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Top 10 Employer Resolutions For 2021

By Allegra Lawrence-Hardy and Linda Spencer · 2021-01-03 12:02:31 -0500

Allegra Lawrence-Hardy
Allegra Lawrence-Hardy
Linda Spencer
Linda Spencer
The pace of employment law change continues to accelerate. We are often told the only constant is change. But can anything top the amount of unanticipated change employers experienced in 2020?

We may discover in 2021. To succeed in this chaotic environment, employers need to be prepared to quickly recognize and adapt to new paradigms in the workplace.

Here are issues and potential changes employers should consider as 2021 kicks off.

1. Decide your long-term remote work philosophy and update policies. 

The COVID-19 pandemic forced companies to change the way employees work. With vaccines becoming available for general distribution in the foreseeable future, companies will want to decide what their position on remote work will be long term. 

For those companies continuing remote work programs, the to-do list is long, and can be divided into three categories.

First, regarding work hours, companies should:

  • Ensure clear time-tracking methods to ensure that nonexempt employees are accurately recording all working time, taking and recording meal and rest breaks, and are paid overtime under federal, state and local requirements.

  • Explore methods to audit whether employees are working off the clock in violation of policy while balancing employee privacy concerns.

  • Establish availability requirements such as core work hours, response times and leave-scheduling practices.

Second, companies need to consider issues related to employees' physical environment and should: 

  • Determine whether work will be limited to employees' homes, or if other remote locations will be allowed, particularly regarding working in different cities or states with different wage and hour laws and tax obligations. 

  • Determine whether the company will provide all necessary equipment or reimburse employees who provide their own — and confirm those expense policies comply with state or local laws.

  • Establish policies and programs for reviewing employee worksite safety.

  • Confirm workers' compensation coverage applies to employees working from home. 

Finally, in the catch-all category, companies should:

  • Determine if new methods of performance management will be required.

  • Define work rules and enhance systems to increase data security and confidentiality, including technology permissions, access, personal use of company equipment, and device management.

  • Establish approval protocols and systems to ensure that remote work policies are administered in a consistent and nondiscriminatory manner.

  • Determine how to communicate and record employee acknowledgement of company policies and legal notices.

  • Establish set time frames for regular review and approval of all remote work arrangements. 

Not all companies can, or want to, have remote workforces. The U.S. Equal Employment Opportunity Commission has clarified that businesses that allowed remote work due to the pandemic will not be required to automatically allow remote work as a reasonable accommodation under the Americans with Disabilities Act.[1]

To protect against failure-to-accommodate claims under the ADA, companies need to be prepared to illustrate whether there are other reasonable accommodations and demonstrate why remote work causes the company an undue hardship. 

Companies should review and update their job descriptions as needed to document physical presence at the work site as a job requirement, with a clear rationale for why on-site work is necessary. Courts may require employers to provide specific data that demonstrates that working from home during the pandemic was not effective.

To the extent possible, companies should document objective evidence, such as reduction in work output or quality, resulting from remote versus in-person work. 

2. Bolster your employee mental health and addiction resources.

The impact of the COVID-19 pandemic on mental health has been enormous, resulting in skyrocketing levels of depression, anxiety, and a host of other short and long-term mental health impacts. Alcohol consumption and substance abuse are both on the rise.[2] 

Companies are advised to prepare for this increase in mental health issues and substance abuse among their employees. Failure to address these issues could create significant threats to worker safety and associated workers' compensation claims, and result in substantial increased costs in reduced productivity, decreased performance, absenteeism and turnover.

Seventy-nine percent of employers offered some form of employee assistance program in 2019, but few employees take advantage of them.[3] Companies can facilitate employee use of these resources through communication and awareness campaigns and by enhancing employee trust in the confidentiality of the program.

Companies should educate employees and supervisors about employee rights and employer responsibilities under the ADA and Family and Medical Leave Act and reassure employees that management will not receive reports regarding their use of the program and that they need not receive permission from or notify their supervisor regarding their use of the program.

Finally, companies should integrate mental health training into new and regular manager training, and review and update crisis response protocols.

