On the heels of arguably the most challenging year that the American workplace has ever experienced, HR professionals and employers are seeking guidance on how to properly navigate the seemingly endless challenges brought on by the COVID-19 pandemic.
Now more than ever, business owners are looking to implement thoughtful strategies to better engage the remote workforce, improve the company’s brand and remain compliant, all while maximizing productivity and maintaining – or increasing – the organization’s profitability.
So, what are the key topics that employers need to keep in mind?
Read on for top trends that will shape the remainder of 2021.
As the COVID-19 vaccine becomes widely available across the United States, one question that remains top of mind for employers is whether or not it can be mandated in the workforce.
At this stage in the distribution process, mandating vaccinations for employees may be premature until there is more information on efficiency and timeline.
Although the Equal Employment Opportunity Commission (EEOC) has been offering guidance, it would be prudent to see what other governmental agencies (such as the Occupational Safety and Health Administration) will adopt relating to employer-mandated vaccines to re-enter the office.
Currently, no corporate companies have implemented a return-to-office plan that mandates a vaccine because of the intricacies and many exemptions to it.
With this in mind, if employers are inclined to mandate a COVID-19 vaccine in the workplace, employers should exercise extreme caution with respect to the Americans with Disabilities Act (ADA) as well as those employees requesting religious accommodations.
Employers should also make sure that mandates are job-related and consistent with business necessity or justified by a direct threat. While we know that vaccines decrease the risk of spreading the virus, employees may respond poorly to being required to get the vaccine in order to return to their place of work.
Paid time off
Another trend we can expect this year that also relates to the Americans with Disabilities Act (ADA) is paid time off and sick leave.
Businesses will likely continue to experience workers requesting time off to quarantine or self-isolate after potential contact with the virus, as well as requests for reasonable accommodations when returning to the office.
Although COVID-19 is not yet a recognized disability under the ADA, employers must still reasonably accommodate employees’ potential COVID-related disabilities that can create new or different circumstances for them in the work environment. COVID-related disabilities may include heart and/or lung damage, memory problems, shortness of breath, depression and anxiety, post-traumatic stress disorder and more.
Each one of these disabilities poses challenges for both the employee and employer. Employers should continue to identify the limitations that a disability imposes on the employee to perform their essential job functions, engage in an interactive dialogue to determine whether a reasonable accommodation exists and, where circumstances require, provide them an accommodation.
COVID-19 has also quickly ushered in wide-spread remote work. Now that workforces are more widely distributed, employers need the expertise and technology that can keep up with their evolving workplace.
Many business operations have shifted completely as a result of the ongoing developments, and are not renewing office leases or continuing to allow remote workers into 2021.
Employers should leverage team collaboration tools as much as possible to maintain employee engagement and connectedness while they continue to adjust to working from different locations.
Additionally, while many employees love the flexibility of their new schedules, many employers are concerned about time keeping issues and productivity among other things.
The impact of a flexible schedule may involve an extended workday as employees perform tasks outside of typical 9-5 working hours, which could lead to wage and hour issues as employers must pay for all hours worked that employers know or have reason to know was performed, including work performed at home or remotely. Employers should ensure that employees are properly tracking time and enforcing timekeeping policy violations.
Drug law changes
Another area of importance in 2021 for employers is the expanding legalization of marijuana. Although marijuana is still illegal under the Federal Controlled Substances Act (CSA), more states are seeking to legalize either medical or recreational use.
In 2020, South Dakota moved forward with legalizing medical and recreational use of marijuana. In addition, Arizona, Montana and New Jersey approved recreational use of marijuana, and Mississippi approved medical use.
Of these states, New Jersey’s recent law is unique. New Jersey recently passed the New Jersey Cannabis Regulatory, Enforcement Assistance and Marketplace Modernization Act, also known as the “Act,” which removed marijuana as a Schedule I drug.
The Act would make New Jersey the first state to explicitly protect employees who engage in off-duty marijuana use from adverse employment action on the basis of that off-duty use and limits an employer’s ability to act on the basis of a positive test once employment has started.
Under the Act, employers cannot take an adverse action against an employee solely because an individual has used a cannabis product off duty. Despite its permissive language, the Act still permits employers to maintain a drug- and alcohol-free workplace and to prohibit employees from using, consuming, being under the influence of or possessing marijuana in the workplace or during work hours.