2020 was nuts with employment laws changing rapidly so quickly to handle the COVID-19 pandemic. 2021 has no plans to slow down with new laws out of Congress and state legislatures contemplating higher minimum wages, paid leaves, additional protections against discrimination and harassment, and shifting priorities at federal agencies. With hopes of coming out of the pandemic by year’s end, HR professionals in all industries are preparing for the next wave of regulations affecting every industry.

1. Organize. Humanize. Maximize.
2021 Employment Law Update
June 10th, 2021
Kate Bischoff

2. Organize. Humanize. Maximize.
2
Recruiting &
Onboarding
Talent
Management
HR &
Benefits
Payroll
Time &
Attendance
Ascentis
Ascentis provides:
• A-la-carte HR technology
• Industry-leading time & attendance
• Easy dashboards for actionable insights
• Unsurpassed support
30+ Years of experience growing with you as an HR
professional throughout unprecedented change in
the role of HR and expectations of employees.

3. Housekeeping
Organize. Humanize. Maximize.
3
Questions Today’s
topic
Speaker

4. Organize. Humanize. Maximize.
4
Housekeeping - How to earn credit
Stay on the webinar,
online for the
full 60 minutes
Be watching using
your unique URL
sent to you from
GoToWebcast
Program codes
delivered by email,
to registered email,
approximately 30 days
following today’s
session

5. Housekeeping
Organize. Humanize. Maximize.
5
Questions Today’s
topic
Speaker

6. Organize. Humanize. Maximize.
6
Today’s Speaker
Kate Bischoff is an overly enthusiastic, sarcastic, and opinionated management-
side employment attorney and human resources professional. She works closely
with management, HR folk, and technology companies to improve organizations
and make it easier to recruit and retain talent through having easy-to-understand
policies, easy-to-use technology, and easy-to-explain compliance initiatives. Prior
to starting her own business, Kate served as the HR Officer for Consulate General
Jerusalem and U.S. Embassy Lusaka, Zambia. Kate has been recognized by The
New York Times, CNN.com, Wall Street Journal, USA Today, National Public
Radio, and other journalistic sources as a leading authority on harassment,
technology in the workplace, and employment law.
Kate Bischoff

7. Employment Law Update
Kate Bischoff

8. About Me
• Management-side Employment
Attorney & HR Consultant
• Human Resources Officer for the U.S.
Department of State in Jerusalem &
Zambia
• Started tHRive Law & Consulting
• Adjunct Professor of HR Compliance
at Mitchell Hamline
• Investigations
• Policies
• Trainings

9. What We’re Going to Cover…
• COVID
• Biden Administration
• Minimum wage
• Reporting
• Leave
• Weed
• Labor

10. COVID-19 Claims
• Analysis of decisions made during
the pandemic including disability,
familial status, leave-related issues
• Gender – Women in the workplace
at 1988 levels
• Mental health concerns – Increased
signs of mental health issues
• Vaccine mandate

11. Scenario – Jamie, Levi & Suzanne
Jamie, Levi & Suzanne all work for ABC Corp. They all have
young families with two or more children. Once their work went
remote, it was not uncommon for a kid or two to pop up in a
Zoom meeting. Oftentimes, the kids would interrupt the call or
be the reason they couldn’t attend a meeting. As a result, they
have not been involved in many decisions they “should have
been.”
Layoffs are coming & ABC Corp decides to let Jamie, Levi &
Suzanne go.

12. Possible Legal Claims
• Familial/Parental status claims. Familial or parental
status is protected in over 15 states under individual state laws.
• Caregiver discrimination. Theory under Title
VII/Americans with Disabilities Act that could support claims.
• Families First Coronavirus Response Act retaliation. At
employers with fewer than 500 employees, employees were
entitled to leave to provide childcare when daycare and/or
schools were closed. If Jamie, Levi & Suzanne exercised this
leave or were encouraged NOT to take the leave, retaliation
could occur.

