Author: Megan Butz

On April 15, 2024, the Equal Employment Opportunity Commission (EEOC) released their long-awaited final rule detailing the implementing regulations of the Pregnant Workers Fairness Act (PWFA). The final rule, spanning 408 pages, was published in the Federal Register on April 19, 2024, and becomes effective sixty (60) days thereafter on June 18, 2024. The PWFA requires a covered entity to make reasonable accommodations to a qualified employee’s or applicant’s known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, absent undue hardship on the operation of the business of the covered entity. Covered entities generally include public and private employers with 15 or more employees, unions, employment agencies, and the Federal Government.

While the PWFA went into effect on June 27, 2023 (see our previous compliance alert), the regulations released by the EEOC will serve to provide additional guidance for employers, attorneys and the EEOC in ensuring compliance with the law. The EEOC received over 100,000 comments during the 60 day notice and comment period from August 11, 2023 through October 10, 2023.

The Final Rule largely reflects the Notice of  Proposed Rulemaking that was issued in August 2023.

The EEOC has released resources to assist employers with understanding and complying with the new regulations including:

• Summary of Key Provisions of EEOC’s Final Rule to Implement the Pregnant Workers Fairness Act (PWFA), which provides the highpoints of the regulations for quick reference by employers and
• What You Should Know About the Pregnant Workers Fairness Act, which lists important terms and conditions in a simple question and answer format for employers to easily find the topic or circumstance which they may require additional information about.  

The full text of the expansive regulations can be found here. The Final Rule includes Interpretive Guidance in addition to the regulations, which represents the EEOC’s interpretation of the issues addressed in the law and will be used by the EEOC in enforcing the PWFA. This guidance includes several examples of situations which may arise for pregnant workers in the workplace and suggests practical actions for covered entities and employees to take to assist with compliance.

Some relevant definitional terms and provisions for employers include:

• “Qualified employee”: A qualified employee can be either an employee or applicant who can perform the essential functions of the employment position (with or without  reasonable accommodation) as defined by the ADA, or the PWFA permits qualification for an employee or applicant even if they cannot perform the essential functions of the employment position if such inability is “temporary,” the employee could perform such functions in the near future, and the inability to perform the essential functions can be reasonably accommodated.
  • For employees currently pregnant, 40 weeks (the typical length of a pregnancy) is considered to be “in the near future”, though such period is not  automatic. Whether the employee could perform the essential function(s) “in the near future” in situations other than when the employee is pregnant is determined on a case-by-case basis.
    
•  “Known limitation” means that the physical or mental condition that is the limitation must be communicated by the employee or his/or her representative to the employer. The known limitation of an employee related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, is limited to the specific employee in question. There is no obligation for employers to provide a reasonable accommodation to an employee based on an individual’s association with someone else with a PWFA-covered limitation, or provide accommodations for bonding or childcare.
  
• Requests for information or documentation. Information or documentation from the employee or applicant’s healthcare provider is not necessary in many instances, and a discussion with the employee or applicant is likely sufficient. Further, an employer may only seek supporting documentation if it is reasonable under the circumstances. The final rule provides examples of when it would be unreasonable for an employer to require documentation. The ADA’s requirement to keep all medical information received by an employer concerning an employee or applicant applies as well to the PWFA.
  
• “Pregnancy, childbirth, or related medical conditions” is defined as pregnancy or childbirth of the specific employee in question and include, but are not limited to, current pregnancy; past pregnancy; potential or intended pregnancy (which can include infertility, fertility treatment, and the use of contraception); labor; and childbirth (including vaginal and cesarean delivery). “Related medical conditions” are medical conditions relating to the pregnancy or childbirth of the specific employee in question. The Rule provides an extensive, but non-exhaustive list of related medical conditions including abortion, pre-term labor, preeclampsia, anemia, sciatica, infection, antenatal and postpartum anxiety, depression, or psychosis, among others.
  
• A list of specific examples of reasonable accommodations under the PWFA includes:
  • Frequent breaks;
  • Sitting/Standing;
  • Schedule changes, part-time work, and paid and unpaid leave;
  • Telework;
  • Parking;
  • Light duty;
  • Making existing facilities accessible or modifying the work environment;
  • Job restructuring;
  • Temporarily suspending one or more essential functions;
  • Acquiring or modifying equipment, uniforms, or devices; and
  • Adjusting or modifying examinations or policies.
    
