EEOC

2019 EEO-1 Data Collection Delayed Until 2021

May 7, 2020 by Matt Nusbaum

Citing the pandemic, the EEOC has announced that employers will not be required to file their 2019 EEO-1 reports until March, 2021. In other words, there will be no EEO-1 filing this year.

However, the EEOC is not skipping the 2019 reporting cycle—they are significantly delaying it.

Where are we today?

EEO-1 filing deadlines have become confusing enough. The now defunct “Component 2” reporting of compensation data came with a shift in longstanding reporting dates and timeframes. Until just a few years ago, employers filed EEO-1 reports by the end of September each year based on a “snapshot” taken the same year. With the advent of “Component 2,” the reporting scheme changed and employers had to adjust to filing reports by the end of March based on a snapshot taken the prior year.

For example, the “2018” EEO-1 reports, based on a snapshot taken in the last quarter of 2018, were actually filed in March 2019.

Then “Component 2” was shelved, but the reporting deadlines did not revert to the “old” scheme, so employers prepared to file the “old” EEO-1 reports on the “new” March 31 deadline. And then the pandemic hit.

Now the “2019” EEO-1 reports will be filed along with the “2020” EEO-1 reports in March, 2021. Confused yet? Don’t be, because it gets a little worse.

Moving Forward

Employers need to decide whether to prepare their 2019 EEO-1 data for reporting now and get it over with, or wait. If your HR database is capable of delivering in 2021 an accurate snapshot of the employment landscape in 2019, the EEO-1 project may not be a priority. But if there is any question about the potential reliability of that data, employers should consider at least pulling the data now (if they haven’t already). Note that any reconciliation of that data might also be harder to do a year from now, so just pulling and then shelving that data might not be enough. Employers should also consider how burdensome the project might be in 2021 if they are trying to prepare two years’ worth of reports at once.

Employers who contract-out their EEO-1 reporting obligations should consult with their vendors and decide on a path forward. At this point, your vendors have likely done most if not all of the work to prepare your 2019 EEO-1 filing, but may not bill for those services until the reports are actually filed. Budget practices may require a modification of existing agreements to invoice you this year for the 2019 EEO-1 project or a portion thereof. Otherwise, additional monies may need to be allocated to next year’s budget for essentially two EEO-1 filing projects.

Confusing? Yes, but not insurmountably so. To sum up, no one will file EEO-1 reports in calendar year 2020, but we will need to pull our 2020 EEO-1 snapshots at the end of this year. And in March of next year, barring further disruption, we will all be filing our 2019 and 2020 reports. How you get from here to there is largely up to you.

COVID-19 and EEO/ADA Considerations

April 17, 2020 by Marilynn Schuyler

These are unprecedented times. The COVID-19 pandemic has caused us to rethink, retool, recalibrate and reconsider our options – all for the sake of keeping us safe. Let’s consider some of the equal employment opportunity (EEO) and the Americans with Disabilities Act (ADA) considerations.

Americans with Disabilities Act (ADA)

The Equal Employment Opportunity Commission (EEOC) has issued guidelines for employers to follow during the pandemic, which are exceptions to the rules. For example, generally, employers would not be allowed to measure an employee’s body temperature, as it is considered a medical examination. During this pandemic, however, employers are allowed to conduct such wellness checks. Employers are also allowed to directly ask their employees if they are experiencing influenza-like symptoms, such as fever or chills and a cough or sore throat. The information collected is subject to ADA confidentiality requirements.

We know that some people may be more at risk, due to underlying medical conditions. The EEOC has reiterated that employers are still prohibited from asking an employee to disclose whether they have a medical condition that the Center for Disease Control (CDC) says could make them especially vulnerable to COVID-19. However, if an employee voluntarily discloses that they have a specific medical condition or disability that puts the employee at increased risk, the employer may ask the employee to describe the type of assistance that may be needed (i.e. telework or leave for a medical appointment). Note that if the pandemic becomes more severe, employers may be allowed to make disability-related inquiries or require medical exams of asymptomatic employees to identify those at higher risk. Please consult with legal counsel before engaging in such inquiries to confirm that such exceptions are in place.

During the pandemic, employers are allowed to do the following:

Encourage/require telework;
Require infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal; and
Require employees to wear personal protective equipment.

Note that if an employee with a disability needs a related reasonable accommodation under the ADA (i.e. non-latex gloves), the employer should provide such accommodations, absent undue hardship.

The foregoing guidelines, as well as related topics, are discussed in detail at: https://www.eeoc.gov/facts/pandemic_flu.html

One topic that is not discussed in the EEOC’s guidance is the fact that some underlying medical conditions do not rise to the level of a disability under the ADA. Are employers still required to provide reasonable accommodations for employees making such a request, even though their underlying medical condition puts them at greater risk for contracting COVID-19? Technically, no. But do you really want to be the employer defending that lawsuit?

