As the world evaluates the risks posed by the omicron variant and increasing case counts, employers must decide whether to allow a return to in-person work or require masking, social distancing, and testing or vaccination.
These decisions will depend on the requirements of federal, state, and local laws, as well as the individual employer’s views on risk and safety. Employers should also consider the possibility—required in some jurisdictions—of mandating daily health and temperature screenings.
The law firm Littler Mendelson tracks the various jurisdiction-specific infection-mitigation steps required of employers on its website.
Mitigation measures in some jurisdictions—such as the requirement in Los Angeles that businesses require proof of vaccination as a condition of entry—are prohibited in other jurisdictions.
Coordinating with employment law counsel will help credit unions evaluate which jurisdictions require or prohibit various mitigation measures. Many jurisdictions, and certain federal provisions, have special record-keeping requirements related to COVID-19.
COVID-19 has created many new reasons employees might have to be absent from work, including illness from the virus, the need to quarantine after exposure, obligations to care for family members who have contracted the virus, inability to access child care because of school or day care closures, medical complications related to lasting symptoms from COVID-19 (i.e., long COVID), and time to obtain a COVID-19 vaccination or test.
These issues implicate the Family and Medical Leave Act, the Americans with Disabilities Act, state and local leave and disability laws, and employer leave policies. After the federal Families First Coronavirus Response Act expired, along with its requirement that employers provide paid sick leave, state and local legislation emerged that created either temporary or permanent paid leave obligations for employers.
Many jurisdictions have added extended paid leave laws to respond to the pandemic, while others have authorized permanent paid leave requirements. In November 2021, the District of Columbia adopted a law requiring employers to pay for the time employees spend receiving a COVID-19 vaccine.
If the OSHA private employer rule is implemented, it will also mandate paid leave for vaccination and recovery from vaccination.
Employers must be aware that even after an employee has exhausted unpaid and paid leave, they may still be entitled to unpaid leave as a reasonable accommodation to, for example, recover from long COVID.
The Equal Employment Opportunity Commission says this condition may rise to the level of a disability under the Americans with Disabilities Act.
The combination of a tight labor market, inflation, and pandemic-induced occupational risks for public-facing workers has driven an increase in worker demands on everything from wages to paid sick leave to masking and vaccination policies.
Bloomberg reports that in fall 2021, more than 100,000 workers nationwide agreed to work stoppages.
Employers should anticipate the possibility of renewed bargaining from union-represented employees, collective demands from unrepresented employees, and increased support for unionization.
Gallup, which has tracked public support for unions since 1936, reports that unions had a higher approval rating—68%—in 2021 than at any time since 1965.
Although the ever-expanding network of legal challenges related to COVID-19 is daunting, employers who proactively consider these issues now and develop a legally compliant strategy for dealing with our current crisis will be well-positioned to succeed in the long term.
MICHAEL GOTZLER is a shareholder and NINA NEFF is an associate at Littler Mendelson.
Credit unions will do well to develop a cohesive, intentional strategy for responding to the ongoing employment law challenges posed by a prolonged pandemic.
According to Littler Mendelson, such a strategy should address these questions:
This article appeared in the Spring 2022 issue of Credit Union Magazine. Subscribe here.