New York Governor Kathy Hochul signed into law an amendment to the NY State Labor Law that will expand workplace protections for nursing employees, effective May 31, 2023. The new law builds upon already-existing requirements under the Labor Law to provide reasonable unpaid break time (or permit employees to use paid break time) to express milk in the workplace for up to three years following the birth of a child, and to “make reasonable efforts” to provide a room or other location, other than a restroom, to express milk in private.

Under the amended law, employers are required to provide break time to nursing employees “each time such employee has reasonable need to express breast milk” for up to three years following the birth of a child. In addition, upon request, employers are required to designate a room or other location (other than a restroom or toilet stall) which can be used by nursing employees to express breast milk. Such room or other location must be a place that is: (i) in close proximity to the employee’s work area; (ii) well lit; (iii) shielded from view; and (iv) free from intrusion from other persons in the workplace or the public. The room or other location must also provide, at a minimum, a chair, working surface, nearby access to clean running water and, if the workplace is supplied with electricity, an electrical outlet. If the workplace has access to a refrigerator, employees must be permitted to access the refrigerator for the purposes of storing expressed milk.

Employers will be required to provide notice to all employees as soon as practicable once a room or other location has been designated for use by employees to express breast milk. If the sole purpose or function of the room or other location is not dedicated for use by employees to express breast milk, it must be made available to such a nursing employee when needed and cannot be used for any other purpose or function while in use by a nursing employee.

If compliance with these requirements would impose an undue hardship on an employer “by causing significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer’s business,” the employer is required to make “reasonable efforts to provide a room or other location, other than a restroom or toilet stall, that is in close proximity to the work area where an employee can express breast milk in privacy.”

The law requires employers to maintain a written policy regarding the rights of nursing employees, including specifying the means by which a request may be submitted to an employer for a lactation room, and requiring the employer to respond to such request within a reasonable timeframe, not to exceed five business days. Employers are required to provide the policy to all employees upon hire, annually thereafter, and to employees upon return to work following the birth of a child.

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In advance of the law’s effective date, employers in New York State should review their existing nursing employee policies to ensure they comply with these new requirements. Employers with operations in New York City must also be mindful of similar requirements under local law. We will continue to report on further developments with regard to this law, including publication of the state’s model policy.

As we previously reported, as of November 1, 2022, New York City’s salary transparency law requires covered employers who advertise or post a job, promotion, or transfer opportunity for a role that can or will be performed, at least in part, in NYC to disclose in such advertisement of posting the minimum and maximum annual salary or hourly wage that the employer in good faith believes it would pay for the position.

As we look ahead to 2023, similar statutes will take effect in California, Washington, and Rhode Island. Here are some highlights about pay transparency legislation that will take effect on January 1, 2023:

California:

In California, § 432.3 of the Labor Code, as amended requires employers with 15 or more employees to “include the pay scale for a position in any job posting.” The law does not define a “job posting,” but clarifies that it includes posts by third-parties engaged by an employer to advertise a role. Additionally, all employers must provide the pay scale for a position to an applicant “upon reasonable request,” or to an employee “for the position in which the employee is currently employed.” Penalties for failing to disclose pay scales are up to $10,000 per violation.

Furthermore, as we previously reported, the California legislation requires that employers provide certain employee pay data to the California Civil Rights Department. Employers with 15 or more employees must report median and mean hourly wages by each combination of race, ethnicity and sex within a given job category. The first reports, which shall be based on 2022 data, are due on May 10, 2023. Penalties for failure to comply with reporting requirements are up to $200 per employee.

Washington:

Washington’s Equal Pay and Opportunities Act, R.C.W. § 49.58.110, as amended requires employers with 15 or more employees to “disclose in each posting for each job opening the wage scale or salary range.” Notably, the Washington legislation also requires employers to provide a “general description of all the benefits and other compensation to be offered to the hired applicant.” The State has released an administrative policy indicating that this description should include, but is not limited to “health care benefits, retirement benefits, any benefits permitting days off (including more generous paid sick leave accruals, parental leave, and paid time off or vacation benefits), and any other benefits that must be reported for federal tax purposes, such as fringe benefits.”

A “posting” under the Washington law is defined as “any solicitation intended to recruit job applicants for a specific available position, including recruitment done directly by an employer or indirectly through a third party.” The law expressly clarifies that the definition applies to “any postings done electronically, or with a printed hard copy, that includes qualifications for desired applicants.”

Rhode Island:

Rhode Island’s Pay Equity Act, R.I. Gen. Laws ch. 28-6, was amended to impose new pay transparency requirements. Unlike the California and Washington laws, the Rhode Island law does not expressly require employers to post anticipated salary ranges in postings. Instead, it provides that, upon request, employers must “provide . . . an applicant for employment the wage range for the positon for which the applicant is applying.” Employers “should” disclose the range “prior to discussing compensation” for the position with the applicant.

However, even if not requested, employers “shall provide an employee the wage range for the employee’s position both at time of hire and when the employee moves into a new position.” Further, employers must provide a wage range for an employee’s current position at their request at any time “during the course of employment.” “Wage range” is defined as the “lower and upper bounds that an employer is willing to pay an applicant for employment or does pay an employee.”

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In addition to these laws taking effect soon, proposed pay transparency legislation is currently pending in New York State, Massachusetts, and South Carolina.

In light of the current and developing legislation concerning pay transparency, employers should be proactive in ensuring their job postings are in compliance with all such laws that may apply to such postings.  To that end, employers should take note of how these laws define their scope of coverage when determining whether a given posting must include the salary, which is particularly important (and could be complicated) in cases where the position may be performed remotely.

Employers should also remember that pay transparency legislation exists at the local level as well. In addition to New York City, legislatures in Westchester County, NY, Ithaca, NY, and Jersey City, NJ – among other localities – have enacted local salary transparency ordinances.

Effective December 31, 2022, the Philadelphia, Pennsylvania Employer Commuter Transit Benefit Program requires covered employers to make available for all covered employees a mass transit and bicycle commuter benefits program.

For purposes of the law, covered employers are those that employ fifty or more covered employees, which are defined as any person who performs an average of at least 30 hours of work per week within the city of Philadelphia, for the same employer within the previous 12 months.

