For Human Resources Professionals, 2022 is Starting Out with a Bang

In the world of labor law, the holidays usually bring some sense of calm to the frenetic events of human resources. With employers and employees taking a rest for religious holidays and the New Year's celebrations, the pace of the employment world often slows down.

Welcome to 2022!

As we approach the third year of a pandemic that has dramatically affected the workplace, and the federal government and states have passed laws and regulations to effect reforms for employees, the first week of 2022 brings many important developments.

First, federal contractors can no longer inquire about an applicant’s criminal history before extending a conditional job offer to work on a government contract. This restriction was slipped into the National Defense Authorization Act for Fiscal 2020 and took effect December 20. A proposed rule that could guide compliance is expected to be released in coming days.

Second, as part of a statute (Va. Code 40.1-28.10) that was passed in 2020 regarding the escalation of the minimum wage in Virginia over several years, the minimum wage in Virginia jumped to eleven dollars ($11.00) an hour on January 1, 2022, and will remain that way until January 1, 2023, when it will go up to twelve dollars ($12.00) an hour.

Third and fourth, on Friday, January 7th, the United States Supreme Court will hear two cases that will decide the fate of most federal governmental vaccination mandate policies. The first case involves an appeal by the Biden administration which asks the justices to allow it to temporarily enforce a rule issued by the Department of Health and Human Services. This rule requires all health care workers at facilities that participate in the Medicare and Medicaid programs to be fully vaccinated against COVID-19 unless they are eligible for a medical or religious exemption. Lower-court rulings blocked the administration from enforcing the vaccine mandate in approximately half of the states. The justices will hear argument on whether those rulings should remain in place.

The second case will address the legality of the rule issued by the Occupational Safety and Health Administration (OSHA) on November 5, 2021, that requires all employers with more than 100 employees to mandate that those employees be either fully vaccinated against COVID-19 or be tested weekly and wear masks at work. Several challenges to the rule were filed around the country by (among others) business groups, religious groups, and Republican-led states, arguing that the mandate exceeds OSHA’s authority. The U.S. Court of Appeals for the 5th Circuit temporarily put the mandate on hold in November, but the challenges were consolidated in the U.S. Court of Appeals for the 6th Circuit, which reinstated the mandate in the middle of December. The challengers took the matter to the Supreme Court which surprisingly took the matter on appeal in an expedited manner.

If the outcome of these two Supreme Court cases favors the vaccination mandates (which remains problematic in the opinion of most court watchers), it will be quite a busy time for HR professionals as they scramble to instigate such policies.

And think – this is all in just the first week of the New Year. Looks like a busy 2022 for labor and employment professionals!