3. Enhance worker classification compliance programs.

President-elect Joe Biden has indicated he intends to enact legislation that will increase the penalties against companies that engage in worker misclassification and that he favors a federal standard modeled on the more-stringent ABC test for all labor, employment and tax laws.[4]

Companies are less than thrilled with this test, and the pandemic has put unprecedented economic pressures on many businesses, so the likelihood of federal legislation formalizing these requirements in 2021 is not high.[5]

In lieu of legislation, the Biden administration will likely direct the U.S. Department of Labor to withdraw the Trump administration's proposed independent contractor rule,[6] which makes it more difficult for contract workers to be considered employees.

The Biden administration would then direct the DOL to initiate a replacement rulemaking process, and direct the DOL to partner with other federal agencies such as the IRS in misclassification enforcement efforts, duplicating what was done under the Obama administration. 

Companies should implement or update a comprehensive independent contractor compliance program to monitor how workers are classified. Independent contractor hiring and renewal should be done through a centralized human resources function in close partnership with procurement.

It is advisable that companies' programs tie approval for funding and payment of any nonemployee worker to a methodical review system that analyzes independent contractor classification requirements. Independent contractor polices should reinforce the need for this preretention review, impose review periods and time limits on the duration of independent contractor agreements, and ensure that all agreements are in writing.

Companies are also encouraged to work with counsel to self-audit, starting with a review of all, or at least a sample of 1099s and independent contractor agreements for the past one to three years. Finally, HR should deter management attempts to go around the company's independent contractor review process by reminding management of the dangers and limitations of independent contractors.

4. Update policies affected by new state laws legalizing medical and recreational marijuana.

On Dec. 4, 2020, the Democrat-led U.S. House of Representatives passed the Marijuana Opportunity Reinvestment and Expungement Act,[7] which removes marijuana[8] from the federal Controlled Substances Act,[9] thus decriminalizing marijuana at the federal level. Given the change in White House administration and the increasing public support for decriminalizing marijuana, it is possible we will see additional changes to federal law in 2021. 

Regardless of what happens at the federal level, however, each state will continue to regulate marijuana differently, continuing the complexity for multistate employers. This past November, five more states passed ballot initiatives to legalize marijuana, bringing the total number of states that have legalized recreational and medical marijuana[10] to 15 and 35 respectively.[11] A record number of states are expected to legalize marijuana in 2021.[12] 

Companies should once again review their drug testing and drug-free workplace policies. Companies should review the requirements where they have employees, remembering that the restrictions for applicants may differ from those for employees.

The majority of states still allow drug testing and employee discipline based on positive test results, but some states prohibit preemployment testing except for safety-sensitive positions or where otherwise required by state or federal law.[13] Companies may need to consider not only the employees' positions and safety-related responsibilities, but potentially also whether the marijuana use was medical or recreational.

Finally, companies should stay up to date on the pros and cons of supplementing or replacing traditional drug testing with impairment testing programs, at least for marijuana, while remembering issues created by those tests, including adverse impact.

5. Reinvigorate diversity, equity and inclusion training.

It is nearly universally agreed that one of Biden's first acts as president will be to reverse President Donald Trump's Sept. 22, 2020, executive order placing restrictions on diversity training delivered to government workers and contractors.

The executive order, which had a stated objective to "promote unity in the Federal workforce, and to combat offensive and anti-American race and sex stereotyping," did not place an outright ban on diversity training, even for government workers and contractors.[14] Nonetheless, it had that effect, even outside of the federal workforce, as many companies shied away from training after the executive order was issued.[15] 

The executive order came when people were discussing race and equity issues more than they had been in perhaps decades, as the Black Lives Matter movement gained momentum throughout the country. This corresponded with a period of highly polarized political debate and disagreement, including in the workplace. 

When things return to normal and most people return to work, these workplace discussions are certain to pick up once again, and companies should prepare leadership to engage with employees in difficult conversations regarding race and equity. Managers should be trained regarding differences and how to model inclusive leadership.

Companies will also want to review their diversity, equity and inclusion initiatives and training to ensure they are addressing realities and concerns. Most important, HR should reassess their equity compliance programs, including for hiring, promotions, pay, training, development and career opportunities. 

