Employment Entanglements

As the United States approaches its third summer against the backdrop of the coronavirus, employers and employees still find themselves in a Gordian Knot of interconnected labor and employment challenges, with no clear way to untangle them all.

Post-Pandemic Employment Challenges Persist

Justin Smulison

May 26, 2022 09:00 AM

Employers and employees in the U.S. face risks of physical safety from an omnipresent public health emergency, which is impacting wages, profits, job satisfaction and employment policies. All of these matters are making their way into law offices, courtrooms and state and federal legislatures.

Lawyers who understand the needs of employers and employees now will be better positioned to help them, in the event a truly post-COVID-19 environment is ever achieved.

A Matter of Public Health and Safety

Organizations of all sizes had difficult decisions to make when COVID-19 was declared a National Emergency on March 13, 2020. In an effort to keep employees and customers safe and reduce the spread of the virus, companies have adjusted to a sequence or mix of closed offices, remote working, hybrid policies and conditionally reopening the workplace.

The rollout of vaccines helped to mitigate the spread of the virus, but in some instances opened up unforeseen waves of employment disputes. In January 2022, the U.S. Supreme Court decided to block the federal COVID-19 vaccine mandate for large employers (with the notable exception of businesses in health care). Some companies lauded the decision while others questioned on how to proceed.

Outten & Golden Partner Wendi S. Lazar said the laws governing health and safety in the workplace changed—and will continue to change—along with the guidelines issued by the U.S. Centers for Disease Control and Prevention (CDC), which ultimately react to surges in infection rates.

Preventative measures can be encouraged by employers without being enforced completely. Policies that address vaccines and masks will demonstrate an employer’s commitment to a safe work environment and provide a sense of consistency during uncertain times.

“I don’t know if we are completely done with mask mandates in the U.S.,” said Lazar, who co-heads the firm’s Individual Practice and the Executives and Professionals Practice Group, and was named a 2022 “Lawyer of the Year” by The Best Lawyers in America® in New York City for Employment Law – Individuals. “There has been a relaxation of the mandates and some states like New York just recently lifted it. But if COVID-19 rates worsen, it could come back, because we have seen some government flexibility when we have extreme health conditions. For now it seems that they are temporarily gone, but I would never consider them completely finished.”

Lazar said she is noticing more businesses switching to onsite testing, which is proving more reliable. With regard to her firm, the policy is that everyone must be vaccinated unless they have a medical condition. She also said she continues to wear a mask in her own office or when she visits others, just to be safer.

Once the health and safety policy is in place, the question of whether an employee can be forced back to work is the natural next question.

Wiggin & Dana Partner Mary Gambardella, who largely represents employers, said the short answer is “Yes, with exceptions.” The exceptions, she added, are driving an uptick in litigation. She noted that companies proceeding with mandates will need to prove that they provided religious and medical exemptions, and that their mandates comply with the Americans with Disabilities Act (ADA).

“ADA issues are not new, but how they apply in a COVID-19 world are only first being established,” Gambardella said.

The Equal Employment Opportunity Commission (EEOC) updated its guidance in response to workplace vaccination questions. In regard to disability accommodation, the EEOC references ADA requirements stating that employers can implement a workplace policy that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”

Gambardella said she represents an employer in the healthcare industry whose employee filed suit for being forced to return to the workplace. The plaintiff had an underlying health condition but was assured she would be based in an office that would not be client-facing.

“Employers need to go out of their way to accommodate an employee who's afraid to come back because they have an underlying condition and cannot work remotely,” she said. “That's where we're seeing a lot of the guidance being sought by our clients. It starts with confusion and later, litigation.”

Remote and Hybrid Arrangements: The Future Of Work Is Now

Harnessing videoconferencing, advanced virtual private networks, web-based programs and the Internet of Things demonstrated how many stationary, computer-based jobs no longer required employees to leave their home in order to carry out their responsibilities.

Many workers suddenly did not need to spend the same time, money and resources to commute. The ability to eliminate travel and be closer to families and dependents on a daily basis was seen as a silver lining, especially when a highly infectious virus could impact them any time.

Some employers and employees leaned into this new dynamic. The most high-profile example occurred in late April 2022, when Airbnb announced its new work policy, which supports permanent remote work for its 6,000 worldwide employees (about half of which are in the U.S.) without a reduction in compensation. The online vacation rental company also allows employees to relocate anywhere within the country they currently work.

CEO and co-founder Brian Chesky said that permanent flexibility will allow the company to "hire and retain the best people in the world," rather than those who are within “commuting radius around our offices.”

