Vaccination and accommodation are prominent among “all things.” The Minnesota Department of Human Rights requires reasonable accommodation for COVID-19 risks, which in turn requires a reasonable process to determine whether an accommodation can be reached. Muro LaMere finds that this process tends to defer to employers who seek to protect their business, but also emphasized that the accommodation decision is “really fact-dependent.”
The question becomes whether the job can be done remotely. Business is starting to want employees to come back, either on a hybrid basis or full time, Muro LaMere said, but some of her clients have a fully remote workforce. Some of those employees actually work in different states, Muro LaMere said. At a time of labor shortages, the expanded talent pool can assist employers, she said.
COVID-19 is tied to the diversity, equity and inclusion in the workplace, her second issue of the last year. The same issues that affect DEI measures also may create or exacerbate a two-tiered workforce, Muro LaMere said. Employees who come in seem more dedicated, while remote employees may be excluded from workplace training. “The problem is, it hits women, minorities and disabled employees,” she added. Muro LaMere also said studies have shown that women working remotely with children at home receive raises and promotions at a much lower rate.
Furthermore, diverse employees are more likely to resist coming in. For one thing, microaggressions are exhausting, and they particularly hit LGBTQ employees and those of color, Muro LaMere said. Also, workplace accessibility has always been a barrier to inclusion for disabled workers. “Often employers don’t even know what kind of accommodations can be made.”
The practice of employment law has evolved to increased partnering with the client organization, and DEI is part of that, she said.
The third issue is the changes in the fields of restrictive covenants and noncompete agreements, Muro LaMere said. There’s a trend toward nonenforcement in courts, and increasing involvement at the federal level, including the Department of Justice becoming involved and arguing that covenants are a restraint of trade under the Sherman Act, she said.