The coronavirus crisis has fundamentally changed how we work. After almost two years of living in a pandemic, employers and employees are navigating a “new normal” in which it appears the COVID-19 virus may be with us for some time.

Variants, including delta and omicron, threaten to compromise the progress we have made against the deadly virus. This means credit union leaders must continue to navigate a fraught and uncertain employment law landscape.

Here are some issues to watch. Note, however, that this list is far from exhaustive and the compliance picture changes daily as new orders, regulations, and legislation emerge to address the coronavirus and associated employment issues.

Remote work 

Credit unions that have exempt employees working remotely must be alert to the importance of accurately tracking when nonexempt employees start their work, take breaks, and end all work-related tasks for the day.

Also, beware the “wandering worker” issue, where remote workers relocate and are governed by new state and local laws. 

Employers must know when and where their employees are working so they can properly monitor legal compliance as the back pay liability associated with noncompliance can be substantial.

Local laws governing who pays for the equipment needed to work from home is another area of potential exposure.

Although the Fair Labor Standards Act governs the employer’s minimum obligations under federal law, employers operating in jurisdictions where local law conflicts with federal law must provide employees with the greatest benefit offered under each law. 

Vaccination requirements 

The federal government has promulgated several vaccination requirements. These include the Federal Contractor Executive Order (E.O. 14042), the Occupational Safety and Health Administration (OSHA) Healthcare Emergency Temporary Standard, the Centers for Medicare & Medicaid Services Interim Final Rule, and—most significantly for private employers—the OSHA Emergency Temporary Standard governing entities that employ at least 100 workers.

In January, the Supreme Court stayed the OSHA Emergency Temporary Standard, ruling the agency has the authority to establish workplace safety standards but not broad public health measures.

However, employers must continue to navigate a dizzying array of new state and local laws governing vaccination requirements.

Some laws aim to require vaccinations while others strive to curb employers’ ability to mandate vaccines. This means multi-jurisdictional employers are in the difficult position of attempting to comply with multiple, often contradictory laws.

We’re seeing new laws, regulations, or executive orders on vaccination requirements each week, and at lease 11 states have laws limiting employer-mandated vaccination requirements. Such requirements also trigger equal employment opportunity obligations for employers to reasonably accommodate those who cannot be vaccinated because of a protected characteristic.

We are seeing an increase in discrimination claims brought in relation to vaccine requirements, and we expect those will continue to rise. To further complicate matters, state anti-discrimination law can create additional protected categories. Montana, for example, has designated vaccination status itself as a protected characteristic.

Certain incentives employers have used to encourage vaccination—such as offering a health insurance credit to those who voluntarily become vaccinated, permitting only vaccinated workers to come into the office, or permitting only vaccinated workers to forgo testing and masking—are newly impermissible under some state laws.

Consider arranging for a privileged review of your vaccination policies to evaluate compliance and potential risk. Many credit unions will have to make difficult, business-specific decisions about how much risk, and what type of risk, is tolerable.

COVID-19 testing

The OSHA rule for private employers, unlike the Federal Contractor Executive Order, allows employers to give employees the option of either becoming vaccinated or submitting to a minimum of weekly COVID-19 testing.

For some employers, this offers a potential avenue to comply with both the federal law (if it comes into effect) and many (but not all) state laws. However, it also presents significant costs, administrative burdens, and uncertainties.

Employers generally will be required to pay for the time spent testing, which can raise the possibility of unwanted overtime costs and the specter of the “continuous workday” problem.

That’s when employees who test at home and then commute to work must be paid for their commute time.

Whether to pay for the tests, which can rapidly become a huge source of overhead, will depend on which jurisdictions the employer operates in and the exact parameters of the employer’s policy.

NEXT: Return to office