In July 2022, the EEOC provided a significant update on COVID-19 workplace policy, and America’s two largest retailers fell under scrutiny for their workplace practices, with a Philadelphia-based employee class action against Walmart, and nationwide investigation into Amazon fulfillment centers. Find out more in the employment law update below.
EEOC Issues Guidance on Mandatory COVID-19 Workplace Testing
In guidance issued earlier this month, the U.S. Equal Employment Opportunity Commission (“EEOC”) indicated that employers will now need to specifically assess pandemic and workplace circumstances in order to justify mandatory COVID-19 testing of employees. In the absence of this recent guidance, worksite COVID-19 testing was permitted without any specific justification or assessment on the part of the employer.
In short, the EEOC stated that employers must show that COVID-19 testing is job-related and consistent with business necessity, and provided several potential factors to consider when making an assessment, including:
- The current levels of COVID-19 community transmission;
- The vaccination status of employees;
- The degree of breakthrough infections of fully vaccinated employees;
- The transmissibility of current variants;
- The potential severity of illness from current variants;
- The level of contacts employees may have with others during the course of their work;
- The potential impact upon the employer’s operations if an infected employee enters the workplace.
Moving forward, employers should give consideration to (and consider documenting) how these new guidelines will be factored into their workplace COVID-19 policies.
Lawsuit filed against Walmart in Philadelphia alleges violations of the City’s Fair Workweek Law
According to a proposed class action filed in Pennsylvania state court, Walmart workers in Philadelphia claim the company violated the local “Fair Workweek Law” by failing to provide them with work schedules 10 to 14 days in advance or give them “predictability pay” when their schedules were changed within that window. The lawsuit asserts claims for five different types of violations of the Fair Workweek Law, and noted that each instance of a violation could result in statutory damages ranging from $25 to $1,000 per pay period.
In Philadelphia, the Fair Workweek Law provides predictable scheduling to certain service, hospitality, and retail workers. It requires “Covered Employers” to:
- post and provide a written 10-day advance notice of work schedules;
- provide predictability pay for all employer initiated changes to the posted schedule;
- allow employees to refuse to work additional hours not included in the posted schedule;
- offer existing employees the right to additional work shifts before hiring new employees; and,
- schedule nine hours of rest between certain shifts unless the employee provides a written consent and payment of $40.
“Covered Employers” under the law are retail, hospitality, or food services establishments that employ 250 or more employees including all full-time, part-time, and temporary workers and have 30 or more locations worldwide. This includes franchises and chains and then temporary employees hired through an agency.
The case is Washington et al. v. Walmart, case number 220701449, in the Court of Common Pleas for Philadelphia, Pennsylvania.
Amazon Warehouses under Investigation by OSHA for Safety Hazards
The Occupational Safety and Health Administration (“OSHA”), in conjunction with New York federal prosecutors, inspected Amazon warehouses this month in New York City, Chicago and Orlando, Florida, after investigators received complaints about the working conditions. The Southern District of New York’s civil division is investigating the potentially hazardous working conditions at warehouses across the country as well as whether Amazon committed fraud by hiding worker injuries from OSHA. The investigation follows a slew of serious incidents and allegations relating to workplace safety, including: news that an employee died at one of Amazon’s fulfillment centers in New Jersey during the company’s Prime Day event; a lawsuit concerning another employee being killed in a fulfillment center collapse in Illinois; and a recent report from the National Council for Occupational Safety and Health that included Amazon on a “dirty dozen” list of businesses that have committed “egregious” safety violations that endangered their workers. Recent efforts to unionize a facility in Alabama failed, where workers claim that the pace of work that the company expects is untenable and dangerous. Amazon’s commented publicly in response to the investigation that it will cooperate with the investigation and believes the investigation “will ultimately show that these concerns are unfounded.”
Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment. Jeff also practices in commercial litigation as well as counsels business on commercial contract matters.