Covered employers must provide covered employees with at least one of the following employee commuter transit benefit programs:

1. Election of a pre-tax payroll deduction, consistent with the Internal Revenue Code for: (a) mass transit expenses which include fare instruments (e.g., passes, tokens, or fare cards), or (b) qualified bicycle commuting expenses (e.g., purchase, maintenance, repair, and storage);
2. An employer-paid benefit whereby the covered employer supplies a fare instrument for a covered employee’s mass transit expenses, consistent with the Internal Revenue Code; or
3. Any combination of the programs above.

Employees may report potential violations to an agency designated by the Mayor to oversee employer compliance. After receiving a report, the agency will investigate and attempt to mediate the complaint. If the agency finds the employer is not in compliance following a 30-day mediation period, the agency must first issue a written warning to the employer requiring compliance or face penalties. If the employer is still not in compliance within 30 days of receiving the written warning, the agency may ask the court to compel compliance and impose fines ranging from $150 to $300 per day for each day the employer remains out of compliance.

With the arrival of the new year comes the effective date of many new leave laws (and expansion of existing leave laws) across the United States. Below we summarize family and sick leave laws that will take effect across various states in 2023.

California

California employers will see two main changes to leave laws in 2023 (both of which we blogged about here): an expanded definition of “family member” for family, medical and sick leaves, and new bereavement leave protections. First for 2023, eligible California employees will be able to take family or medical leave under the California Family Rights Act (“CFRA”) and sick leave under the Healthy Workplaces, Healthy Families Act (“HWHFA”) to care for a “designated person,” which is defined as “any individual related by blood or whose association with the employee is the equivalent of a family relationship,” and can be identified by the employee at the time the employee requests the leave. Second, California employers will be required to provide eligible employees with up to five days of unpaid bereavement leave to attend to needs resulting from the death of a family member (which takes its definition from CFRA, but it is unclear at this time whether it will also include a “designated person”) at any time within three months of the family member’s death. Employees will also be able to use any accrued but unused paid vacation, sick, or personal leave time to take bereavement leave.

Colorado

In Colorado, starting January 1, 2023 covered employers must begin contributing to the family medical leave insurance fund created by the Family and Medical Leave Insurance Act (“FAMLI Act”) through a 0.9% payroll tax. The payroll tax, which will remain at 0.9% through 2023 and 2024, will be split equally between employers and employees. The FAMLI Act applies to most Colorado employers and will cover Colorado employees (including remote workers who work for Colorado employers) who earned at least $2,500 in the relevant base period. Beginning in 2024, eligible Colorado employees may apply for up to 12 weeks of partially paid leave (up to 16 weeks for health conditions relating to pregnancy or childbirth complications) for certain qualifying reasons, including the employee’s or a family member’s serious health condition, to care for a newborn or newly placed child, to address needs arising from a family member’s active duty military service, and/or because the employee or their family member is a victim of domestic violence, stalking, or sexual assault or abuse. Colorado employers should ensure they are ready for 2023 by registering with the FAMLI Division and creating a plan to collect and remit the required premiums, which will be due after the first quarter of 2023 closes.

Oregon

Starting January 1, 2023, employers with 25 or more employees in Oregon must begin making contributions into the new Oregon Paid Family and Medical Leave Insurance (“PFMLI”) program, which provides eligible employees with paid time off for certain family and medical reasons. Employers pay 40 percent of the premium and employees pay 60 percent, which is equivalent to one percent of an employee’s wages for 2023. Employers with fewer than 25 employees need not make contributions into the program, but still need to collect and remit their employees’ share. Employers may elect to participate in the program through the Oregon Employment Department plan or a state-approved equivalent plan. Starting September 3, 2023, eligible employees can apply for up to 12 weeks (14 if pregnant) of PFMLI benefits to (i) bond with a child following birth or adoption; (ii) recover from a serious medical condition; or (ii) if the employee or a family member experienced domestic violence, sexual assault, or harassment.

Maine

Maine has amended its paid leave law, effective January 1, 2023, to require all private employers with 11 or more employees to pay out all accrued vacation pay upon the employee’s separation from employment for any reason. Failure to comply with this requirement may result in payment for the amount owed, liquidated damages up to double the amount overdue, and attorney’s fees and costs.

New York

As we previously reported, starting January 1, 2023, eligible employees in New York may apply for New York Paid Family Leave Law benefits to care for their sibling (including a biological, adopted, step, or half-sibling). The maximum annual employee contribution for 2023 is $399.43, which is $24.28 less than 2022, and the maximum weekly benefit for employees will increase to $1,131.08.

Michigan

Michigan is set to implement the Michigan Earned Sick Time Act (“ESTA”), effective February 20, 2023, expanding the coverage and amount of paid sick time available to employees. The Michigan legislature originally approved ESTA in September 2018, which would have required employees to accrue one hour of sick time for every 30 hours worked, with no cap on accrual or carry over as follows: employers with 10 or more employees would have been required to permit up to 72 hours of paid sick time per year, while employers with less than 10 employees would have been required to permit up to 40 hours of paid sick time and up to an additional 32 hours of unpaid sick time per year. However, subsequent amendments to ESTA significantly scaled back the law’s original requirements and resulted in the adoption of the Paid Medical Leave Act (“PMLA”), which went into effect in March 2019. Several groups successfully filed suit to challenge the constitutionality of the amendment process and on July 19, 2022, the Michigan Court of Claims reinstated the originally approved 2018 ESTA. The State of Michigan filed an appeal and moved for a stay of the Court’s decision pending the appeal. While the Court denied the motion for a stay, it did postpone the enactment of ESTA until February 20, 2023, to provide employers time to make any necessary changes to be in compliance. Parties to the lawsuit have requested the appellate court issue its decision by February 1, 2023.

Looking Ahead

Some states have important changes on the horizon that employers should be aware of, even though there is no need to take action just yet. In 2025, paid family and medical leave laws will take effect in Delaware and Maryland. Both states will require covered employers to begin contributing to the relevant state funds before leave benefits become available to employees. Delaware employers have until January 1, 2024 to make arrangements for payroll contributions to the fund, while Maryland employers with 15 or more employees must begin contributing to the fund on October 1, 2023 at a rate set by the state. Vermont, on the other hand, is implementing a voluntary paid family and medical leave program. Benefits under the Vermont program will begin with state employees on July 1, 2023 and extend to private employers and employees on July 1, 2024. Unlike the programs described above, Vermont’s program does not require employers contribute through payroll taxes. Instead, participating private employers will pay a weekly premium based on their selected program. Vermont’s program follows neighboring New Hampshire’s similar voluntary program, which was enacted in 2021.