6. Monitor for additional changes to paid and unpaid leave.

While long-term federally mandated paid leave has continued to elude the U.S. up to now, there are signs it may be coming. The Families First Coronavirus Response Act, which provided new employee rights to paid and emergency FMLA leave in certain COVID-19-related circumstances, was passed in March 2020 with bipartisan enthusiasm in the House (340-40) and Senate (90-8).[16]

And there are other signs of potential warming to paid leave at the federal level. Even before the pandemic, various paid leave bills had been put forth by both Republicans and Democrats[17] and Biden has expressed support for expanded FFCRA coverage and paid leave programs generally.[18]

Regardless of what happens with paid leave at the federal level, states are continuing the trend of expanding unpaid leave programs. Fifteen states and Washington, D.C., have paid leave.[19] The withholding requirements of the Connecticut paid leave law begin in January, with paid leave rights beginning in 2022.[20] Maine's paid leave law is effective in January[21] and California just expanded its Family Rights Act.[22] 

Companies should review state laws and be sure to comply with the new leave laws effective Jan.1, including updating their leave policies and forms. Companies should also ensure they have up-to-date leave request and administration processes and comprehensive record-keeping plans in place, as an increased number of ADA failure-to-accommodate and FMLA leave denial and retaliation claims are expected in relation to the pandemic. 

Finally, companies are encouraged to provide managers with training, including recommendations to seek HR assistance when handling any leave situation.

7. Prepare for attacks on noncompetes.

Our employer resolutions for 2020[23] advised companies to stay informed on state laws banning noncompetes for low-wage employees after five additional states — Maryland, Maine, New Hampshire, Rhode Island and Washington — joined the emerging trend of enacting legislation that prohibits an employer from utilizing noncompete agreements for certain low-wage positions.

Noncompetes are on our list again this year as potentially coming under broader threat of federal action arising out of bipartisan support for greater worker mobility during a period of high unemployment. Proposed laws such as the Freedom to Compete Act, which would amend the Fair Labor Standards Act to prohibit an employer from enforcing, or threatening to enforce, any noncompete agreement in employment contracts with certain entry-level or lower-wage workers, may receive a shot of adrenalin this year.[24]

Biden has clearly stated his opposition to noncompetes, citing their impact "as wage-suppression devices,"[25] and the Biden administration could rely on the broad rulemaking authority of the Federal Trade Commission to prohibit unfair or deceptive acts, and unfair competition to engage in rulemaking to limit noncompetes. A petition for rulemaking to prohibit worker noncompete clauses has been submitted to the FTC.[26] 

Even if there is no action at the federal level, the trend of states restricting noncompetes is expected to continue and go beyond federal restrictions.

For example, in Massachusetts, noncompetes are already restricted to employees terminated for cause, limited to a duration not to exceed 12 months, and require fair and reasonable consideration such as garden leave during the noncompete period.[27] Proposed laws in New York and New Jersey would provide for liquidated damages and attorney fees for employees successful in bringing complaints about competitive restrictions.[28]

Companies would be wise to prepare for state or federal attacks on noncompetes and limit noncompete agreements to high-level employees or those employees with access to trade secrets. Companies should implement stand-alone agreements with employees related to trade secrets and confidential information, and separate agreements related to nonsolicitation of employees and customers.

Ideally, companies should abandon mass-form agreements and create customized agreements specifically tailored to individual employees' positions, responsibilities, access to trade secrets and geographic scope of work.

Finally, companies should tie noncompetes to severance periods to protect against claims of inadequate consideration.

8. Incorporate privacy by design into HR systems and practices.

Companies continue to intensify their employee data collection and analytics efforts with goals of increasing productivity, improving hiring, and enhancing employee engagement. The COVID-19 pandemic is arguably further accelerating this data collection, as companies strive to increase employee and customer safety by collecting employee temperature, location, and interaction data.

U.S. legislation is catching up with individuals' data privacy concerns, and California has been the driving force with the California Consumer Privacy Act, or CCPA.[29] California employers received a reprieve when voters approved the California Privacy Rights and Enforcement Act, or CPRA, on Nov. 3, 2020,[30] which extended the exemptions under the CCPA for personal information collected and shared in the employment context, and delayed many requirements placed on employers under the CCPA through Dec. 31, 2022.[31]

But even with slowed legislative action and enforcement due to pandemic priorities, companies should still continue to prepare for new privacy regulations and the increased obligations they will bring.

