The Equal Employment Opportunity Commission (EEOC) continuously updates its “What You Should Know” guidance related to COVID-19. It recently provided updates on June 11^th and 17^th. Here are some of the key takeaways:

• Employers may only use viral testing to verify the absence of COVID-19 as a bar to entry to return to work. Employers cannot use antibody testing for this purpose because it is an impermissible medical exam.
• Employers must engage in the interactive process with employees who are unable to take a viral test due to a medical condition, disability, or religious belief.
• Employers are not required to accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated. “For example, an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure.”
• The EEOC warns against harassment of those who are or are perceived to be of an Asian national origin, including about the coronavirus or its origins, as is prohibited under Title VII.
• Employers may not discriminate against pregnant employees or employees aged 65 or older because of an increased risk of infection with COVID-19.

Action Items

Under the Fair Labor Standards Act (FLSA), commission-paid employees may be exempt from overtime pay if they meet certain conditions, including a compensation test, regular rate test, and if the employer is a qualified “establishment.”  As of May 19, 2020, the U.S. Department of Labor (DOL) clarified the “establishment” test by removing prior historical, and in some cases contradictory or confusing, interpretations of the exemption.

In order to qualify for the exemption, the commissioned employee must work for a retail or service establishment.  The DOL and various courts looked at a variety of factors to identify what establishments counted for the purpose of this exemption, creating lists of establishments that were “covered” or “not covered.”

In the May 19 update, the DOL withdrew these lists, emphasizing the importance of not relying solely on labels.  In the same way that an individual’s job title alone does not determine things like FLSA classification, employers will need to undergo fact-specific analysis of a particular establishment in order to determine if the establishment is not-retail.

Action Items

On July 1, 2020, the California Attorney General began enforcing the California Consumer Privacy Act (CCPA) which requires businesses to comply with certain privacy protections for consumers and employees who reside in California. However, California is still lacking guidance on compliance with the CCPA. On June 1, 2020, the California Attorney General released the final proposed regulations for the CCPA to the California Office of Administrative Law (OAL). OAL has up to 30 working days, plus an additional 60 calendar days under Executive Order N-40-20 related to the COVID-19 pandemic, to review the package for procedural compliance with the Administrative Procedure Act. Once approved by the OAL, the final regulation text will become enforceable.

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July brings two new updates for Idaho employers with regard to driving and workers’ compensation coverage.

Cell Phone Use and Distracted Driving Prohibitions. Effective July 1, 2020, an individual may not operate a motor vehicle while using a mobile electronic device.  Exceptions to this new law are for public or consumer-owned utility employee or contractors acting within the scope of their employment when responding to a utility emergency. Infractions are punishable by monetary fines; however, infractions will not be issued until January 1, 2021.  Warnings may be given after July 1, 2020, with fines following infractions after the new year.

Unemployment and Workers’ Compensation.  Also effective July 1, 2020, the Idaho Code has been updated to add a “good cause” provision to the unemployment and experience rate calculation.  Situations “with good cause but for reasons not attributable to such covered employer” have been added to the list under which no charge will be made to the covered employer’s account.

Additionally, the deadline to submit forms to exempt corporate officers from workers’ compensation coverage has been changed.  Employers must submit the exemption forms by March 31^st.  The forms remain in effect for at least two calendar years.