Employers should take a moment before 2022 is over to ensure their policies are compliant with 2023 requirements. Members of Proskauer’s Labor and Employment Department are ready to answer questions and bring your policies into the new year.

There is no doubt that 2022 was an eventful year in employment law. In this post, we review some key developments from the prior year that employers should be aware of and hot topics to watch out for as we move forward into 2023.

Salary and Pay Transparency

The trend of enacting salary and pay transparency laws continued in 2022 and shows no signs of slowing down. As discussed in more detail in our previous blog post,  several jurisdictions  passed or enacted salary transparency legislation last year, including New York City (effective November 1, 2022), Westchester County, New York (effective November 6, 2022), California (effective January 1, 2023), and Washington State (effective January 1, 2023). Though employers’ specific obligations under pay transparency laws vary among jurisdictions, these laws generally require employers to disclose a prospective salary or salary range when advertising an open employment position. For example, New York City’s pay transparency law (discussed in more detail here) provides that “it shall be an unlawful discriminatory practice for an employment agency, employer, or employee or agent thereof to advertise a job, promotion or transfer opportunity without stating… the lowest to the highest annual salary or hourly wage the employer in good faith believes at the time of the posting it would pay for the advertised job, promotion or transfer opportunity.”

Limits on NDAs and Mandatory Arbitration

The “Speak Out Act,” which was signed into law by President Biden on December 7, 2022, renders pre-dispute nondisclosure and non-disparagement clauses judicially unenforceable with respect to sexual assault or sexual harassment disputes.

Earlier in 2022, President Biden enacted the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act,” which similarly prohibits enforcement of mandatory pre-dispute arbitration agreements, as well as agreements prohibiting participation in a joint, class or collective action in any forum, “at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct.”

In 2023, employers should be on the lookout for the potential expansion of similar laws at the more local level, as several states (including California, Hawaii, Maine, New York, Oregon, and Washington State) have recently enacted more expansive laws regarding non-disclosure and arbitration agreements in the wake of the #MeToo movement.

Expanding Leave Benefits

While there is still no paid leave benefit requirement for employers under federal law, states and localities are continuing the trend of enacting (or otherwise expanding existing) paid sick, paid medical and/or paid family leave laws (including New York, California, Massachusetts, the District of Columbia, and Chicago, Illinois). In 2022, Maine and Maryland became the latest states to enact new paid family and medical leave legislation. Payroll deductions under the laws are scheduled to begin on October 1, 2023 in Maryland and on January 1, 2025 in Delaware. Employees will be eligible to take statutory paid leave in Maryland beginning in 2025 and in Delaware starting in 2026. Our analysis of the new paid leave laws can be found here.

Employee Monitoring and Data Collection

With remote and hybrid work looking like it’s here to stay – and with the recent emergence of “quiet quitting,” referring to employees doing the bare minimum required of their job – some employers may consider expanding electronic monitoring of employees in response.  These employers should be mindful of certain laws that limit the ability of employers to monitor employee activity.

Effective May 7, 2022, New York law requires all private employers with a place of business in New York state to provide written notice upon hire to new employees if they monitor, or plan to monitor, their employees through telephone, email, or internet communications.  New York City is also currently considering an ordinance that would place significant limitations on employers’ ability to utilize electronic monitoring for purposes of discipline or discharge.  And effective January 1, 2023, the California Privacy Rights Act (CPRA) expanded to apply to employer/employee data, and requires employers to let workers know what personal information they collect about them, among other provisions. Enforcement of the CPRA, however, will not begin until July 1, 2023.

In addition to state law action, the proposed bipartisan federal Data Privacy and Protection Act seeks to regulate the kind of personal data companies can collect on employees, and could preempt existing state law if passed. However, the law faces opposition from Democratic leadership at the federal and state levels, as well as from business interests. The National Labor Relations Board (NLRB) may also become more active in this area, as NLRB General Counsel Jennifer Abruzzo recently issued a memo advocating for “zealous enforcement” to protect employees from intrusive or abusive forms of electronic surveillance.

New California Laws to Watch Out For In 2023

A new year in California brings the arrival of many new labor and employment laws, and 2023 is no exception. Here, we highlight some of these recently enacted laws:

• Fast Food Accountability and Standards (FAST) Recovery Act: On September 6, 2022, California Governor Gavin Newsom signed this law that reshapes standards for employers in the “fast food” industry. The bill applies to non-unionized fast food chains with more than 100 locations, and establishes a council that will determine a minimum wage and working conditions for covered employees. The law was set to come into effect on January 1, 2023, but enforcement of the FAST Act was temporarily enjoined in December 2022, pending a challenge to the statute.
• State of Emergency: This law, effective January 1, 2023, prohibits employers from taking adverse employment action against employees who have a reasonable belief that a worksite is unsafe.
• Leave Law Developments: California passed two leave expansion laws, both of which took effect on January 1, 2023. AB 1041 expands the definition of a “designated person” when an employee takes medical leave to care for others. “Designated person” now includes “any individual related by blood or whose association with the employee is the equivalent of a family development. AB 1949 provides employees with up to five days of bereavement leave upon the death of a qualifying family member.

Additionally, California enacted pay transparency requirements, discussed further in our previous blogs here and here.

PAGA and Viking River Cruises

The California Labor Code Private Attorneys General Act of 2004 (“PAGA”) also will remain a hot-button issue for California employers in the aftermath of the Supreme Court’s ruling in Viking River Cruises, Inc. v. Moriana, Case No. 20-1573, 142 S.Ct. 1906 (June 15, 2022). The opinion reversed previous California Supreme Court precedent by holding that PAGA claims can be separated into “individual” and “representative” claims, and that “individual” claims can be subject to mandatory arbitration. Our full summary of the ruling can be found here.

However, it remains uncertain whether “representative” claims can be subject to mandatory arbitration. The California Supreme Court is poised to determine in Adolph v. Uber Technologies, Inc., whether an employee who has had “individual PAGA claims” forcibly arbitrated maintains statutory standing for representative claims. Alternatively, the California legislature could follow advice from Justice Sotomayor’s concurrence in Viking River Cruises and modify PAGA to explicitly allow an employee to litigate representative PAGA claims on behalf of other employees, even if the employee loses individual standing because the employee-plaintiff’s claims have been compelled to arbitration.

