Top 3 post-COVID workplace concerns: What employers need to pay close attention to now
Companies need to make sure that they are prepared to address these employee concerns that have been on the rise since the start of the COVID-19 pandemic.
The COVID-19 pandemic has changed the way we live and work, and three years after its inception, we are still seeing the after-effects. Over the past few years, Americans have focused more on prioritizing their health and well-being, which has been the catalyst for several developing areas of the law. More and more states are adopting paid sick and family leave, employers are continuing to develop innovative remote and hybrid work models, and employees are asking for employers’ help in addressing and accommodating mental health concerns. Employers should pay particularly close attention to these trends in 2023.
#1: Expansion of paid family medical leave under state law
While the federal Family and Medical Leave Act provides 12 weeks of unpaid family leave, many states have recently enacted, or plan to enact, their own statutes requiring employers to provide paid leave. Last year, 25% of U.S. workers had access to paid family leave. This number will rise in 2023 due to the new paid family leave laws going into effect. Employers with presences across a number of U.S. states should pay close attention to these developments so that they can ensure compliance in all states where they maintain a presence.
Paid family leave laws are in effect in California, Connecticut, the District of Columbia, Massachusetts, New Jersey, New York, Rhode Island and Washington. Other states have enacted such laws that have not yet gone into effect: Colorado, Delaware, Maryland and Oregon. In addition, New Hampshire, Vermont and Virginia have enacted paid family medical leave laws with voluntary programs that employers can opt into. The New Hampshire program went into effect on Jan. 1 and the Vermont program goes into effect for private employers in July. The trend of enacting paid family leave statutes is set to continue.
The various states’ paid family medical leave statutes all provide benefits for a few common purposes:
- medical leave to address the employee’s own serious health condition;
- caregiving leave to provide care for a family member with a serious health condition; and
- parental leave for parents, including foster and adoptive, to bond with a new child.
However, the state laws differ, and employers should pay close attention to the following provisions in the state statutes:
Purpose of leave. State laws may provide additional types of leave for purposes such as a loved one’s military deployment, reasons related to domestic and sexual violence, or organ or bone marrow donation.
Amount of leave. The amount of time provided differs state by state. For example, California provides eight weeks for parental leave, eight weeks for family caregiving, and 52 weeks for personal medical leave. Under the California statute, the total paid leave available in one year is eight weeks. New Jersey provides 12 weeks for parental leave, 12 weeks for family caregiving, and 26 weeks for personal medical leave. The total paid leave available in one year is 12 weeks.
Funding. Paid family leave is funded through payroll deductions paid into an insurance system. The amount and whether the employer also contributes varies state-by-state. For example, California’s paid family leave is funded entirely through employee payroll taxes whereas other states mandate employers contribute.
Job protection. Some states that provide paid family leave do not provide for job protection. For example, under the California paid family leave statute, benefit payments will be provided during leave but job protection may only be provided by other statutes such as the FMLA or the California Family Rights Act.
#2: Continuing issues relating to COVID and remote work
The workplace has undergone rapid changes since the beginning of the COVID-19 pandemic. While many COVID-related laws and mandates have expired as the threat of the pandemic has eased, the legal landscape has undergone some permanent changes due to the increase of remote work.
The number of employers who have adopted hybrid and remote work models since the beginning of the pandemic has grown exponentially. In June 2022, Gallup estimated that over 70 million U.S. workers could do their job remotely. Of those 70 million workers, a Gallup poll concluded that only two out of every 10 remote-capable employees was working fully on-site down from 60% in 2019.
This changing landscape has created new legal considerations and potential risks of litigation for employers who have transitioned to remote or hybrid working arrangements, including the following:
- Discrimination claims: Employers should make sure to carefully craft and implement a procedure for handling remote work in a consistent manner. Employers should also ensure that this procedure includes information regarding requests to work remotely as a reasonable accommodation for a disability. Consistent application of well-reasoned and thoughtful policies is always a best practice in order to mitigate the risk of claims that requests for remote work were denied for allegedly discriminatory reasons.
