Originally published by Brett Holubeck.
It is a new year! Will this be a year when we overcome our struggles and defeat the coronavirus? Will we be living in some sort of Groundhog Day where 2021 looks a lot like 2020? Will it be a mixture of both? Unfortunately, Dr. Fauci said at the end of last year that we are probably looking at the end of spring to early fall for returning to normal I believe that the timeline could be expanded further.
With that being said, here are my labor and employment predictions for 2021. One quick note, I am not including anything about the labor and employment law legislative agenda of the Biden administration in this post. It will be part of a separate post.
The Supreme Court Will Rule on the NCAA and Potential Antitrust Violations and Will End Special Access that Unions have to Agricultural Employees
There are two different Supreme Court cases that may impact labor and employment law next year (at least so far).
The first is:
National Collegiate Athletic Association v. Alston
This case concerns “whether the National Collegiate Athletic Association (NCAA)’s prohibition on compensation for college athletes violates federal antitrust laws.” Yes, technically this is an antitrust case and not a labor and employment case. It is not clear how the Court will rule, but this will be a big decision as it could eventually result in student athletes being paid after subsequent litigation concerning the Fair Labor Standards Act and/or receiving some portion of the money earned from their likeness. I believe Roberts and Gorsuch will be the most important justices in the case. There is a good overview of Gorsuch’s antitrust views here. I believe it will be a 5-4 or 6-3 decision. I’m inclined to believe that the Court will find an antitrust violation, but I would not be surprised if the decision went the other way.
The second case is:
Cedar Point Nursery v. Hassid
The question presented is “whether the uncompensated appropriation of an easement that is limited in time effects a per se physical taking under the Fifth Amendment.” That does not sound like a labor law case at first blush, but it actually deals with a union’s right to enter the property of agricultural employers in California. Essentially, unions are allowed access to the property of agricultural employers for up to three hours a day for 120 days a year. In most nonunionized workplaces, union organizers are not allowed on the private property of the company (as long as the company is consistent and does not allow other solicitors on their property). I believe that the Court will find that this is a taking and will no longer permit the union to have special access, especially since technology has made organizing employees much easier.
Immigration Will Become Easier for Employment-Based Immigrants
Fairness for High-Skilled Immigrants Act of 2019
The new administration is probably one of the best chances for the US to eliminate the country cap limit for green cards. The cap limit has caused immigrants of Indian origin to wait a decade or more for their green cards and has caused years long delays for Chinese immigrants and others as well. Removing it is a good step toward ensuring that all immigrants are treated fairly and is likely to happen in the new administration.
The Percentage Denial for Various Employment Visas Will Go Down.
The number of employment visa denials has been especially high under the Trump administration (See information about H-1B visas here). The Biden administration will increase visa approvals.
ICE raids are over and Notices of Inspection Will Decrease.
The number of ICE raids and Notices of Inspection (I-9 audits) under the Trump administration will likely decrease under the Biden administration.
You can read more about ICE raids here and Notices of Inspection here.
Pathway to Status and Citizenship
There will also be an attempt to form a pathway to citizenship and some form of protected status for a number of undocumented or unauthorized immigrants (See Biden’s plan here).
Remote Work Will Continue to Grow
This one is definitely cheating. It feels a bit like predicting who won the Super Bowl last year. However, the world changed so much over this past year that this needs to be addressed. Remote work is here to stay. You can read more about addressing the employment law issues associated with remote work in my previous article.
What are going to be the long term effects of this from a labor and employment law perspective:
● An increased need to protect trade secrets and other data
● Better management systems for employees that may not be seen every day
● More worker’s comp claims from injuries that occur at home
● Issues with tracking employee time from home for hourly employees and those that are not exempt from overtime (see more about the overtime exemptions here).
● More lawsuits and claims revolving around reimbursing employees for equipment
● Issues with completing the I-9 and other paperwork in a remote setting. Eventually, ICE will no longer permit I-9’s to be done remotely. You can read more about the paperwork that must be completed to hire new employees here.
● Issues with following local laws, safety regulations, restrictions on working from home, proper tax withholding for localities and a number of other issues based on the local laws.
States are fighting over the taxes of remote employees and companies are considering paying employees different amounts based on where they live. These disputes will be amplified this year as millions of people have moved as a result of the pandemic.
COVID-19 Issues will Dominate 2021
Vaccine Accommodations Will be a Major Issue for Employers
There will be a lot of people that do not want to take the Covid-19 vaccine. A Pew Research poll found that 60% of people would definitely or probably take the vaccine if it were available, which is up from 51% in September. Dr. Fauci estimates that 75% to 85% of the population need to get the vaccine to stop the spread of the virus.
