LACHES - Employment Law Roundup 2021 YEAR IN REVIEW: Giarmarco, Mullins & Horton, P.C.
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LACHES www.ocba.org | February 2022 | Number 645 2021 YEAR IN REVIEW: Employment Law Roundup SLAYING THE ‘MINI-TRIALS’ BOGEYMAN: Reexamining Other-Acts Evidence Legal Issues to Consider with Remote-Work Policies
Employment Law | FEATURE
2021 YEAR IN REVIEW:
Employment Law Roundup
By Elizabeth A. Favaro
T
o say the year 2021 kept employment law attorneys busy would be an understatement.
From ever-changing COVID policies to new regulations stemming from a transfer of
power in the White House, some employers have found understanding the evolving
employment law landscape overwhelming. This article identifies what, in this author’s
opinion, were the top three employment law issues employers faced in 2021. This is not a typo.
This article covers only three issues. Too much has changed in the last year, particularly given
developments resulting from the COVID-19 pandemic, to publish a “Top Five” list, as Laches
only contains so much real estate. But this list is nevertheless a doozy, in part because of the
complexity of these issues, which all remain in flux and unsettled. If this article does nothing
else, it will hopefully at least cause attorneys to take note of issues to pay close attention to as
we look ahead to 2022, because the law is likely to change in all three areas listed below, yet
again.
www.ocba.org 11
FEATURE | Employment Law
While other attorneys’ “Top Three” lists appeared to have a handle on this patch- workplace) or mandating vaccines and po-
might look different than mine, these are the work of state and federal laws, employers tentially losing portions of their workforce.
issues that burned up my telephone line and began inquiring about the legality of vaccine It was at that point that I began having
email in 2021: mandates. The Equal Employment Opportu- weekly “COVID conversations” with my
nity Commission (EEOC) released technical clients.
1. COVID: SICK LEAVE, MASKS, assistance midyear, which provided that A common question many employers
AND VACCINES (OH MY!) employers could require employees physical- had as they weighed these options con-
There is so much talk about COVID and ly entering the workplace to be vaccinated cerned the obligation to record adverse
the workplace, and this issue lands in the for COVID-19, so long as they complied vaccine reactions under the federal Occu-
top spot due to its wide-ranging impact. with the reasonable accommodation pro- pational Safety and Health Administration’s
In the early part of the year, employers visions of the Americans with Disabilities (OSHA) regulations. Because OSHA gen-
were still focused on COVID response and Act (ADA) and Title VII of the Civil Rights erally requires employers to record certain
mask policies, and with good reason: There Act.5 The EEOC also clarified that, among work-related injuries and illnesses,7 it initially
was no vaccine available for public distri- other things, employers could (1) offer any said employers did have to record adverse re-
bution, and Michigan’s COVID case counts type of incentive to employees to voluntarily actions to COVID vaccines if they required
were hovering at around 3,000 per week.1 At obtain vaccinations from third parties (not the shot, but not if they simply recommend-
the same time, the paid sick leave require- the employer), such as pharmacies, personal ed it. This directive caused confusion about
ments under the Families First Coronavirus health care providers, or public clinics, and what were required versus recommended
Response Act had expired, even though (2) offer noncoercive incentives to employees vaccinations, and it created hesitancy among
payroll tax exemptions remained available to voluntarily obtain vaccinations adminis- employers to mandate the shot, since an
for employers that voluntarily paid for tered by employers.6 increase in recordable events could negative-
COVID-related sick leave through the end of Employers thus began asking this ques- ly impact a company’s ability to attract and
September.2 Expansions to state unemploy- tion: If it is legal, does that mean we should retain business. Citing a desire to avoid “any
ment benefits were extended into April,3 and do it? From both a risk management and a appearance of discouraging workers from
federal unemployment expansions continued business perspective, employers were faced receiving COVID-19 vaccination” and “disin-
into September.4 with the choice of not mandating vaccines centiviz[ing] employers’ vaccination efforts,”
Just as employers (and their lawyers) (and potentially increasing risk within the OSHA changed its position.8 It removed its
12 LACHES MAGAZINE
Employment Law | FEATURE
prior guidance from its website requiring constitutional rights and each employer’s However, the rule was widely considered to
employers to record adverse reactions from specific business interests. One could argue be too narrow, as it tended to ignore other
mandated vaccines, and replaced it with that OSHA’s Emergency Temporary Stan- features of an employee’s relationship with
guidance indicating that it would not en- dard (ETS) mandating COVID vaccines or entities that did not sign the employee’s
force its usual recording requirements when mandatory testing and masking requirements paycheck but that maintained control over
an employee had an adverse reaction to a for private businesses employing 100 or more the employee’s workday.
