The Department of Labor has finalized proposed regulations concerning independent contractor status that are currently being reviewed and should be published soon. The Equal Employment Opportunity Commission (EEOC) has changed its guidance concerning COVID-19 testing of employees entering the workplace to state that employers should undertake an individualized assessment of the business necessity for the testing and has finalized the nongender binary option on its charge intake form. A federal court has issued a preliminary injunction preventing the implementation of guidance issued by EEOC concerning discrimination based on sexual orientation or transgender identity.

Independent Contractor Regulations Under Review – The Office of Information and Regulatory Affairs (OIRA), which is part of the Office of Management and Budget (OMB) is reviewing proposed regulations developed by the Department of Labor concerning the classification of independent contractors under the Fair Labor Standards Act (FLSA). DOL had withdrawn the independent contractor rule that was scheduled to take effect in March 2021. Those regulations which were finalized during the previous administration made it easier for employers to classify workers as independent contractors. Once the review is completed, the proposed regulations will be published for public review and comment.

The withdrawal of the regulations was challenged by several groups and the United States District Court for the Eastern District of Texas reinstated the independent contractor rule issued by the previous administration. In the case, Coalition for Workforce Innovation, et. al v. Marty Walsh, Secretary of Labor, et. al, the District Court decided that both the postponement of the March 8, 2021, effective date, and the subsequent withdrawal of the rule violated the Administrative Procedure Act (APA).

Employers Need to Justify COVID Testing – The Equal Employment Opportunity Commission (EEOC) has issued revised guidance indicating that employers will need to assess whether “current pandemic circumstances and individual workplace circumstances justify” screening employees for COVID-19. Previously, the EEOC had advised that employers could require COVID testing for employees before entering the workplace.  The EEOC believes that employers need to make an “individualized assessment” that testing is warranted. In making the determination, the EEOC recommends that employers consult guidance provided by the Centers for Disease Control, the Food and Drug Administration, and state/local public health authorities.

In determining whether there is a business necessity for COVID-19 testing, the EEOC stated that employers should consider several factors such as the level of community transmission, the vaccination status of employees, the degree to which breakthrough infections are possible for employees who are current on vaccinations, the transmissibility of current variants, types of contacts employees have with others in the workplace, and the possible impact on operations if an employee enters the workplace with COVID-19.

Federal Court Enjoins EEOC Guidance – The United States District Court for the Eastern District of Tennessee has issued a preliminary injunction preventing the implementation of guidance issued by the Equal Employment Opportunity Commission (EEOC) and the Department of Education concerning discrimination based on sexual orientation or gender discrimination. In ruling for the plaintiffs, the District Court concluded that the “guidance issued by the EEOC creates rights for applicants and employees that have not been established by federal law, and it directs employers to comply with those obligations to avoid liability.”

This case, State of Tennessee, et al. v. United States Department of Education was brought by 20 state governments who believed that the interpretations of Title IX of the Education Amendments of 1972 and Title VII of the Civil Rights Act of 1964 that were issued by the Department of Education and the EEOC violated the Administrative Procedure Act (APA) and the US Constitution. In the US Supreme Court’s decision in the case of Bostock v. Clayton County, the court ruled that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating based on sexual orientation or gender identity.  President Biden issued Executive Order 13988, Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation directing federal agencies to “fully implement statutes that prohibit sex discrimination” consistent with the Administration’s interpretation. The EEOC and the Department of Education issued guidance following the release of the Executive Order.

The District Court believed that the EEOC’s technical assistance document was impermissible since it changed the Title VII obligations of employers. According to the District Court, “The Technical Assistance Document takes firm stances regarding what specific employer conduct constitutes impermissible sex discrimination under Title VII… Thus, rather than generally describing best practices for employers, the Technical Assistance Document takes firm positions regarding what Title VII demands of employers.”

The federal government can appeal the issuance of the preliminary injunction to the United States Court of Appeals for the Sixth Circuit.

EEOC Finalizes Nonbinary Gender Option During Intake Process – The Equal Employment Opportunity Commission (EEOC) announced that effective June 27^th, it had fully implemented the option of selecting a nonbinary “X” gender during the intake process for filing a discrimination charge. At the end of March, the EEOC had advised that it was going to add this option to the charge intake process. The EEOC noted that offering only male and female options did not reflect the full range of gender identities. In addition to including the nonbinary gender option, the EEOC also modified the discrimination charge form to include “Mx.” in the list of prefix options.

Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.