Finally, in 2024, California voters will have an opportunity to vote on the future of PAGA directly, by choosing whether to replace it entirely with the California Fair Pay and Employer Accountability Act (“FPEAA”). We will continue to report evolving developments in the PAGA space in 2023 on California Employment Law Update.

DEI (Diversity, Equity, and Inclusion) Initiatives

Many employers continued to focus in 2022 on improving DEI (diversity, equity, and inclusion) in their workplaces. However, those initiatives have not been without challenge. Some state legislatures have passed laws restricting activities that have long been associated with DEI efforts.  For example, Idaho passed legislation specifically targeted to stop “preferential treatment” when hiring employees based on race, while Florida’s Individual Freedom Act, which amended Florida’s Civil Rights Act, prohibits employers from endorsing various race-, sex-, and national origin-based concepts during mandatory trainings.  A federal judge enjoined much of the Florida law, but that decision is currently on appeal.

In 2023, the Supreme Court is also poised to decide what could be a landmark decision on race conscious admissions in higher education.  On October 31, 2022, the Court heard oral arguments in two cases related to affirmative action programs at universities.  Students for Fair Admissions, Inc. v. Pres. and Fellows of Harvard College, 142 S. Ct. 2810 (2022); Students for Fair Admissions, Inc. v. U. of N. Carolina, 142 S. Ct. 2809 (2022).  A ruling on the lawfulness of these programs, even if narrowly tailored to college affirmative action programs, could have implications down the road for employer-sponsored DEI initiatives.

Employee v. Independent Contractor Tests

Uncertainty surrounding how various federal and state laws classify workers will keep challenging employers in 2023.

On October 13, 2022, the Department of Labor (“DOL”), issued a proposed new rule for classifying workers. The proposed rule largely mirrors the Obama-era test, and aims to totally replace guidance made in the waning days of the Trump administration. The proposed rule seeks to focus “on the economic realities of the workers’ relationship with the employer,” and frames a worker’s economic dependence on their employer as the “ultimate inquiry” for the test.

Ultimately, courts have the power to apply the new multi-factor test how they think is best. In addition, certain states, including California, Massachusetts, and New Jersey, have adopted the “ABC test” in recent years, an even more stringent test used to determine whether workers should be classified as employees, rather than as independent contractors. The test’s stringency has made it a target for employers and certain workers who desire to be classified as independent contractors, including truckers in California who protested earlier this year. This year, a California appellate court held that the “ABC test” for determining employee vs. independent contractor status can be applied even if workers do not first establish that they were actually hired by the defendant-employer or its agent. No sector is more in flux with these laws than companies in the “gig economy.”

The independent contractor rules are another area of law that employers should monitor, particularly for developments throughout the various states that adopt different standards.

Artificial Intelligence (AI) Tools in Employment

In recent years, an increasing number of employers have turned to artificial intelligence (AI) tools to help more effectively evaluate and select job candidates. Federal, state and local governments have begun scrutinizing the use of these tools in response to research suggesting that the widespread use of AI tools may increase the possibility of bias or discrimination on the basis of protected characteristics.

For example, in May 2022 the DOJ and EEOC issued guidance for employers concerning the use of AI tools. On the local level, beginning in April 2023, New York City employers will be prohibited from using automated employment decision tools to screen applicants and employees, unless the tool has been subject to a bias audit and the employer satisfies a series of potentially burdensome notice requirements.  While the law was initially set to take effect on January 1, 2023, the NYC Dept. of Consumer and Worker Protection has announced that due to the pendency of proposed rules, the law will not be enforced until April 15, 2023.

Further, two measures were proposed in 2022 to regulate the use of AI tools in employment in the state of California. In January 2022, AB 1651— Worker Rights: Workplace Technology Accountability Act— was introduced into the California State Legislature. This bill would (1) grant California employees the right to “know, review, correct, and secure data collected from them by their employer”; (2) “impose various limitations on the collection and use of data via electronic monitoring”; (3) limit the use of “machine learning, statistics, or other data processing or artificial intelligence techniques, that makes or assists an employment-related decision”; and (4) “require employers to prepare and publish impact assessments for the use of various technology.” In March 2022, the California Fair Employment and Housing Council published a Draft Modification to Employment Regulations Regarding Automated-Decision Systems, which seeks to further regulate California employers’ use of AI tools.

OFCCP Enforcement

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) has increased its enforcement efforts under the Biden administration, as indicated in Directive 2022-02, Effective Compliance Evaluations and Enforcement, and through OFCCP’s subsequent adoption of new directives and regulatory procedures. Among other things, OFCCP has indicated that contractors will no longer be guaranteed advance notice of audits, and can expect more requests for additional data, witness information and witness interviews.

Moving into 2023, OFCCP is also considering adopting a revised Compliance Review Scheduling Letter and Itemized Listing for OFCCP audits, which would impose significant new initial audit submission requirements on federal contractors. The public has until January 20, 2023 to submit comments on proposed changes. Our analysis of the proposed changes can be found here.

On January 12, 2023 the New York State Department of Labor (“DOL”) issued an updated Proposed Sexual Harassment Prevention Model Policy which, among other things, addresses remote work, gender identity and bystander intervention methods.  The public has 30 days (until February 11) to comment on the proposed revisions prior to a final version being adopted.

As we previously reported, effective October 9, 2018, all New York State employers were required to adopt written sexual harassment prevention policies and institute annual anti-harassment training for employees. Following the enactment of the law, the DOL issued model forms that employers can use for compliance, including a model sexual harassment policy. Notably, the law includes a provision that the model policy be reviewed and revised every four years to account for changes to the workplace, prompting the DOL’s current review.

