Transitioning into a new year can be overwhelming and hectic, especially in the middle of a pandemic. Burr & Forman’s Labor & Employment Practice Group provides this brief checklist of steps that all businesses should review to help determine which issues may impact you in 2021 and ensure that your current measures are equipped for the coming year. It is our expectation that this Labor & Employment Client Checklist for 2021 will be a useful guide to best practices for the new year.
Reevaluate Your COVID-19 Plan.
The COVID-19 global outbreak continues to bring change and uncertainty for all of us, and businesses nationwide are feeling the effects of the pandemic. In 2020, many employers were forced to quickly adjust in a myriad of ways and this will likely continue into 2021. The new year presents new challenges including ensuring that businesses maintain a safe and healthy work environment and appropriate control measures in the workplace (i.e., social distancing, personal protective equipment, routine cleaning and disinfection), navigating employee requirements related to the COVID-19 vaccine, considering legal implications when employees suffer adverse consequences after receiving the vaccine, implementing telecommuting policies, re-evaluating plans for how employees will use paid time off, and considering privacy implications associated with the use of biometrics. Employers should revise their COVID-19 plans to incorporate these new, and constantly changing, developments.
Consider Whether COVID-19 Vaccinations Will Be Mandatory.
As the vaccination becomes more easily accessible, employers should be aware of the benefits and potential risks when deciding whether to mandate the vaccination. While the EEOC recently issued guidance that indicates that, under the ADA, employers are generally permitted to require employees to be vaccinated against COVID-19 as a condition of employment, employers should carefully consider the impact of implementing a mandatory program. Employers must be prepared to respond to employees who may be unable to get the vaccine due to an underlying medical condition, sincerely held religious belief, as well as those who simply refuse to be vaccinated for some other reason. Mandating vaccinations may not be appropriate or advisable for every workplace, and there are numerous considerations to take into account, including:
- Availability of the vaccine;
- Potential implications of the ADA;
- Potential implications of Title II of GINA;
- Potential implications of Title VII of the Civil Rights Act of 1964;
- Potential implications of the Fair Labor Standards Act for the compensability of time spent getting a vaccine; and
- Potential compensability for time off of work due to an adverse reaction from the vaccine under state’s workers’ compensation laws.
For instance, if your company chooses to mandate the vaccination, you may want to consider how you will verify vaccination status. Depending on the type of information collected and how it is collected, employers may be subject to additional legal obligations. Employers should also take caution in requiring only certain groups of people (e.g., those above a certain age, those in a vulnerable classification) to receive the vaccine because this could have a potentially unlawful disparate impact. It is important to determine your company’s plan, including but not limited to whether you or a third party administrator will facilitate the vaccination, if there will be a priority system for who receives the vaccine, and if you will offer training or presentations on the benefits and safety of vaccinations. If you decide that mandating vaccinations is appropriate for your workplace, formulate a short policy document. There are pros and cons to requiring and not requiring vaccinations, so talk with the Burr & Forman attorney whom you regularly work with to determine which path is best for your company and to assist you with preparing appropriate notices and revised policies. Be sure to stay up-to-date and review laws and guidance at the state, federal and local levels. If you would like more information about mandating vaccines, check out this article.
Consider Whether You Will Offer Incentives for Receiving COVID-19 Vaccinations.
Requiring employees to be vaccinated may not be for every employer. Many employers, may benefit by taking a more cautious approach and solely encouraging rather than requiring vaccinations. While incentives will generally be permissible, there still remains ambiguity over how large an incentive can be offered and how to handle employees who cannot take the vaccine because of medical or religious reasons. For example, the EEOC recently issued its proposed rule regarding the incentives employers may offer to encourage employee participation in wellness programs that require disclosure of medical information, without violating the ADA or GINA. The proposed rule provides that a wellness program is voluntary so long as the employer does not offer more than a “de minimis incentive” in exchange for an employee participating in the wellness program. However, recently, 42 business groups scrutinized the uncertainty of the proposed rule and have urged the EEOC to take a broad approach to defining what vaccine incentives are legal. We will continue to monitor and provide updates as the new administration continues. Check out our Webinar from January 2021 on FMLA, the ADA, and a New Year: Key Developments for Employers.
Be Aware of Technology-Related Legal Risks Amid COVID-19.
