EMPLOYMENT LAW FORECAST: Leave legislation, regulatory changes and more litigation possible

By Whitney R. Brown, Esq.

COVID-19’s arrival in March 2020 spurred Congress to enact paid leave programs on a scale previously unthinkable: Emergency Paid Sick Leave (EPSL), which provided 80 hours of paid leave, and Emergency FMLA (EFMLA), which provided 10 weeks of paid leave (and two unpaid weeks). Each applied to employers of fewer than 500, and the federal government reimbursed employers through tax credits. Though these leaves as a matter of government mandate expired Dec. 31, 2020, the virus continues to exact tolls on individual, community and economic health. Relief programs enacted at the end of 2020 give employers the option to choose to extend EPSL and/or EFMLA leaves and receive tax credits for doing so until March 31.

More on the voluntary extension of the FFCRA leaves

We anticipate this voluntary extension will not satisfy President Joe Biden’s desire for paid leave specific to this crisis and the creation of an ongoing paid leave program covering most American employees. Therefore, expect his administration to push for another mandatory COVID-specific federally funded two-week paid leave program, much like the EPSL but slightly broader in scope, with all reasons for leave being fully paid up to $1,400/week. Vaccine availability and public health projections likely will dictate the success of this measure. Rather than seek to re-enact the EFMLA, President Biden hopes Congress will pass the FAMILY Act, which would provide 12 weeks of leave at 2/3 pay (up to $4,000/month) for employees of all employers, for reasons tracking FMLA. Democrats in Congress have proposed the FAMILY Act or similar bills for many years, and there is no reason to think that it would be passed in the current term.

On the agency side, we also expect the Biden-Harris administration to develop and publish emergency workplace safety standards regarding ventilation, face coverings, occupancy limits, cleaning, and infection notification through the Occupational Safety and Health Administration.

Change in the Equal Employment Opportunity Commission will move more slowly. While a Democratic chair will be named, Republicans will maintain the majority position at the national commission level through July 2022. Therefore, we anticipate the commission will continue to prioritize successful mediation and conciliation over enforcement actions and update guidance on religious discrimination and expression issues for employees and employers for the next 18 months at least.

Change at the National Labor Relations Board should follow around the same timetable, but, once Democrats make up the majority of the board (likely in 2022), we expect a return to Obama-era positions.

Change at the Department of Labor may come more quickly and be more hotly pursued, assuming President Biden can get his choice for Secretary of Labor confirmed. Expect the successful appointee to roll back recent joint employer guidance and to attempt to more narrowly define which workers are independent contractors.

At the courthouse, we anticipate more employment-related lawsuits in 2021 as the EEOC works through its 2020 charge backlog; as employees perceive inequities in layoffs or recalls; and as employees bring wage-and-hour suits against employers that didn’t adequately track work from home hours of nonexempt employees or wrongly deducted from exempt employees for lack of work.

This article is a summary of a Dec. 8, 2020, webinar presented by Alabama Retail’s labor and employment law partner, Lehr Middlebrooks Vreeland & Thompson PC.

View the in-depth forecast webinar

Whitney Brown is a shareholder with LMVT.

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to Alabama Retail Association members

This article also can be found on Page 16 of the February 2021 Alabama Retailer