Key proposed revisions to the model policy of which employers should take note include:

• Adding a provision clearly explaining that, in New York State, sexual harassment does not need to be severe or pervasive to be illegal.
• Defining sexual harassment as a form of “gender-based” discrimination, and providing an explanation of gender diversity (including definitions of cisgender, transgender and non-binary persons).
• Including a provision explaining that intent is irrelevant under the law, and referring to the New York State Human Rights Law in explaining that whether harassing conduct is considered “petty” or “trivial” is from the perspective of a “reasonable victim of discrimination with the same protected characteristics.”
• Adding provisions making clear that harassing behavior can happen in the remote workplace.
• Providing an updated, non-exhaustive list of examples of sexual harassment and retaliation across many kinds of careers and industries.
• Including a provision in the section on Supervisory Responsibilities telling supervisors and managers to be mindful of the impact investigations into sexual harassment can have on victims, and stating that management must “accommodate the needs of individuals who have experienced harassment to ensure the workplace is safe, supportive and free from retaliation for them during and after any investigation.”
• Adding a new section on bystander intervention, including an explanation of five standard methods of intervention that can be used if employees witness harassment or discrimination.
• In the section on Legal Protections and External Remedies, making reference to the state’s confidential hotline for complaints of workplace sexual harassment which, as we previously reported, launched in July 2022.
• In a new Conclusion section, clarifying that while the focus of the policy is on sexual harassment and gender discrimination, the New York State Human Rights Law protects against discrimination in other protected classes and the policy “should be considered applicable to all protected classes.”

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Follow Proskauer’s Law and the Workplace blog for further developments.

The New York State Department of Labor (“DOL”) has released its long-awaited updated model sexual harassment prevention policy that addresses issues such as gender identity, remote work, and bystander intervention. As we previously reported, the DOL published proposed changes to the model policy in January of this year, and the updated policy largely mirrors those proposals. These changes arise from 2018 amendments to the New York State Labor Law, which require employers to adopt written sexual harassment prevention policies that meet or exceed the model policy’s requirements. As part of this legislation, the State must review and revise the State’s model policy every four years, which led to the recent updates.

These are the major revisions to the model policy of which employers should be aware:

• Clearly explaining that, in New York State, sexual harassment does not need to be severe or pervasive to be illegal.
• Defining sexual harassment as a form of “gender-based” discrimination, and providing an explanation of gender diversity (including definitions of cisgender, transgender and non-binary persons).
• Including a provision explaining that intent is not a defense under the law, and that impact is what matters in assessing whether the law has been violated. The provision also refers to the New York State Human Rights Law to explain that whether harassing conduct is considered “petty” or “trivial” is from the perspective of a “reasonable victim of discrimination with the same protected characteristics.”
• Adding provisions making clear that harassing behavior can happen in the remote workplace.
• Providing an updated, non-exhaustive list of examples of sexual harassment and retaliation across many kinds of careers and industries. Some of the new examples include “Intentional misuse of an individual’s preferred pronouns” and “Creating different expectations for individuals based on their perceived identities.”
• Including a provision in the section on Supervisory Responsibilities informing supervisors and managers that they should be mindful of the impact investigations into sexual harassment can have on victims, and stating that management must “accommodate the needs of individuals who have experienced harassment to ensure the workplace is safe, supportive and free from retaliation for them during and after any investigation.”
• Adding a new section on bystander intervention, including an explanation of five standard methods of intervention that can be used if employees witness harassment or discrimination.
• In the section on Legal Protections and External Remedies, making reference to the state’s confidential hotline for complaints of workplace sexual harassment which, as we previously reported, launched in July 2022.
• In a new Conclusion section, clarifying that while the focus of the policy is on sexual harassment and gender discrimination, the New York State Human Rights Law protects against discrimination in other protected classes and the policy “should be considered applicable to all protected classes.”

In addition, the DOL updated its model training materials (a script and slide deck) on preventing sexual harassment and discrimination. The revisions to the training materials echo the updated model policy, and some key changes include:

• Instructing employers in the model training script to provide a content warning to those attending training, stating:
  • “This subject matter can be sensitive or difficult for some employees, including those that might have experienced harassment, discrimination or violence in the past. If the training is being facilitated in a group (whether in person or virtually), trainers should make clear to those attending that anyone needing to step out briefly on behalf of their mental health may do so. All employees do need to complete the training. The employee is allowed to complete the training at a later time if need be.”
• Adding a “What is Gender Identity?” slide using the same language to define gender identity as the model policy.
• As in the model policy, providing that harassing conduct only needs to rise above the level of a “petty slight” or “trivial inconvenience” to be unlawful and explaining that intent does not affect whether conduct is considered harassment.
• Including an exercise that asks participants to identify examples of sex stereotyping from a list of scenarios.
• Providing an overview of the five methods of bystander intervention, which are described in a new section of the model policy.
• Updating the case scenarios, with new examples covering subjects such as the remote work environment and harassment based on gender identity.

The DOL’s “Combating Sexual Harassment in the Workplace” webpage also includes a new training video and other resources to help employers navigate the updated policy requirements.

Employers should review and update their policy and training materials as soon as possible. We will keep track of further developments on Proskauer’s Law and the Workplace blog.

As we have reported previously, on April 10, 2023 President Biden signed legislation ending the COVID-19 National Emergency.  However, the rollback of COVID-19 workplace requirements was already underway in many state and municipal legislatures, with some requirements having previously been repealed or with others scheduled to (or already having) sunset.  With this transition, employers are now taking inventory on which COVID-19 workplace requirements remain in effect and what considerations to keep in mind looking ahead.

The following are some key considerations for employers related to the current state of COVID-19 workplace regulations.  It is noted that this blog does not address broader pandemic relief efforts that may still be ongoing.

The State of COVID-19 Workplace Requirements

Masking

Most states have lifted indoor masking requirements, though certain requirements may remain in effect in certain settings, such as health care facilities.  However, some states do maintain masking requirements under certain conditions.  For example, Washington state requires that employers ensure workers wear appropriate, fit-tested, and NIOSH-approved respirators, if they are required to provide care or work near someone known or suspected to have COVID-19, or if they are otherwise required to do so under their state required COVID-19 “hazard assessment.”  Employers who are no longer required to maintain masking requirements for employees can evaluate whether they want to maintain such policies going forward or eliminate or modify such policies (such as by shifting to “masking preferred” or “masking optional” standards).

Testing

Most jurisdictions that previously required unvaccinated individuals to submit to weekly testing in lieu of vaccination, have lifted these requirements.  For example, New York City no longer requires unvaccinated city employees to wear masks and undergo periodic testing, except in certain instances following COVID-19 infection.  Further, the CDC in its August 2022 guidance, no longer recommends testing asymptomatic persons with no exposure to “high-risk congregate settings, such as long-term care facilities, homeless shelters, and correctional facilities, and workplace settings that include congregate housing with limited access to medical care.”

As we have previously reported, employers may be responsible under the federal Fair Labor Standards Act (FLSA) and/or state wage and hour law for compensating non-exempt employees for time spent adhering to employer COVID-19 requirements, including required COVID testing.

