2021 Employment Practices Update Vol. 3, Leave Mandates, Health and Safety and Anti-Discrimination
As we've been discussing through my series, all businesses should perform a yearly audit of its employment practices to stay compliant and mitigate risk. This article is the last installment in the 3-part series identifying some key practices that should be a part of this review.
One word to describe the area of leave mandates for 2021 is complicated and thereby, putting pressure on a business's practices around it. The onset of the pandemic brought the federal Families First Coronavirus Response Act (FFCRA) in 2020 providing paid leave to certain workers due to coronavirus exposure or the closure of schools and child-care facilities because of the virus. The paid-leave benefits under FFCRA did expire at the end of 2020 however, the new federal relief package passed in December 2020 extended the FFCRA's refundable employer payroll tax credit for paid or family leave through March 2021. In addition to the federal coronavirus legislation, many state and local governments have also implemented their own leave benefit legislations allowing additional benefits for those impacted by Covid-19 and the pandemic.
Awareness of all the pandemic-specific benefits and their potential intersection with the employer's standard leave benefits previously administered will be key for compliance. Ask whether the business's pre-pandemic leave practice is still compliant or in need of revision.
Health and Safety
Health and safety protocols will be front and center with workers. As businesses emerge from the pandemic and move toward normal business operations, previous health and safety practices may now be obsolete.
Businesses should review the guidelines issued by the federal Occupational Safety and Health Administration (OSHA) and the relevant state and local counterparts to know specifically what is required of them. While the previous safety practices of the business allowed them to meet their legal requirement of providing a work environment "free from recognized hazards that are causing or are likely to cause death or serious physical harm", the new pandemic-specific requirements may now make those practices noncompliant and, in need of some finetuning.
Additionally, workers may return to the workplace with an increased fear or concern about their own personal safety and the employer's obligations around the virus and their health. Increased worker concerns or fear could lead to an increase in questions, challenges and formal complaints. Businesses need a clear communication plan that informs their workforce of what the business's obligations are and the efforts they've taken to secure their safety. Pre-pandemic reporting processes for complaints and concerns should also be re-evaluated to ensure that those practices allow for a timely investigation and response to any worker complaint.
Title VII of the Civil Rights Act of 1964 prohibits businesses with at least 15 employees from discriminating against workers with respect to the terms and conditions of their employment based on protected characteristics. Many states have followed the federal government's lead and also passed their own civil rights legislation that may be more robust and include additional protected categories. Compliant employment practices begin with understanding the Civil Rights Act and its relevant sister legislation.
Be aware that in 2020, the United States Supreme Court held that 'sex' discrimination under Title VII includes sexual orientation and gender identity. This decision could have an impact on your previous on-boarding and talent management practices making a review of those practices necessary for compliance and also in furtherance of a diverse workforce.
Businesses have experienced a year like no other. And while I've always professed the need for businesses to conduct a yearly audit of its employment practices, it has never been more important than it is for 2021.
The additional benefits and safety mandates because of the pandemic among other occurrences in 2020, has placed a spot light on employment practices compliance. Workers, plaintiffs attorneys, as well as state and federal government agencies, will be looking to pounce on violations and noncompliant practices. An audit or review of them will identify gaps that may exist, establish new best practices and allow prioritization of any gaps to confirm that a business acts with urgency to mitigate the issue while reducing its risk of potential litigation and regulatory violations.