COVID-19, Overtime and Layoffs Raised Some of 2022's Top Legal Issues

Events that made history in the United States in 2022 left their mark on the workplace, as well.

The year began with concerns about the implementation of COVID-19 vaccination requirements, questions that the Equal Employment Opportunity Commission (EEOC) answered in more guidance and the U.S. Supreme Court addressed in two January decisions.

Then there were worries about a U.S. Department of Labor (DOL) overtime rule proposal, originally expected in the spring but later delayed. The proposed rule remains anticipated.

Layoff fears followed as the economy became unstable, and employers had to brush up on their notice requirements for large reductions in force.

The midterm elections had employers reviewing existing state laws that require time off to vote and considering how to manage a politically polarized workforce.

California joined other states and localities in adopting an expansive pay transparency law and an act expanding required time off work.

Employers also were taking a fresh look at their leave policies after the Supreme Court overturned Roe v. Wade.

COVID-19

Employers requiring COVID-19 vaccines sought guidance on what they could do if workers refused to get vaccinated. The EEOC said the federal anti-discrimination laws it enforces don't prohibit employers from requiring all employees who physically enter the workplace to be vaccinated for COVID-19. Employers that require vaccinations, however, must consider reasonable accommodations when employees refuse to get vaccinated for medical reasons or based on sincerely held religious beliefs, unless an accommodation would cause undue hardship for the business.

The Supreme Court provided clarification early in the year, blocking the Occupational Safety and Health Administration's vaccine-or-testing rule for large employers. Nonetheless, in a separate opinion, the Supreme Court allowed the federal Centers for Medicare & Medicaid Services to require COVID-19 vaccinations for health care workers at Medicare- and Medicaid-certified providers and suppliers.

No Proposed Overtime Rule Yet

The year came and went without any proposed overtime rule from the DOL, meaning employers are still waiting to see what wage and hour changes the DOL has in mind. In its spring regulatory agenda, the department had predicted the issuance of the proposal in October. The department is not bound by a regulatory agenda prediction, however, and agencies often miss such projections. The agency still plans on releasing an overtime proposal.

Employment law attorneys are anticipating that the DOL will recommend higher salary-level thresholds for the white-collar exemptions to the rule.

While the primary goal of the rule is to update the minimum salary-level requirement for white-collar exemptions, changes to the duties tests also may be considered.

Layoffs

As the year progressed, many employers contemplated and then implemented layoffs. They refamiliarized themselves with laws pertaining to reductions in force, including the federal Worker Adjustment and Retraining Notification (WARN) Act. The aftermath of the COVID-19 pandemic and the rise of remote work made compliance more difficult.

WARN Act requirements are complex enough, but employers also must keep track of and comply with state and even city "mini-WARN" laws.

Lawsuits can ensue following layoffs, as Elon Musk witnessed following his job cuts after taking over Twitter.

State Laws

When Election Day approached, employers needed to stay aware of state laws that guarantee workers time off to vote. There's no federal law requiring employers to give workers time off to vote, but 30 states and the District of Columbia have such laws, according to Deidra Nguyen, an attorney with Littler in San Diego.

A growing number of workers are feeling the effects of political affiliation bias, according to a Society for Human Resource Management (SHRM) Politics at Work study. The percentage of U.S. workers who say they've experienced political affiliation bias has risen 12 percentage points in the past three years. Some jurisdictions—such as California, New York and the District of Columbia—prohibit discrimination based on political affiliation.

As for election results, Maryland and Missouri passed ballot measures legalizing the recreational use of marijuana, which may affect employers in those states. Arkansas, North Dakota and South Dakota rejected similar initiatives.

California

The California State Legislature had an active session this year, with Gov. Gavin Newsom signing many bills that will affect the workplace. Senate Bill 1162 will require employers with 15 or more workers to include pay ranges in all job postings. It also will require employers with 100 or more employees to report the number of employees by race, ethnicity and sex for 10 job categories whose earnings fall within pay bands used by the U.S. Bureau of Labor Statistics in its Occupational Employment Statistics Survey. With each job category, the report must include the median and mean hourly rate for each combination of race, ethnicity and sex.

California also enacted several bills requiring time off work in different circumstances. One new law permits employees to take up to 12 weeks of job-protected leave to care for a designated person with a serious illness and another new law requires up to five days of unpaid bereavement leave. In addition, the California Family Rights Act was broadened to cover private employers with five or more employees.

Abortion Ruling

After the Supreme Court decided Dobbs v. Jackson Women's Health Organization, which overturned Roe, some employers re-examined their benefits. Before Dobbs, almost one-third of surveyed employers—32 percent—offered paid time off (PTO) to access reproductive care, according to a SHRM Research survey of a nationally representative sample of 1,003 HR professionals. After a draft of Dobbs was leaked, 7 percent of respondents said they were thinking of offering better support for abortion access by adding PTO for employees to access reproductive care to their benefits package. Some employers considered offering relief funds for employees to access reproductive care and travel expense benefits outside of a health savings account for employees to access reproductive services that are not accessible in their state of residence, according to the survey.

Employers located in some states that restrict access to abortions should be mindful of potential liability risks with benefits that facilitate reproductive services.