Temperature scanning devices, social distancing monitoring apparatus wearable devices, surveillance cameras, and kiosks are only a few of the new systems that have been designed to slow the spread of COVID-19 and provide employers with solutions for dealing with new workplace challenges during the pandemic. Employers are advised to keep in mind that these systems and devices may raise privacy concerns under the ADA. For example, temperature checking technology may store information considered confidential under the ADA. Products may use facial recognition software or location data tracking, store sensitive information, or beep, buzz, or vibrate and exacerbate certain health conditions of employees. If your company already implements any of these systems, or if you are planning on implementing them in the future, make sure you are aware of these potential concerns.
Comply with WARN Act Notice Obligations.
The WARN Act may apply to pandemic related job losses. While many employers believed that the WARN Act’s safe harbor provision for extreme and unexpected situations exempted job cuts made during the pandemic, a Federal District Court for the Middle District of Florida Orlando Division recently found that the WARN Act’s carve-outs for employers facing extreme, unexpected situations do not completely neutralize protections for workers laid off during the pandemic. See Elva Benson v. Enterprise Leasing Company of Orlando, LLC; and Enterprise Holdings, Inc. Although the court’s ruling is not binding on other courts, other federal courts may follow in the footsteps of this decision. Several states including California, Illinois, New Jersey, New York, Tennessee, and Wisconsin have their own state WARN Acts that may impose more stringent obligations on employers. Employers should comply with WARN Act notice obligations and, as soon as there is the potential for a mass layoff, consult with your Burr & Forman legal advisor to ensure compliance with all federal and state WARN Act requirements.
Maintain a Safe and Healthy Workplace.
Under OSHA, employers are responsible for providing a safe and healthy workplace free from recognized hazards likely to cause death or serious physical harm. In response to the pandemic, OSHA has issued stronger workplace guidance to help employers implement a coronavirus prevention program and assist employers in identifying risks that could lead to exposure. Amid a pandemic and the transition of a new administration, employers should expect an increase in inspections, citations, and penalties in 2021. Employers should consider the implementation of mass notification systems, ensure that safety policies and procedures are compliant with CDC guidance, pay strong attention to what control measures are appropriate to implement, and design policies that provide protection from retaliation for workers who raise coronavirus-related concerns. You can find more information here.
Multiple states, including but not limited to, California, Indiana, Nevada, North Carolina, South Carolina, Tennessee, Vermont, and Virginia have OSHA-approved state plans in place covering both private sector and state and local government workers. California has enhanced COVID-19 infection prevention requirements by allowing for orders to shutdown entire worksites and issuing citations more quickly for serious COVID-19 violations. The bill also requires employers to notify all employees of potential exposures (in writing and within one business day) and notify the public health agency of outbreaks. In the event that an outbreak occurs at your workplace, California employers should consider consulting with their Burr & Forman legal advisor to discuss preparing a draft of this notice. You can find more information here.
Be Aware of FFCRA Requirements.
The requirement that employers of a certain size provide paid sick leave and expanded family and medical leave under the FFCRA expired on December 31, 2020. In 2021, paid leave benefits are no longer mandatory and covered employers are no longer required to provide paid leave. Employers may choose to voluntarily continue to provide paid leave benefits to those employees who have not used all of their prior leave under the FFCRA with the option of claiming payroll tax credit through March 31, 2021. You should ensure that you update these policies and if you decide to discontinue your FFCRA leave program, then be sure to remove this from any policy documents. If you decide to extend FFCRA paid sick time and family leave benefits to employees through March 31, 2021, then be sure to continue to document leave use. Policies should be updated to reflect expectations about returning to work and whether leave will convert to unpaid FMLA, if applicable, if you decide not to extend FFCRA benefits. You should also consider whether you want to implement personal leaves of absence, remote telework arrangements, or flexible schedules to retain valuable employees after the expiration of the FFCRA. For more information, check out our webinar from January 2021 on vaccines, FFCRA expiration, and a remote workforce.
Update Sick and Family Leave Policies.
Under a bill recently introduced, federal employees would be eligible for paid leave up to 12 weeks in a 12-month period, including personal or family medical conditions and obligations related to a spouse, child or parent being called to active military duty. You can find more information here.
Monitor Minimum Wage and Minimum Salary Increases.
2021 will also bring minimum wage increases in more than 20 states, including California, Colorado, New Mexico, Arizona, and Arkansas. Most of the state changes became effective January 1, 2021. However, some states such as Connecticut, Nevada, and Oregon will see increases later in the year. 2021 also brings increases in minimum salary requirements for exempt employees in states such as Maine and Alaska. Make sure that you monitor, and maintain in compliance with, the minimum wage and minimum salary requirements relevant in your jurisdiction.
