The 2022 employment law update reveals a few key themes around vaccine mandates, expanded paid employee sick and medical leave benefits, and remote workforces by Larry Lee and Blaine Bengtson, as featured in Municipal Lawyer, an IMLA publication.
By Larry Lee and Blaine Bengtson. This article is republished with permission of the International Municipal Lawyers Association (IMLA) from the March-April 2022 issue of Municipal Lawyer, an IMLA publication. Copyright © 2022 IMLA.
As the world experiences yet another year under the heel of COVID-19, it’s unsurprising that developments in local, state, and federal employment laws continue to focus principally on responses to the pandemic. A review of these developments yields a few key themes, including the scope and limits of vaccine mandates, expanded paid employee sick and medical leave benefits, and the circumstances under which employees will continue to work remotely.
Of course, noteworthy trends in employment law are not limited to pandemic responses. In particular, lawmakers continue to strengthen worker anti-discrimination protections. They have done so by, among other things, expanding the categories of individuals to whom anti-discrimination laws apply and by enacting pay transparency laws. This article highlights changes in employment law for 2022 that may impact employers in the local, state, federal, and international workplaces, with special considerations for work-from-home policies.
Responding to both the pandemic and general employee sentiment regarding paid time off and other types of leave, lawmakers in several jurisdictions continue to expand employee rights to medical benefits.
In 2020, the Colorado General Assembly enacted the Healthy Families and Workplaces Act (“HFWA”). For larger employers, the HFWA went into effect in January 2021. Since January 1, 2022, the HFWA has applied to all employers in Colorado (except the federal government) regardless of size, including municipalities.1 Among other things, it requires all employers to provide at least 48 hours of paid sick leave each year to employees and increases the requirement to 80 hours of paid sick leave during a public health emergency. The law includes time off for treatment, counseling, and legal services for victims of domestic violence among the reasons employees must be able to use their paid leave.
California recently updated the state’s family care and medical leave law for public sector employees to authorize employees to take available medical leave to care for a parent-in-law.2
Similarly, Illinois recently enacted House Bill 3582, which requires employers to provide victims of, and family members of victims of, any violent crimes with unpaid leave to seek medical attention for physical or psychological injuries caused by the crime, to obtain services from a victim services organization, to obtain counseling, and to seek legal assistance.3
Since January 1, 2022, workers covered by the British Columbia, Canada Employment Standards Act are eligible to take up to five days of paid sick leave per year for illness or injury.4 These five paid sick days are in addition to the three days per year of unpaid sick leave that were already required under the Employment Standards Act.
The COVID-19 pandemic played a part in at least one municipality’s decision to extend employment displacement protections for workers providing essential services under city contract. Specifically, in the summer of 2021, the City and County of Denver, Colorado adopted Ordinance No. 21-0818, in part to respond to COVID-19’s exacerbation of worker displacement.5 The ordinance provides that when a covered contract expires, or a change in control occurs, the successor contractor must offer covered workers under the former contract a right of first refusal of employment.6 The intent of the ordinance was to retain experienced and trained workers, which maintains a certain level of institutional knowledge and provides certain cost savings.
Beyond employer responses to COVID-19 and its effects, lawmakers continue to bolster anti-discrimination laws on numerous fronts, including equity in pay, expanding the categories of individuals protected from discrimination, broadening protected conduct, and further protections for pregnant workers.
Transparency in worker pay remains a key issue for lawmakers throughout the United States and in other countries. In the past several years, numerous states have adopted pay scale disclosure laws. In Colorado, for example, all employers must disclose in each posting for any job openings the hourly or salary compensation, or a range of the hourly or salary compensation, and a general description of all the benefits and other compensation to be offered to the hired applicant.7
These trends will continue into 2022 as local and state governments adopt similar pay transparency laws like the rule that will go into effect in New York City on May 15, 2022 requiring employers to include minimum and maximum salary information in job postings.8 Many states have adopted laws prohibiting employers from seeking pay history or relying on pay history when considering a job applicant or deciding the applicant’s pay. One such state is Rhode Island, where a pay history law9 goes into effect January 1, 2023.
