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ANALYSIS: Three Workplace Issues to Watch as Covid Hits Year Two

March 22, 2021, 4:44 PM

Bloomberg Law’s March 17 webinar, Employment Litigation Risks for Companies Entering Year Two of the Covid-19 Pandemic, was packed with advice and predictions for employers navigating this strange legal landscape.

Here are three takeaways that may help shape perspectives and priorities.

1. Covid-era anxieties haven’t translated to Covid-era lawsuits. A late-2020 wave of employment-related litigation has since leveled off, leaving 2020 about on par with other recent years in terms of the number of federal and state lawsuits filed against employers. And 2021 is shaping up to be even quieter.

“The spike of Covid-related litigation hasn’t materialized,” said panelist David Muraskin, a litigation director for Public Justice. If another wave of lawsuits does emerge, Tanja Darrow, a shareholder and co-chair at Littler Mendelson, said it will likely occur in state venues where workplace protections are strongest, such as California and New York.

2. OSHA is moving fast on workplace safety. In addition to new Covid-fighting guidance and enforcement strategies, the Occupational Safety and Health Administration is also set to release an emergency temporary standard (ETS) that would deal with the pandemic and add teeth to the OSH Act’s General Duty Clause at the same time.

But, as Muraskin observed, looming court challenges could cause the ETS to die on the vine before ever taking effect. OSHA will have only six months to issue a permanent standard incorporating the ETS’s protections—a timeline that the agency has never met.

3. Historic labor law changes are halfway to enactment, but might go no further. Passed by the House March 9, the Protecting the Right to Organize Act is the “most incredible rewrite of the NLRA that I’ve ever seen,” said Mario Barrera, a partner with Norton Rose Fulbright. And it’s not just unions that would be affected. The bill’s adoption of the so-called ABC test “almost makes it impossible to establish that anybody is an independent contractor,” he said.

Both Barrera and Muraskin agreed that the bill has almost no path through the evenly divided Senate, and predicted that only a handful of its potentially game-changing provisions have a chance to survive. But the ABC portion, Barrera said, is one of them.

Bloomberg Law subscribers can find related content on our Labor & Employment Practice Center.

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