In 2020, federal, state, and local governments enacted numerous employment laws in response to the COVID-19 pandemic. In addition to responding to the pandemic, state and local jurisdictions also adopted a number of laws and regulations that affect the way employers hire, pay, treat, and provide benefits to their employees. Given the developments in the last year, here are six compliance trends to watch in 2021.
#1: COVID-19 workplace safety laws & regulations
In the beginning stages of the pandemic, many states and local jurisdictions adopted executive orders requiring employers to take general steps to protect employees from COVID-19. Toward the end of the year, emergency laws or regulations went even further in states like California, the District of Columbia, Michigan, New Jersey, Oregon, Utah, and Virginia. For example, in November, California issued emergency rules requiring employers to adopt a written prevention program that includes 11 detailed elements to protect workers from COVID-19. For information on the emergency rules in California and the other states, visit our COVID-19 Resource Center.
In 2021, other states may adopt similar requirements. President-Elect Biden has also signaled that his administration may consider federal regulations intended to further protect workers from COVID-19.
#2: Paid leave requirements
In March 2020, the U.S. Congress passed the Families First Coronavirus Response Act (FFCRA), which took effect April 1, 2020 and required employers to provide paid leave to employees for certain situations related to COVID-19. Signed by President Trump on December 27, 2020, the COVID-related Tax Relief Act of 2020 (CTRA) extended the tax credit portion of the FFCRA for employers that voluntarily offer covered paid leave through March 31, 2021. The mandatory leave portion of the FFCRA terminated as expected on December 31, 2020, but it's possible Congress may renew these requirements in 2021.
In 2020, 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. Some of these changes were temporary, but these states and local jurisdictions may consider making them permanent. In fact, some have already done so. For example, effective January 1, 2021, Colorado requires employers with 16 or more employees to provide paid sick leave to their employees (for employers with fewer employees, the paid sick leave requirement takes effect January 1, 2022). Employers must also provide a supplemental amount of paid leave during a public health emergency.
Additionally, states continued to enact or expand other family and medical leave laws in 2020. For instance, effective January 1, 2021, California expanded the California Family Rights Act to:
- Cover employers with five or more employees (previously 50 or more employees);
- Make it easier for employees to qualify for CFRA leave;
- Cover more types of absences;
- Allow employees to take leave to care for more family members; and
- Give parents who work for the same employer additional rights.
In November 2020, voters in Colorado approved a ballot measure that will entitle eligible employees to receive family and medical leave and wage-replacement benefits. However, the Colorado law won't take effect until 2023 (contributions) and 2024 (use of leave).
Massachusetts & Connecticut:
In these two states, family and medical leave requirements enacted in prior years have taken effect in 2021. In Massachusetts, employees were entitled to start using leave under the state's paid family and medical leave law on January 1, 2021. In Connecticut, contributions to the state's paid family and medical leave program began January 1, 2021. On January 1, 2022, all Connecticut employers will be required to provide family and medical leave.
#3: Other COVID-19 rules & guidance
Besides leave requirements, employers may see new rules addressing liability issues related to COVID-19. In 2020, more than 13 states issued executive orders or adopted new laws aimed at protecting employers from civil lawsuits related to COVID-19. Check your state law and executive orders for details and discuss potential implications with legal counsel. There has also been debate about whether to enact federal protections from liability.
With COVID-19 vaccinations becoming available, employers may also see new relevant laws, regulations, and guidance. On December 16, 2020, the U.S. Equal Employment Commission released updated guidance that addresses COVID-19 vaccinations in the context of federal nondiscrimination laws. In the guidance, the agency covers various issues that may impact employers, including:
- Whether the administration of vaccinations implicates the restrictions on medical exams and disability-related inquiries under the Americans with Disabilities Act (ADA)?
- How should an employer that requires vaccination respond to an employee who indicates they are unable to receive a COVID-19 vaccination because of a disability?
- How should an employer that requires vaccination respond to an employee who indicates that they are unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief?
Employers can read the guidance in full here (section K covers vaccinations).
