As President Biden’s administration begins ramping up and employers adjust to prolonged remote work options, what should HR be planning for in 2021? Here’s a few items to keep an eye on.

Biden Administration

  1. DOL provides new class exemption for investment advisors. Per the DOL’s December 18th “Improving Investment Advice for Workers and Retirees” guidance, registered investment advisers, broker-dealers, insurance companies, banks, and individual investment professionals can “receive compensation from investment funds, which would otherwise violate the prohibited-transaction provisions of the Employee Retirement Income Security Act (ERISA).”
  2. OSHA provides updated COVID workplace prevention plan guidance. The January 29, 2021 guidance puts OSHA on the same page as the CDC and many state and local ordinances.
  3. Shake-up at the NLRB. Within 24 hours of being sworn in, Biden had evicted the top two legal advisors of the National Labor Relations Board. By August, the NLRB will have a democratic majority for the first time since 2017. Expect decisions over the next several years to be more left-leaning.
  4. Possible withdrawal of eased association health plan requirements. Under Trump’s administration, the requirements regarding multiple employers banding together to purchase a group health insurance plan for their employees were eased. Though those eased regulations are already in question given a successful challenge in federal court in 2019, Biden’s administration may very well withdraw the laxity entirely.
  5. Revisions to retirement plans if transition to tax credit happens. Biden promised big tax changes in his campaign. One of the biggest would be to transition the tax benefit for retirement plan contributions from a variable percentage deduction to a universal credit. Whereas investors in higher tax brackets currently receive a higher percentage tax deferral dollar for dollar, Biden’s revisions to the tax code would see all investors receive the same percentage (likely 26%) as a tax credit. In the somewhat unlikely event that these changes go into effect, employer retirement plans and payroll withholding practices will need to be modified.

The “New Normal”

  1. COVID vaccines may cause headaches. As COVID vaccines become available to more and more of the working population, employers have big decisions to make. Will they require employees to vaccinate? How will they handle sick time related to adverse effects from the vaccine? Will they allow continued remote work if an employee opts out? Make these decisions now and put the necessary documentation in place.
  2. Continuation of virtual work. Now that America is a year into the COVID work environment, employees are reevaluating whether they want to stay with their current job. Whereas there may have been a justified fear of changing lanes when there was a nationwide hiring hiatus, employees may now begin looking for new opportunities. And it’s very likely they’ll be looking for remote work flexibility when they do. Employers need to decide whether they will continue to offer remote work or return to the 9 to 5, brick-and-mortar expectations of the past.
  3. Virtual interviewing presents new challenges. Aside from the awkwardness of dealing with technological difficulties while interviewing, employers should be mindful of the equity implications of virtual interviewing. Access to technology has long had a disparate impact on employment opportunities, but perhaps at no time more than the present. Add in accessibility issues for the interview platform and you’ve got a real potential problem. Throw in the implicit bias associated with tech savviness and there’s bound to be some HR nightmares arising from virtual interviews. Consider implementing a policy for virtual interviewing that takes all these issues into consideration.
  4. Brace for a litigation landslide. There have already been a significant number of lawsuits filed by employees related to COVID, spanning the full range of the alphabet soup federal legislation (OSHA, ADA, FMLA, FFCRA, etc.). As employees return to work and the country begins to transition from crisis response to the new normal, agency investigations and lawsuits are likely to ramp up. Document everything and talk to a lawyer early if you anticipate a problem.
  5. Marijuana use by employees a growing concern. During the 2020 election, several states passed ballot initiatives decriminalizing small-scale recreational marijuana use and the majority of states now allow medical marijuana use in some form or another. Though many of the Midwest states are holdouts on this issue, employers should proactively put plans and policies in place. Learn from the states already dealing with the fallout and set your company up for success!



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