The Illinois legislature recently expanded anti-discrimination protections on two fronts. First, it added individuals associated with a person with a disability to the category of those who are protected from discrimination based on a disability.10 It also has imposed a new requirement on the increasing number of employers using artificial intelligence in their hiring processes to report the race and ethnicity of all screened applications in order to monitor whether there exists any racial bias in the technology used for hiring.11
In California, legislators updated an existing law specifically prohibiting employers, including cities, from including non-disparagement clauses in agreements with employees that limit an employee’s ability to disclose information about unlawful acts in the workplace, unless the agreement includes the following language: “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.”12 Previously, the law only precluded non-disparagement clauses relating to gender-based harassment but now precludes such clauses for any type of harassment, including harassment not based on sex.
The state of Oregon enacted a law that includes protection against discrimination for natural hairstyles.13 This follows several other jurisdictions that have adopted “CROWN” laws (“Create a Respectful and Open World for Natural Hair”), including California, New Jersey, Colorado, Connecticut, New Mexico, Nebraska, and several others. CROWN acts have been introduced but not yet passed in other states like Illinois.14
Moreover, Oregon recently made it an unlawful employment practice for employers to require current or prospective employees to possess or present a valid driver’s license as a condition of new or continued employment.15 The law recognizes an exception where the ability to drive legally is an essential function of the job.
In Montana, lawmakers have added marijuana use during non-work hours as an activity for which employers, including local governments, cannot discriminate against employees.16
Since the beginning of this year, Minnesota employers now are required to provide reasonable break times each day for nursing mothers to express breast milk, and cannot reduce an employee’s compensation for lactation breaks.17 Nursing mothers must be afforded the opportunity to take paid lactation breaks for the twelve months following birth of the child.18
At the time of this writing, the U.S. Senate is anticipated to vote on the Pregnant Workers Fairness Act (“PWFA”), which would bolster protections for pregnant employees by prohibiting employers from denying a reasonable accommodation during a normal pregnancy rather than accommodating only “difficult” pregnancies, similar to denying a reasonable accommodation to disabled employee under the ADA. The PWFA has been championed as a bipartisan bill and support from both sides of the aisle may be enough to get support from the Executive Branch.19
While employers are cautiously optimistic that COVID-19 infection rates will continue to decline in the wake of the Omicron variant, they nevertheless continue to face infections and outbreaks in their workplaces and diverging employee stances regarding vaccinations.
By now, circumstances surrounding the federal government’s attempt at employer vaccine mandates are well known by practitioners. In November 2021, the U.S. Occupational Safety and Health Administration(“OSHA”) issued an Emergency Temporary Standard (“ETS”),20 imposing a vaccine mandate on certain employers or mandating that unvaccinated workers wear masks and undergo frequent testing. 21 In a highly publicized decision, the U.S. Supreme Court stayed and essentially rejected implementation of the ETS on January 13, 2022.22 In response the Supreme Court’s decision, OSHA withdrew the ETS on January 26, 2022.23
Notwithstanding OSHA’s withdrawal, the ETS remains relevant for some local government employers. Twenty-two states and territories in the United States have OSHA-approved State Plans, all of which cover state and local government workers in those states or territories. 24 Under OSHA, State Plans must be at least as effective as the federal occupational safety and health program.25 Thus, before OSHA’s withdrawal of the ETS, several of the states with State Plans had already adopted the federal ETS and others had initiated the process to implement the ETS for employees covered by their State Plan.26 Some of these states, like Minnesota, 27 responded to OSHA’s withdrawal of the ETS by suspending their enforcement of the ETS against covered employers. On the other hand, states like California28 adopted their own emergency temporary standards that were unaffected by OSHA’s withdrawal of the federal ETS.