There are going to be a lot of workplaces wondering whether you can require vaccines. The EEOC has already answered this question. Yes, you can, subject to accommodations for employees based on a disability or religion (I would also add that you should accommodate pregnant or nursing mothers as well).
Companies will deal with a number of requests for an accommodation based on disability or religion. You can read my past post on accommodations for disabilities here.
Some of these requests will be easy to accommodate. For example, Catholics are advised to avoid the AstraZeneca vaccine due to its closer link to human cell tissue taken from abortion than other vaccine alternatives such as the Pfizer and Moderna vaccines. A Catholic may receive the AstraZeneca vaccine if no other vaccine is available. Many companies offering vaccines may wish to provide an alternative to the AstraZeneca vaccine for Catholics if possible.
For many Muslims, the use of pork gelatin in other (non-COVID) vaccines may create a concern that the COVID-19 vaccine is not halal. Newsweek has looked into the claim of whether the Pfizer vaccine is not halal and found those claims to be false. However, this may be something that Muslim employees have concerns about and companies should accommodate those employees that have concerns.
Many employees with disabilities will not be able to take the vaccine or a certain vaccine. Employers will need to work with these individuals to determine the appropriate accommodation. Some employees may be able to work from home until a combination of vaccinations and herd immunity is reached. Others may need to wear masks and other PPE throughout this process.
More Local Safety Rules Will Be Enacted
I suspect that more states will enact local safety rules as the pandemic continues to unfold. We can also expect OSHA to conduct more inspections and issue new regulations.
Some Form of COVID Regulations Will Persist When the Pandemic Ends
Many states that have adopted standards around workplace safety or have hired a number of people to conduct safety inspections and ensure compliance with virus-related guidance will continue to have these individuals work for the government and enforce similar or other rules as the pandemic winds down and ends. There will be increased enforcement of state and local laws and many more lawsuits around those issues moving forward.
The Economy Will Grow in Importance
The economy is going to have a profound impact on a wide variety of circumstances involving labor and employment law this year and into the future. There are a number of interesting factors that will impact everyone this year.
- We have not been in a major recession since the Great Recession, which lasted one and a half years and ended in June 2009. While we are not technically in a recession, we are close to a record number of people who are out of work, and we seem to be on the cusp of a downturn as businesses continue to struggle.
- According to the Economic Policy Institute, 25.7 million workers in the US remain officially unemployed, out of work as a result of the pandemic, or have had a reduction in their hours or pay.
- The recovery may be uneven and it seems that blue states may even be suffering a harsher recession than red states. There will be some kind of uneven recovery as there normally is with all recessions. This may cause long term changes in employment in the various states and may spark a new debate about spending, the effect of lockdowns, and increased regulations. The work from home revolution may also cause long term shifts in populations from states with a high cost of living like New York and California to lower cost of living states like Texas and Florida.
- Globalization and deglobalization. One unique shared trait between Donald Trump and Joe Biden is their “Buy American” agenda. We will continue to see the new administration push for supporting American companies and a decreased emphasis on free trade.
- There will be more stimulus. There is already talk of a $1.9 trillion bailout We will see how this plays out, but it is practically certain that it will have dramatic impacts on COVID’s effect on the economy.
Mental Health Issues Will Continue to Grow
I know that this is a repeat (and I’m breaking my rules by repeating a prediction from last year) but this is worth mentioning again. We are truly entering a mental health crisis. I went over this in detail in my last post reviewing my predictions from last year , but the crisis is going to continue. What does that mean for the workplace and labor and employment law?
There will be increased requests for accommodation due to disabilities associated with mental health. There will be less productivity. There will be more stress and tension in the workplace. More employees will take time off to recover and try to handle their stress. There will be an increased need for therapy and other treatment. There will be more drug and alcohol abuse.
Employers should do all that they can to help employees recover and to treat their mental health conditions. The employers that do this will see better productivity and morale from their employees.
Let’s also hope that this past year and the length of this crisis encourages everyone better to understand the struggles of people that deal with mental health just a bit more. Hopefully, the stigma of having a mental health issue is less in 2021 than it was in 2020 and that workplaces will do their best to support people with mental health issues.
Conclusion
There will be a ton of changes this year as a result of the pandemic and a change in administration. Employers will need to continue to adapt.
The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.
The information provided is my own and does not reflect the opinion of my firm or anyone else.
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