Regardless of the CPRA exemption extension, companies with employees in California still must comply with the CCPA precollection notice requirement and are still potentially liable for statutory penalties on an individual or class basis for certain breaches of personnel data. California employers will ultimately be required to comply with all aspects of the CCPA, CPRA or similar regulations, and preparing for that eventuality is a time-consuming and burdensome task that many U.S. companies are not currently equipped to handle.

In addition, once the pandemic is behind us, additional states will likely emulate California, Europe and other major countries passing comprehensive privacy laws similar to the CCPA or Europe's General Data Protection Regulation.[32] Also, experts believe the time may finally be right for enactment of a U.S. federal privacy law.[33]

Companies should include privacy compliance in their 2021 plans and budgets and engage in privacy by design by proactively incorporating privacy considerations into the design and operation of their HR information technology systems and practices. Companies should take the first step of determining if they are covered by the CPRA or other privacy regulations.

They should also enhance security measures related to employee data, particularly as remote work shifts from temporary to long term. Finally, companies should review and update employee privacy policies and create a team to start data-mapping exercises, with California employers planning to comply by Jan. 1, 2023.

9. Monitor changes to limits on arbitration provisions in employment agreements.

Mandatory arbitration provisions are once again under threat.

First, the Protecting the Right to Organize Act,[34] which passed the House on Feb. 6, 2020, would prohibit companies from imposing mandatory arbitration agreements on employees or waiving their right to class action litigation as a condition of employment.[35]

Second, in California, S.B. 1384 limits arbitration agreements by:

  • Extending the authority of the California labor commissioner to represent claimants who cannot afford counsel in arbitrations;

  • Requiring employers to serve petitions to compel arbitration on the labor commissioner; and

  • Allowing the labor commissioner to represent claimants in proceedings to determine whether arbitration agreements are enforceable.[36] 

This development will cause more challenges to arbitration agreements in California, so besides ensuring agreement language is up to date, California employers should be prepared to spend additional time and resources defending the enforceability of their agreements.

Finally, in a lesser threat, the U.S. Supreme Court will also once again review gateway questions of arbitrability as it revisits Henry Schein Inc. v. Archer and White Sales Inc.[37] In this round, the Supreme Court will decide whether an agreement that exempts certain claims from arbitration negates an otherwise clear and unmistakable delegation of questions of arbitrability to an arbitrator.[38]

In oral argument on Dec. 8, 2020, more than one justice was frustrated by the U.S. Court of Appeals for the Fifth Circuit's repeated refusal to enforce the agreement.[39] Justice Brett Kavanaugh stated: "I don't think any arbitration contract says arbitrability of certain subjects shall be decided by the arbitrator and [arbitrability] of other subjects [shall be decided] by the court."[40]

While the impact of this decision will be nuanced and technical, companies with employee arbitration agreements will want to know the Supreme Court's decision and determine if their agreement language needs any adjustment.

10. Take your accommodation program to the next level.

With general distribution of COVID-19 vaccines on the horizon and the potential for more companies returning to in-person work, employers should prepare to confront a steep rise in the number of complex employee accommodation requests related to COVID-19.

Occupational Safety and Health Administration regulations require employers to provide a place of employment that is "free from recognized hazards likely to cause death or serious physical harm to employees."[41] Thus, depending upon the workplace circumstances, employers may be able to require employees to take a vaccine, use personal protective equipment, and engage in other safety protocols to prevent occupational exposure to COVID-19.

Exceptions include those situations requiring accommodation under Title VII of the Civil Rights Act, the ADA, OSHA itself, and similar state and local laws.[42]

Under the ADA, an employer must reasonably accommodate an employee's disability unless (1) the employee poses a direct threat — significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation; or (2) an accommodation would impose an undue hardship — significant difficulty or expense to the employer.[43] 

The EEOC has clarified that the COVID-19 pandemic meets the ADA's direct threat standard.[44] Under Title VII, an employer must accommodate an employee's sincerely held religious belief, practice or observance unless accommodation would impose an undue hardship on the conduct of its business — a lower undue hardship standard than under the ADA.[45] 

Given the expected influx of requests, ad-hoc accommodation programs will likely be insufficient for all but the smallest of employers. Employers should build or add rigor to their accommodation process, starting with a review and update of their accommodations policies to recognize unique circumstances caused by the pandemic — e.g. an increased difficulty for employees to obtain medical certification due to restricted availability of health care professionals.

