Labor & Employment Law Update

On July 12, 2022, the Equal Employment Opportunity Commission (EEOC) - the federal agency responsible for enforcing anti-discrimination laws -  issued new guidance on when employers may require employees to screen/test employees for COVID-19.  The updated guidance can be found in What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws  (the “Guidance”).

The federal Family and Medical Leave Act (FMLA) provides employees essentially two paths to bring lawsuits for alleged FMLA violations:  retaliation claims and interference claims.  Employers are generally familiar with the concept of retaliation, and FMLA retaliation claims tend to fit a familiar mold:  If an employee suffers an adverse employment action (e.g., termination, unpaid suspension) that is causally connected to a request for FMLA leave or other FMLA-protected activity, the employee may have a claim for FMLA retaliation.

Illinois employers should update their leave policies in light of the new bereavement law going into effect on January 1, 2023.  On June 9, 2022, Governor Pritzker signed into law the Family Bereavement Leave Act (“FBLA”).  The FBLA amends the Child Bereavement Leave Act (“CBLA”) and expands upon an employer’s obligations to provide unpaid bereavement leave to its employees. 

As litigation costs continue to explode, more and more businesses have been including arbitration clauses in contracts with employees and customers. These clauses, which frequently include class action waivers, allow businesses to remove lawsuits from court to the more streamlined and cost-effective arbitration system. In recent years, the U.S. Supreme Court has consistently enforced arbitration clauses in a wide variety of contexts.

The U.S. Supreme Court's decision last month to overturn Roe v. Wade presents new challenges for employee benefit plans. By overturning the case establishing a constitutional right to abortion, the Court's decision in Dobbs v. Jackson Women's Health allows individual states to impose restrictions or outright bans on abortion. The decision is quickly leading to a patchwork of state laws that plan sponsors must now consider.

Late last week, NLRB General Counsel Abruzzo issued yet another memorandum that she identified as an “Update on Efforts to Secure Full Remedies in Settlements.” She congratulated the Regional Directors for an “excellent job” implementing settlements in line with her September 2021 directives. The memorandum listed the various examples of the new make-whole remedies that Regions have secured through settlement agreements.