Vaccine Mandates

Most state and municipal COVID-19 vaccine mandates have either lapsed or been rescinded, though, once again, requirements may still exist in certain sectors, such as health care.  New York City’s private employer vaccine mandate – the most expansive of its kind – was lifted by Mayor Eric Adams on November 1, 2022.  With the shift away from vaccine mandates, employers must now evaluate whether to continue to maintain a vaccination requirement for their employees.  Employers who maintain COVID-19 related requirements should still keep in mind their obligation to consider reasonable accommodation requests to workplace vaccine requirements on the basis of medical need or religious beliefs.

Similarly, most state and municipal requirements that placed certain restrictions on or around mandatory vaccination have lapsed or will lapse soon.  For example, Florida Sec. 381.00317 which prohibits employers from imposing COVID-19 vaccination mandates on employees without providing for certain delineated exemptions, will expire on June 1, 2023.  Tennessee’s law prohibiting private employers from compelling or otherwise taking adverse action against a person to compel them to provide proof of COVID-19 vaccination if the person objects “for any reason” is slated to expire on July 1, 2023.  However not all restrictions have expired.  For example, Nebraska’s law is still in effect, which requires private employers exempt employees who provide a completed Department of Health and Human Services “vaccine exemption” form from workplace vaccination requirements.

Further, as we have reported previously, on May 1, the Biden Administration announced that the federal contractor and subcontractor vaccine mandate issued by the Safer Federal Workforce Task Force in response to President Biden’s Executive Order will end on May 12, 2023.

Employers who previously did not implement vaccination requirements for employees in such jurisdictions because of statutory limitations may consider doing so following the sunset of these laws.  However, despite the removal of these exemptions, as noted above, employers must still keep in mind their obligation to consider reasonable accommodation requests when maintaining COVID-19 related requirements.

Finally, similar to workplace testing requirements, employers who do maintain vaccination requirements may be responsible under the FLSA and/or state law for compensating non-exempt employees for time spent receiving their vaccination.

COVID-19 Sick Leave and Vaccine Leave

Laws requiring employers to provide an additional amount of paid leave for reasons related to COVID-19 have lapsed in several jurisdictions.  For example, California’s COVID-19 Supplemental Paid Sick Leave expired on December 31, 2022.  However, some jurisdictions, such as New York State, still have COVID-19 sick leave laws in effect that require employers to provide separate paid leave, beyond what an employee may otherwise be entitled to under a state or local paid sick leave law or an employer’s policy, for certain employee needs related to COVID-19.

Similarly, many jurisdictions no longer require that employers provide a specific bank of time off for employees (or their family members) to receive a COVID-19 vaccine.  For example, New York City’s law that required employers to provide paid leave time for employees to facilitate COVID-19 vaccinations for their child expired as of December 31, 2022.

However, it is essential that employers ensure they follow any applicable and then-current COVID-19 requirements as some jurisdictions still maintain such leave.  New York State’s law requiring New York employers to provide employees with “a sufficient period of time, not to exceed four hours” of paid leave per dose (including boosters) to be vaccinated for COVID-19 is presently set to remain in effect through December 31, 2023.  Furthermore, even in the absence of a COVID-specific law, many state and local paid sick leave laws will still cover time spent by employees obtaining a COVID-19 vaccine for themselves or assisting a family member in becoming vaccinated.

State Specific COVID-19 Safety Plans

Many state COVID-19 or airborne disease safety plan requirements are no longer in effect due to improved conditions, though such laws may continue to impose certain requirements on employers.  For example, the designation of COVID-19 as a covered airborne infectious disease under the New York State HERO Act ended on March 17, 2022, and with it covered employers’ obligations to have an active airborne infectious disease exposure prevention plan actively in place.  However, even in the absence of an active designation of a disease under the HERO Act, New York employers must still maintain a copy of their current airborne infectious disease exposure prevention plan in their employee handbooks.  Further, should COVID numbers begin to rise once again, it is possible that more heightened requirements under the HERO Act and similar laws may once again be implemented.

In contrast, some jurisdictions such as California have integrated their COVID specific safety plan requirements into pre-existing workplace safety requirements.  For example, California employers must maintain a separate “Injury and Illness Prevention Program,” which addresses COVID-19 and other workplace hazards.  California OSHA has released guidance delineating COVID specific requirements that must be included in employer’s program such as the provision of COVID-19 hazard prevention training and the investigation and response to COVID-19 cases.  In addition to California, other states that maintain their own Occupational Safety Hazard Agencies, separate and apart from the federal OSHA, still have in effect COVID-19 requirements and guidance.  For example, Washington state still maintains COVID-19 guidance for both private and state employers, which requires, among other things, that employers address COVID-19 hazards in their “Accident Prevention Program.”

Looking Ahead

Beyond specific government mandates and statutory requirements, there are additional legal and practical considerations that employers should keep in mind when thinking about their approach to COVID-19 moving forward:

Consider the Continued Interplay of COVID-19 and Other Employment Laws

• Under the Americans with Disabilities Act (ADA) (and, in some cases, state and/or local disability laws), employers are required engage in the interactive process with employees who seek a medical accommodation as a result of the effects of long COVID. The EEOC has stated in guidance that the effects of long COVID could constitute an actual disability under the ADA.  As part of the interactive process, employers are permitted to request reasonable supporting medical documentation to better assess a request for accommodation as a result of long COVID.
• Employers may also need to assess whether an employee’s contraction of COVID-19 and/or any subsequent long COVID symptoms may qualify as a covered “serious health condition” under the federal Family and Medical Leave Act (FMLA) and/or applicable state or local leave laws. Similarly, requests to care for a family member suffering from COVID or long COVID impairments may also potentially trigger FMLA or state/local leave law requirements.  And in almost all cases, an employee’s own medical needs related to COVID-19 (including obtaining COVID testing, isolating due to a positive diagnosis, receiving treatment for symptoms, or obtaining a COVID vaccine) or the need to care for a family member experiencing similar COVID-19 related needs are likely to be covered by applicable state and local paid sick leave laws.
• To the extent an employer maintains COVID-19 workplace policies requiring masking, testing or mandatory COVID-19 vaccination, employers must engage in the interactive process with employees who seek a medical or religious-based accommodation from such requirements.
• Pursuant to the ADA’s confidentiality requirements, any employee medical information an employer receives in connection with a COVID-related request for leave, reasonable accommodation or otherwise must be maintained as confidential and stored in a medical file separate and apart from an employee’s regular personnel file.