In contrast to the vaccine mandates, several states have prioritized worker exemptions to any such employer mandates. In Alabama, for example, employers are prohibited under a new law from requiring an employee to receive a COVID-19 vaccination as a condition of employment without first providing the employee an opportunity to seek a religious or medical exemption.29 Under the new Alabama law, an employee’s submission of a completed exemption form creates a presumption that the employee is entitled to the exemption.30 Similarly, legislators in West Virginia recently passed a law requiring employers with vaccine mandates to accept certifications from licensed medical providers indicating that an employee’s or prospective employee’s religious beliefs prevent them from receiving the COVID-19 vaccine.31
While vaccines remain at the forefront of the latest response to COVID-19, some states have amended existing laws to bolster other mitigation measures, such as contact tracing. California recently updated its law requiring private and public employers to provide their employees with notice of potential exposure to COVID-19. The updated law directs employers to notify the relevant local public health agency within 48 hours or one business day, whichever is later, if they become aware that the number of cases among their employees meets the definition of a COVID-19 outbreak.32 The law also specifies the categories of employees and other individuals who must be notified of potential exposure to an infected person in the workplace.33
Three years into the COVID-19 pandemic, employees’ preference to work remotely is not a new development. Even so, in 2022, public and private sector employers continue to wrestle with whether, when, and how they will allow their employees to work remotely. Despite the typically obvious benefits of allowing office employees to work from home, remote work can come with a downside; that is, the inability for diligent employees to disconnect outside of normal work hours. Striving to solve this problem, the Ontario, Canada government passed legislation, set to take effect June 2, 2022, that will help employees disconnect from their employment responsibilities after work hours.34 The law requires Ontario employers with 25 or more employees to develop a written policy giving employees the right to disconnect from their work at the end of their workday. “Disconnecting” under the new law includes not engaging in work related communications such as e-mails, telephone calls, video calls,35 and other messages.
Employers allowing for remote work must decide whether to continue being flexible in allowing some or all of their employees to work remotely even after COVID exposure and hospitalization rates diminish. During the height of the pandemic, employers allowing remote work faced their own concerns of worker productivity, administrative management challenges, and the lack of interpersonal interaction of a traditional workplace. In 2022, most if not all employers continue to allow some work from home as their new normal based on helpful technology, employer accommodation and flexibility. Surveys conducted in the private sector shed some light on key remote work statistics in 2022:
Of course, public-entity employers have greater challenges in allowing remote work for the majority of their workforce based on the services provided to the public that usually require personal interaction, such as courts, law enforcement, land use, and overall governmental functions. Further, city and state attorneys’ offices are losing potential applicants to law firms where entry-level or less-tenured attorney positions are lured to lucrative compensation packages being offered in the private law firm sector. Governmental attorney employers are seeing fewer candidates for hire as well as facing challenges in retaining younger attorneys because public sector salaries cannot competitively meet scale. If not done already, public sector employers with assistance from their employment counsel should consider creating work-from-home policies for some office workers, and should evaluate the prospect of other benefits to stay competitive in onboarding and retaining their valued workers.
In 2022, employers and their legal counsel should pay close attention to labor law changes in their states, including new anti-discrimination rules and greater protections and benefits for employees as a result of the pandemic. The effect of the pandemic on employment law likely will be felt for many years to come. One can only hope the same cannot be said of the pandemic itself. Even as the pandemic (hopefully) subsides, employers should consider having their employment counsel prepare thorough and compliant work-from-home plans or guidelines and update existing non-wage benefits with the goal of staying competitive in a tight labor market and retaining high-performing employees.
Lawrence (“Larry”) Lee is 27-year practitioner, shareholder and labor and employment attorney for Jones & Keller, PC. He represents numerous employers in the private and public sectors. Larry has successfully defended many employers in federal and state courts, arbitrations, and federal circuit appeals courts. He regularly provides advice and counsel to employers around the country on various employment laws and regulations to ensure compliance as well as to avoid claims.
Blaine Bengtson is an associate attorney in the litigation group of Jones & Keller, P.C. His practice includes representation of clients in the public and private sectors in matters involving labor and employment law and complex commercial matters. He also has provided extensive preventive advice and counsel to employer clients, including annual revisions to their employee handbooks to ensure compliance with the latest developments in employment law.