• A list of four (4) simple modifications that will “in virtually all cases, be found to be reasonable accommodations that do not impose an undue hardship when requested by a pregnant employee”:
  • allowing an employee to carry or keep water near and drink, as needed;
  • allowing an employee to take additional restroom breaks, as needed;
  • allowing an employee whose work requires standing to sit and whose work requires sitting to stand, as needed; and
  • allowing an employee to take breaks to eat and drink, as needed.

Employers should carefully review the regulations, interpretive guidance, technical assistance provided by the EEOC and consult with counsel as necessary to determine their responsibilities. Employers should also review their current policies and procedure and make any revisions necessary to handle requests for accommodations.

Legal Challenges:

Since the Final Rule’s publication, seventeen states have now filed suit seeking to enjoin the final regulations due to the inclusion of abortion within the rule’s broad definition of pregnancy related medical conditions for which employees and applicants may be entitled to a workplace accommodation (absent undue hardship). Employers should continue to monitor the situation for developments.

Disclaimer: The information contained herein is not intended to be construed as legal advice, nor should it be relied on as such. Employers should closely monitor the rules and regulations specific to their jurisdiction(s) and should seek advice from counsel relative to their rights and responsibilities.

On April 26, 2024, the Department of Labor’s final overtime rule was published in the Federal Register. The rule revises the regulations implementing the exemptions from minimum wage and overtime requirements for Executive, Administrative, Professional, Outside Sales, and Computer (EAP) employees under the Fair Labor Standards Act (FLSA).

1. The final rule entitled Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales, and Computer Employees, increases the salary threshold requirement for employees to be considered exempt from federal overtime pay requirements under the FLSA, from $684.00 per week ($35,568.00 annually) to $1,128.00 per week ($58,656.00 annually) effective January 1, 2025. An initial update to the salary threshold to $844.00 per week will become effective on July 1, 2024.

2. The rule increases the total annual compensation requirement for highly compensated employees (HCE) from $107,432.00 to $151,164.00, effective January 1, 2025 (including at least $1,128 per week paid on a salary or fee basis). Similar to the above, an interim increase to $132,964.00 for HCE will become effective July 1, 2024 (including at least $844 per week paid on a salary or fee basis).

3. Finally, the rule also incorporates a mechanism to effectuate a triennial update to the salary threshold to keep pace with economic growth and reflect current earnings data. The first update will become effective on July 1, 2027, and continue every three years thereafter (absent an exception for pausing future updates under certain conditions, which is provided for under the rule). The triennial update will reflect current earnings data using the most recent available 4 quarters of data (published by Bureau of Labor Statistics) and using the methodologies in effect at the time of each update.

Importantly, the “duties” test provided for in the FLSA regulations governing the exemptions described above remains unchanged under the final rule. Accordingly, employers must still generally demonstrate that an employee meets both the duties requirement and earnings requirement in order to classify an employee as exempt under the rule.

Employers will notice that the salary level of the final rule differs from that proposed in August 2023, and is actually $12.00 to $30.00 less than the Department estimated in the NPRM, based on the most recent full-year data available for calendar year 2023.

While the final rule is effective July 1, 2024, the DOL has delayed the applicability date of the new standard salary threshold until January 1, 2025, in part due to employer requests for time to accommodate a nearly 65% increase from the existing threshold.  Regarding HCE, the new total compensation amount represents a nearly 41% increase from the existing total compensation amount. The DOL estimates that “4.0 million workers exempt under the current regulations who earn at least the current weekly salary level of $684 but less than $1,128 will, without some intervening action by their employers, become newly entitled to overtime protection under the FLSA”.

Notably, the July 1, 2024 increase reflects the 2019 methodology under the Trump administration which set the standard salary level at the equivalent of the 20th percentile of weekly earnings of full-time salaried workers in the lowest-wage Census Region (the South) and/or in the retail industry nationally. The January 1, 2025 increase will be implemented according to the new methodology under the rule reflecting the equivalent of the 35th percentile of weekly non-hourly earnings in the lowest-wage Census Region.

While a two-phase approach may have been done in part due to employer readiness and compliance concerns, use of the current 2019 standard for the interim update on July 1, 2024 may be strategic as well in surviving anticipated legal challenges. Some pundits have opined that a two-phase approach with two methodologies by the DOL is an attempt to have some provisions stick even if others are eventually struck down. Considering the failure of the attempted 2016 Obama-era increase to $913.00 per week ($47,476.00 annually) and which included automatic earnings updates every three years, there is an increased possibility that a potential legal challenge to the rule as a whole or portions thereof may be successful. The Trump era salary threshold enacted in 2019 which increased the salary threshold from $455.00 to the current $684.00 per week was unsuccessfully challenged by a fast food operator in Austin, Texas. This case is currently on appeal in the U.S. Court of Appeals for the Fifth Circuit.

