Over the past twelve months, federal, state, and local governments continued to adopt employment laws, regulations, and orders in response to the COVID-19 pandemic as well as other rules that affect the way employers hire, pay, treat, and provide benefits to their employees. Given the developments in the last year, here are four compliance trends to watch in 2022.
#1: COVID-19 vaccination: Requirements and exemptions
In late 2021, the federal government issued three separate rules that require employers with 100 or more employees, federal contractors, and healthcare facilities that participate in Medicare and Medicaid programs to ensure that their workers are vaccinated against COVID-19. These rules have been subject to legal challenges. Most recently, on January 13, 2022, the U.S. Supreme Court temporarily blocked the rule that applies to employers with 100 or more employees pending future court proceedings, but the court allowed the rule that applies to facilities that participate in Medicare and Medicaid programs to stand. Employers should watch for developments closely.
Meanwhile, some local jurisdictions are also requiring employers to ensure employees are vaccinated. For example, all private-sector employers in New York City must verify that their employees are vaccinated against COVID-19. In Chicago, all indoor dining facilities, indoor fitness, and indoor entertainment and recreation venues where food or beverages are served must verify employees are fully vaccinated against COVID-19.
Given the surge in COVID-19 cases, other jurisdictions are likely to consider similar requirements in 2022.
Several states have recently adopted rules that prohibit employers from enforcing vaccine mandates, unless they provide certain exemptions. These exemptions may go beyond what federal law requires. For example, Florida enacted legislation in November that prohibits private employers from imposing a COVID-19 vaccination mandate without providing exemptions for medical reasons (including pregnancy and anticipated pregnancy), religious reasons, COVID-19 immunity, periodic testing, and the use of employer-provided personal protective equipment (PPE).
- Determine whether you are subject to a vaccination requirement and/or exemption requirement.
- Consult legal counsel to discuss the impact of these laws on your vaccination policies and practices.
- Watch for developments closely.
#2: Paid leave requirements
In 2021, many states and local jurisdictions either enacted new paid sick leave requirements or expanded existing requirements to address situations related to the COVID-19 pandemic. For example:
- The District of Columbia enacted emergency legislation requiring employers to provide paid leave to employees for the time they, or their minor child, spend obtaining and recovering from COVID-19 vaccination. The emergency legislation also extended an expansion of the D.C. Family and Medical Leave Act (DCFMLA) that allowed a new category of leave called COVID-19 leave. Unlike with the other types of DCFMLA leave, all employers with employees in the District of Columbia must provide COVID-19 leave.
- Nevada amended its paid leave law to expressly require employers with 50 or more employees to provide paid leave for COVID-19 vaccination.
- In Massachusetts, a requirement for employers to provide COVID-19 emergency paid sick leave was extended to April 1, 2022 and expanded.
- New York enacted legislation that grants employees paid time off to receive a COVID-19 vaccination.
- In California, West Hollywood enacted an ordinance that requires employers to provide paid and unpaid leave benefits to employees.
- In Pennsylvania, Allegheny County approved an ordinance that requires employers with 26 or more employees to provide paid sick leave.
Additionally, states continued to enact or expand other types of leave laws in 2021. For example:
- The District of Columbia enacted an ordinance expanding a program offering paid parental, family, and medical leave benefits to eligible employees.
- Maine enacted legislation that expands the state’s family and medical leave law.
- Maryland enacted legislation that expands the state's Flexible Leave Act to also cover bereavement.
- Illinois enacted legislation that expands leave requirements and other protections under the Victims' Economic Security and Safety Act (VESSA).
- Missouri enacted legislation that requires employers with 20 or more employees to provide unpaid leave and reasonable safety accommodations to employees who are victims of domestic violence.
