Ed. notice: This is the newest in a sequence on the altering apply of legislation, and the second targeted on employment. Click here for the first.
As the primary anniversary of the worst public well being disaster in dwelling reminiscence approaches, firms are turning to their labor and employment attorneys to deal with an ever-evolving assortment of points.
Arguably topping the record: the rise of the work-at-home worker.
“One of the big questions for 2021 and beyond is how much telecommuting is here to stay,” stated Nicholas M. Reiter, accomplice and co-chair of the labor and employment group at Venable LLP in New York. “Now, what happens when an employee insists on performing his or her job remotely? We’re going to see what happens as the vaccine becomes more widely available, the infection rate slows down, and employers ask employees to come back to work.”
Gabrielle Wirth, a accomplice within the California and Montana places of work of Dorsey & Whitney LLP, shares Reiter’s concern.
Speaking at a webinar her agency carried out on COVID-19 legal responsibility, Wirth famous that “with many, many employees working remotely, it’s going to be harder to claim that you cannot provide remote work when people have successfully worked [that way] for a year.”
Of course, it’s a unique story for important companies what place employees have needed to be on-site all alongside, “but the whole environment has now changed as to whether or not a reasonable accommodation for any disability would be the provision of remote work,” Wirth stated.
Telecommuting may also drag employers right into a thicket of reimbursement points.
“An employee may have to use his or her own computer and their own internet,” Wirth stated. “They may be on cellphones exclusively and so their cellphone bill now is . . . a hundred percent attributable to the employer.”
While not all states require firms to reimburse their staff, it’s the case in California, Illinois, and others, Wirth stated. Such bills might embrace one thing as apparent as workplace provides to mileage for errands associated with the job, like journeys to the publish workplace.“That’s become very widespread,” Wirth stated, “claims for failure to reimburse for expenses.”
Wirth additionally stated she’s seen quite a lot of wage and hour claims, though not particularly associated with telecommuting. For instance, she’s seen lawsuits for failure to pay wages for the additional hours staff spend on safety screenings like temperature checks.
Lawsuits stemming from employers’ failures to offer paid sick depart have been frequent, based on Wirth, as has litigation associated with the Expanded Family Medical Leave Act, a 2020 federal legislation.
“Many employers did not have policies in place,” Wirth stated. “Now that we’re in a voluntary period under federal law, it’s become a state-by-state issue. Many states have gone ahead and extended that paid leave to go into 2021.”
She additionally famous that municipalities may need ordinances “as to how much leave you have to give for COVID-related exposure.” Companies may have to show to labor and employment attorneys to revise their insurance policies and ensure they adjust to relevant legal guidelines.
According to written supplies from the Dorsey & Whitney COVID legal responsibility webinar, healthcare suppliers face particularly acute difficulties associated with worker depart. The agency recommended they implement “a system for recording employees’ requests for leave and the reasons supporting those requests, i.e., an employee’s symptoms and the date for a test or doctor’s appointment.”
Like all employers, healthcare suppliers have to keep away from personnel actions that might set off discrimination or retaliation lawsuits filed by employees who requested for or availed themselves of COVID-related day off. “As always,” the supplies stated, “providers should properly document their termination decisions.”
Of course, firms have needed to navigate federal financial stimulus packages as well as new guidelines relating to depart.
“We advised a lot of our clients on payroll protection issues,” Reiter stated. “We worked really closely with our legislative affairs and government affairs departments to advise our clients on eligibility for payroll protection funding and to be more forward-looking regarding what they’re going to do to make sure they remain eligible.”
Probably the stickiest scenario for employers vis-à-vis the vaccine is their responsibility to accommodate two teams of individuals, based on Wirth.
The first group includes these with a situation or a incapacity that makes the vaccine unsafe, and the second includes those that refuse to take the vaccine for different causes.
For employers who need to make vaccination a situation of employment, Wirth recommends partaking in interactive processes with the 2 teams. Openness and documentation are key.
“If somebody has a medical reason, you not only have to go through the interactive process, but you have to take further steps, including [to examine alternatives] to having someone in the office,” Wirth stated.
As for the non-medical vaccine refusers, Wirth points out that termination is probably not obligatory.
“Just because you’re not letting them come back to work doesn’t mean you have to fire them,” she stated. “Because this vaccine came about so fast, people are suspicious. It was an emergency use authorization, not the normal FDA procedure. One of the things you can do is keep them on a leave of absence, equal to family leave, while all of the evidence comes out as to how well the vaccine is working.”
Douglas S. Lang, former state appellate choose and of counsel within the Dallas workplace of Dorsey & Whitney, stated through the webinar that employers should moderately accommodate individuals with non secular objections to the vaccine — “and that has to be a real ethical or moral belief, not just somebody’s political belief.”
However, Lang wouldn’t rule out having to make allowances for these individuals as well. His colleague, Shevon D.B. Rockett, a accomplice within the New York and Philadelphia places of work of Dorsey & Whitney, stated on the webinar that employers and their attorneys ought to begin to assume via whether or not private and political preferences relating to the vaccine must be accommodated.
“The short answer is, if they refuse to take the vaccine for their own personal reasons, then you can terminate them,” Rockett stated, though the assertion comes with caveats.
“In some states, such as New York,” Rockett continued, “employees have a right to speak freely and engage in political activity.”
This means debates associated with civil liberties and vaccine mandates could also be on the horizon. Vaccine refusal may very well turn out to be a protected political activity.
“That’s the nuance that we’re all looking at, and we’ll see how that unfolds in the coming weeks,” Rockett stated.
Employers could possibly shield themselves from claims of harassment or a hostile office by instituting clear protocols and ensuring they’re uniformly enforced.
“Of course, anyone can claim anything,” Rockett stated. “But it will be a lot more difficult to be successful in that claim if [the employer shows] that uniformly, it is terminating people who are not taking the vaccine and that they are in positions that require the vaccine for safety and there are no other accommodations.”
One factor is definite: The undeniable fact that employment legislation intersects with civil liberties on the COVID vaccine illustrates the complexity of the problems. Employment attorneys might discover themselves drawing on many areas of the legislation to correctly serve their purchasers.
“We have a great practice at Venable with a lot of resources,” Reiter stated. “That’s the beauty of being with a full-service firm.”
“Unprecedented” is sponsored by Practising Law Institute, which options a wide range of well timed choices on employment law topics. These embrace the packages Understanding Employment Law 2021 and Employment Discrimination Law & Litigation 2021, as well because the publications “COVID-19 and Other Pandemics: Business and Legal Challenges” and “Employment Law Yearbook 2020.”
Elizabeth M. Bennett was a enterprise reporter who moved into authorized journalism when she lined the Delaware courts, a beat that impressed her to go to legislation faculty. After a number of years as a training lawyer within the Philadelphia area, she decamped to the Pacific Northwest and returned to freelance reporting and enhancing.