Next Steps:

Employers must review their current employee classifications and pay structures to determine those employees potentially affected by the new rule. For any employees classified as exempt from overtime requirements under the FLSA and earning less than the salary and annual compensation increases under the new rule, the employer must decide whether to increase their earnings to preserve the exemption or to reclassify them as nonexempt employees, making them eligible for overtime. Employers will have to decide whether to conduct this process twice in two phases, or to proceed directly towards compliance for the January 1, 2025 deadline. Employers are advised to work closely with counsel in determining the scope and timing of their obligations, and to monitor the rule’s progress as significant uncertainty still looms on the horizon.

Resources published by the DOL include: a Press Release summarizing the rule, FAQs, and a Small Entity Compliance Guide.

In its Fall 2022 Regulatory Agenda, the Department of Labor announced its intention to release updated overtime rules in May 2023. To read details about those updated overtime rules, please see our previous article: Coming Soon – New DOL Overtime Rules.

As that deadline has come and gone, the DOL has announced a new release date, but that deadline too may be a moving target. In its Spring 2023 Regulatory Agenda, the Department of Labor again announced that it is reviewing the regulations defining and delimiting the bona fide executive, administrative and professional exemptions from the Fair Labor Standards Act’s minimum wage and overtime requirements.

The agenda has proposed a new timetable for issuance of a Notice of Proposed Rulemaking slated for August 2023. However, delays in replacement of former U.S. Labor Secretary Marty Walsh combined with a lawsuit challenging the Department of Labor’s ability to establish a salary threshold as part of its regulatory authority, could cause further delays.

Acting U.S. Labor Security Julie Su has been formally nominated by President Biden as Walsh’s replacement, but faces significant opposition from Republicans based on her involvement with California’s controversial AB 5,  which significantly expanded employee classification to large groups of gig workers in California.

The lawsuit challenging the Department of Labor’s regulatory authority to establish a salary threshold was filed by a fast-food chain operator named Robert Mayfield in Austin, Texas in 2022. The case is currently pending before Judge Robert Pitman in the U.S. District Court for the Western District of Texas, with motions for summary judgment filed by both parties as of March 2023. Judge Pitman has not issued a decision on both parties’ requests for summary judgment or whether the case will proceed to trial.

Employers stay tuned.  

Disclaimer: The information contained herein is not intended to be construed as legal advice, nor should it be relied on as such. Employers should closely monitor the rules and regulations specific to their jurisdiction(s) and should seek advice from counsel relative to their rights and responsibilities.

In its Fall 2022 Regulatory Agenda, the US Department of Labor (DOL) announced its intention to release updated overtime rules in May 2023. As that deadline has come and gone, DOL has announced a new release date, but that deadline too may be a moving target. In its Spring 2023 Regulatory Agenda, DOL again announced that it is reviewing the regulations defining and delimiting the bona fide executive, administrative and professional exemptions from the Fair Labor Standards Act’s minimum wage and overtime requirements.

The agenda has proposed a new timetable for issuance of a Notice of Proposed Rulemaking slated for August 2023. However, delays in replacement of former US Labor Secretary Marty Walsh combined with a lawsuit challenging DOL’s ability to establish a salary threshold as part of its regulatory authority, could cause further delays.  Acting US Labor Security Julie Su has been formally nominated by President Biden as Walsh’s replacement, but faces significant opposition from Republicans based on her involvement with California’s controversial AB 5,  which significantly expanded employee classification to large groups of gig workers in California.

The lawsuit challenging the Department of Labor’s regulatory authority to establish a salary threshold was filed by a fast-food chain operator named Robert Mayfield in Austin, Texas in 2022. The case is currently pending before Judge Robert Pitman in the U.S. District Court for the Western District of Texas, with motions for summary judgment filed by both parties as of March 2023. Judge Pitman has not issued a decision on both parties’ requests for summary judgment or whether the case will proceed to trial.

Employers stay tuned for more updates on the Checkwriters News and Compliance Center!

On July 31, 2023, the final extension of flexibilities regarding remote completion of federal Form I-9 will expire.

The Department of Homeland Security (DHS) advises in its October 19, 2022 news release that employers are “encouraged to begin, at their discretion” in-person verification of employee documentation relative to identity and employment authorization for any employees hired after March 20, 2020, who participated in remote verification in reliance on DHS and Immigration and Customs Enforcement (ICE) guidance issued in March 2020 and updated in March 2021.

