What Can Business Owners and Managers Expect in 2022?
This past year was a busy one on the employment-law front, with a number of new measures and mandates for employers to follow and some emerging trends, such as unionizing activities, to watch. As the new year dawns, these matters will continue to be at the forefront, and obviously bear watching.
By John S. Gannon, Esq. and Meaghan E. Murphy, Esq.
Last year, we saw legislators and employers trying to pivot from COVID-19 safety measures to more traditional labor and employment-law issues. However, with the Delta and Omicron variants wreaking havoc across the globe, businesses and lawmakers are once again looking for ways to stop the spread of the pandemic. Here are some labor and employment highlights from 2021 that are sure to impact employers in 2022.
Employer Vaccination Mandates
In September 2021, President Biden signed several orders requiring federal employees, federal contractors, and most healthcare workers across the country to be vaccinated against COVID-19. He also instructed OSHA to develop an emergency temporary standard directing private employers with 100 or more employees to implement COVID-19 vaccine mandates or require weekly testing for their unvaccinated employees. These mandates have been challenged in courts around the county, with varying results. For example, in early December, a federal court in Georgia issued a countrywide stay of the federal-contractor vaccine mandate.
The OSHA ‘shot-or-test’ rule was similarly blocked by one court late last year, but a few weeks later, a different court ruled in favor of the Biden administration and reinstated the emergency standard. It appears the U.S. Supreme Court will have to sort all of this out, and we expect they will rule on these issues early in 2022.
“Unionization campaigns at some of the country’s largest companies have been heating up.”
Here in the Commonwealth of Massachusetts, state mandates are in place for employees working in long-term care and assisted living, certain home-care workers, and executive-level state workers (including law enforcement). Legal challenges to the vaccine mandates were filed in Massachusetts courts, but to date all of them have failed.
Accommodations to Vaccination
In October, the Equal Employment Opportunity Commission (EEOC) released guidance making it clear that all employers, regardless of size or industry, can require that employees receive the COVID vaccine. There is one big caveat: federal and most state laws require employers to provide reasonable accommodations for religious beliefs, disabilities, or pregnancy-related reasons. These are commonly referred to as medical and religious exemptions. Employers that are considering a mandatory vaccination program should have policies explaining how these exemptions work, as well as exemption forms ready for employees to fill out.
Biden Administration’s Support for Unions
In June, President Biden appointed Jennifer Abruzzo as the National Labor Relations Board’s (NLRB) new general counsel. She quickly made clear her (and the new Democratic administration’s) pro-labor stance on various issues through a series of memoranda issued by her office. Not surprisingly, Abruzzo has vowed to undo much of the NLRB’s activity under former President Trump, which tended to be pro-business.
Unionization campaigns at some of the country’s largest companies have been heating up. Employees at a Starbucks in Buffalo, N.Y. voted to unionize. Starbucks has agreed to sit down at the table and bargain with the union. This is the first time organized labor has gained a foothold in one of Starbucks’ U.S. locations, but it certainly does not seem like it will be the last. Employees at Starbucks in several other states, including Massachusetts, Washington, and Arizona, are also seeking to unionize.
In addition, employees at an Alabama Amazon warehouse recently voted not to unionize, but the union trying to organize those employees alleged that Amazon intentionally interfered with its union-organizing efforts. In one of its biggest actions under President Biden, the NLRB announced that Amazon had committed to allow more room for employees to conduct union activity and to send an e-mail directly to current and former employees to inform them of their labor rights. It is the clearest example to date of how Democratic officials in this administration will seek to use federal power to help employees organize.
Paid Family and Medical Leave
Starting Jan. 1, 2022, most Connecticut employees will be able to take paid time off to attend to personal and family health needs. Under the program, employees are entitled to 12 weeks of paid-leave benefits, and up to 14 weeks if an employee experiences a serious health condition that occurs during a pregnancy.
This program is similar to the Massachusetts Paid Family and Medical Leave program, which went live at the beginning of last year. The Department of Family and Medical Leave published data stating that the department approved 43,440 applications between Jan. 1 and June 30, 2021. Benefits totaling $167,915,781 were paid out during this time. This was before employees could take PFML to care for family members, which became available on July 1.
Employee Mobility: Tackling the Labor Shortage
A record 4.4. million Americans quit their jobs in September 2021. The high quit rates were commonly dubbed the ‘Great Resignation,’ and made it clear that Americans are switching jobs for better pay, starting their own businesses, or continuing to struggle with child care and school schedules.
As the pandemic lingers, it’s likely that the quit rates will remain high for the next several months. As a result, employers will need to raise wages and/or offer more lucrative benefit packages to attract and retain talent. Businesses should also consider offering employees who do not physically need to be in the office every day some sort of a hybrid work-from-home schedule, a model that has dramatically increased in popularity over the last year.
John Gannon and Meaghan Murphy are attorneys at the firm Skoler, Abbott & Presser, P.C., in Springfield; (413) 737-4753; [email protected]; [email protected]