Monitor Current Guidance

• Employers should continue to monitor the most up-to-date CDC guidance on best practices regarding individuals who have been exposed to COVID-19 and/or who are symptomatic or have tested positive. The CDC currently recommends that individuals who may have been exposed to COVID-19 wear a mask for up to 10 days when indoors.  The CDC recommends symptomatic individuals isolate for a minimum of 5 days and only end insolation when in addition to seeing an improvement of other symptoms, they are without fever for 24 hours.
• The CDC also recommended in its August 2022 guidance, precautions that employers can consider implementing such as improved ventilation and filtration systems and the provision of adequate hand sanitation supplies.

Revisit and Review Workplace Policies

• Employers who have not yet done so should review any existing COVID-19 policies and procedures to ensure they reflect current workplace practices. For example, employers who have eased or eliminated the enforcement of masking, testing or mandatory vaccination policies should ensure that any employee-facing policies are revised to reflect the current manner in which those policies are enforced.

Conclusion

The COVID-19 era of employment law is transitioning, and with this transition comes new challenges that require employers to carry on the lessons gained from the pandemic about workplace safety.  Employers should consult state and local requirements to determine what is necessary in order for them to comply with applicable law.  But in the absence of federal, state or local requirements, employers now have significantly more flexibility to determine how best to promote a productive and healthy work environment while mitigating the risk of workplace disruption from illnesses.

***UPDATED: Mayor Adams signed the ordinance into law on May 26, 2023.  The law takes effect on November 22, 2023.***

The New York City Council has approved an ordinance that, if enacted, would amend the New York City Human Rights Law (“NYCHRL”) to prohibit discrimination in employment, housing and access to public accommodation based on an individual’s height or weight. The ordinance is currently before Mayor Eric Adams, who has previously expressed support.

Among other things, the ordinance would make it an unlawful discriminatory practice for an employer covered by the NYCHRL to take any of the following steps based on the height or weight of candidates or employees:

(1) represent that any employment or position is not available when in fact it is available;

(2) refuse to hire or employ or to bar or to discharge from employment such person; or

(3) discriminate against such person in compensation or in terms, conditions or privileges of employment.

Furthermore, it would be unlawful for any employer, labor organization or employment agency to publish “any statement, advertisement or publication, or to use any form of application for employment or to make any inquiry in connection with prospective employment, which expresses, directly or indirectly, any limitation, specification or discrimination” as to height or weight.

The ordinance includes several exceptions, including when an action is:

• Required by applicable law or regulation;
• Permitted by regulation adopted by the NYC Commission on Human Rights (the “Commission”) identifying particular jobs or categories of jobs for which (i) a person’s height or weight could prevent performing the essential requisites of the job; and (ii) the Commission has not found alternative action that covered entities could reasonably take to allow persons who do not meet the height or weight criteria to perform the essential requisites of the job or categories of jobs; or
• Permitted by regulation adopted by the Commission identifying particular jobs or categories of jobs for which consideration of height or weight criteria is reasonably necessary for the execution of the normal operations of such covered entity.

In situations where a covered entity’s action is not covered by an exception described above, the ordinance provides that “it shall be an affirmative defense that (a) a person’s height or weight prevents the person from performing the essential requisites of the job, and there is no alternative action the covered entity could reasonably take that would allow the person to perform the essential requisites of the job, and there is no alternative action the covered entity  could reasonably take that would allow the person to perform the essential requisites of the job; or (b) the covered entity’s decision based on height or weight criteria is reasonably necessary for the execution of the covered entity’s normal operations. The ordinance also makes clear that covered entities are still permitted to offer incentives “that support weight management as part of a voluntary wellness program.”

If enacted, the ordinance would take effect 180 days after it becomes law. Similar bills have previously been introduced in the New Jersey and New York state legislatures, but appear to have stalled. Protections on the basis of height and/or weight presently exist in other jurisdictions, including Washington, DC, San Francisco, Michigan and Washington State.

The New York State Department of Labor (“NYS DOL”) issued updated regulations under the New York State Worker Adjustment and Retraining Notification (WARN) Act (“the Act”), which requires covered employers to provide 90 days’ advance notice in the event of plant closings, mass layoffs, relocations, or reductions in work hours.  The updated regulations, which took effect on June 21, 2023, incorporate 2021 amendments to the Act and include additional clarifications, as well as requirements, for employers who trigger WARN notice obligations under the Act.

Refresher on New York State WARN

As a reminder, New York State’s WARN Act is broader than its federal counterpart and requires a “business enterprise” with 50 or more full-time employees (or 50 or more employees – including part-time employees – that work at least 2,000 hours per week in the aggregate) to provide at least 90 days’ advance notice to employees and certain government officials and entities prior to a mass layoff, plant closing, relocation, or reduction in work hours.

• “Mass layoff” is defined as a reduction in force that (i) is not the result of a plant closing and (ii) results in an employment loss lasting more than six months at the site of employment during any 30-day period for either 25 or more full-time employees that represent 33% of the full-time workforce at the site or 250 or more full-time employees.
• A “plant closing” is the permanent or temporary shutdown of a single site of employment, or one or more facilities or operating units within a single site of employment, if the shutdown results in an employment loss during any 30-day period at the site for 25 or more full-time employees.
• A “relocation” may trigger WARN if it involves the removal of all, or substantially all, of the industrial or commercial operations of an employer to a different location 50 or more miles away from the original site where 25 or more full-time employees suffer an employment loss.
• Finally, a “reduction in hours of work” will be covered by WARN if there is a 50% or greater reduction in hours during each month of any consecutive six-month period for either 25 or more full-time employees that represent 33% of the full-time workforce at the site or 250 or more full-time employees.

