What Employers Can Expect From President Biden
By Vianei Braun
Have faith, employers — the sky is not falling.
Thanks to overheated election-year rhetoric, some business owners are fretting about 2021 and beyond. They fear that under President Biden, federal regulatory agencies will run amok and heap new risks and burdens upon fragile businesses.
These fears are misplaced. Most federal agencies operate in a surprisingly consistent fashion, with few significant operational changes from one administration to the next.
After all, most federal agency staff are not political appointees. They are regular employees with a job to do, and that job does not change after an election.
And of course, the Biden administration will be focused on COVID-19, distribution of vaccines, and strategies for economic recovery. There will be no political appetite for anything that looks like a burden on business.
Back to the first point: regulatory consistency. Consider the Equal Employment Opportunity Commission, which made no noticeable shift when the Obama administration gave way to the Trump administration.
During that time, the EEOC participated in the Zarda v. Altitude Express case, arguing that Title VII protects LGBT employees from discrimination. Despite the transition to a less progressive administration in 2016, the EEOC stayed the course.
Court-watchers know that the Zarda case ultimately made it to the U.S. Supreme Court, where it was consolidated with the Bostock v. Clayton County case and resulted in a landmark decision in June 2020. It turns out that the EEOC was right: Title VII does indeed protect LGBT employees from discrimination.
Court-watchers also know that President Trump’s Department of Justice opposed this result and filed briefs at both the appellate court and Supreme Court levels. But the EEOC never changed its position. This resulted in two federal agencies filing opposing briefs in the same case, obviously a questionable use of tax dollars but a good example of the EEOC’s consistency.
So what to expect from the EEOC in 2021? No major changes but perhaps a shift in focus. This is not due to politics but due to the elephant in every room these days: COVID-19.
The EEOC has already issued guidance (available at eeoc.gov) regarding discrimination laws and COVID-19. More guidance is expected as employers grapple with new issues, such as possibly mandating that employees receive the COVID-19 vaccine.
Charges of discrimination relating to COVID-19 will no doubt continue. Discrimination issues can arise if an employee seeks accommodations due to long-term effects from the virus or seeks accommodations due to a disability that places the employee at higher risk if exposed. Because many employers allowed some amount of working from home during 2020, it is now trickier than ever to deny an employee’s request to work from home, especially if the request is supported by a doctor’s note. Be alert for these types of issues and seek legal counsel.
Likewise, it is COVID-19, not the new administration, that will affect enforcement actions from other federal agencies, like the Department of Labor and its Occupational Safety and Health Administration.
The DOL has been diligently enforcing the Families First Coronavirus Response Act, which created emergency paid sick leave rights and expanded family and medical leave rights. These rights expired on Dec. 31, 2020. It remains to be seen whether they will be renewed.
OSHA will continue to be busy with workplace safety complaints alleging that employers are not doing enough to protect employees from COVID-19. The investigators seem genuinely focused on remedial actions necessary to ensure employee safety, not on citations and penalties.
In any event, these are trying times, and there are plenty of other things to be concerned about. Employers should scratch “regulatory tsunami” off their worry list.
Vianei Lopez Braun is a shareholder in Decker Jones P.C. She represents employers in a wide variety of business sectors and provides litigation and administrative agency defense, compliance assurance, and practical advice. She is a regular contributor to Fort Worth Inc.
This article appeared in the spring 2021 issue of Fort Worth, Inc.