Employers should:

  • Develop and communicate an easy process for employees to request accommodations and consider providing employees the opportunity to request accommodations before mandatory vaccines or returning to work so the employer can initiate the interactive process early.

  • Establish an interactive process that allows them to respond to employee requests in an expedited fashion and train managers on how to recognize when the process has been initiated by an employee and how to respond.

  • Consider in advance the potential accommodations they can offer and build a flexible repertoire of potential alternative accommodations based on employee location and duties.

  • Consider accommodations such as modification to workspaces, additional personal protective equipment, modification to schedules, regular or intermittent leave, temporary shifting of nonessential duties, or temporary transfer to another position.

  • Establish a formal process, whether internal or through counsel, to review undue hardship conclusions and discipline or termination of any employee for refusal to follow any company safety requirements, including taking a vaccine.

Guidance from public health authorities will continue to change as the COVID-19 pandemic evolves and as vaccines become more widely available. Therefore, employers should continue to follow the most current information on maintaining workplace safety and incorporate those changes into their workplace policies and accommodation reviews.


No one expected what employers experienced in 2020, and it is unknown what new challenges 2021 will bring. That having been said, there are plenty of changes already confirmed and a number we can be fairly certain are coming.

Companies should start as soon as possible to prepare for these changes so they will be in the best position to address anything else that comes along.

Allegra Lawrence-Hardy is a co-founder and partner at Lawrence & Bundy LLC.

Linda Spencer is special counsel at the firm. She previously served as chief privacy officer and associate general counsel for labor, employment and privacy at The Coca-Cola Co.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,, (last visited Dec. 16, 2020).

[2] Czeisler MÉ , Lane RI, Petrosky E, et al. Mental Health, Substance Use, and Suicidal Ideation During the COVID-19 Pandemic — United States, June 24–30, 2020. MMWR Morb Mortal Wkly Rep 2020;69:1049–1057. DOI: icon.

[3] Share of employers offering employee assistance programs (EAP) from 2013 to 2019,, (last visited Dec. 16, 2020); Trends Report 2016,, (last visited Dec. 16, 2020).

[4] See The Biden Plan for Strengthening Worker Organizing, Collective Bargaining, and Unions,," target="_blank"> (last visited Dec. 16, 2020).

[5] For example, there was extensive business pushback to California's AB5, which adopted the ABC test to determine employee status. As a result of strong business lobbying, another ballot initiative, California Proposition 22, App-Based Drivers as Contractors and Labor Policies Initiative (2020), passed in November that exempted certain workers in the ride share industry from employee status under AB5.

[6] Independent Contractor Status Under the Fair Labor Standards Act, 85 Fed. Reg. 60600 (Sept. 25, 2020) (to be codified at 29 C.F.R. pt. 780, 788, and 795).

[7] H.R. 3884, 116th Cong. (2019-2020).


[9] See21 U.S.C. §812 (2018).


[11] Arizona, Montana, and New Jersey voted in favor of legalizing recreational use of marijuana. South Dakota legalized both medical and recreational marijuana. Mississippi legalized medical marijuana.

[12] "I expect a record number of states to legalize marijuana in 2021, in part due to the financial pressures, along with the racial injustice imperative to reduce unnecessary police-civilian interactions," said Karen O'Keefe, director of state policies for the Marijuana Policy Project, the lobbying organization behind many state cannabis policies in place today." Jeffrey S. Klein and Nicholas J. Pappas, Marijuana and the Workplace,, (Aug. 04, 2020 at 01:00 PM)

[13] Employers in certain industries must test employees for possible use of specified substances including marijuana.See49 C.F.R. 382.301-311 (2016); 14 C.F.R. 120.3 (2009).The Drug-free Workplace Act (DFWA) mandates that federal contractors establish a drug-free workplace and so prohibit marijuana intoxication at work.See41 U.S.C. §8102 (2020). For example, New York law deems certified medical marijuana users to have a disability. See N.Y. Pub. Health Law § 3369(2) (2018).

