Below, each of our lawyers proposes a New Year’s Resolution for you and your company to consider in the coming year. We hope you find them instructive. Best wishes for 2021 from all of us here at M2D!
Resolve to Consider Your Options for Employee Vaccinations
At last, COVID-19 vaccines are rolling out. Employers stand to benefit if their employees are vaccinated — not only should vaccinations hasten a return to the workplace and thereby help productivity and morale, but they can reduce the legal risk employers face in bringing employees back to work. In early 2020, resolve to understand the legal issues surrounding employee vaccines. Then consider ways to maximize the number of the employees who get the available vaccines, whether by encouraging it through incentives or even, in certain types of workplaces, requiring it.
Resolve to Obtain a Wage Deduction Authorization From All Employees
Clients regularly ask me whether they can make deductions from an employee’s payroll for a variety of common (and sometimes uncommon) events. These events typically include things like wage and expense reimbursement overpayments, personal expenses charged to a company credit card, and damage to or misappropriation of company equipment. Whether an employer can make a wage deduction and how much can be deducted is a complex analysis and employers have to consider (i) federal (FLSA) and state wage payment laws, and (ii) the employee’s FLSA status (e.g., exempt or non-exempt). However, written employee consent tends to be a universal legal requirement in all states for most deductions other than deductions for taxes, child support, and certain court garnishments. Even deductions for insurance premiums typically require written authorization. Written authorization typically only needs to be obtained once and can be accomplished via a short, single page document. The Texas Workforce Commission even publishes a sample form. Therefore, as we turn the page to 2021, I encourage all employers to require both current employees and new hires to sign a wage deduction authorization. For current employees, this can be done as part of a regular update to your employee handbook or similar rollout. For new hires, this form should be part of the standard new hire paperwork. Having a consent on file is a best practice and will avoid deduction issues down the road.
Resolve to Stop Feeling Dazed and Confused About Employee Marijuana Use
If the past few years have left you feeling hazy about the legality of prohibitions on employee use of marijuana, you’re not alone. As recently as a decade ago, few would have predicted a state-law trend toward marijuana legalization. And to date, 2020 marks the recreational legalization high-water mark—this year’s election brought approved legalization ballot measures in four states.
In a handful of states (e.g., Idaho), marijuana use remains fully illegal. A larger number of states, including Texas, permit legal use of CBD or low-THC products, but prohibit use of all other forms of marijuana. States like New Mexico and Oklahoma have enacted regulatory regimes for medical use. And, of course, a significant number of states have now fully legalized marijuana use. When the 2020 ballot initiatives take effect, it will be legal to use marijuana recreationally in fifteen states—Alaska, Arizona, California, Colorado, Illinois, Maine, Massachusetts, Michigan, Montana, Nevada, New Jersey, Oregon, South Dakota, Vermont, and Washington.
The headaches, especially for multi-state employers, associated with the patchwork of legalization laws are significant. And there is no reason to believe that future elections will not bring legalization developments in additional states. Because of this, if your organization has not done so already, 2021 is the year to get a handle on marijuana use laws in the states in which you operate and to update drug policies and testing procedures to ensure compliance.
Resolve to Be Ready for Increased Enforcement of COVID-19 Health and Safety Standards
With a new year and a new presidential administration, several changes are anticipated at OSHA which will result in increased scrutiny of employers’ COVID-19 safety protocols. In particular, employers should be aware of the following:
• Emergency Temporary Standard: OSHA under a Biden administration is likely to create an Emergency Temporary Standard with respect to COVID-19. It is anticipated that such an OSHA standard would mirror CDC guidance.
• Increased reliance upon the General Duty Clause (“GDC”): A Biden administration is likely to increase enforcement based on the Occupational Safety and Health Act’s GDC, where employers fail to provide “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
• Increased inspections: A Biden administration is likely to increase the number of OSHA investigators to enforce the law with respect to COVID-19 safety threats.
As a result, employers can expect a broader range of potential OSHA violations and more frequent inspections in the coming year — not to mention more aggressive enforcement at the state level in certain states, such as California. Employers should resolve to anticipate these changes and respond quickly.
Resolve to Review and Revise Medical Leave Policies
2020 has been a historic year for developments in labor and employment law. The COVID-19 pandemic has prompted federal and state governments alike to mandate that employers provide paid or unpaid sick leave to their employees. Because accrual, carryover, and reasons for use vary widely among jurisdictions, employers should work with employment counsel to keep abreast of developments in the states in which they operate. And although a vaccine is on the horizon, many states are expected to extend COVID-19 related paid and unpaid sick leave laws into 2021.
Political pundits are also predicting that the Biden administration will push Congress to extend the protections of the Families First Coronavirus Response Act if the Trump administration does not do so before the end of President Trump’s term on January 20, 2021.
And separate from COVID, the recent election resulted in a wave of voter-approved paid family and medical leave laws in several states. Jurisdictions with such laws include California, Colorado, Connecticut, D.C., Hawaii, New Jersey, New York, Rhode Island, and Washington. Therefore, employers should resolve in 2021 to review and revise their employee medical leave policies to ensure compliance with the rapidly changing landscape of leave laws.