COVID & Employment Law: 4 Things We Haven’t Seen Before

In some ways, you don’t want to be the guy who says, “I’ve been doing this a long time.” Often it comes across as a bit condescending, as though the fact that the speaker has been doing it longer makes what he (and really, it usually is a he) is saying right. But now that I have been doing this (representing employers, that is) a long time, it does give you some useful historical perspective, which sometimes can help us make sense of present developments.

No matter how long somebody has been representing employers, not surprisingly COVID has shown us things we have not seen before. More remote work than ever, squared then cubed, but that’s not law. And people disagree more than ever about employment laws (and everything else). That’s not law either; those are arguments.

Here are four things about employment laws employers are wrestling with in ways previously unseen:

1. Employers are thinking more than ever about things that haven’t happened yet, because they have to. In the spring of 2020, we waited as Congress and the administration debated what ultimately passed as the Families First Coronavirus Relief Act (FFCRA) which, among other things, required many employers to provide paid leave. Employers were going to have to move fast, and it was a moving target as the bill went back and forth between the Senate and the House.

Now (as of this writing) we wait to see what the courts will do with OSHA’s vaccination mandate, due to take effect December 5 and requiring employers with at least 100 employees to have a vax-or-test mandate. Employers still need to get ready to at least some extent as the validity of this mandate plays out in the courts and it seems likely that – one way or the other – implementation will be at best delayed.

We have never spent this much time planning for laws that have not passed yet.

2. The rules seem to be different everywhere, and change fast. If you have employees in more than one place, you very likely have more than one set of rules about vaccinations, mandates, and other topics. The more places you are, even a little bit, the more rules. This actually represents a longer-term trend in employment law, on steroids as so many things are with COVID (another example: the remote work trend). States and localities increasingly have their own laws on a number of employment law topics – noncompete agreements, drug testing, minimum wages, to name a few.

3. Religious accommodation!?  Religious accommodation is not new. The EEOC said in the mid-1960s that Title VII’s prohibition against religious discrimination includes a requirement that employers reasonably accommodate employees’ religious beliefs, a quarter century before the more familiar reasonable accommodation requirements of the Americans with Disabilities Act.

But while the requirement was there, for most employers it rarely came up. Sure, it came up – perhaps a Sabbath that conflicted with a manufacturer’s or other employer’s scheduling needs – but not much. Truth is, right or wrong, our culture is pretty secular, and not many people’s beliefs conflict with their jobs, at least not in a way they are going to tell you about.

Well, we sure have found religion now that it can get you out of your vaccination. I literally see each week more religious accommodation issues than I have seen in 32 previous years of practice combined. Employers have paths to scrutinize these requests and safely deny plenty of them, but most employers don’t. They need the employees, or they don’t want to deal with the employee relations issues, or they don’t fully appreciate their rights to push back.

4. Remote work as a reasonable accommodation is the next big thing. Prior to COVID, there were a handful of court decisions about whether it is a reasonable accommodation under the disability discrimination law for an employer to allow an employee to work remotely where that would help an employee manage a medical situation. As with so many topics, the decisions were mixed. As with all accommodation situations, courts would consider whether the requested accommodation would unduly disrupt the employer’s business.

Now, many of us worked remotely for many months. For many lines of work, that worked out just fine. Those of us who do most of our work at a keyboard can do that anywhere. And we did.

So, if I have a medical issue and working from home will be helpful to me in managing it, how is my employer going to say that my working remotely after COVID is not reasonable after I just did it for six, 12, 18 months? It will be harder for many employers to make that argument. I think most courts will still give employers some deference in determining that their business works best when employees are there in person, and that they went remote only because they had to. But there will be plenty of courts that take a different view.

We can be certain those four big landscape shifts are not the end of COVID’s impact on employment law, but that’s a pretty good start.

This article should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.

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