The Updated Regulations

Key updates from the new regulations include the following:

• Treatment of Remote Employees: For purposes of determining employer coverage under the Act, the amended regulations make clear that full-time employees “who work remotely but are based at the employment site” must be counted towards the 50-employee threshold.
• “Temporary” Layoffs vs. “Permanent” Layoffs: The amended regulations clearly differentiate between temporary layoffs (which do not trigger an employer’s notice obligations and are now defined as a mass layoff “with a duration of less than a consecutive six-month period and a planned return of employees after the layoff period ends”) and permanent layoffs (which do trigger notice and are now defined as a mass layoff “that extends beyond a consecutive six-month period”).
• Transfers as Part of the Sale of a Business: The amendments clarify that if employees are transferred as a “good faith condition of [a] purchase agreement” – but the purchaser does not uphold the condition – the purchasing employer is required to provide notice to affected employees and the selling employer is relieved of such obligation.
• Additional Notice Recipients: In addition to each affected employee (and applicable union representatives), the New York Commissioner of Labor (“Commissioner”) and the local Workforce Investment Board, the amended regulations now require employers to also send notices to the following: (i) chief elected official of the unit or units of local government where the site of employment is located; (ii) school district or districts where the site of employment is located; (iii) locality that provide(s) police, firefighting, emergency medical or ambulance services, or other emergency services, to the locale where the site of employment is located (where two or more localities provide the above services, each locality providing such services must be notified); and (iv) any other individual or entity identified in the Act.
• Transmission of Notice: Rather than mailing or faxing WARN notices to the Commissioner, notice must now be provided electronically in a manner to be prescribed by the Commissioner and posted on the NYS DOL’s website, or through an alternative method approved by the Commissioner. In May 2023, the NYS DOL launched its new online WARN portal where employers are “strongly encouraged” to submit their notices.
• Contents of Notice: Among other new requirements, employers are now required to include the following additional information in its notice to the Commissioner: (i) the employer’s complete legal business name and any business names used in the business’s operation; (ii) the home address, personal telephone number(s) and email address(es) (if known), job title, and work locations of each affected employee; (iii) whether each affected employee is paid on an hourly, salary, or commission basis, their part-time or full-time status, and whether they have any affiliation with an employee union representative; and (iv) the total number of full-time and part-time employees in New York State and at each affected site, as well as the number of affected employees at each affected site. In addition, although the pre-amendment regulations required employers to notify the employee representatives and other government entities of the affected employment site’s address, employers must now provide this information to affected employees too.
• Exceptions to Providing Notice: Under the amended regulations, employers must now submit a request to the Commissioner for a determination that the employer meets the requirements of a claimed exception to the notice requirements “within ten business days of the required notice being provided to the Commissioner” and provide supporting documentation “demonstrating the applicability of an exception.” As a reminder, the exceptions to WARN notice include the faltering company exception, unforeseen business circumstances exception, natural disaster exception and the strike/lockout exception. For each exception, the regulations contain a list of documents that must be provided, along with an affidavit verifying the contents of such documentation. In addition, the list of qualifying unforeseeable business circumstances was extended to include “a public health emergency, including but not limited to a pandemic, that results in a sudden and unexpected closure” and “a terrorist attack directly affecting operations.” And, with respect to the faltering company exception, the amended regulations now clarify that this exception applies only to plant closings.

Next Steps

Employers anticipating a mass layoff, plant closing, relocation or reduction in hours should keep these new WARN requirements in mind, and also note that that while NYS has amended its regulations, employer are required to also comply with federal WARN and any other applicable state laws that require notice of termination.  As always, we will continue to monitor for further developments.

On August 11, 2023, the EEOC issued a proposed rule regarding the Pregnant Workers Fairness Act (“PWFA”). The PWFA, which took effect on June 27, 2023 requires covered employers to provide reasonable accommodations to qualified employees or candidates with a known limitation related to pregnancy, childbirth or related medical conditions absent undue hardship.

Below are key provisions of the proposed rule.

Expanded Definition of a “Qualified” Individual

The proposed rule clarifies that (unlike under the Americans with Disabilities Act (ADA)) an individual may be “qualified” under the PWFA even if they cannot perform one or more essential functions of the job, as long as:

• The inability to perform the essential function is temporary;
• The essential function could be performed in the near future; and
• The inability to perform the essential function can be reasonably accommodated.

The proposed rule defines “in the near future” to mean “generally forty weeks from the start of the temporary suspension of an essential function.” Further, it clarifies that in some cases accommodating the essential function “may mean that one or more of the essential functions are temporarily suspended, with or without reassignment to someone else.”

Examples of Related Medical Conditions

The proposed rule broadly defines “pregnancy, childbirth, or related medical conditions” to include (but is not limited to) “pregnancy, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping), use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, or having or choosing not to have an abortion.” Additionally, related medical conditions may include conditions that occurred prior to pregnancy but “that may be or have been exacerbated by pregnancy or childbirth, such that additional or different accommodations are needed.”

Examples of Possible Accommodations

Although employers are not required to provide accommodations that impose an undue hardship, the proposed rule provides the following four accommodations that the EEOC believes should be granted in “virtually all cases”:

• Allowing an employee to carry water and drink, as needed in the employee’s work area;
• Allowing an employee additional restroom breaks;
• Allowing an employee whose work requires standing to sit and whose work requires sitting to stand; and
• Allowing an employee breaks, as needed, to eat and drink.

The proposed rule includes other examples of accommodations for employers to consider, such as: job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modification of equipment, uniforms, or devices, including devices that assist with lifting or carrying; permitting use of paid leave or providing additional unpaid leave; teleworking; and temporarily suspending one or more essential functions of the position.

Violations of the PWFA

The proposed rule also provides further context regarding acts prohibited under the PWFA, as follows:

• Failing to Provide a Reasonable Accommodation: An employer will violate the PWFA when it fails to provide an accommodation to a qualified individual with a known limitation absent undue hardship. However, like under the ADA, there must have been a reasonable accommodation the employer could have provided to the employee (absent hardship) to violate the law.
• Unnecessary Delay in Responding to a Request for a Reasonable Accommodation: Like under the ADA, unnecessary delay in providing an accommodation may violate the PFWA. In particular, a delay in responding to a request for one of the four accommodations listed above is presumed to be unnecessary “because of the presumption that these modifications will be reasonable accommodations that do not impose an indue hardship.” Whether the employer granted an interim accommodation while the request is pending is another factor that will be considered in evaluating unnecessary delay.
• Determining an Employee or Applicant is Unqualified Because They Declined a Reasonable Accommodation: Because the PWFA allows essential duties to be temporarily suspended, an employer must consider whether it is possible to suspend the duty that needs accommodation absent undue hardship prior to determining an employee or is not qualified.

Comments on the proposed rule are due on October 10, 2023. We will continue to report on further developments with regard to the PWFA.