mandatory vaccine, at least through May people11 gives employers some certainty as it The Trump administration’s Joint Em-
2022. relates to mandating vaccines. But the ETS, ployer Rule was short-lived. In addition to
Another common concern of employers which was released at the beginning of No- legal challenges, particularly in the Southern
was managing employee fears of returning vember 2021, is facing legal challenges: It was District of New York, which not only criti-
to the physical workplace after not working stayed by the Fifth Circuit, the stay was dis- cized its narrow scope but also found that it
at all or working remotely during the better solved by the Sixth Circuit, and at the time conflicted with the text and purposes of the
part of 2020. This issue is particularly diffi- this article was submitted for publication, an FLSA,15 the Biden administration’s Depart-
cult when employees continuing to recover application for stay was under consideration ment of Labor rescinded the rule altogether.
from long-term effects of COVID or at high by the United States Supreme Court.12 If the The final rule, which was released on July
risk of contracting COVID are concerned Supreme Court enacts a stay, employers will 29, 2021, and became effective on October 5,
about returning to the workplace where continue to make choices for themselves on 2021, does not specifically define “joint em-
vaccine mandates are not in place. Requests matters such as vaccines, testing, and mask- ployer.” Instead, the determination of joint
for remote work arrangements increased, ing, guided by what at least right now is an employer status will likely require, at least
and some employees asked for them as an unsettled legal framework. for now, application of the prior “economic
accommodation under the ADA. Not sur- realities test,” which balanced six factors
prisingly, the denial of such accommodation 2. JOINT EMPLOYER RULE focused on which employer exercised greater
requests can lead to lawsuits, as a company RESCINDED control over employees and strived to avoid
in Georgia recently discovered. The EEOC This development received little fanfare, but misclassification of workers as independent
filed the first-of-its-kind remote-work-bias it takes the No. 2 spot because of its impor- contractors. Attorneys who represent clients
suit in September 2021,9 alleging that despite tance in the wage/hour arena, as well as the involved in staffing relationships, or any
an employee’s documented history of a number of potentially impacted employers. other joint employer arrangement, would do
pulmonary condition that increased her risk Joint employer situations arise in a variety well to pay attention to this issue until the
of contracting COVID, the employer refused of contexts, but perhaps one of the most law becomes more certain.
to allow the employee to work remotely and common scenarios is when an employee is
then fired her for performance-related issues. placed with a business by a staffing agency. 3. DRUG TESTING POLICIES:
While the employer’s vaccine policy is not By some accounts, staffing is a $174 billion HOW TO TREAT MARIJUANA?
in question in the lawsuit, this legal proceed- industry, and it is also one of the fastest This issue earns a spot on this list because
ing highlights the challenges employers have growing, with more than 20,000 staffing of the number of employers that operate
faced with concerns over workplace safety companies in the United States.13 in other states and the changing landscape
and finding methods of addressing employee The joint employer doctrine recognizes concerning legalizing marijuana, which is
health risks. that under certain circumstances, more than trending strongly nationwide and in Mich-
Other common COVID-related questions one business can be deemed responsible for igan toward protecting workers who use
included MIOSHA’s suspension of all prior wage and hour violations pertaining to a marijuana both medicinally and recreation-
emergency rules to track OSHA regula- single employee under the Fair Labor Stan- ally. The federal House Judiciary Committee
tions,10 the development and implementation dards Act (FLSA). The definition of “joint approved a bill in September 2021 to decrim-
of mask policies (particularly in industries employer” is critical to providing employers inalize marijuana and eliminate its status as
that serve the public), the changing guidance certainty from a liability perspective, since a Schedule I drug. In Michigan, marijuana is
from the Centers for Disease Control and under the joint employer doctrine, joint legal for use medicinally and recreationally,
Prevention, and enhanced sick-leave policies employers are jointly and severally liable for yet there are a number of states that have
to assist workers who contracted COVID-19 damages for FLSA violations. not yet legalized marijuana at all, or at least
or required time off to recover from the The Trump administration’s Department not for recreational use.
vaccine. of Labor attempted to make things easier Due to these developments and oth-
The lesson from 2021? There is no one- for employers by announcing a new “Joint ers, a big question in 2021 from employers
size-fits-all approach as it relates to em- Employer Rule” — a four-part balancing test centered on whether preemployment and
ployers’ methods of managing the ongoing that evaluated which employer hired the other testing for marijuana use was legal and
pandemic. What makes a workplace safe de- employee, supervised and controlled the em- necessary. Whether to continue zero-toler-
pends on many factors, including the nature ployee’s employment conditions, determined ance drug policies or to relax them to, for
of an employer’s business, the amount of the employee’s rate and method of payment, example, eliminate preemployment tests for
interaction employees have with each other and maintained the employee’s employment marijuana is largely a function of the type
and the public, the level of herd immunity records.14 This rule not only offered clarity, of work employees perform. If an employ-
achieved by employees within a particular but it also permitted employers to exercise er’s business involves individuals who drive
workplace, etc. And these safety consider- control over nonemployees without risking commercial vehicles such that they are
ations must be balanced against employees’ liability for wage and hour violations. covered by the federal Department of Trans-
www.ocba.org 13FEATURE | Employment Law
portation’s (DOT) jurisdiction,16 then DOT choose to terminate employees for off-duty Elizabeth “Liza” A.