[14] Exec. Order 13950, 85 Fed. Reg. 60683 (Sept. 22, 2020).

[15] See Melissa Block, Agencies, Contractors Suspend Diversity Training To Avoid Violating Trump Order, (Oct. 30, 2020)

[16] H.R. 6201, 116th Cong. (2020); Public L. No. 116-127, 134 Stat. 178 (2020).

[17] See e.g. The Heathy Families Act, S. 840 116th Cong. (2019-2020), introduced in 2019 requiring employers to offer paid sick leave; see also the Federal Employee Paid Leave Act, S. 1790 116th Cong. (2019-2020), which grants federal employees 12 weeks of paid leave following the birth or placement of a child.

[18] "But we need to go further – I believe the United States should guarantee 12 weeks of paid sick and family leave for workers." The Washington Post, We're Asking 2020 Democrats Where They Stand on Key Issues,, (last visited Dec. 16, 2020).

[19] State Policies on Paid Family and Sick Leave, Kaiser Family Foundation,,%22sort%22:%22asc%22%7D (last visited Dec. 16, 2020).

[20] Connecticut Paid Leave,, (last visited Dec. 16, 2020).

[21] Me. Rev. Stat. Ann. tit. 26, § 637 (2021).

[22] 2020 Cal. Legis. Serv. Ch. 86 (S.B. 1383).


[24] Freedom to Compete Act, S. 124, 116th Cong. (2019-2020). As of December 14, 2020, the bill remained in committee.

[25] See The Biden Plan for Strengthening Worker Organizing, Collective Bargaining, and Unions,, (last visited Dec. 16, 2020).

[26] Pet. for Rulemaking to Prohibit Exclusionary Contracts, at pp. 1, 4 (FTC Mar. 20, 2019), (filed by Open Mkts. Inst., et. al.), available at:
(last viewed Dec. 16, 2020).

[27] Mass. Gen. Laws ch. 149, § 24L (2018).

[28] 2019 N.Y. Assembly Bill A7193; 2018 N.J. Leg. Sess. A1769.

[29] California Consumer Privacy Act of 2018, Cal. Civ. Code §§ 1798.100 - 1798.199 (West 2018).

[30] Letter from Alastair Mactaggart to the Initiative Coordinator for the Office of the Attorney General of California, (Nov. 13, 2019),

[31] Id.

[32] European Parliament & Council of European Union (2016)Regulation 2016/679. Available at: visited Dec. 2, 2019).

[33] Peter Swire, Future of Privacy Forum Senior Fellow, stated that "[t]his new Congress has the best chance for comprehensive federal legislation that I've ever seen." Jennifer Bryant, 2021 'best chance' for US privacy legislation, The Privacy Advisor, (Dec. 7, 2020)

[34] Protecting the Right to Organize Act, H.R. 2474, 116th Cong. (2019-2020).

[35] Id.

[36] 2020 Cal. Stat. SB-1384.

[37] Henry Schein Inc. v. Archer and White Sales Inc. , No. 19-963, 2020 WL 5882200 (2020).

[38] Id.

[39] Ronald Mann, Argument analysis: Justices ponder narrow question in second look at arbitration dispute, (Dec. 9, 2020, 2:52 PM),

[40] Id.

[41] General Duty Clause, Section 5(a)(1)of the Occupational Safety and Health (OSH) Act of 1970, 29 USC 654(a)(1) (Proposed Draft 2020).

[42] In addition, "an employee who refuses vaccination because of a reasonable belief that he or she as a medical condition that creates a real danger of serious illness or death (such as serious reason to the vaccine) may be protected under Section 11(c) of the Occupational Safety and Health Act of 1970 pertaining to whistle blower rights."

[43] 42 U.S.C.A. § 12112(b)(5)(a) (2009).

[44] What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,, (last visited December 16, 2020).

[45] 29 U.S.C.A. §§ 701, 703(a)(1) (2014).

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