Ensure You Are Up-To-Date With FMLA Developments.
The DOL has recently issued new guidance on electronic notices in light of the COVID-19 pandemic. Every employer covered by the FMLA is required to post and keep posted on its premises, in conspicuous places where employees are employed, a notice. The DOL has recently provided that electronic posting is an acceptable substitute for the continuous posting requirements if three elements are met. However, employers must ensure that they are providing adequate information to employees on where and how to access notices or the electronic postings will not be considered an effective means of providing notice. Also, if you have employees working both on-site and remotely, both methods of postings must be utilized. It is important to update your handbooks to provide notice to employees of how and where to access these virtual postings. Other developments involve the WHD recently deciding that telemedicine visits with a healthcare provider are “in-person” visits under the FMLA, subject to certain requirements. Employers should also stay up to date with changes that have been made to various FMLA forms including, H-381, WH-382, and WH-380-F. These new forms are fillable PDF’s and significant revisions have been made. You can find more information here.
Be Aware of Anti-Harassment Training Requirements.
Effective in 2021, California now requires employers with five or more employees to train all employees and supervisors within six months of their start date and retrain them every two years. Many states and municipalities have anti-harassment training requirements, such as Maine and Connecticut. Additionally, Illinois employers (as well as a few in other states such as New York and Louisiana) must conduct anti-harassment training on an annual basis. Employers should consider implementing anti-harassment training in the event that claims arise in the future. Different types of training work best for different companies, so it is important to consult with the Burr & Forman attorney whom you regularly work with to determine which type of training will work best for your workplace and develop a plan for keeping training information up-to-date.
Begin Strategizing Diversity Efforts Now.
Diversity and inclusion initiatives have become increasingly crucial in the light of movements such as Black Lives Matter and #MeToo. Creating, maintaining, and sustaining D&I initiatives can help companies achieve more. There are many ways in which diversity, equity, and inclusion efforts contribute to a healthier culture. Employers should evaluate and establish new diversity and inclusion goals for 2021. Publicly traded companies in California and Washington should be aware of new obligations about diversity on their Board of Directors. Other states, like Massachusetts, have introduced similar legislation regarding minimum board diversity requirements but have not yet taken any formal action. Employers should be aware that the Supreme Court recently held, in Bostock v. Clayton County, Georgia, that employers who fire an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964. Employers should review their anti-harassment and EEO policies and if sexual orientation and gender identity were not previously included, these policies should be updated to add these protected characteristics. We invite you to consult with the Burr & Forman attorney whom you regularly work with to ensure employment decisions, policies and practices comply with all aspects of this decision.
Monitor the Advancement of Anti-Hair Discrimination Laws.
States such as California, New York, and Colorado have adopted anti-discrimination laws that provide protection based on hairstyles and hair textures associated with race. Many other states and cities across the county have taken steps to correct racial injustices by making hair discrimination illegal. Recently, Pittsburgh passed a “Creating a Respectful and Open World for Natural Hair” (CROWN) Act which amends previous codes addressing discrimination to specifically add hairstyles and hair textures most commonly associated with race, including, but not limited to braids, cornrows, locs, Bantu knots, Afros, and twists. Kansas City also recently joined an increasing number of state and local jurisdictions in adding hairstyles and natural hair types that are commonly associated with race to the class of protected racial characteristics. Employers should consult with the Burr & Forman attorney whom they usually work with to stay up-to-date with laws in your jurisdiction, and if necessary, review policies that make reference to specifically prohibited hairstyles and educate employees on the policies.
Re-consider Classification of Independent Contractors.
In 2021, the DOL announced a Final Rule clarifying the standard for whether a worker is an employee or an independent contractor under the FLSA. However, under the new administration, a regulatory freeze was issued and the proposed rule no longer has a take effect date. In the meantime, employers must understand the factual underpinnings supporting their worker classifications so that they are prepared for potentially enhanced scrutiny of those classification decisions, under any test. If you are a company that uses independent contractors, you should reexamine your level of compliance with laws at the federal and state levels. You can find more information on this Final Rule here, while keeping in mind the rule has been frozen. Additionally, Iowa updated independent contractor standards establishing the circumstances under which certain independent contractors are not considered employees for purposes of various laws in 2021. Louisiana SB 68, excludes independent contractors from the definition of an employee. Virginia HB 1407 prohibits worker misclassification and provides civil penalties for any violations. Additionally, the new Freelance Worker Protections Ordinance in Minneapolis requires businesses who hire freelance workers as independent contractors to confirm the relationship in writing and pay the freelancers following what is laid out in the agreement. Re-examine the individuals your business treats as independent contractors to determine if they are properly classified and take steps to minimize misclassification. If you decide to keep these employees classified as independent contractors, then confirm with your Burr & Forman legal advisor that any agreements support this classification.
