The time between Christmas and New Year’s Day is a good time for employers to reflect on resolutions for 2022. What can you as an employer do in the new year to make your job easier, be a better employer and avoid legal landmines peppering the workplace landscape?
After more than 30 years of advising companies on employment law issues and as a small business owner myself, I have an awareness of and empathy towards the challenges that you are facing. But sometimes we just have to bite the bullet and make some difficult changes. So here are some suggestions of changes you either have to or should consider making in 2022 because of recent changes to the law or the employment arena.
Prepare for the Vaccine Mandate or Testing Policy (for Employers of 100 or more)
Yep, its back. On Friday, December 17, the Sixth Circuit Court of Appeals lifted the injunction on OSHA’s vaccine or testing mandate. That means that employers with 100 or more employees (“large employers”) are once again required to comply with OSHA Emergency Temporary Standard (“ETS”) that puts employers in the position of either requiring employees to get vaccinated or to undergo weekly testing.
In examining the reasons that OSHA argued in favor of enforcing the ETS, the Sixth Circuit ruled, “It is difficult to imagine what more OSHA could do or rely on to justify its finding that workers face a grave danger in the workplace. It is not appropriate to second-guess that agency determination considering the substantial evidence, including many peer-reviewed scientific studies, on which it relied.” The Sixth Circuit found that the mandate was both constitutional and that OSHA was acting within its statutory authority to enforce occupational health and safety in implementing the mandate.
I’ve already provided an explanation of what the ETS requires of large employers. What has changed since November 4 when I wrote that post is that OSHA has extended the deadlines, but not by much. Here are the current deadlines with which OSHA expects large employers to comply:
- January 10, 2022:
- Large employers must require unvaccinated employees to wear masks when indoors in the workplace or when travelling in vehicles with coworkers.
- Large employers must have a written policy in place notifying employees of their obligation to get vaccinated or undergo weekly supervised COVID-19 testing (not at-home testing).
- Large employers should have documented each employee’s vaccination status and started accepting paperwork for religious and medical exemptions (which means those employees won’t have to be vaccinated but will have to be tested weekly).
- February 9, 2022:
- Employers must start testing unvaccinated employees weekly.
- OSHA will start enforcing the ETS.
In addition to meeting these deadlines, as a large employer, you still have significant obligations regarding daily recordkeeping, notices to employees, onsite testing and paid time off for vaccines and vaccine side effects, all outlined in the original ETS. And meeting those obligations by the new deadlines means you are going to be busy for the next few weeks.
The Sixth Circuit’s ruling, which is effective nationwide, has already been appealed to the U.S. Supreme Court. There is still a chance that this ETS will not take effect. However, the Supreme Court has consistently upheld every COVID vaccine mandate with which it has been presented over the last year. The most recent occurrence was on Monday, December 13, when a 6-3 court (conservatives Kavanaugh, Barrett and Roberts voted with the three liberal justices) upheld New York State’s requirement that all health care workers there have to be vaccinated, even though religious exemptions will not even be considered for employees doing direct patient care. In other words, the U.S. Supreme Court refused to overturn a much more uncompromising mandate just last week.
Get Serious About Preventing Sexual Harassment
As of September 1, 2021, Texas now has one of the strictest laws in the country prohibiting sexual harassment. Instead of only affecting employers with at least 15 employees like every other federal and state discrimination law, Texas’ new sexual harassment law not only makes employers with just one employee liable, but also for the first time allows harassed employees to sue supervisors and managers (and company owners) individually for sexual harassment along with the company.
To protect your business, at a bare minimum, you must have a written policy prohibiting sexual harassment in your employee manual. In that policy, you must name a person to whom employees should report the harassment who will take the complaint seriously and get an investigation performed.
You should also consider training all of your employees to recognize and prevent sexual harassment. The new Texas law doesn’t mandate sexual harassment training, but any human resources professional or employment lawyer will tell you that annual training of all of your workforce is the best defense for a company to win a sexual harassment claim.
And don’t forget that the 2020 Bostock decision of the United States Supreme Court defined “sex” in discrimination laws as including a person’s sexual orientation and their status as transgender. So while you are preventing “traditional” sexual harassment in your workplace, make sure that your LGBTQ employees are not harassed on the basis of their sexual orientation or gender identity, for example, by employees refusing to use their preferred name or pronouns, or by managers prohibiting them from using the restroom designated for the gender with which they identify.
Reconsider Your Marijuana Policies
Since 2012, Colorado has been the recreational marijuana capital of the Southwest. Louisiana decriminalized small amounts of weed in August 2021. There is a dispensary on every corner in Oklahoma, with very lax medical marijuana rules for OK residents. New Mexico legalized possession and growing pot over the summer of 2021 and will start recreational sales by April 1, 2022. I foresee long lines of cars travelling between Amarillo and Clovis in the spring. So Texas is surrounded by permissive states and is therefore populated by a significant number of baked residents.
How is a Texas employer supposed to deal with this in a state where marijuana is still an illegal drug (with a very few medical exceptions) particularly when so many employers are facing labor shortages?
The only rational way to handle marijuana use in the Texas workplace is to treat it like alcohol. In other words, random testing that will detect marijuana is not a great idea right now. If you are going to do random testing, just tell the testing facility to skip the detection of marijuana.
However, if you have a reasonable suspicion that your employee is stoned because their behavior is impaired, then go ahead and test that employee. Also, if your employee causes an accident that produces bodily injury or property damage, go ahead and test for all drugs, including marijuana. Finally, its fine to have stricter rules against marijuana use and even to require random testing for those employees who are in safety sensitive positions (where quick reflexes or fast decision-making are essential).
Just remember that marijuana is detectable much longer than alcohol, so you will need to rely less on the presence of THC in the employee’s system (although that is still important) and more on the behaviors and errors made by the employee before you act on a positive marijuana test.
Also remember that if your employee has a valid prescription for medical marijuana, you’ll have to consider the Americans with Disabilities Act ramifications before you make any adverse decision about your employee.
If Possible, Give Your Employees a Raise
Yes, I know you have weathered many challenges over the last couple of years. Your employees have also been through a lot. And because of labor shortages, the fact that many national companies are raising their starting salaries, and the early retirement of many older employees during the Big Quit, your workers have other employment options besides your company.
There are many ways to keep your good employees, but number one is always money. Remember that Amazon will start paying Amarillo employees $18 per hour plus benefits when they open in the next couple of months. Walmart, Target, Walgreens and CVS are all paying at least $15 per hour to start. Regardless of the federal (and Texas) minimum wage regulation still stuck firmly in 2009 at $7.25 per hour, the practical minimum wage in our area is inching up to at least $12 per hour.
If you are able to hang on to your good employees, I think 2022 could turn out to be better year. Let’s hope so. Cheers!