June 25, 2021

Labor and Employment Newsletter

5 min


A Swing to the Left: President Biden's Nomination of Union-Side Attorney Gwynne Wilcox to the NLRB Signals the Start of the Board's Pro-Labor Shift

Last month, President Biden nominated union-side labor attorney Gwynne Wilcox to fill the remaining vacancy on the National Labor Relations Board (NLRB or the Board). Wilcox's appointment is significant for several reasons, not least of which is that, if she is confirmed by the Senate, she will become the first African-American woman to serve on the NLRB in its 86-year history. Importantly for employers, Wilcox's appointment also foreshadows a likely shift in NLRB positions that will directly impact labor-management matters and how employers conduct their business.

Trends in Employment Anti-Discrimination Training: Why Employers Are Addressing Unconscious Bias in the Workplace

Virtually all states in the U.S., at a minimum, recommend that employers conduct anti-harassment and anti-discrimination training for their employees, and several states – such as California, the District of Columbia, New Jersey, New York, and Pennsylvania, among others – mandate that certain employers provide such training to their employees. As anti-harassment and anti-discrimination training becomes more prevalent across the country, and as issues like racial and gender inequality become increasingly important both within and outside the workplace, the subject matter of this training is evolving. Increasingly, employers are incorporating "implicit bias" or "unconscious bias" training into their anti-harassment and anti-discrimination training, and with good reason, since the Equal Employment Opportunity Commission has included unconscious bias within its definition of discrimination for a long time and plaintiff's attorneys are arguing implicit bias in discrimination lawsuits with increasing frequency.

OSHA Issues Long-Awaited COVID-19 Workplace Safety Standard

For the first time since the beginning of the COVID-19 pandemic, the Occupational Safety and Health Administration (OSHA) has implemented a comprehensive COVID-19 workplace safety standard that employers must follow. On June 10, 2021, OSHA issued an emergency temporary standard (ETS) to protect healthcare and healthcare support service workers from occupational exposure to COVID-19. This ETS is tailored to require employers in the healthcare industry and in facilities providing healthcare services to develop COVID-19 safety plans and to take defined steps to reduce the transmission of COVID-19 in the workplace. At the same time, OSHA concurrently issued updated, non-mandatory guidance intended to assist non-healthcare employers in preventing occupational exposure to COVID-19, especially for unvaccinated workers.

Employers in all industries should assess their current COVID-19 safety procedures in light of OSHA's updated guidance.

Employers' Guide to the Religious Exemption for the COVID-19 Vaccine

If you are an employer requiring the COVID-19 vaccine for employees returning to the office, you have the important task of abiding by an interactive process when handling the imminent accommodation requests by employees who cannot receive the vaccine. Currently, there are two legally recognized exceptions from mandatory vaccines for employees: disability-related reasons and sincerely held religious beliefs. While there may be a healthy balance of exemption requests premised on both of these issues, this guide specifically focuses on some questions frequently asked by employers who are fielding requests based on a sincerely held religious belief, observance, or practice.

Employers should review their current protocols for processing religious exceptions for COVID-19 vaccinations and update them as necessary. We encourage employers to review the webinar "Pros and Cons of Mandatory COVID-19 Vaccinations in the Workplace" and our recap of the event.

Masks No Longer Required in California for Fully Vaccinated Workers in Most Settings (Including Indoor Office Spaces)

As of Thursday, June 17, 2021, California employers can allow fully vaccinated workers to shed their masks at work in most settings, including office spaces. Unvaccinated workers must continue to wear masks indoors. The California Division of Occupational Safety and Health (Cal-OSHA) voted 5-1 on Thursday to approve new workplace safety regulations for California employers, replacing stricter rules in effect since November 2020. By executive order from Governor Newsom, the new regulations are effective immediately. Click below for the highlights.

Education Roundup – Biden's Education Department Releases Updated Title IX Notice of Interpretation

On June 16, 2021, the U.S. Department of Education's Office for Civil Rights (OCR) issued a Notice of Interpretation (Notice) related to sex discrimination under Title IX of the Education Amendments of 1972 (Title IX). The Notice continues the recent trend in which President Biden has been changing course from his predecessor on Title IX issues.

Event Recap

The Pros and Cons of Mandatory COVID-19 Vaccinations in the Workplace: Practical Considerations for Employers

As we previously wrote here, the U.S. Equal Employment Opportunity Commission has approved mandatory COVID-19 vaccination policies in the workplace, subject to a few limited exceptions. But does this mean a mandatory vaccination policy is right for your organization? During this webinar, Jennifer Prozinski, Nick Reiter, and Janice Gregerson examined the advantages and disadvantages of mandatory vaccination policies in the workplace and other common questions for reopening work sites.

Attorney Spotlight

Why did you get into the practice of Labor and Employment law?

Jacob GoodmanJake Goodman: As a young associate, I decided to get into this practice because I knew that I would enjoy the humanist element of labor and employment work. Unlike some other practices, everything we do has real-life consequences for individual people. Every situation that arises in the employment context is unique, which makes every day at our jobs unique as well. It’s also an area of the law that’s constantly changing, as new guidance and technology become available. These changes mean that we are always learning something new, which allows us to be creative in how we advise clients. The work in the Labor and Employment Group has exceeded my expectations, and I look forward to expanding my practice under the guidance of some of the best labor and employment attorneys in the country.

About the Labor and Employment Group

The bicoastal, 40-person Labor and Employment team at Venable provides guidance and support across the full spectrum of workplace dynamics – helping employers control costs, avoid disputes, and defend themselves when litigation arises. As co-editors of this newsletter, Michael Volpe and Doreen Martin invite you to share the content with your colleagues and reach out with any questions.