While issues like PPP loans, the CARES Act, and vaccination mandates are largely in the rearview mirror, the workplace looks vastly different than it did three years ago. Some of these changes were brought about by COVID, while others are reflections of what’s happening in our society at large. Here are my predictions for what employers can expect in 2023.
The Pronoun Debate
Unless you’ve been living under a rock for the last few years, you’ve noticed that using pronouns isn’t as easy as you learned it was in grammar school. These days, it is increasingly acceptable for people to choose their own pronouns. This trend tends to evoke strong feelings in people, and that division is finding its way into the workplace. The question before employers is not only whether they are obligated to allow employees to select their own pronouns, but whether they have to honor those selections by referring to employees by their chosen pronouns.
In 2020, the Supreme Court ruled that Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sexual identity and orientation. That case expressly declined to address issues such as sex-specific dress codes, gender-specific restroom access, and pronoun usage. In other words, it remains unclear whether the law requires employers to treat employees consistent with their view of their own gender identity. While the EEOC opined in a 2021 guidance that, “in certain circumstances . . . intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment,” that publication does not carry the force of law, and we do not yet have definitive guidance from the courts.
Rest assured that we will eventually have a definitive answer from the courts. Until then, it’s up to each employer to determine its own risk tolerance for being the defendant in the test case.
Drug Testing and the THC Dilemma
Tolerance for THC use continues to rise; however, it is still illegal under both federal and North Carolina law. So, employers who have employees test positive for THC are free to enact discipline as they see fit, right? Maybe….
North Carolina has a little-known statute that prohibits employers from discriminating against employees who use lawful products during non-working hours (thanks, tobacco lobby). If you’ve driven by any of the ever-increasing number of vape shops lately, you probably have seen signs advertising a product called Delta 8. Delta 8 is a strain of THC that is slightly different from that found in “traditional” marijuana (Delta 9). At least as of now, Delta 8 is legal. It can, however, result in a positive hit for THC on a drug test.
So, what happens when an employer with a zero-tolerance drug policy has an employee test positive for THC, but the employee claims that he/she consumed only Delta 8 bought from the corner vape shop? I don’t have a great answer here. Until the law, the testing, and the available products are in alignment, employers facing this scenario will have tough decisions to make.
Working from Home
Employees demanding to work from home will continue to be a big issue facing employers. As with anything else, there are upsides and downsides. Absent specific instances of ADA accommodations, employers are never legally obligated to allow employees to work from home, but it may be necessary to do so in order to attract and retain employees, although in this author’s opinion, that dynamic will shift somewhat in employers’ favor in 2023 (see below).
The Labor Shortage Relaxes
Over the last year or so, employees have been hard to come by. Businesses are operating at reduced hours. Jobs like line cooks are being advertised with significant signing bonuses. Employees have been quitting at the drop of a hat because it’s so easy for them to get another job.
I am an attorney, not an economist, so take this prediction for what it’s worth, but I believe that the labor market is likely to return to something resembling normal over the next year. COVID stimulus money isn’t flowing anymore. Interest rates are rising. Inflation has sailed. I don’t see how all of these factors will not result in people valuing steady employment more so in the coming year than they did over the last few.
It seems that every year for the last few, we find ourselves saying, “it’s a whole new world.” I suspect the same will be true for 2023. The predictions above are just my best guesses of what the coming year has in store for employers. I’ll circle back next December, and we’ll see if I was off the mark.