Equal Employment Opportunity

Race/National Origin Discrimination

Reports indicate that discrimination against Asians, particularly people from China, is on the rise, as a result of the COVID-19 crisis. It is a best practice to remind employees of your nondiscrimination policy and underscore that such discrimination, as well as harassment, will not be tolerated. The EEOC’s statement on this topic is here: https://www.eeoc.gov/eeoc/newsroom/wysk/national_origin_race_discrimination_covid-19.cfm

Age Discrimination

The EEOC has not identified age discrimination as a potential problem with respect to the COVID-19 pandemic, but it seems likely that the incidence of age discrimination complaints are likely to rise during this pandemic. The CDC has identified that increased age can be a significant factor in the impact of contraction of COVID-19. Accordingly, employers may be more reluctant to hire workers in the protected age group (40 years and older). Employers may also be more likely to send older workers home, while younger workers are allowed to come to work. Such practices would likely be considered unlawful discrimination.

EEOC Complaint Processing

The EEOC has modified its process for handling EEO complaints, in part due to limited access to the US Mail. The revisions can be reviewed at: https://www.eeoc.gov/coronavirus/federal_eeo_processing.cfm

Final Notes

The EEOC will likely continue to revise its guidance as the COVID-19 pandemic evolves. Likewise, guidance from public health authorities is likely to change, so employers should continue to follow the most current information on maintaining workplace safety. For comprehensive technical assistance from the EEOC see: https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm

Please note: Nothing in this article is intended as legal advice or as a substitute for any professional advice about your organization’s particular circumstances. All original materials copyright © Schuyler Affirmative Action Practice 2020.

EEOC to Launch New “Guidance Portal” in Response to Executive Order 13891 – More to Come

February 19, 2020 by Matt Nusbaum

The EEOC will publish a notice in tomorrow’s Federal Register announcing the launch of a new “searchable, indexed database containing all EEOC guidance documents currently in effect.” EEOC guidance documents have not historically been difficult to find, but this new, centralized database is in response to Executive Order 13891 issued by President Trump on October 9, 2019.

The Executive Order takes issue with the practice of Executive Branch agencies imposing legally binding requirements on the public outside of the rulemaking processes contained in the Administrative Procedures Act (APA) and the Paperwork Reduction Act (PRA), arguing that such practices usurp Congress’s Constitutional legislative power. Guidance documents can be used to clarify existing obligations contained in the laws passed by Congress, but cannot be used to effectively create new law. However, the line between clarification and new law is not always clear.

Nonetheless, the Trump Administration has explicitly ordered Executive agencies to treat guidance documents “as non-binding both in law and in practice, except as incorporated into a contract.” Agencies are also instructed to “take public input into account when appropriate in formulating guidance documents,” and to make those documents “readily available to the public.”

The Executive Order directs the Office of Management and Budget (OMB), an Executive Branch agency, to “issue memoranda” implementing the order, which are presumably binding on all Executive agencies. In turn, the Executive agencies have 120 days from the issuance of OMB memoranda to review their guidance documents, rescind any they deem should be no longer be in effect, and to launch their guidance document databases. On October 31, 2019, OMB issued Memorandum M-20-02, giving Executive agencies until February 28, 2020 to comply.

The EEOC and the Department of Defense appear to be the first out of the gate. The EEOC’s guidance portal will go live on the February 28 deadline and will be located at www.eeoc.gov/guidance. The Department of Defense has already launched its “portal” at https://open.defense.gov/Regulatory-Program/Guidance-Documents/, though the announcement is not set to be published in the Federal Register until tomorrow.

The Executive Order also instructs Executive agencies to implement regulations (or revise existing regulations) regarding processes and procedures for issuing new guidance documents. Agencies will be required to clearly state that guidance is non-binding, and provide procedures for the public to petition for withdrawal or modification of a document. If a guidance document is deemed “significant,” agencies must also provide for a period of public notice and comment of at least 30 days and seek approval from the Office of Information and Regulatory Affairs within OMB. This provision effectively makes “significant guidance documents,” as defined in the Executive Order, subject to a mini-PRA.

What does all this mean in practical terms? That remains to be seen, but it should increase transparency. And it should increase stability and predictability for regulated communities. It will also likely lead to a lot of guidance revision and rule-making (or pseudo-rule-making). In other words, there could be a lot of changes coming down the pike.

One practical example jumps to mind regarding federal contractors. Contractors subject to the VEVRAA and/or Section 503 affirmative action regulations must annually prepare a “data collection analysis” that includes total headcounts of all “job openings,” “jobs filled,” and “hires” in the preceding 12 months. The OFCCP’s regulations do not define those terms. Rather, those terms are defined somewhat confusingly and inconsistently in the agency’s “FAQs,” which are guidance documents under the Executive Order. The OFCCP should explicitly treat those definitions as non-binding, meaning contractors do not have to follow them, and contractors should soon have a clear avenue for requesting that the OFCCP either rescind or revise those definitions.

But the potential impact of the Executive Order is myriad. At the very least, lawyers will be sharpening their pencils over any potential enforcement action that isn’t tied to an explicit regulatory citation, which could get very interesting. For instance, what is the OFCCP’s legal basis supporting the popular violation of “insufficient outreach” under the AAP regulations for women and/or people of color? This author has never been able to find it. We will all just need to buckle-up and see where all this leads.