public, appropriate measures have been taken to permit elections to resume in a safe and effective manner.
Representation elections were not the only actions recently delayed by the Board. On March 24, 2020, the Board announced that, to facilitate “the resolution of legal challenges,” it was delaying the implementation of modifications to the new representation case procedure rules from April 16, 2020 to May 31, 2020.
On March 31, 2020, the NLRB finalized a series of amendments to Part 103 of the Board’s Rules and Regulations, specifically regarding the Board’s blocking charge policy, the bar for voluntary recognition, and Section 9(a) recognition in the construction industry. The first amendment effectively eliminates the current blocking charge policy, changing the practice to a vote-and-count or vote-and-impound procedure (depending on the nature of the blocking charge allegations) rather than delaying the voting process entirely, and then certifying election results after the charge has been resolved. Under the second amendment, workers will now have 45 days after an employer’s voluntary recognition of a union to challenge the new union’s majority support. Finally, in the third amendment, the NLRB overturned precedent for construction-industry unions that convert a pre-hire arrangement with a company into a full bargaining relationship, and will now require positive evidence of majority employee support that cannot be based on pre0-hire contract language alone. However, on April 8, 2020 the Board delayed the original June 1, 2020 effective date of the amendments by 60 days because of the ongoing national emergency caused by COVID-19. The new effective date therefore is July 31, 2020.
Occupational Safety and Health Administration (OSHA)
In response to the COVID-19 crisis, OSHA has released a number of resources aimed at educating and protecting US workers and employers during the coronavirus pandemic. OSHA issued a comprehensive guidance document entitled Guidance on Preparing Workplaces for COVID-19, which contains recommendations for employers as well as descriptions of mandatory safety and health standards. Further, the agency has reiterated the relevance of previous guidance issued by the agency regarding ways to protect workers during a pandemic. In addition, the OSHA website highlights OSHA standards, directives, and other related information that may apply to worker exposure to COVID-19. As our colleagues discussed here, although there is no specific OSHA standard covering COVID-19, the agency lists some already-existing OSHA requirements that are relevant in preventing occupational exposure to the disease, such as OSHA’s Personal Protective Equipment standards, the Respiratory Protection standards, recordkeeping standards, and the General Duty Clause of the Occupational Safety and Health Act. In addition, OSHA has provided interim control and prevention guidance for specific worker groups and their employers regarding the hierarchy of controls, including engineering controls, administrative controls, safe work practices, and use of personal protective equipment. Specifically, OSHA provides tailored guidance for the following industries: healthcare, deathcare, laboratories, airlines, border protection, waste management, and business travelers.
On April 3, 2020, OSHA issued two enforcement guidance memoranda regarding various issues surrounding the use of respiratory equipment. The first memorandum discusses the use of respiratory protection and the N95 mask shortage due to COVID-19, and specifically outlines enforcement discretion to permit the extended use and reuse of respirators as well as the use of respirators that are past their manufacturer’s recommended shelf life. The second memorandum provides guidance on the use of respiratory protection equipment certified under the standards of other countries or jurisdictions during the COVID-19 pandemic.
OSHA also recently issued a new poster listing steps all workplaces can take to reduce the risk of exposure to coronavirus, and issued a new alert providing safety tips employers can follow to help protect retail workers specifically from exposure to coronavirus. Safety measures employers can implement to protect retail employees working in pharmacies, supermarkets, big box stores, and other establishments include encouraging employees to stay home when sick, routinely cleaning and disinfecting surfaces and equipment, using a drive-through window or offering curbside pick-up, and recommending that workers wear masks over their nose and mouth. Further, OSHA encourages retail employers to practice sensible social distancing, which could include opening only every other cash register, temporarily moving workstations to create more distance, and installing plexiglass partitions between workstations.
On April 8, 2020, OSHA announced the expansion of temporary guidance provided in a March 14, 2020 memorandum regarding supply shortages of N95 masks or other filtering facepiece respirators (FFRs) due to the COVID-19 pandemic. The agency has also reminded employers that they cannot retaliate against workers for reporting unsafe conditions during the COVID-19 pandemic, and that acts of retaliation can include terminations, demotions, denials of overtime or promotion, or reductions in pay or hours.
In addition to the federal standards, there are currently twenty-eight OSHA-approved State Plans, operating state-wide occupational safety and health programs. Of those State Plans, twenty-two of them cover both private sector as well as state and local government workers; the remaining six State Plans cover only state and local government workers. State Plans must have standards and enforcement programs that are at least as effective as OSHA’s but may have different or more stringent requirements.