standards apply. Businesses employing indi- marijuana use may soon learn that such Favaro, an equity share-
viduals working high-risk jobs; jobs in the employees will be eligible for unemploy- holder at Giarmarco,
construction or manufacturing industries; or ment benefits. The Michigan Unemployment Mullins & Horton, P.C.,
jobs that require the use of heavy machin- Insurance Appeals Commission is set to de- counsels clients ranging
ery or equipment, working a distance from termine if a positive drug screen for the use from small businesses to
the ground, or engaging in other manual of marijuana not while on the job should Fortune 500 companies
labor tend to err on the side of maintaining automatically disqualify an employee from on various litigation
strict drug-free workplace policies. There is receiving unemployment benefits. If the matters, including em-
currently no law on the books in Michi- Commission finds that off-duty marijuana ployment law, product
gan preventing employers engaged in such use is not disqualifying, employers will still liability, personal injury,
businesses from implementing and enforcing retain the ability to fire “at-will” employees, and commercial matters. Favaro is a member of the
such policies. but employers may wish to consider updat- State Bar of Michigan’s Insurance and Indemnity
But outside of businesses operating in ing their drug testing policies.17 Law Section, was named a Michigan Super Lawyers
these categories, many employers have opted “Rising Star” eight times, and has been named a
to treat marijuana like alcohol: no prescreen- CLOSING THOUGHTS DBusiness Top Lawyer every year since 2017.
ing for marijuana and ignoring off-hours If reading this article felt a little bit like
marijuana use. Employers that take this “drinking from a fire hose,” welcome to Footnotes:
position have also appropriately maintained the life of a modern-day employment law 1. nytimes.com/interactive/2021/us/michi-
prohibitions against coming to work under attorney! The law is changing so quickly gan-covid-cases.html.
the influence. Under Michigan law, such and dramatically that by the time this article 2. dol.gov/agencies/whd/fmla/pandemic.
policies are permissible and employees who is published, some of the things written 3. michigan.gov/coronavi-
violate them may be lawfully fired. Michigan here (in November 2021) may be out of rus/0,9753,7-406-98158-556904--,00.html.
law also does not protect employees from date already. The key to being a successful 4. michigan.gov/leo/0,5863,7-336-
discrimination on the basis of medical use employment law attorney in 2022 will not 94422_97241_89982_92608_63224_104811---,00.
of marijuana, and employers can lawfully only be vigilance in keeping up with and html.
deny accommodations to employees who understanding legal developments, but also 5. eeoc.gov/newsroom/eeoc-issues-updat-
request one to use medical marijuana while remembering to alert clients when changes ed-covid-19-technical-assistance.
on the job. arise, as they inevitably will. 6. Id.
One important note: Employers who 7. 29 CFR § 1904.
8. osha.gov/coronavirus/faqs#vaccine.
9. EEOC v. ISS Facility Services, Inc., Case No. 1:21-cv-
3708 (N.D. Ga.).
10. osha.gov/sites/default/files/covid-19-healthcare-ets-
reg-text.pdf.
11. federalregister.gov/docu-
ments/2021/11/05/2021-23643/covid-19-vaccina-
tion-and-testing-emergency-temporary-standard.
12. supremecourt.gov/search.aspx?filename=/docket/
docketfiles/html/public/21a250.html.
13. See murrayresources.com/10-staffing-industry-facts-
you-probably-didnt-know.
14. 29 CFR § 791.2(a)(1)(i)-(iv).
15. New York v. Scalia, 490 F Supp 3d 748, 761 (S.D.
N.Y., 2020).
16. Employees are covered by DOT regulations if they
drive a commercial motor vehicle that (1) has a gross
vehicle weight rating of 26,001 or more pounds,
(2) is designed to transport 16 or more occupants,
or (3) is of any size and is used in the transport of
hazardous materials that require the vehicle to be
placarded. 49 CFR § 382.
17. The amicus brief filed by Michigan’s attorney
general — an interesting read — is available here:
michigan.gov/documents/leo/AG_Amicus_Cur-
iae_in_Support_of_Claimants_732249_7.pdf.
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