Pursuant to the updated 2021 guidance effective April 1, 2021, only those employees hired after April 1, 2021 working in exclusively remote settings due to COVID-19-related precautions remained temporarily exempt from physical examination of their Form I-9 supporting documentation, “until they undertook non-remote employment on a regular, consistent, or predictable basis, or the extension of the flexibilities related to such requirements was terminated, whichever occurred earlier.” If employees were physically present at a work location, employers were not entitled to continue to utilize the Form I-9 flexibilities and employers were required to complete in-person physical examinations.

On May 4, 2023, DHS and ICE announced a 30-day compliance period following expiration of the remote verification flexibilities on July 31, 2023. Employers will have this period to conduct in-person physical examination of identity and employment eligibility documentation for all individuals hired after March 20, 2020, and who received a virtual or remote examination of their identity and employment eligibility documentation for their Form I-9.

Employers should follow USCIS guidance on how to notate and update Form I-9 when conducting the required physical inspections to ensure compliance before August 30, 2023.

On August 19, 2022, ICE issued a notice of proposed rulemaking (NPRM) seeking public comment on making the COVID-19 flexibilities relative to remote verification of Form I-9 documentation permanent. In its proposed changes and conditions for alternative procedures, DHS states that it is considering adding fraudulent document detection and or anti-discrimination training requirements for employers should remote verification be made a permanent alternative, as well as possibly restricting the eligible population to utilize the alternative procedures proposed to those employers enrolled and in good standing in E-Verify, and prohibiting use by those who have been the subject of a fine, settlement, or conviction relative to employment eligibility verification practices.

The comment period closed on October 17, 2022, and to date no final rule has been issued and one is not anticipated this year.

Disclaimer: The information contained herein is not intended to be construed as legal advice, nor should it be relied on as such. Employers should closely monitor the rules and regulations specific to their jurisdiction(s) and should seek advice from counsel relative to their rights and responsibilities.

Disclaimer: The information contained herein is not intended to be construed as legal advice, nor should it be relied on as such. Employers should closely monitor the rules and regulations specific to their jurisdiction(s) and should seek advice from counsel relative to their rights and responsibilities.

Effective June 27, 2023, covered employers with fifteen (15) or more employees will be required to provide “reasonable accommodations” to “qualified employees” with “known limitations related to pregnancy, childbirth or related medical conditions” unless such accommodation would cause the employer an “undue hardship”. This law is applicable only to accommodations, and does not replace federal, state or local laws that provide greater protections for workers affected by pregnancy, childbirth or related medical conditions.

This article will detail the accommodations covered employers must make and what is prohibited, and review additional information about existing laws applicable to pregnant workers.

Background

The term “known limitation” is defined under the PWFA as a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or the employee’s representative has communicated to the employer whether or not such condition meets the definition of disability” under the Americans with Disabilities Act (ADA). Where “known limitation” is not confined to the definition of disability under the ADA, it indicates that a more expansive range of conditions is intended, and therefore a lower burden for the employee to establish a need for reasonable accommodation under the law. The PWFA requires the Equal Employment Opportunity Commission (EEOC) to issue regulations within one year of enactment providing examples of reasonable accommodations and addressing known limitations related to pregnancy, childbirth, or related medical conditions.

Additionally, while the ADA requires that a qualified employee must be able to meet the essential functions of a position with or without a reasonable accommodation, under the PWFA an employee may be considered to be qualified even if she cannot perform an essential function so long as the inability is temporary, the essential function can be performed in the near future, and the inability to perform can be reasonably accommodated.

Similar to the ADA, under the PWFA, employers are required to provide a reasonable accommodation to qualified employees unless such accommodation constitutes an “undue hardship”. The definition and construction of undue hardship is consistent with the ADA and includes an action which requires significant difficulty or expense.

What are some examples of reasonable accommodations for pregnant workers under the Act?

The EEOC has published a list of reasonable accommodations proposed by the House Committee on Education and Labor including:

• The ability to sit or drink water;
• Closer parking;
• Flexible hours;
• Receive appropriately sized uniforms and safety apparel;
• Receive additional break time to use the bathroom, eat, and rest;
• Take leave or time off to recover from childbirth; and
• Be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.

What is Prohibited Under the PWFA?

The PWFA prohibits covered employers from the following:

• Requiring an employee to accept an accommodation without engaging in a discussion between employer and employee;
• Denying a job to an applicant or other employment opportunity to an employee who is qualified for such position/opportunity on the basis of that individual’s need for a reasonable accommodation;
• Requiring an employee to take leave if another reasonable accommodation could be provided to enable the employee to keep working;
• Retaliating against an individual for reporting or objecting to unlawful discrimination under the PWFA or for participating in a PWFA proceeding; and
• Interfering with an individual’s rights under the PWFA.