#3: Increased minimum wage rates & salary requirements for overtime exemption
On January 1, 2022, more than 20 states and 30 local jurisdictions increased their minimum wages. Some states and local jurisdictions scheduled their changes for another point during the year. Here are some examples:
- Connecticut (July 1)
- District of Columbia (July 1)
- Florida (September 30)
- Nevada (July 1)
- Oregon (July 1)
- Tucson, AZ (April 1)
- 11 Cities in California (July 1): Alameda, Berkeley, Emeryville. Fremont, Los Angeles, Malibu, Milpitas, Pasadena, San Francisco, Santa Monica, and West Hollywood
- Chicago, IL (July 1)
- Cook County, IL (July 1)
- Howard County, MD (April 1)
- Montgomery County, MD (July 1)
- Minneapolis and Saint Paul, MN (July 1)
- Santa Fe, NM (March 1)
Elimination of subminimum wages:
Some states have begun to remove exceptions that allowed employers to pay certain employees less than the minimum wage. For example:
- Effective December 29, 2021, Delaware repealed a provision that allowed employers to pay 50 cents less than the minimum wage to employees during their first 90 calendar days on the job and to employees under the age of 18.
- In 2021, California enacted legislation that will phase out a provision that allowed employers to pay a subminimum wage to employees with disabilities.
Many states have their own salary and duties tests for determining whether an employee is exempt from overtime under state rules. Five states increased the minimum salary requirement for overtime exemption on January 1, 2022:
- New York (December 31, 2021)
#4: Expanding nondiscrimination laws
In the last couple of years, several states and local jurisdictions have enacted laws expressly prohibiting hairstyle discrimination. The following states joined the list in 2021:
- New Mexico
- Oregon (effective January 1, 2022)
Some examples of practices that could be found to violate laws prohibiting hairstyle discrimination include:
- Prohibiting twists, locs, braids, cornrows, Afros, Bantu knots, or fades.
- Telling a Black applicant or employee with locs that they can't be in a customer-facing role unless they change their hairstyle.
- Refusing to hire a Black applicant with cornrows because their hairstyle doesn't fit the "image" the employer is trying to project.
- Transferring an employee to a non-customer-facing position because a customer complained about their Afro.
To avoid potentially discriminatory practices, consider simply requiring employees to keep hair kempt. However, conscious and unconscious biases may impact what decision-makers view as "kempt," and some may wrongly presume that certain hairstyles are inherently messy or disorderly. Clarify that kempt means that the hair is clean and well combed or arranged, and that employees can comply with a variety of hairstyles, including but not limited to locs, cornrows, and Afros that meet those criteria.
Where employers have legitimate health or safety concerns related to hair, they can generally consider a requirement for hair ties, hair nets, head coverings, and/or alternative safety equipment provided they aren't enforced in a discriminatory manner and don't otherwise violate applicable law.
A growing number of state and local jurisdictions are requiring employers to provide pregnancy accommodations. For example, effective August 1, 2021, Louisiana requires employers with more than 25 employees in the state to provide reasonable accommodations for pregnancy, childbirth, or related medical conditions, unless it would impose an undue hardship on the business. Under the law, a reasonable accommodation may include but is not limited to:
- Making existing facilities readily accessible to and usable by an applicant or employee with covered limitations;
- Providing scheduled and more frequent or longer compensated break periods;
- Providing more frequent bathroom breaks;
- Providing a private place, other than a bathroom stall, for the purpose of expressing breast milk;
- Modifying food or drink policy;
- Providing seating or allowing the employee to sit more frequently if the job requires the employee to stand;
- Providing assistance with manual labor and limits on lifting;
- Temporarily transferring the employee to a less strenuous or hazardous vacant position, if qualified;
- Providing job restructuring or light duty, if available;
- Acquiring or modifying equipment or devices necessary for performing essential job functions; or
- Modifying work schedules.
Effective January 1, 2022, Minnesota expanded a requirement to provide reasonable accommodations for pregnancy to employers with 15 or more employees. The state also amended its lactation accommodation law by prohibiting employers from reducing an employee’s pay for the time used for expressing milk. This means that lactation breaks must be paid beginning January 1, 2022. Connecticut also expanded its lactation accommodation law in 2021.
While the current surge in COVID-19 cases is likely to shape the legislative and regulatory landscape in 2022, federal, state, and local governments will contemplate rules in many other areas as well. As always, watch for developments closely and make sure you review your workplace forms, policies, practices, and training to ensure compliance when changes occur.