EEOC Provides AI Resource Document

The Equal Employment Opportunity Commission (EEOC) has issued a technical assistance document concerning adverse impact under Title VII of the Civil Rights Act of 1964 that results from the use of software and artificial intelligence. Due to the end of the COVID-19 public health emergency, the EEOC has updated its guidance on COVID-19 and the civil rights laws that the EEOC enforces. The Department of Labor has updated its Fair Labor Standards Act poster to include information about the PUMP Act and the Internal Revenue Service has released the 2024 health savings account contribution limits.

Artificial Intelligence Resource Issued by EEOC – The Equal Employment Opportunity Commission (EEOC) released a, technical assistance document, “Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964,”which is designed to assist in preventing job discrimination against employees and applicants. According to EEOC Chair Charlotte A. Burrows, “This technical assistance resource is another step in helping employers and vendors understand how civil rights laws apply to automated systems used in employment.”

The EEOC noted that employers are increasingly using automated systems including those with artificial intelligence to assist with a variety of employment issues. The technical assistance document is limited to whether selection procedures such as hiring, promoting, or terminating has a large negative effect (also known as adverse impact or disparate impact) on a basis that violates Title VII of the Civil Rights Act of 1964.

The technical assistance document is part of the EEOC’s Artificial Intelligence and Algorithmic Fairness Initiative. The EEOC urges employers to undertake self-analyses to determine whether any employment practices they are utilizing result in a negative impact that is prohibited under Title VII or treat protected groups differently. The document notes that in many cases employers may be held liable under Title VII, even if a selection procedure was developed by an outside vendor.

EEOC Updates COVID-19 Technical Assistance – The Equal Employment Opportunity Commission (EEOC) released updates to its COVID-19 technical assistance document, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”. The updates were made due to the May 11^th end of the federal declaration of the COVID-19 public health emergency.

EEOC Chair Charlotte A. Burrows stated, “The end of the public health emergency is an important milestone, and this will help employees and employers understand how the Americans with Disabilities Act, the Rehabilitation Act, and other federal laws continue to protect our nation’s workforce from employment discrimination. The EEOC remains committed to vigorous enforcement of these laws.”

According to the EEOC, the updated technical assistance provides:

• The end of the COVID-19 public health emergency does not mean employers can automatically terminate reasonable accommodations that were provided due to the pandemic. Employers can evaluate accommodations and discuss with employees whether based on individualized circumstances, there continues to be a need for reasonable accommodation. The employer can request documentation addressing the reason there is an ongoing need for accommodation and whether alternative accommodation exists that might meet those needs.
• There are several factors that impact the possible reasonable accommodations that would address different symptoms of Long COVID including the type of symptoms, the job requirements, and the workplace design. The update includes examples of possible reasonable accommodations for employees with Long COVID, including “a quiet workspace, use of noise cancelling devices, and uninterrupted worktime to address brain fog; alternative lighting and reducing glare to address headaches; rest breaks to address joint pain or shortness of breath; a flexible schedule or telework to address fatigue; and removal of marginal functions that involve physical exertion to address shortness of breath.” The EEOC noted that many of these are low or no-cost accommodations.
• Employers should prevent harassment of applicants or employees with a disability-related need to wear a face mask or take other COVID-19 precautions at work.

DOL Updates FLSA Poster – The U.S. Department of Labor (DOL) has updated its Employee Rights Under the Fair Labor Standards Act (FLSA) poster that employers need to display to include information about the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act that Congress passed in December 2022. The PUMP Act became effective on December 29, 2022, when President Biden signed it. However, the effective date of its enforcement provisions was April 28, 2023.

The updated poster includes the following statement that applies to employees whether they are exempt or nonexempt from the FLSA:

“The FLSA requires employers to provide reasonable break time for a nursing employee to express breast milk for their nursing child for one year after the child’s birth each time the employee needs to express breast milk. Employers must provide a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by the employee to express breast milk.”

IRS Announces 2024 HSA Contribution Limits – The Internal Revenue Service (IRS) has announced the 2024 Health Savings Act contribution limits. The 2024 contribution limits are included in Revenue Procedure 2023-23 and were adjusted due to inflation. Health savings accounts are available for those who participate in high deductible insurance plans. For 2024¸the contribution limit for self-only coverage increases to $4,150 from the current $3,850 and the contribution limit for family coverage will be $8,300 up from the current $7,750. In 2024, to qualify as a high deductible insurance plan, a self-only plan has to have a minimum annual deductible of $1,500 and an annual out-of-pocket limit of $8,050. A family healthcare insurance plan in 2024 needs to have a minimum annual deductible of $3,200 and an annual out-of-pocket limit of $16,100. 

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.