Pandemic raises legal hurdles
Leaders continue to navigate a fraught and uncertain employment law landscape.
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.
- Employment law challenges center around remote work, vaccination and testing requirements, leave, and return-to-work issues.
- Infection-mitigation measures in some jurisdictions are prohibited in other areas.
- Board focus: Review vaccination policies to evaluate risks and compliance with state and federal laws.
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.
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.
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.
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
Return to office
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.
Paid and unpaid leave
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.
This article appeared in the Spring 2022 issue of Credit Union Magazine. Subscribe here.