Pandemic Will Influence Legal Trends in 2022

​Employers will continue to grapple with the coronavirus pandemic in 2022. Some may try to limit the spread of infections by requiring workers to get booster shots or postponing return-to-workplace plans. These employers will face certain legal questions as they formulate their policies.

Other legal challenges coming in 2022 could include the U.S. Department of Labor's (DOL's) possible revision of its overtime rule and the proliferation of state paid-leave laws.

In addition, the Great Resignation may result in employers wanting to pay more attention to nonsolicitation clauses.

Here are seven legal trends for the new year:

1. Employer policies on booster shots. Right now, the U.S. Centers for Disease Control and Prevention does not include booster shots in its definition of "fully vaccinated." Full vaccination takes effect two weeks after the second dose in a two-dose series, such as the Pfizer or Moderna COVID-19 vaccine, or two weeks after a single-dose jab, such as the Johnson & Johnson shot. "With the rise of variants like omicron and additional data on the waning efficacy of COVID-19 vaccines over time, businesses will grapple with whether to impose booster requirements for their employees, contractors, vendors and guests in 2022," said Alana Genderson, an attorney with Morgan Lewis in Washington, D.C.

2. Return to the workplace. "Many businesses delayed reopening in-person operations in 2021 due to the rise of the delta variant and low vaccine rates," Genderson said. "In 2022, a good number of businesses will reopen in person—some for the first time in two years and others after several trial attempts." She said many businesses will be revisiting the logistics of reopening and developing a wide range of employment and safety policies. These policies will cover such topics as remote work, COVID-19 testing, vaccination, staggered shifts, face coverings, contact tracing, screening protocols, travel, sick leave and required accommodations, she noted.

"Employers will face continued work-from-home requests from those seeking a reasonable accommodation based on a disability," said Christine Bestor Townsend, an attorney with Ogletree Deakins in Milwaukee and Chicago.

3. Off-the-clock work. "Off-the-clock work is one of the many challenges employers face with remote or hybrid workers, particularly those who previously worked exclusively in an office before the pandemic," said Joe Nuzzo, vice president managing counsel at ADP in Roseland, N.J. "Be sure your managers are mindful of the need for hourly employees to accurately track their time and to avoid performing work after hours," he said. "Also make sure employees have a clear mechanism in place to report instances where they believe they were not paid accurately."

4. Overtime rule revision. The DOL has signaled that it believes too few U.S. workers are classified as nonexempt from overtime requirements under the Fair Labor Standards Act. "We could see activity related to the salary threshold for exempt employees," Nuzzo said. "Some have advocated for a minimum salary threshold as high as $85,000 per year to qualify as an exempt employee, which would represent a significant jump from the current threshold of $35,568," he noted. "Another possibility is the DOL attempting to revisit the $47,476 Obama-era threshold that was struck down in 2017." States and municipalities also are adjusting this salary threshold for employees. "Companies will therefore need to pay attention to local requirements, as well," Nuzzo said.

5. Patchwork of paid-leave laws. "Some jurisdictions enacted or expanded personal and family paid-leave laws permanently in 2020 and 2021," Nuzzo said. The disparity of paid-leave laws across the U.S. has thus gotten even more complex during the pandemic, he noted. "That trend is not expected to slow down in 2022."

6. Emphasis on enforcing nonsolicitation clauses. In the last year, there has been a noticeable shift in noncompete litigation action, said Michael Jones, an attorney with Morgan Lewis in Houston. "What we were seeing were cases being filed involving instances in which employees were taking information from their prior employer for the use of soliciting business," he said. Nonsolicitation clauses also may prohibit recruiting former colleagues and clients for a limited period within a limited geographic area. "As efforts to retain top-tier talent throughout virtually every sector intensifies, there has been a shift to a more concerted focus on enforcing nonsolicitation clauses to protect existing talent from leaving with a departing employee," Jones said. "Employers are taking nonsolicitation efforts more seriously than before. There is little indication of these matters slowing down."

Townsend said new employees should be "fully advised of potential consequences of violating valid restrictive covenants or taking or using any of their previous employers' confidential information."

7. More litigation over choice of law. With many employees continuing to work remotely due to the pandemic, including in states different from their original place of employment, expect an increase in battles over which states' laws apply, said Siobhan Mee, an attorney with Morgan Lewis in Boston. "There's no better time than the present for employers to review their existing restrictive covenants," she said. "This should include evaluating what law or laws might apply and assessing compliance under applicable law—especially if the law has changed."