Note: Some state and local jurisdictions may already have laws that address employee vaccinations or have privacy laws that may impact employers. Additionally, there are other issues to consider, so consult legal counsel before implementing a vaccination policy.
#4: Increased minimum wage rates & salary requirements for overtime exemption
On January 1, 2021, more than 20 states and 30 cities increased their minimum wages. Some states and local jurisdictions schedule their changes for July 1 or at another point during the year. For example, Virginia's minimum wage will increase to $9.50 on May 1, 2021.
So far, states and local jurisdictions have generally been reluctant to delay or abandon scheduled changes to their minimum wage because of COVID-19, so minimum wage increases will likely continue to be implemented. Impacted employers should plan accordingly.
There have also been efforts to raise the federal minimum wage, which has been $7.25 per hour since July 2009. In 2019, the U.S. House of Representatives approved legislation that would have increased the federal minimum wage in increments until it reached $15 per hour in 2025, but the legislation was never voted on by the Senate. Similar legislation could be proposed again in 2021.
Many states have their own salary and duties tests for determining whether an employee is exempt from overtime under state rules. In some states, the minimum salary requirement for overtime exemption increases automatically whenever the minimum wage increases. On January 1, 2021, this impacted employers in Alaska, California, Maine, and New York. Other states have recently adopted regulations that increase the minimum salary requirement for overtime exemption. These changes impact employers in Colorado (effective January 1, 2021), Pennsylvania (effective October 3, 2021), and Washington (effective January 1, 2021).
Note: Colorado, Pennsylvania, and Washington also made changes and/or clarifications to their exempt duties tests.
#5: Expanding nondiscrimination laws
Sexual Orientation Discrimination:
In 2020, the U.S. Supreme Court ruled 6-3 that federal law prohibits employers from discriminating against applicants and employees because they are gay or transgender. If they haven't already done so, employers with 15 or more employees should review their policies, practices, and supervisor trainings to determine if they need to make updates in light of the Supreme Court decision. While federal law applies to employers with 15 or more employees, many states and local jurisdictions have enacted laws that expressly prohibit employers from discriminating against applicants and employees on the basis of their sexual orientation and gender identity and may cover smaller employers. Check your state and local law to ensure compliance.
In the last couple of years, several states have enacted laws expressly prohibiting hairstyle discrimination, including:
Several local jurisdictions have also enacted such laws and similar legislation has been proposed in about 20 other states. Meanwhile, in September 2020, the U.S. House of Representatives approved legislation that would amend federal law to prohibit hairstyle discrimination, but the Senate never voted on it. This legislation is likely to be proposed again with the new Congress.
Some states have recently expanded their laws prohibiting pay discrimination. For example, effective October 1, 2020, Maryland requires employers to provide the wage range for a position upon request, prohibits employers from seeking an applicant's pay history, and bars employers from taking adverse action against employees for inquiring about their own wages.
Another area where there has been a significant amount of legislation is in providing pregnancy accommodations. For example, effective July 1, 2020, Virginia requires employers with five or more employees to provide employees with reasonable accommodations for pregnancy, childbirth, or related medical conditions, unless it would pose an undue hardship on the business. Under the law, reasonable accommodations may include, but aren't limited to:
- More frequent or longer bathroom breaks;
- Breaks to express breast milk;
- Access to a private location other than a bathroom to express breast milk;
- The acquisition or the modification of equipment or seating;
- A temporary transfer to a less strenuous or hazardous position;
- Assistance with manual labor;
- Job restructuring;
- A modified work schedule;
- Light duty assignments;
- Leave to recover from childbirth.
Employers are prohibited from requiring an employee to take leave if the employer can provide another reasonable accommodation.
#6: A new administration means new priorities
When President-Elect Biden takes office, he will have his own set of priorities and appoint his own staff to lead federal agencies, which can impact how existing rules are interpreted and enforced and the types of new regulations we may see. Biden has already identified the misclassification of employees as independent contractors as one of his top priorities and has signaled that protecting employees' rights to work together to improve working conditions and to unionize will be a priority.
While the COVID-19 pandemic is likely to continue to shape the legislative and regulatory landscape in 2021, 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 do occur.