Covered employers include private and public sector employers with fifteen (15) or more employees, Congress, Federal agencies, employment agencies, and labor organizations.

Other Laws Applicable to Pregnant Workers

Title VII of the Civil Rights Act of 1964 (amended by the Pregnancy Discrimination Act) prohibits discrimination in employment on the basis of pregnancy, birth and related medical conditions. The Americans with Disabilities Act (ADA) makes it unlawful to discriminate in employment against a qualified individual with a disability. Under the ADA, pregnancy by itself is not a basis for accommodation as it is not considered to be a disability. However, a covered employee who experiences an impairment related to their pregnancy rising to the level of a disability as defined under the ADA may qualify for a reasonable accommodation.

The Family and Medical Leave Act (FMLA) provides for unpaid, job-protected leave for qualified family and medical reasons including incapacity related to pregnancy, childbirth and child bonding. Many states also provide protections for pregnant workers through state parental leave laws as well as state-based paid family and medical leave programs.

More recently, the PUMP Act (Providing Urgent Maternal Protections for Nursing Mothers Act), signed into law by President Biden on December 29, 2022, expanded workplace protections to nursing employees not previously covered by the Break Time for Nursing Mother’s Act enacted in 2010 and enforced by the Department of Labor. Under the PUMP Act, nearly all FLSA-covered employees have the right to take reasonable break time to express milk during the first year of their child’s life. Under the Act, employers must provide a private space (other than a bathroom) free from co-worker and public intrusion, and shielded from view in which employees may express breast milk. These same protections apply to teleworkers as well, who must be free from observation by any employer-provided or employer-mandated video system including web cameras used for security and/or virtual conferencing.

Employer Takeaway

Employers should review their accommodation policies and procedures to ensure compliance with the law, especially when it comes to conducting the interactive process with their employees who are seeking an accommodation under the PWFA.

Disclaimer: The information contained herein is not intended to be construed as legal advice, nor should it be relied on as such. Employers should closely monitor the rules and regulations specific to their jurisdiction(s) and should seek advice from counsel relative to their rights and responsibilities.

According to its Fall 2022 Regulatory Agenda, the Department of Labor/Wage and Hour Division (the (“Department”) anticipates new proposed overtime rules will be released in May 2023. The agenda discusses that the Department is currently reviewing the implementing federal regulations regarding the white-collar exemptions under the FLSA’s minimum wage and overtime requirements, for bona fide executive, administrative, and professional employees. A primary goal of the new proposed rulemaking would be to update and increase the salary level requirement, which is a requirement to meet any of the exemptions previously mentioned. The current salary level requirement for employees to be exempt from both minimum wage and overtime for employees employed as bona fide executive, administrative, and professional employees is $684.00 per week.

What are the FLSA white-collar exemptions?

Section 13(a)(1) of the FLSA provides an exemption from both minimum wage and overtime pay for employees employed as bona fide executive, administrative, professional and outside sales employees*. The exemptions apply only to white-collar employees who satisfy both the salary basis* and duties requirements prescribed by the regulations. It does not apply to “blue-collar” positions which typically feature manual labor, physical skill, and repetitive operations requiring use of the hands.

The current salary level requirement for employees to be exempt from both minimum wage and overtime for employees employed as bona fide executive, administrative, and professional employees is $684.00 per week. *The salary basis requirements do not apply to outside sales employees.

The salary level requirement was last updated in 2020 to its current level of $684.00 per week. Prior to that, the last time the Department had set the salary level basis was in 2004 at $455.00 per week. Per the agenda, and as a rationale for the Department’s proposed rulemaking, the Department asserts that, “[r]egular updates promote greater stability, avoid disruptive salary level increases that can result from lengthy gaps between updates and provide appropriate wage protection.”

What should employers expect?

When the notice of proposed rulemaking is released in May, there will be an opportunity for public comment before the rules are finalized and go into effect. The amount of the salary increase anticipated for May is unknown, but looking at recent history could provide employers with an indication of what to expect.

In 2016 under then President Obama, the Department of Labor issued a final rule raising the salary level from $455.00 per week to $913.00 per week, and also incorporated automatic increases every three (3) years indexed to inflation or wage growth. The rule was challenged however by a number of businesses, trade organizations and several states, with all cases being consolidated in the U.S. District Court for the Eastern District of Texas. Ultimately in August 2017, the Court declared the overtime rules invalid.

Employers should review their pay practices in advance of the Department’s anticipated May rule release, including being prepared for a potential increase in line with the Department’s previous attempt under President Obama.