- Reimbursement: Over the past few years, employees who have purchased home-office equipment or office supplies that would normally be provided by the employer at the office have filed lawsuits demanding reimbursement. In order to minimize the risk of litigation, employers should be sure to adopt clear policies that comply with state and federal law that address reimbursing employees for work-related expenses from working from home.
- Notification of employee rights: Various state and federal laws require employers to display posters in the workplace notifying employees of their rights. While these laws vary in terms of the sufficiency of electronic postings, the best practice is to continue displaying posters in the workplace, provide electronic postings via email, and make sure the electronic postings are easily accessible to employees at all times. This requires employers to keep careful track of where remote employees are working, as different states and some municipalities require employers to notify employees of their rights under the applicable state and local laws.
Remote and hybrid work models raise many other legal considerations, such as wage-and-hour issues, tax consequences and insurance implications. For employers with a remote or hybrid working arrangement, the first step to managing these legal risks is having a written remote-work policy that defines eligibility and expectations from employees who are authorized to work remotely. In addition, if working remotely requires approval, the policy should lay out a procedure to make such requests and include reference to the procedures to request remote work as an accommodation under the ADA.
#3: Rising workplace mental health leave and claims
Over the past decade, the number of ADA-based complaints referencing an anxiety disorder has doubled. In 2011 the EEOC received 1,362 charges that referenced an anxiety disorder, which was 5.4% of all ADA-based charges. In 2021, that number jumped to 2,639, or 11.6% of all ADA-based charges. Claims referencing other psychological conditions, such as post traumatic stress disorder, have also increased exponentially. (In 2011 there were 593 claims representing 2.3% of ADA-based charges, and in 2021 there were 1,373 charges representing 6% of ADA-based charges).
While it is not clear whether the increase of ADA charges referencing mental health conditions is being caused by an increase in diagnosis of mental health conditions, a societal shift regarding speaking about mental health in the workplace, or a combination of a number of factors, what is clear is that employees feel more comfortable alerting employers to their accommodation requests regarding mental health. As the stigma surrounding mental health conditions diminishes, employers should expect to receive increased requests for accommodation and should consider ways that they might reasonably accommodate requests from qualified individuals with mental health conditions without placing an undue burden on the needs of the business.
In addition to the protections provided by the ADA to qualified individuals with disabilities, employers should be aware that legal protections also may be provided under the Family and Medical Leave Act (FMLA). The FMLA requires covered employers to provide up to 12 weeks of unpaid leave per year to their employees for serious health conditions or to care for an immediate family member who has a serious health condition, including mental health conditions. Under the FMLA a “serious health condition” requires inpatient care or continuing treatment by a health care provider. Under the FMLA, a serious mental health condition that requires inpatient care “includes an overnight stay in a hospital or other medical care facility, such as, for example, a treatment center for addiction or eating disorders.” And a serious mental health condition that requires continuing treatment by a health care provider includes: “Conditions that incapacitate an individual for more than three consecutive days and require ongoing medical treatment, either multiple appointments with a health care provider, including a psychiatrist, clinical psychologist, or clinical social worker, or a single appointment and follow-up care (e.g., prescription medication, outpatient rehabilitation counseling, or behavioral therapy;” and “Chronic conditions (e.g., anxiety, depression, or dissociative disorders) that cause occasional periods when an individual is incapacitated and require treatment by a health care provider at least twice a year.”
Rather than simply reacting to claims or concerns raised by employees, employers should consider proactively implementing policies and attaining resources to support employees’ mental health. Maintaining comprehensive policies to support employees’ needs is not just beneficial legally; it is also good business that will improve employees’ wellbeing, productivity and performance.
Employers should pay close attention to these issues and make sure that they are prepared to address, in policy and in practice, employee concerns that have been on the rise since the start of the COVID-19 pandemic.
Valerie Brown, a partner with Holland & Knight in its Philadelphia office, is a litigation attorney with concentrations in commercial business and employment disputes. Dana Feinstein, an associate with the firm in its Philadelphia office, is an employment attorney and a member of the labor, employment and benefits group. Samantha Greenfield is an associate in firm’s New York office and a member of the labor, employment and benefits practice group.