Employment Law Issues in 2021

How have employment laws changed since the pandemic in terms of disability, inclusion, and harassment issues?

The federal government and many states passed emergency laws providing paid sick leave for workers for COVID-related illness and caretaking. Prior to this, many hourly workers, who are our essential workers, did not have any paid sick leave or paid caretaking time off. Also, the federal government and states passed emergency unemployment benefits laws to accommodate the millions of workers unemployed due to the pandemic. However, these laws will expire.

We have seen more recently employers requiring employees get vaccinated in order to return to work. Any requirement like this must comply with the Americans with Disabilities Act and other federal laws; there must be room for a reasonable accommodation for employees who cannot get vaccinated due to a disability or a sincerely held religious belief unless accommodating the employee would jeopardize the viability of the business.

What policies are companies adopting above and beyond legal requirements to better navigate these issues?

The successful shift for many businesses to work from home may seem like a win for disabled workers, and for many it probably is. But for years disabled workers have been asking to work from home or a more flexible work arrangement as a reasonable accommodation so they can continue working and have been denied or even lost their jobs. This pandemic has proven that in many industries working from home is doable and hopefully more businesses will be willing to discuss this as a viable option. Of course, the law requires the accommodation to be reasonable, so for some disabled workers in jobs where working from home was never an option, nothing has changed.

For many people of color, women in particular, working from home has been freeing. According to a Future Forum survey (as reported by the New York Times) 97% of black respondents said they preferred working remotely or hybrid. Only 3% said they wanted to return to the office, compared to 21% of white workers. For many respondents, working from home meant they were not reminded that they were the only black person in their office, and they did not experience

the many microaggressions that happen when in person. This impacts the entire business: in the same survey 50% of black workers said they felt a stronger sense of belonging and inclusion at work once they started working from home.

What flaws or failures in the current employment law landscape have been revealed by the COVID-19 crisis?

In addition to what I mentioned above, working from home has not led to less harassment unfortunately. What would have taken place in the office has just moved online. Virtual harassment can occur without witnesses or a paper trail. In an office setting it might be easier for a worker to never be alone with a person. The added layer of technology, whether video, chat, or text, can embolden employees to say or do things they would not do in person, but it also erases social cues. It is difficult to read tone in a text and words can be misconstrued. Lastly, when working from home inappropriate remarks or conversations over Zoom or chat are invasive in a way they are not when done in an office setting.

While the behavior might not change, in some circumstances online conversations could produce better evidence of harassment. Text threads can be saved or printed, and if a Zoom conversation is recorded there is a transcript generated as well. This may put a victim in a better position than had the conduct happened in the office and evidence was just based on the party’s testimony.

What long-term changes to labor regulations do you foresee developing as a result of the events of the past 18 months?

The events of the past 18 months are not over. As we see today with the Delta variant, the virus is not contained. Because of this, I don’t foresee many businesses flipping a switch and getting back to a pre-pandemic work environment. The gradual and evolving nature of our recovery is an opportunity for businesses to re-think how they did business before the pandemic and assess what makes sense in the new reality. Most likely it will be a spectrum of solutions.

Many businesses are re-thinking workplace flexibility not just for the near term, but as a long- term option for workers, like Twitter for example. At the other end of the spectrum, Goldman Sachs is requiring a return to a fully in-person office. Hopefully somewhere on this spectrum is the recognition that working from home is a proven reasonable accommodation for some disabled workers and employers will be more likely to agree that it could make sense.

Because of the need for labor, employers who typically hired hourly workers with no benefits now need to incentivize applications. Yesterday I walked by my local burrito and taco place, quick serve with very little seating, and they had a sign in the window hiring hourly workers, offering paid sick leave, paid time off, and free meals. Probably not what they offered workers pre-pandemic but necessary in this market and perhaps for the foreseeable future.

The pandemic has also brought into stark relief the caregiving burden on women who had to (and still are) juggle working, caregiving, and homeschooling young children. Burnout and mental health issues are legitimate concerns as is the exodus of women from the workforce.  We have no federal leave laws, and only 15 states and the District of Columbia have paid leave laws. Hopefully the pandemic has made the need for paid leave clear and state legislatures will introduce leave bills.  Many companies may re-think their rigid paid time off policies to allow a more flexible approach to better accommodate workers’ individual obligations. For example, instead of losing any unused paid time off an employee could cash in any unused time. Businesses might recognize the vital role child-care plays not just in the lives of families, but in the lives of businesses as well. On-site childcare or childcare benefits could be ways to attract, retain, and get the best out of many of their workers.