13. Gender & COVID
• Pandemic wiped out nearly all gains of
women in the workplace in the last
thirty years
• Kinds of jobs women had & burdens
women placed on us
• Through no “fault” of employers,
women opted out
• Impact on potential discrimination
claims
• Attention placed on affirmative action
employers to get women back to work

14. Mental Health
• About 46% of the more than 1,400 workers
surveyed at the end of last year reported that
they were struggling with mental health issues,
compared to 39% a year earlier.
• More than half of workers — 55% — said a
mental health issue has affected them more
since the pandemic began.
• Changes in management & reasonable
accommodations necessary, including
conditions under which employees return to
the workplace

15. Scenario – James & Dean
James has a heart condition. Dean
has diabetes. They have been very
careful to limit their exposure to the
virus. They’ve even worked from
home for most of the pandemic.
However, management wants people
back in the office as morale &
teamwork has diminished. James &
Dean told HR they don’t want to
come back even though they’ve both
received the vaccine.

16. Possible Legal Claims
• Failure to reasonably accommodate (ADA/State law): My
conditions make getting COVID-19 a risky proposition even if
I’ve been vaccinated. I’ve worked from home for a year, I can
continue to work from home.
• Disability discrimination (ADA/State law): If you terminate
my employment because I am not returning to work, then
you’ve engaged in disability discrimination.
• FFCRA retaliation: If James & Dean used leave, retaliation
could be another source of a claim.

17. Vaccine Mandate?
• Provided exceptions for religion &
disability, employers CAN mandate
COVID-19 vaccinations
• Incentives
• Time off
• Cash bonus
• Bringing the vaccine to you!

18. Biden’s Team
• Marty Walsh – Secretary of Labor
• David Weil – Wage & Hour
Administrator
• Jenny Yang – OFCCP
Administrator
• Jennifer Abruzzo – General
Counsel at NLRB
• No EEOC Commissioners until
August

19. Focus on
Enforcement
• Trump Administration paid lip-
service to providing more
guidance over enforcement
• Largest employer penalties &
recoveries EVER
• Biden Administration will be
focused on enforcement as well
• Get your houses in order

20. Potential for Overtime
• Salary threshold: $684 or $35,568
annually
• Threshold likely to increase
• Duties tests unlikely to change

21. Reporting!
• Bostock decision
• Equality Act in Congress
• Some states already requiring reporting on LGBTQ+ status

22. More Reporting!
• EEO-1 will likely start capturing
LGBTQ+ status
• Refer to the Human Rights
Campaign
• Consider asking on self-identify
• Pay equity
• Component II of the EEO-1
• Or a version of it

23. Affirmative Action
• Within first ten days, Biden
Administration dropped its
lawsuit against Yale University
for discrimination against white
& Asian applicants
• Dramatic shift from Trump
Administration
• Attempt to combine OFCCP &
EEOC
• End affirmative action

24. Get Ready
• Talk with your tech
providers
• ATS
• Payroll
• HCM
• Ask for sample reports
• Ask about reporting
portals

25. Minimum Wage
• Biden Administration has two
ways to raise the minimum wage
to $15
• Through legislative action
• Through executive action for
federal contractors only
• Legislative action has a filibuster
problem
• Executive action effective
January 2022 & adjusted to the
consumer price index

26. Leave
• Paid leave – Two ways
• Through unemployment-like system
• Requiring employers to cover
• Paid sick & safe time leave
spreading across the country

27. What Should
You Be
Doing?
• Stay up on what’s
happening in your
state, city & county
• Doublecheck your
market comparisons
• Be mindful of
counting leave

28. Marijuana
• Possibly coming to a state near you –
17 states & DC
• Three recent cases where employee
had a prescription but either didn’t get
the job or was terminated
• Michigan – employers can discriminate
• Connecticut – employers can’t
discriminate
• Arizona – employers can’t discriminate

