In this new pandemic world, employers are grappling with many questions. One of them is when can they require employees to provide the results from any COVID-19 tests that they have taken, in the context of granting leave and returning to work.

Continue Reading When Can Employers Require Employees to Provide COVID-19 Test Results?

As the United States still struggles with testing capacity for active COVID-19 infections, employers are increasingly asking “may we require our employees be tested for the presence of COVID-19 antibodies?” This is particularly true following the Equal Employment Opportunity Commission’s position that employers were permitted to test for the presence of active COVID-19 infection, set forth in its What You Should Know About COVID-19 resource (Q&A 6).

Continue Reading COVID-19 Antibody Testing:  Useful Screening Tool or Impermissible Medical Examination?

The Small Business Administration (SBA), in consultation with the Department of the Treasury, updated its Frequently Asked Questions (FAQs) to address the “necessity certification” in the Paycheck Protection Program (“PPP”) loan application and to extend the repayment period of “unnecessary” PPP loans to May 18 in order to allow entities to review the new guidance. The loan application requires certification that “[c]urrent economic uncertainty makes this loan necessary to support the ongoing operations of the Applicant.”

Continue Reading PPP Borrowers Who Received Loans of Less than $2 Million Deemed to Have Made Certification in “Good Faith;” Safe Harbor Return Period Extended to May 18

Today, Governor Hogan announced an Executive Order, Number 20-03-23-01, closing all non-essential businesses to the general public at 5 p.m. today.  Although this is not a “shelter-in-place” directive, Marylanders are urged to stay home. This directive does close retail establishments that were previously permitted to remain open under earlier executive orders.

Continue Reading Maryland Orders Closure of Non-Essential Business To The Public

Last week, Montgomery County, Maryland became the first jurisdiction in the Mid-Atlantic area to ban discrimination—including in the workplace—based on natural hairstyle. The bill expands the definition of race to include “traits historically associated with race,” which includes “hair texture and protective hairstyles.” Specific hairstyles articulated in the legislation include braids, locs, Afros, curls and twists, which are often associated with African American or Latino individuals.

Continue Reading A new protected class in Montgomery County: Natural Hairstyle

A more conservative Supreme Court than we’ve seen in recent history is poised to consider whether Title VII’s prohibition on discrimination based on “sex” includes sexual orientation and gender identity. The Supreme Court has agreed to hear a trio of cases in the 2019-2020 term, which begins in October. We previously wrote on this topic here as the Circuit split was developing.

Not even the federal government tasked with enforcing employment discrimination laws agrees on whether Title VII covers sexual orientation. The Department of Justice reversed course during the Trump administration and now takes the position that sexual orientation is not covered, whereas the Equal Employment Opportunity Commission is holding firm to its position, first adopted in 2015, that sexual orientation is covered, as is gender identity. Additionally, under an Executive Order signed by President Obama (not yet rescinded by President Trump) and enforced by the Department of Labor’s Office of Federal Contract Compliance Programs, federal contractors and subcontractors are prohibited from discriminating against applicants and employees on the basis of sexual orientation and gender identity, in addition to (and separate from) sex.
Continue Reading Does “Sex” Encompass Sexual Orientation and Gender Identity? The Supremes Will Soon Decide.

Employer obligations to consider the use of medical marijuana as a reasonable accommodation just got murkier with a new case out of Delaware, Chance v. Kraft Heinz Foods Co., decided in December 2018.
Continue Reading Another State Finds No Federal Preemption of Its Medical Marijuana Law

An employee requested that she be permitted to leave work early every day due to her anxiety triggered by driving home in heavy traffic (those of us in major metropolitan areas would never survive!). When her demand was rejected and she ended up being terminated, Heather Trautman brought suit against her employer, alleging violations of the Americans with Disabilities Act, the Family Medical Leave Act, and related state laws, Trautman v. Time Warner Cable Texas, LLC.
Continue Reading Leaving Work Early Due to Fear of Rush-Hour Traffic Is Not a Reasonable Accommodation

In the era of the #MeToo movement, it may be easy to overlook that equal pay is also having a moment. A huge moment. The federal Equal Pay Act (“EPA”) of 1963 requires “equal pay” for “equal work.” If the plaintiff shows a difference in pay for such work, the employer must prove the wage difference is due to a legitimate reason, which includes:
Continue Reading Is Equal Pay becoming the new #MeToo?