Summer 2023 Legal Update
PWFA & PUMP Acts
We mentioned earlier this year that there would be new legislation protecting pregnant and lactating mothers, via two different acts. Little has changed since that announcement, but a little refresher never hurts – especially since it goes into effect on June 27, 2023. The Pregnant Workers Fairness Act (PWFA) requires employers with 15 or more employees to make “reasonable accommodations to the known limitations related to pregnancy, childbirth, or related medical conditions of a qualified employee.” As with many similar regulations, like the ADA, there’s the caveat of “unless the accommodation would post undue hardship on the operation of the business.” These two statements leave quite a bit of gray area, which isn’t helped by the fact that the proposed rules for the PWFA have not been published. When EEOC does issue those rules, there will be a period for public commentary. If you’re wondering how exactly this differs from the ADA protections that are sometimes extended to pregnant workers, the PWFA doesn’t require the pregnancy-related condition to rise to the level of a disability, as they are temporary in nature. This act may also continue to protect an employee under PWFA even if she cannot perform the essential functions of the job at that time, as long as the inability is temporary. The definitions used with ADA of “undue hardship” and “interactive process” will be mirrored in the PWFA.
The PUMP Act is already in effect, and has been since December 2022. It amends the Fair Labor Standards Act to extend nursing protections to exempt employees. Previous protections were only provided to non-exempt employees, but similarly – the PUMP Act provides protections to the mother for one year following the birth of a child. Breaks must be provided anytime a worker needs to express milk, but are not required to be paid breaks. However, if the employer chooses to make these unpaid breaks, the employee must be completely relieved of her duties at that time. Considering that when we say “exempt,” we usually mean “salaried,” this is unlikely to come up because salaried employees don’t clock in and out for breaks.
Potential Non-Compete Ban Still Being Floated
Another federal agency has made statements in support of doing away with most non-compete agreements between employer and employee.
The National Labor Relations Board’s (NLRB) General Counsel issued a memo to all of its high-level officers stating that most non-competes in employment agreements and severance agreements violate the National Labor Relations Act (NLRA), except in certain rare situations. The memo could be a primer for NLRB to rule on the matter, as it directed regional officials to submit any cases involving potentially illegal non-competes.
This is a good time to review the Employment Practices Liability Insurance (EPLI) coverage for your business. Comb through the language regarding claims covered vs. not covered. Boilerplate EPLI policies will typically not include coverage for statutory claims that arise out of federal labor regulations (such as OSHA and ERISA). Since nothing official is in place regarding non-competes at this time, details on the application of any rule remain to be seen. We’ll keep you informed as we hear more from our legal partners.
Ohio’s TechCred program allows employers to access additional funding to upskill both current and future employees to help strengthen their workforce, as well as their retention rates and expand opportunities for advancement.
Ohio employers (public and private) can apply for these funds during the open application periods, and the next window will run July 3- 31. This grant program is available to virtually any Ohio employer, any industry, any size, both private and public (with the exemption of State of Ohio entities) with W-2 employees. You can visit the TechCred website to learn more.
Holidays and Recordkeeping – FMLA and OSHA
Nothing new to report here, just a friendly reminder with two of the summer holidays behind us, and another two coming up. The Department of Labor (DOL) recently issued an opinion letter regarding tracking FMLA absences during weeks that include holidays. If the employee is taking an entire week of FMLA in a week that a holiday occurs – the holiday is deducted from their FMLA hours. When intermittent FMLA is used, an employee might take FMLA in increments as small as 2 hours. If a holiday falls during a week in which intermittent FMLA is being taken – that holiday doesn’t count as FMLA, unless the employee was otherwise scheduled and expected to report on that holiday.
“Days away from work” for the OSHA 300 Log should be counted in calendar days, including holidays and weekends – regardless of the employee’s work schedule.
Form I-9 Flexibility Ending
Immigration and Customs Enforcement (ICE) announced in May that the document inspection flexibility given to employers as a COVID-19 accommodation will expire on July 31, 2023. The flexibility had allowed employers to remotely inspect documents required for Form I-9 such as government IDs and other documentation. When the enforcement agency announced this exception in March of 2020, they were clear that it was temporary in nature and the documents would eventually need inspected in person once non-remote work was consistent again. There is a 30-day grace period for compliance, meaning anyone whose documents were inspected remotely between March 2020 and now, will need them reviewed in person between now and August 30. It’s possible we could see the Department of Homeland Security (DHS) issue a regulation that would allow alternatives to in-person inspection in the future. ICE is an investigative arm of DHS. ICE stated that a rule was proposed and opened for public commentary late last year, and DHS is reviewing public feedback and plans to issue a final rule by the end of 2023.