The world of employment law: The year of pandemic, protest and politics
10 February 2021
Early 2020 saw the start of the Coronavirus pandemic. It rapidly criss-crossed the world, killing thousands of people, overrunning healthcare systems, devastating businesses, closing schools, and presenting an unprecedented challenge for leaders.
Governments around the world struggled to deal with what was simultaneously a public health crisis and an economic disaster. Most countries imposed some form of lockdown or other voluntary or involuntary restrictions on movement and trading. Such measures were intended to halt or delay the spread of the virus but were calamitous for business. While many office workers found themselves unexpectedly working from home, other types of work were even more severely disrupted if not shut down altogether. Governments were forced to implement emergency measures to support their economies and prevent a humanitarian catastrophe caused by sickness and mass unemployment.
Temporary employment law measures included wage subsidies, temporary bans on redundancies, emergency leave entitlements and provisions about remote work and flexibility. Many of these schemes are ongoing while the virus remains out of control, but they are too expensive to continue indefinitely. They were intended as strictly temporary measures to deal with a unique emergency. As soon as the virus is checked, we can also expect state support to be significantly curtailed. Nearly all countries will, however, see a permanent structural legacy. The emerging landscape will mean sunset for some industries, growth for others, and measures such as increased sick pay and a huge shift towards flexible or remote working (with legislation facilitating the same). At the end of this paper, we return to consider proposals for post-pandemic policy making in 2021.
Impressively, nine Covid-19 vaccines have been developed, tested and approved by regulators and more are in the final stages of development. Many countries are already rolling out their mass vaccination programmes. These promise to offer the most effective way out of the pandemic, allowing governments to ease lockdown and other restrictions as the most vulnerable are protected and herd immunity gradually hinders the virus’s transmission. But as vaccination becomes more readily available over the coming months, it will throw up various issues for employers - the most salient being whether employers can insist that their workers be vaccinated. This will be a complex question involving conflicting considerations, including: health and safety (of staff, customers and anyone else employees come into contact with); contractual rights; unfair dismissal or the right to suspend without pay (depending on how the employer intends to deal with refusals); data privacy; and discrimination.
Some workers may have medical conditions that mean they cannot be inoculated without health risks to themselves. Others may have religious or philosophical objections, particularly to any vaccines that contain meat products (although it is worth noting that the Pfizer/BioNTech, Oxford/AstraZeneca and Moderna vaccines do not contain meat or egg).
As governments’ bandwidth was taken up with pandemic planning, domestic legislative agendas and court systems were severely affected by the pandemic. Many countries have nonetheless continued to strengthen employment rights, especially in relation to discrimination and family rights.
Black lives matter protests
The killing of George Floyd by a police officer in Minneapolis, USA, led to widespread outrage and Black Lives Matter protests across many parts of the globe. Governments have come under pressure to remove societal injustice faced by Black and other minority ethnic people. As the #MeToo movement of a couple of years ago moved sex discrimination and harassment up the agenda for employers, #BlackLivesMatter has focused attention on the important issue of race discrimination and racial harassment.
Firms initially responded by broadly voicing their support for the movement (especially in the US and UK), with many companies also committing to invest substantial sums to advance racial equality. As with the #MeToo movement, however, we are now seeing the focus shift away from public statements and towards the effectiveness of internal diversity and inclusion programmes. Companies do not want to be accused of “woke-washing” by focusing on public support for the cause rather than addressing imbalance and lack of diversity within their own organisations. Investors are also reported to be stepping up pressure on companies to make their diversity and inclusion programmes more transparent and effective. We have seen little specific employment legislation from this movement so far, but countries are likely to move more in this area and on other social justice issues over the next few years.
Although everyone involved was well and truly fatigued by the whole issue of Brexit, negotiations dragged on about as long as they possibly could. An agreement was finally reached on Christmas Eve and came into force on 1 January 2021, just as the transition period ended. The EU-UK Trade and Cooperation Agreement has limited provisions on employment law but it does enshrine a “level playing field” between the parties, with both sides committing not to weaken employment rights in place at 31 December 2020 in a manner affecting trade or investment. The Agreement commits both sides to continue to strive to increase their respective labour and social levels of protection.
There is likely to be a gradual divergence by the UK from certain aspects of EU employment law, but this will be limited to matters that do not affect trade or investment. For the immediate term, existing EU employment law is incorporated into UK domestic legislation and UK courts and tribunals remain obliged to follow European Court of Justice (ECJ) decisions from before (though not after) the end of 2020. The UK government is expected to publish an Employment Bill in 2021 which may give an early indication of the likely extent of divergence. A repeal of certain aspects of working time laws (for example, requirements to factor commission into holiday pay) seem to be within the government’s sights.
There were many elections around the world last year but the one that had the world gripped was the US presidential election. The incumbent Donald Trump lost - even if he refused to accept it - to the Democrat candidate Joe Biden.
Biden made various labour law campaign commitments, including:
- A focus on workplace safety: increased enforcement by the Occupational Safety and Health Administration (OSHA), greater whistleblowing protections, and measures to combat the pandemic.
- The revocation of Trump’s “Executive Order 13950 combating race and sex stereotyping”, which restricted federal grant recipients from undertaking specific types of diversity/bias training.
- Increasing the federal minimum wage, potentially to $15/hour (currently set at $7.25/hour).
- Restoring Obama-era requirements for midsize and large employers to collect and disclose compensation information by gender, race and ethnicity to the federal government, and greater enforcement of pay equity measures.
- Supporting 12 weeks’ paid leave for employees for childcare, caring for someone with a serious health condition, or caring for injured Armed service members (or dealing with “qualifying need arising from deployment” of a family member in the Armed services).
- Encouraging and incentivising unionisation and collective bargaining.
- Enacting legislation to ban employers from requiring their employees to agree to mandatory individual arbitration and forcing employees to relinquish their right to class action lawsuits or collective litigation.
- Introducing legislation to impose even stiffer penalties on corporations and to hold company executives personally liable when they interfere with organising efforts, including criminal liability when the interference is intentional.
- Eliminating non-compete clauses from low-paying positions, except for the very few agreements that are necessary to protect a narrowly defined category of trade secrets. In addition, implementing an outright ban on no-poaching agreements, on the basis that they hinder the ability of employees to seek higher wages, better benefits, and working conditions by changing employers.
While the agenda is ambitious, with the US Senate tied 50-50 and 60 votes required to overcome a filibuster, it remains to be seen how many of these measures will pass into US law. They nonetheless represent a marked shift away from the deregulatory thrust of the Trump era.