August 19, 2021

Labor and Employment Newsletter

5 min


Bolder, Broader "Ban the Box" Laws: How to Navigate Ever-Changing Criminal History Requirements

Over the last ten years, a flurry of "ban-the-box" laws have been enacted, on the state and local level. Such laws are now being passed at the federal level. In response, many employers reevaluated how they used criminal history screens and background checks in hiring. Now, lawmakers in several jurisdictions—like New York City, Philadelphia, and Illinois—are expanding existing laws, imposing new, more stringent requirements on employers. As a second wave of "fair chance" legislation starts to form, lawsuits related to criminal history screens and background checks have also intensified. The shifting legal landscape and growing risks of litigation present challenges for organizations large and small. Prudent employers will take this opportunity to review existing practices and build a compliant, flexible system for hiring new talent.

Amid Rising Case Numbers, OSHA Issues Updated Guidance

As the Delta variant upends employers' return-to-office plans, the Occupational Safety and Health Administration (OSHA) has issued updated guidance concerning the mitigation and prevention of COVID-19 in the workplace. In a previous alert, we detailed the emergency temporary standard (ETS) for healthcare workers and OSHA's non-mandatory expectations for non-healthcare workers. This updated guidance from OSHA for non-healthcare workers reflects the new recommendations made by the Centers for Disease Control and Prevention (CDC) on July 27. As circumstances continue to change, employers should review their current COVID-19 prevention procedures.

The Seventh Circuit Agrees: All Students at a Public IHE Must Be Vaccinated Against COVID-19

Updated August 13, 2021

United States Supreme Court Justice Amy Coney Barrett decided not to interfere with underlying courts’ decisions regarding Indiana University’s COVID-19 vaccination mandate in the case Klaassen v. Trustees of Indiana University. Signaling that the Supreme Court does not view the controversy to be a close case, Justice Barrett, who oversees emergency appeals from Indiana, denied the plaintiffs’ application for Supreme Court review of their preliminary injunction without comment, without seeking a response from the state, and without referring the request to the full court for a vote. Consequently, Indiana University’s COVID-19 mandatory vaccination policy will remain in place. Institutions of higher education should review the decisions by the Seventh Circuit and District Court of Indiana in full and stay up to date with federal, state, and local laws and guidance regarding COVID-19, reopening requirements, and mandatory vaccination policies.

How the Biden Administration Plans to Enforce the 2020 Title IX Regulations—For Now

The Department of Education (Department) recently released Questions and Answers on the Title IX Regulations on Sexual Harassment (Q&As), which provides long-awaited insight into how the Department will enforce the 2020 Title IX Amendments (2020 Amendments) on sexual harassment enacted under President Trump. This guidance supplements what we previously reported on—the Notice of Interpretation—which informed how this Department will interpret Title IX's prohibition of discrimination on the basis of sex to include sexual orientation and gender identity. The Q&As do not add regulations or amend the 2020 Amendments. Rather, the guidance emphasizes that the 2020 Amendments remain in effect; however, it offers an interpretation and clarification of common misunderstandings of those amendments to help inform covered schools. Click below for topics that were confirmed and clarified by the Q&As for covered institutions of higher education (IHEs) and K-12 schools (together, with IHEs, Title IX Covered Institutions), to reference when applying the 2020 Amendments.

Biden Administration Extends Federal Student Loan Relief, Enables State Oversight of Loan Servicers, and Prepares for Negotiation on New Student Loan Rules

The Biden administration has brought federal student loan policies to the forefront with three key announcements in furtherance of the president’s broader progressive higher education agenda. In just the past week, the U.S. Department of Education (the Department) announced a final extension of the pause on student loan repayment, interest, and collections until January 31, 2022; released a new legal interpretation allowing individual states to regulate federal student loan servicers without being preempted by the Higher Education Act of 1965 (the HEA); and established a negotiated rulemaking (neg-reg) committee to rewrite regulations for the Public Service Loan Forgiveness (PSLF) program, income-contingent repayment plans, and borrower defense to repayment, among other issues.

In the News

Martin DoreenUSA Today Quotes Doreen Martin on How Employers Should Field Requests for Religious Exemptions to COVID-19 Vaccine Mandates

On August 16, 2021, Doreen Martin was quoted in USA Today on how employers should field religious exemption requests as mandates for vaccines and masks become more common amid the widespread circulation of the highly transmissible Delta variant. Martin said an employer should presume that a worker's request for a religious accommodation is based on a sincerely held belief. “But if you have some objective, reasonable basis for questioning the sincerity, then you can ask for additional information,” she said. “You don't want to go on a fishing expedition.”

Attorney Spotlight

Tortora EmilyWhy are you passionate about this practice?

Emily Tortora: Employees are one of a company’s greatest assets, but those assets can turn into liabilities. Labor and Employment attorneys provide guidance and counseling to help employers proactively and productively manage their workforce, and confront problems that may arise both before and after litigation. It is this dual nature of the practice, and the unique, often strange, and ever-evolving issues we confront, that have captured and kept my interest.

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.