But in other instances, a return-to-office policy highlighted the friction points between remote and office working, and the potential consequences of an inflexible hybrid model.

For example, Apple announced it would be mandatory for employees to return to the office three days a week beginning May 23, 2022. Employees responded with a letter to the world's largest tech company’s executive team in dismay, insisting the new policy did not recognize flexible work. The return-to-office requirement was not entirely unexpected, since Apple Park’s campus in California reportedly cost between $3 to $5 billion to build and develop, and the company would want value for the investment. As of press time, CEO Tim Cook had not reneged on the policy.

Lazar said the prevalence of remote work has the ability to impact pay equity, discrimination claims and even the legal parameters of a workweek. For example, in late April 2022, the New York City Council amended the City’s pay transparency law, which was slated to go into effect on May 15 and rescheduled to November 1. It mirrors other state laws, such as those in Colorado and Washington, which require affirmative disclosure of compensation information in job postings.

The pay transparency law makes it an “unlawful discriminatory practice” under the New York City Human Rights Law for an employer to advertise a job, promotion or transfer opportunity without stating the position’s minimum and maximum salary in the advertisement.

“There will suddenly be people who will have incredible purview into what others are making, when historically they did not,” Lazar said. “And every NYC employer is going to be posting salaries when recruiting. Pay equity claims may increase because this law now gives plaintiffs more insight and actual proof of what someone else could be earning.”

Coinciding with this law, New York is also one of several states (and cities) with a salary history ban, which prohibits employers from asking applicants about their current or past pay rates, benefits or other compensation. Lazar noted such a ban is a positive way of further closing the gender wage gap.

Even the potential for a shorter workweek was raised. California’s legislature shelved the concept of a four-day workweek in April. The proposal would have required companies with more than 500 hourly employees to pay overtime to those working more than 32 hours a week. The bill could be presented again in another term.

“I think the standard workweek will decrease below 40 hours,” said Lazar, who received the 2020 Margaret Brent Women Lawyers of Achievement Award. “We already see companies having 35- or 30-hour workweeks. It’s a matter of time before it’s the norm.”

Feast, Famine and the (D)evolution of Work Culture

The philosophies on work are reflected in economic data that resemble a tug of war, as the numbers of openings, layoffs and resignations detailed in job reports have regularly broken records in the past two-and-a-half years.

The first quarter of 2022 kept with this new tradition, as the Department of Labor (DOL) reported that 4.5 million Americans quit their jobs in March 2022, while employers posted 11.5 million openings (and added nearly 428,000 jobs in April). Heightened activity at both ends of the spectrum marked peak levels since the DOL began tracking nearly 25 years ago.

Gambardella, who represents employers in various industries, and said her clients’ perceptions of the market change regularly.

“The initial reaction at the start of COVID-19 was for companies to tighten up their operations through layoffs and furloughs, which also caused plenty of retirements,” said Gambardella, who is based in Connecticut. “But every other day now, we hear how a company cannot get enough people to fill those rank-and-file and non-executive positions. They have to balance staying lean and getting the work done, and I think that means they will reassess some of their middle and upper management and see where they can cut.”

While work itself might not have changed much, the methods for achieving professional goals and earning a paycheck certainly have. Hybrid and remote capabilities have forever propelled much of the U.S. workforce into new territory that places less focus on the organization and its mission.

Gambardella noted that remote work is a top issue for her clients’ employees and job applicants.

“I’ve been practicing labor and employment law for 30 years, and only in the last two have I’ve heard of the employee—or potential employee—stress the need for virtual capabilities so frequently,” she said. “It’s becoming the expectation rather than the exception.”

Depending on the point of view, the traditional, and perhaps idealized, notion of workplace culture might be considered a casualty of this new era.

“With employees working remotely, there can be less attachment to the job itself, and so you have people who won’t develop attachments at work. They will be less likely to feel loyal to the company and may keep moving around,” Lazar noted. “Remote work could make the retention and hiring process worse because remote workers know they can work anywhere, anytime. There's a much bigger pool of employers that will hire them, which changes your corporate culture more than anything. Some companies may not be willing to put up with that, but others may be forced to if they want to remain viable.”

Justin Smulison is a professional writer who regularly contributes to Best Lawyers. He was previously a reporter for the New York Law Journal and also led content and production for the Custom Projects Group at ALM Media. In addition to his various credited and uncredited writing projects, he has developed global audiences hosting and producing podcasts and audio interviews for professional organizations and music sites.

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