07.18.2023 | Newsletters

New Federal Laws and Guidance

By Charles R. Hellstrom

Since California law provides some of the highest levels of employee protection in the nation, California employers sometimes forget about the applicability of federal law. You have likely read about the recent U.S. Supreme Court decision on accommodating employees’ religious practices and the new federal Pregnant Workers Fairness Act (“PWFA”). These new federal requirements essentially bring federal law into line with California law and do not impose any significant new burdens on California employers. We review several recent federal law changes and their impact on California employers below.

Religious Accommodation

The U.S. Supreme Court revised the test for religious accommodation of employees last month in Groff v. Dejoy. The federal Civil Rights Act of 1964 requires employers to provide a reasonable accommodation for religious needs unless doing so creates an “undue hardship.” The Court defined “undue hardship” as an accommodation that would result in “substantial increased costs in relation to the conduct of [the employer’s] particular business.” While a significant change in federal law, again, California employers have been governed by a very similar test under state law. State law defines “undue hardship” for providing religious accommodation as “an action requiring significant difficulty or expense.” California employers must engage in a good faith, interactive process with employees who request religious accommodations in order to determine if an accommodation can be provided without undue hardship.

Pregnancy Accommodation

The PWFA, effective June 27, 2023, pertains to employers of fifteen or more employees and requires covered employers to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.” Previously, under federal law, pregnant employees were entitled to an accommodation only if they had a pregnancy-related disability. The PWFA standard is in line with existing California law, which requires employers to offer reasonable accommodations to pregnant employees affected by pregnancy, if the accommodation request is based on the advice of a health care provider. No showing of disability is required.

Artificial Intelligence in Hiring

Employers using algorithmic decision-making tools in the hiring process should review new guidance from the Equal Employment Opportunity Commission. Algorithmic decision-making tools may be considered “selection procedures” under the federal Civil Rights Act. Employers are prohibited from using selection procedures that disproportionately exclude members of protected classes unless the selection procedure is job-related and consistent with business necessity. Thus, employers using algorithmic tools need to understand how the selected tool operates and how it may be used in personnel decision-making without running afoul of the law.

COVID-19 Guidance on Equal Employment Opportunity Issues

The Equal Employment Opportunity Commission updated its COVID-19 guidance for employers in May. The guidance is presented in a helpful Q&A format. Employers should review the updated guidance to keep abreast of this changing landscape.

Items in the new guidance include:

  • Reasonable accommodations for employees with Long COVID: “Some common reasonable accommodations include: a quiet workspace, use of noise cancelling or white noise devices, and uninterrupted worktime to address brain fog; alternative lighting and reducing glare to address headaches; rest breaks to address joint pain or shortness of breath; a flexible schedule or telework to address fatigue; and removal of “marginal functions” that involve physical exertion to address shortness of breath.” (Q&A D.19)
  • The end of the public health emergency declaration does not mean that employers may cancel all reasonable accommodations put in place for pandemic-related circumstances. (Q&A D.20.)

National Labor Relations Board – Employee Speech

In a return to its pre-2020 standards, the National Labor Relations Board (“NLRB”) overturned a 2020 ruling regarding employers’ rights to discipline employees for “abusive” conduct. In 2020, the NLRB departed from long-standing principles concerning the proper analysis of employer discipline when employees engage in “abusive conduct” while engaged in activity protected by the National Labor Relations Act (the “Act”). The Act protects employees’ rights to engage in concerted activities for mutual aid and protection and applies to all employees, not only unionized employees. Under the NLRB’s 2020 ruling, the focus was on whether or not the employer’s motive in disciplining the employee was animus toward the protected activity or a legitimate business concern.

The NLRB’s May decision in Lion Elastomers LLC removes the employer’s motive from the equation and returns to the prior “setting-specific” standards test. Under this test, if an employee engages in “abusive conduct” while engaged in activity protected under the Act, the conduct must be evaluated as part of that activity and not as if the conduct occurred in an ordinary workplace context. Thus, an employee’s conduct toward management or communications with fellow employees during a dispute over hours, wages, or working conditions must be assessed in that context. Importantly, the NLRB assumes and accepts as a premise that such disputes necessarily “engender ill feelings and strong responses.” Therefore, abusive conduct by employees in those circumstances may still be within the protection of the Act and, as a result, an employer may violate the Act by disciplining the employee for abusive conduct that would be impermissible in an ordinary workplace context. Employers are advised to seek counsel before disciplining an employee for abusive conduct that arguably occurs during activity protected by the Act.

Related practice team: Labor and Employment

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