Be Aware of “Ban the Box” Laws.
In order to ensure that applicants are judged for a job based on their qualifications, many states and localities have adopted or expanded their “ban the box” laws that prohibit employers from asking job applicants about their conviction or arrest records on their initial applications. Maryland enacted a far more restrictive amendment to its previous “ban the box” legislation, which provides expansive new protections for both applicants and employees and would be amended to apply to all employers. Similarly, a St. Louis ordinance, which applies to employers with ten or more employees, prohibits employers from basing job hiring or promotion decisions on applicants’ criminal histories unless an employer can demonstrate that the decision is based on all available information. Make sure that you are aware of the “ban the box” laws relevant in your jurisdiction, and talk with the Burr & Forman attorney you regularly work with to ensure that you maintain in compliance with these laws and confirm all policies are up to date.
Monitor Use of Biometrics.
Recently, states and cities have increased their efforts to enact legislation directly targeting the use of facial recognition technology. A new Portland law bans the use of facial recognition technology by private actors in places of public accommodation. Like Illinois’ heavily litigated Biometric Information Privacy Act, Portland’s ordinance provides for a private right of action. New York lawmakers recently proposed Assembly Bill 27, the Biometric Privacy Act. The act would provide safeguards for consumers and requires private entities in possession of biometric identifiers or biometric information to develop a written policy establishing a retention schedule and guidelines for permanently destroying biometric identifiers and biometric information.
Ensure That Your Protection of Consumer Data Complies with the California Privacy Rights Act (CPRA).
If your company is subject to compliance with the California Consumer Privacy Act (CCPA), it may also have to comply with the CPRA, as well. The CPRA extends some of the rights already provided by the CCPA and further defines some of the existing definitions and provisions in the CCPA. Although most of the CPRA provisions are not operative until 2023, other states may start following California’s lead with similar versions applicable based on each state. Consider consulting with legal counsel regarding potential compliance with the CPRA and approving a budget for any additional privacy compliance efforts that may be necessary. You can find more information here.
Be Aware of Pay Equality Laws and Reporting Requirements.
Almost every state has laws prohibiting wage discrimination based on sex and/or employment discrimination laws. In 2021, Colorado enforced its own pay equity law, the Equal Pay for Equal Work Act, to close the pay gap and ensure that employees with similar job duties are paid the same wage rate regardless of sex, or sex plus another protected status. This act requires an employer to announce to all employees employment advancement opportunities and job openings and the pay range for these openings. Employers in Colorado also must maintain records of job descriptions and wage rate history for each employee while employed for 2 years after the employment ends. The Equal Pay for Equal Work Act also prohibits employers from seeking the wage rate history of a prospective employee or relying on the wage rate of a prospective employee to determine a wage rate. Colorado employers need to consider how they will ensure compliance with this act. Other employers should expect the new administration to make efforts to increase pay equality by implementing new reporting requirements for employers to track wage and salary data based on race and gender.
Prepare for Labor Developments.
With the new administration in 2021, prepare for changes to come. President Biden has called on Congress to raise the federal minimum wage to $15 per hour. This push has been backed heavily by unions and the effort has succeeded in multiple states who have recently adopted laws to raise their minimum wage. Be on the lookout for President Biden to reinstate the FFCRA’s paid leave provisions, as he seeks to expand and extend emergency paid leave measures. As discussed previously, expect an urgency from President Biden to strengthen existing pay equity laws and implement new reporting requirements for employers to track wage and salary data based on race and gender. Employers should be aware of the new OSHA issued guidance on protecting employees from COVID-19 and expect more protections from unsafe working conditions and retaliation for workers during the pandemic. Employers should also expect an increase in the number of OSHA enforcement personnel, inspections, citations, and penalties in 2021. With the new administration, employers should be diligent in worker classifications. President Biden is expected to heighten scrutiny in worker classifications, enhance misclassification enforcement, and advocate for a more stringent independent contractor test. The Biden administration also plans to ensure the advancement of racial equity and prioritize the workplace rights of LGBTQ employees, so businesses should expect enhanced workplace discrimination laws. We will continue to monitor and provide updates.