30. Some Studies & Surveys
• Decrease of 19.5% of workplace fatalities in states with medicinal
marijuana within workers aged 25-44
• No impact on absenteeism (71%), productivity (74%), safety
incidents (75%), or quality of work (70%) per ADP survey
• In four states where marijuana is recreationally available, there’s a
correlation to an increase in auto accidents by 6%
• Colorado Dvision of Criminal Justice found fatal automobile
accidents involving a driver with a high level of THC are down
• Washington Traffic Safety Commission found more than half of all
THC-related fatal crashes also involved alcohol readings of over .08

31. Noffsinger v. SSC
Niantic Operating
Company
• D. Conn., Sept. 2018
• Connecticut law (PUMA)
prohibited employers from
not hiring or terminating an
employee who used
marijuana for medical
purposes
• Plaintiff won summary
judgment that she was not
hired because of her
prescribed use

32. NO Pre-Employment
Testing
• Nevada
• New Jersey
• New York (can’t use a
positive test to withdraw
an offer)
• The billboard…

33. Scenario – Judy
Judy applied for an open receptionist
position. She interviewed well, has good
experience & would be a good addition
to the team. She tests positive for
marijuana. When asked about it, she
pulls out her medicinal marijuana card
& explains she takes medicinal
marijuana for chronic pain.

34. Reasonable
Accommodations
• ADA is a rule breaker
• Debate whether the ADA is going to
require reasonable accommodations for
medicinal marijuana
• James v. City of Costa Mesa
• Individual state laws?

35. Scenario – Jimmy
Jimmy is an applicant for a for a
forklift driver in your warehouse. He
has three years experience, is a veteran
& interviewed really well, even offering
some suggestions on improving routes.
He passes the background check, but
tests positive for THC. When you ask
him about it, he tells you he has PTSD
& has a prescription.

36. Reasonable
Accommodations?
• What will work?
• Both employer &
employee
• At night
• Talk with manager
before starting work

37. Alternative
• Always take disciplinary action for
behavior & unprofessionalism
• Signs of being high are also
unprofessional
• May be cleaner disciplinary action
• Requires managers to have eyes-on
• Avoid some policy conundrums

38. What Should
You Be
Doing?
• Carefully consider
whether to test
• Safety sensitive only?
• Understand the
limitations on testing

39. Labor
• “Most Pro-Union President Ever”
• NLRB appointments to be union
• Increased unionizing campaigns

40. Protecting the Right To Organize Act
• Revise the NLRA definition of employee, supervisor & employer to
broaden the NLRA’s coverage
• Prohibit employers from permanently replacing strikers
• Prohibit offensive lockouts
• Make employee misclassification an unfair labor practice
• Remove limits on secondary picketing and strikes
• Prohibit employer captive audience meetings
• Require employers to maintain existing employment terms &
conditions pending an agreement with the union
• Prohibit employers from withdrawing union recognition without a
decertification election

41. Takeaways
• Laws change fast – especially at the
state & local level
• Two things to focus on
• Pay
• Culture
• Love your managers

42. Questions?
Kate Bischoff
(612) 361-7707
(320) 249-9269
@k8bisch
kbischoff@thrivelawconsulting.com
thrivelawconsulting.com

43. Organize. Humanize. Maximize.
43
Questions?

44. Organize. Humanize. Maximize.
44
How Ascentis HR and Learning Management Can Help
Ascentis allows you to focus on the bigger picture with integrated
HR and Learning Management software. We provide real-time
data, easy reporting, and the ability task your employees with
virtual trainings to ensure your business is compliant.
• Ascentis HR provides over 300 on-demand reports, point-in-time
reports and configurable fields
• Fully integrated LMS incorporating unlimited content sources,
mobile access, and EZ-Upload (“SCORM Lite”) integration
capabilities
• LMS full catalog of over 2,000 content objects with categories
• Centralized company-branded employee and manager portals
deliver reliable information to help with managing time off such as
Emergency Paid Sick Leave and Extended Paid FML
Recruiting &
Onboarding
Talent
Management
HR &
Benefits
Payroll
Time &
Attendance
Ascentis

45. Organize. Humanize. Maximize.
45
Contact Us
info@ascentis.com
www.ascentis.com
800.229.2713