Clarity on PWFA
In August, the EEOC finally released the proposed regulations for the Pregnant Workers’ Fairness Act (PWFA). Until this point, it wasn’t entirely clear what expectations were for employers. It was signed into law in December 2022, and became effective June 27, 2023 – even though the proposed regulations hadn’t been issued. Now that regulations (and examples) have been published and opened for comment (which remains open until October 11), things are much clearer. This doesn’t replace any current protections already in place for pregnant or post-partum mothers, so the PUMP and the Pregnancy Discrimination Acts are still in full force. PWFA closes some loopholes that ADA left open and essentially treats pregnancy itself like a disability, offering similar protections to ADA. This means employers with 15 or more employees will be expected to make reasonable accommodations to known limitations associated with pregnancy, childbirth, or related medical conditions.
These regulations won’t require employers to seek supporting documentation as they would in an FMLA or disability claim – but employers may require documentation “only if reasonable under the circumstances.” Luckily, EEOC provides some examples of when it’s not reasonable to ask for supporting documentation – like carrying and drinking water as needed, additional restroom breaks (and breaks in general), sitting/standing modifications, or an obvious limitation that can easily be accommodated. It’s unlikely that most employers will read the proposed regulations in their entirety, so here are some high notes on PWFA that employers should pay attention to.
- Employees aren’t required to use any specific language or form when asking for accommodation. The proposal suggests training management to recognize when a person covered by PWFA is requesting an accommodation.
- Employers should not delay responding to accommodation requests, and any delay could be seen as a failure to accommodate. The EEOC noted that this can be true even if the accommodation was eventually provided.
- Unlike ADA – workers can seek accommodations for a modest, minor, or episodic issue.
- The employer can’t require employees to take paid or unpaid leave if a reasonable accommodation is available, unless the accommodation would present an undue hardship.
- Something that has the potential to get messy: covered medical conditions include “having (or choosing not to have) an abortion.” This is already drawing heavy criticism from a number of religious groups. EEOC says they plan to consider how these regs impact religious employers on a case-by-case basis, and urged employers in that industry respond to the call for public comments.
Whether or not a requested accommodation is “reasonable,” and what creates an “undue hardship” for the employer can be subjective. If the request eliminates two or more essential job functions, you may want to pause and discuss with your team before taking any next steps. If it’s upper management that has questions, it may be best to discus with legal counsel.
Public comments are open through Oct. 11. The EEOC has until December 29 to consider those comments and issue final regulations. Stay tuned on our blog, newsletter, and LinkedIn pages – we’ll provide updates as they happen.
Overtime Exemption Changes
In late August, DOL issued a notice of proposed rulemaking to make substantial changes to FLSA’s salary threshold for white-collar exemptions on overtime pay.
The anchor of the proposed rule is a hike in the minimum salary level. Currently set at $35,568 per year, DOL plans to boost that number to $55,068. The rule would not only raise the minimum salary level, but would also increase the “highly compensated employee” benchmark. Right now, that sits at $107,432 per year. Under this legislation, it would leap to $143,988
The intention is to provide greater financial stability for over three million American workers that would be impacted by the change. The proposal also plays the long game in keeping up economic changes, as DOL plans on updating the standard salary benchmarks every three years. This would have far-reaching impacts on U.S. employers, but it’s expected that DOL will receive strong feedback from employers on this proposed rule. The public comment period is open now through November 7, 2023. You can read the proposed verbiage and submit comments here.
Discrimination Law Update
Historically, anti-discrimination laws were intended to extend protections to employees or candidates who were, for example, terminated, demoted or suspended as a result of management bias. On August 18th, however, the court issued a decision that federal anti-discrimination laws impact decisions beyond what were previously labeled “ultimate employment actions.” This ruling could substantially increase the number of scenarios that anti-discrimination laws can be applied to.
Title VII of the Civil Rights Act states that employers are prohibited from discriminating against individuals based on race, religion, origin/nationality, and gender (among other things) when it comes to pay, working conditions, privileges, advancement, and terms of employment. Until now, an employee or candidate could only take legal action if the discriminatory practices resulted in an ultimate employment decision. The verdict now enables claims based on any decision that influences employment terms, conditions, or privileges.
NLRB Issues Opinion Shifting Burden Back to Employers
If the above updates weren’t enough to make your head spin, the National Labor Relations Board (NLRB) recently issued an opinion that could call for yet another handbook update. The result is a new standard that shifts the burden back onto the employer to prove that certain workplace rules serve a legitimate business purpose and wouldn’t “chill” an employee from exercising their Section 7 rights. This reverses the 2017 Boeing decision that overturned yet another ruling from 2004. Section 7 of NLRA has long been viewed as relating specifically to unionization efforts or unionized employers, but this change would impact virtually all U.S. employers.
Section 7 of the National Labor Relations Act (NLRA) reads as follows:
Sec. 7. [§ 157.] Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title].
The recent ruling for Stericycle, Inc. could require employers to rethink certain policies regarding “gossip” and “working harmoniously,” among other similar social and behavioral expectations. If General Counsel is able to prove that a rule or policy would “reasonably chill” an employee from exercising their NLRA rights, the rule would be deemed presumptively unlawful.
NLRB states that its interpretation of an employer policy would be from the perspective of an employee subject to these rules, and considering participation in one or more of the protected activities. We would urge all employers to review their handbooks and policies with a fine-tooth comb to ensure that their organization isn’t attempting to enforce rules that restrict what employees can discuss with one another, or bring to management’s attention. If you need help updating your employee handbook (or putting one in place), please reach out to our team or consult your attorney.
