This article was originally published in Law360 on March 9, 2023, and is republished here with permission.
The third anniversary of the beginning of the COVID-19 national emergency in the U.S. is quickly approaching.
In March 2020, the effects of the pandemic were immediate. First, sporting and other public events were canceled. Next, schools and businesses closed their doors. And in short order, employers across the country were tasked with analyzing and abiding by several pieces of unprecedented legislation enacted to provide protections to workers and employers in the midst of chaos and uncertainty.
At the federal level, the Families First Coronavirus Response Act provided employees with emergency sick leave and related family leave, as well as expanded unemployment benefits. Many states followed suit with similar legislation, including expanded leave laws to cover absences related to COVID-19.
Notably, however, the protections and entitlements provided by these laws were largely temporary in nature, meant solely and specifically to respond to a-moment-in-time crisis.
The pandemic, however, continued to wage on, sending fundamental waves of change through the ways people live — and work.
Now, two months away from the expected official expiration of COVID’s designation as a national and public health emergency, it is clear that the pandemic has had an impact far beyond the COVID-specific legislation that has largely expired by now.
In addition, almost every existing aspect of employment law has been shaped in some way by the changes brought by the pandemic.
First, antidiscrimination laws have been directly affected, including an unprecedented increase in the number of religious accommodation requests and lawsuits brought under Title VII of the Civil Rights Act and similar state and local statutes.[1]
Accommodation requests, made largely in response to employer vaccine mandates, have turned what were historically one-off requests into group programs.
As a result, employers must ensure that while they are considering each request on an individualized basis, they are also treating members of different religious backgrounds consistently when it comes to requests for similar accommodations.
The recent focus on potential workplace religious discrimination related to COVID-19 has also shone a spotlight on religious discrimination claims in general — a spotlight that will continue as the U.S. Supreme Court hears the Groff v. DeJoy case and reconsiders what an employer need demonstrate in order to show that granting such a request would pose an undue hardship.
Disability discrimination laws, including the Americans with Disabilities Act, have also been affected. First, there has been a significant shift in the types of accommodations sought by employees.
Historically, employees have sought physical resources, reassignment and leave. Now, employers face an influx of requests from employees to work remotely. This includes requests from a large segment of the population as nearly one in five adults have been affected by long-haul COVID-19 symptoms after getting the virus, which has created many more workers with potential disabilities.[2]
These requests are especially marked in workforces that are now being asked to return to in-person work following a prolonged period of working from home.[3]
Before COVID-19, a request for remote work would have faced significant skepticism from courts, which were likely to hold that such request was not reasonable or posed an undue burden on employers. Now, after many employers were forced to utilize remote working arrangements for extended periods of time, courts may be more willing to require remote work as an accommodation.
As a result, employers looking to require in-person attendance should proceed with caution with respect to any remote work request and conduct a two-part analysis, asking:
- Does the employee’s request indicate or suggest that it is related to a disability or medical condition?; and
- Are there any specific, individualized reasons why granting this request is unreasonable under the circumstances?
Under the ADA, employers are required to grant reasonable accommodations related to an employee’s disability, but there is no obligation to provide a remote work arrangement merely because the employee finds it more convenient, or if the position requires in-person work and cannot be done remotely without undue hardship on the employer.
The normalization of remote work and flexible working arrangements has also created additional wage and hour considerations for employers. Most notably, employers must establish workable ways for remote hourly workers to accurately track their time and ensure that such employees are not performing any additional, off-the-clock work.
This is no simple task; with laptops now at home and email more readily available on smartphones, it is all too easy for remote workers to finish up a project or respond to emails during nonworking hours. With this in mind, employers must take a proactive approach to both tracking and recording hours worked.
On the front end, it is imperative for employers to set clear expectations about employees’ work schedules, including stop and start times. Employers must also utilize appropriate time-tracking software and make sure that employees are trained to use the same.
Notably, however, merely establishing a rule prohibiting off-hours or unauthorized work is not enough to save an employer from liability for unpaid off-the-clock wages. As a result, employers must also continue to work reactively to signs of potential off-the-clock use.
Supervisors should be coached to look for signs of unexpected work patterns — i.e., late night emails — and should address any concerns directly and promptly to determine if additional wages are due and to reinforce expectations moving forward.
Another challenge of an increasingly remote workforce is that employers might not know where all of their employees are working, which carries risk under state and local tax and employment laws.
For example, if an employee decides to live with relatives in California for an extended period of time and continues to work remotely, the employer could be obligated to withhold California state income taxes and comply with a number of California employment laws, such as paid sick leave.
Thus, it is critical that employers know where all remote employees are working, even temporarily, to ensure that they comply with all applicable laws and maintain policies to comply with such laws.
States and localities have also increasingly sought to regulate hiring of remote workers, as California, Colorado, Washington and New York City enacted pay transparency laws that apply to job postings in those jurisdictions as well as any postings for remote jobs that could be performed there.
Only a handful of states and localities still have leave laws specific to COVID-19 in place, although many have amended their laws to cover public health emergencies that could happen in the future.
Additionally, the COVID-19 pandemic was a major focus of the Occupational Safety and Health Administration and other state occupational safety and health agencies.
OSHA enacted an emergency temporary standard for health care employers that expired in December 2021, but it is expected to be replaced by a permanent standard. In November 2021, OSHA issued the “vaccine or test” mandate applicable to employers with 100 or more workers, but the mandate never took effect and was struck down by the Supreme Court in January.[4]
However, OSHA did not issue other new regulations but rather enforced existing rules on personal protective equipment, recording and reporting workplace illnesses, and the like. The agency also issued guidance encouraging compliance with the Centers for Disease Control and Prevention recommendations on mask use, social distancing and other precautions.
Many state occupational safety and health agencies enacted COVID-19 requirements, including the California Division of Occupational Safety and Health. Currently, Cal/OSHA has nonemergency regulations in place for California employers that include maintaining a prevention plan, providing masks and other personal protective equipment, and arranging for testing, quarantine and other measures when COVID-19 outbreaks occur.
That said, it does not appear likely that significant new occupational safety and health rules will be implemented given that COVID-19 cases have largely leveled off since the Omicron surge that peaked in January 2022.
Three years after the COVID-19 pandemic temporarily shut down society, the pandemic has reshaped U.S. employment law even as the national public health emergency is expected to officially expire in May 2023.
From issues surrounding employer vaccine mandates to remote work arrangements, the pandemic will continue to be relevant to U.S. employment law in 2023 and beyond.
