The Rapid Pace of Change

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Anyone experiencing anxiety or confusion over the rapid pace of change in the U.S. business world and economy right now is not alone. The news is a constant stream of information that raises more questions than can be answered. This post is highlighting some developments to watch as the year goes on.

There is ongoing litigation over whether the Trump Administration illegally fired the leadership of several independent agencies of the federal government. At the National Labor Relations Board, for instance, the new administration dismissed Gwynne Wilcox, a Democrat, from the Board. After this dismissal, only two members were left on the Board which meant the Board could not issue regulations and could not hear cases. The Board’s investigations were able to continue. On March 6, 2025, a Washington D.C. District Judge decided that Ms. Wilcox’s dismissal was unlawful because the law requires that the dismissal must be “for cause.”

Similarly, Cathy Harris, the Chair of the U.S. Merit Systems Protection Board, challenged her firing by the Trump Administration on similar grounds and prevailed in federal court. It is possible that these two cases will be consolidated and go before the United States Supreme Court. In hearing these cases, the U.S. Supreme Court will review a ninety-year precedent restricting the executive branch’s power to remove members of independent federal agencies.

Two Equal Employment Opportunity Commissioners fired by the Trump Administration have also indicated they may challenge their removals. The pace and number of removals since January suggests that there may be further challenges coming.

What does all of this mean for employers? Disruption in the operations of these agencies could certainly delay response times. Employers should also anticipate shifts in agency policies and priorities and be prepared to adapt.

This same advice applies to companies with diversity, equity and inclusion programs. There have already been stories in the news about large corporations scaling back or eliminating their diversity, equity and inclusion programs. The Trump administration directed the Department of Justice to investigate “illegal DEI” at private sector companies. Although it is too soon to know where the Department of Justice will draw the line between acceptable DEI and anti-discrimination law, companies may want to start to review their policies and practices.

Finally, there is new guidance from the Financial Crimes Enforcement Network. The deadline for BOI filings for most companies is now March 21, 2025. If you own a company impacted by this requirement, make sure you take steps to comply before this deadline.

EEOC Guidance on COVID in a Post-Emergency World

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On May 11, 2023, the Biden Administration declared an end to the COVID-19 public health emergency.  Long before this declaration, the experience of living through the pandemic created a sense of fatigue and a growing temptation to ignore the existence of COVID as workplaces and other locations reopened.  Employers, however, must still be prepared to address COVID-related issues arising with their employees.  Fortunately, the U.S. Equal Employment Opportunity Commission (“EEOC”) released updated guidance to employers on May 15.  This post summarizes some of the Commission’s guidance.

For those employees receiving COVID-related accommodations, the EEOC does not recommend the automatic cessation of accommodations.  Instead, employers should dialogue with the employees and come to an agreement whether the accommodations remain necessary.  The EEOC update specifically addresses accommodations for employees with “Long Covid,” giving examples of reasonable accommodations depending upon the employee’s symptoms.  Some of these examples include a quiet workspace or use of noise cancelling devices to address brain fog, alternative lighting and reduced glare to address headaches, rest breaks to address joint pain, and a flexible schedule or telework to address fatigue.

Employers should be alert to instances of COVID-related harassment.  It is a violation of the Americans with Disabilities Act to harass an employee with a disability-related need to wear a face mask for protection.  Similarly, it is illegal to harass an employee who did not receive a COVID vaccine based on a religious exemption.  Employers should encourage employees to report any instances of COVID-related workplace harassment so that they can be addressed in a timely manner.

Helpfully, the EEOC guidance answers factually specific questions that commonly arise in the workplace.  For instance, employers are permitted to (i) ask employees who report that they are sick and unable to work whether the employee has COVID or symptoms of COVID; (ii) ask employees who physically enter the office if they have COVID; (iii) continue to screen employees for COVID when they enter the workplace.  Employers can require employees who refuse to comply with COVID screening to stay out of the workplace.  Employers may not ask an employee whether they have family members infected with COVID.

At all times, employers must protect the confidentiality of their employees by safeguarding medical records, including any COVID screening logs.

Employers are encouraged to visit https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws and read the May 15 updated guidance entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”