Federal Government to Cease Testing for COVID-19 Based on Vaccination Status
As of August 22, 2022, the Biden administration has instructed all federal agencies to cease testing for COVID-19 of its employees based on vaccination status. The guidance states that agencies no longer are required to screen workers based on their vaccination status, and that the federal government will no longer treat employees differently based on whether they are up to date with their vaccinations. Similarly, employees, visitors, and contractors will no longer be required to present proof of vaccination before entering federal buildings. Furthermore, employees who are exposed to COVID-19 will no longer have to quarantine and isolate, provided that they are asymptomatic.
Nationally, the percentage of job ads requiring employees to be fully vaccinated have fallen since its pandemic-era peak of 7.1% in mid-March of 2022.[1] Until July of 2022, worksite COVID-19 testing was permitted without any required justification or assessment. However, current EEOC guidelines state that employers must show that COVID-19 testing is job-related and consistently with a business necessity.[2] The EEOC has provided several factors to consider when making an assessment:
- The level of community transmission.
- The vaccination status of employees.
- The degree of breakthrough infections of vaccinated workers.
- The transmissibility of current variants.
- The possible severity of illness from a current variant.
- Contacts employees may have with others during the course of their work.
- The potential impact on operations if an employee enters the workplace with COVID-19.
Ultimately, it is in the hands of private business to assess and revise their COVID-19 policies as the pandemic persists.
Job Openings on the Rise as Resignation Rates Fall
In July of 2022, job openings unpredictably rose to 11.2 million, according to the monthly JOLTS report released by the U.S. Bureau of Labor Statistics.[3] The sectors with the most significant increases in job openings include transportation and recreation, having recently experienced months of declines. Job openings outnumbered unemployed workers by approximately 5.5 million in July as over 4.1 million workers left their jobs.[4] This “great resignation” signals that employees are willing now more than ever to switch jobs in pursuit of higher pay or better working conditions, including remote work flexibility.
Although resignation rates are historically elevated, quitting has begun to taper down. Layoffs and terminations remained low at 1.4 million in July, despite a recent increase in unemployment claims. The rate of quitting decreased in health care and social assistance in July, but increased in transportation, warehousing, and utilities. Ultimately, the data from July shows record-high numbers of job openings and quit rates, despite resignation numbers tapering off.
Federal Judge Blocks Title IX Guidance that Protects Transgender Students
On July 15, 2022 a Tennessee judge issued a temporary injunction of the Education Department’s Title IX guidance, which prohibits discrimination based on gender identity and sexual orientation. Twenty Republican attorneys general, led by Tennessee Attorney General Herbert Slatery, have formed a coalition of plaintiffs to fight the “threat” of losing federal funding due to their anti-trans policies and laws. Judge Charles Atchley stated in his order that the agency’s guidance “directly interferes with and threatens Plaintiff States’ ability to continue enforcing their state laws” that restrict transgender people from playing on sports teams and using bathrooms that correspondent to their gender identity.[5] The states also argued that forcing schools to use transgender students’ pronouns is “illegal” pursuant to the First Amendment. Additionally, they argued that the guidance violates the 10th Amendment and Administrative Procedure Act, which both protect the individual right for states to create and enforce laws.
The Department of Education, Equal Employment Opportunity Commission, and Justice Department are listed as defendants. The preliminary injunction ties the Department’s hands when it comes to protecting transgender students from discrimination in the twenty states that have enacted legislation or are attempting to pass laws that restrict their access to facilities and sports. However, in June, the Department published its Title IX proposed rules, which would codify its guidance protecting transgender students once it is finalized. The comment period on the rulemaking ends in September of 2022.
“The bottom line is regardless of who this directly impacts, it points to the really shaky ground that LGBTQ students’ rights stand on,” said Alyssa-Rae McGinn, vice president of investigations at Dan Schorr LLC, a company that advises colleges on Title IX.[6]
[1] https://www.shrm.org/hr-today/news/hr-news/pages/mandatory-workplace-covid-19-testing-must-be-justified-eeoc-says.aspx.
[2] https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
[3] https://www.bls.gov/news.release/jolts.nr0.htm.
[4] https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/jolts-quits-rate-great-resignation-turnover-july-2022.aspx.
[5] https://www.politico.com/news/2022/07/16/education-departments-title-ix-guidance-transgender-students-00046209.
[6] https://www.insidehighered.com/news/2022/07/19/federal-judge-blocks-ed-dept-title-ix-guidance-trans-students.