On June 4, 2026, the U.S. Equal Employment Opportunity Commission issued a new National Enforcement Plan for fiscal years 2025–2029, replacing the agency’s prior Strategic Enforcement Plan. The new plan does not change the federal employment discrimination laws employers must follow, but it provides important guidance about the types of workplace practices most likely to draw EEOC attention.

The most significant shift is the EEOC’s renewed focus on intentional discrimination, including policies or practices that expressly consider race, sex, national origin, religion, or other protected characteristics in employment decisions. The plan also signals increased scrutiny of certain DEI-related practices, including race- or sex-based quotas, “aspirational goals” that function as quotas, diverse-slate or diverse-hiring-panel requirements, diversity statements, demographic reporting practices, and compensation or bonus programs tied to race- or sex-based goals.

What Does This Mean for Employers?

Employers should review recruiting materials, job postings, hiring and promotion practices, compensation programs, employee resource initiatives, accommodation procedures, and DEI-related programs to ensure they do not require, permit, or incentivize employment decisions based on protected characteristics.

The plan also identifies several additional priority areas, including religious accommodations, anti-American national-origin discrimination, single-sex workplace spaces, pregnancy-related accommodations, systemic harassment, retaliation involving EEOC proceedings, and cases involving recent Supreme Court precedent.

Looking Ahead

The EEOC’s new plan is a roadmap for how the agency intends to allocate enforcement resources over the next several years. Employers should consider proactively auditing policies and practices that reference or rely on protected characteristics, even when adopted for well-intentioned reasons.

If you have questions regarding your organization’s employment policies, DEI initiatives, accommodation practices, or other compliance issues impacted by the EEOC’s new enforcement priorities, please contact Legislative Affairs Director, Michael S. Kantor, Esq. at mkantor@wsh-law.com.

• The DOJ’s action does not require employers to permit employees to work while impaired, nor does it prohibit employers from enforcing workplace drug testing policies. However, the reclassification is likely to increase scrutiny of employer decisions involving off-duty medical marijuana use, particularly where the employee is using marijuana pursuant to a physician recommendation or for treatment of a medical condition.
  
• One of the most significant practical developments is that employers should move away from blanket marijuana prohibitions and instead focus policies on workplace impairment and fitness for duty. As a result, employers should review existing policies to ensure they clearly prohibit employees from reporting to work impaired or under the influence of any substance that affects their ability to safely and effectively perform their job duties.
  
• As it pertains to drug testing, the Schedule III classification means that employers should carefully assess whether the positive drug test result is pursuant to a valid state prescription or recommendation for medical marijuana.
  

Reasonable Accommodation Considerations

• The area most likely to evolve in the coming years involves disability accommodation claims under the Americans with Disabilities Act (“ADA”) and similar state and local laws protecting disabled employees. The reclassification of medical marijuana will inevitably lead employees to request permission to use medical marijuana off duty as a reasonable accommodation for a recognized disability.
  
• When evaluating accommodation requests, employers should continue engaging in an individualized, interactive process while carefully assessing whether the requested accommodation would create a direct threat to the health and safety of the employee or others or undue hardship based on the employee’s specific position and job duties. The analysis should resemble how employers already address other prescribed medications that may impair judgment, reaction time, alertness, or firearm and vehicle operation.
  

Looking Ahead

• Although the DOJ’s action represents a significant policy shift, many legal questions remain unresolved. Courts will likely continue addressing issues involving: workplace drug testing; disability accommodations; off-duty lawful conduct; and fitness-for-duty standards.
  
• Employers should continue monitoring legal developments and consult counsel when reviewing workplace drug policies or responding to accommodation requests involving medical marijuana use.
  

If you have questions regarding your organization’s drug and alcohol policies or the impact of the DOJ’s reclassification of marijuana, please contact our office.

Weiss Serota Helfman Cole + Bierman | 2255 Glades Road Suite 200E | Boca Raton, FL 33431 US

Updated 2/6/2026

On February 2, 2026, a federal district court in Washington, D.C. issued an order blocking the termination of Temporary Protected Status (“TPS”) for Haitian nationals. The ruling prevents the Department of Homeland Security (“DHS”) from ending Haiti’s TPS designation while litigation challenging that decision remains pending.

As a result, Haitian TPS holders whose status was scheduled to expire on February 3, 2026, may continue to live and work in the United States for the time being. The court’s order preserves existing TPS protections and employment authorization during the pendency of the case.

Immediate Implications for Employers

• Employers should not take adverse employment action based on the previously scheduled TPS expiration while the court’s order remains in effect.
• Employers may continue to accept valid TPS-based Employment Authorization Documents (EADs) for Form I-9 purposes.
• Standard reverification obligations apply only if and when DHS issues new guidance or the legal status changes.
• Employers should consult with legal and HR personnel to confirm how current TPS protections apply and to minimize the risk of onboarding or reverification errors.
  

What to Watch Going Forward

• The government is expected to appeal the ruling, and future court decisions could affect the duration of TPS protections.
• This extension is temporary and tied to ongoing litigation, meaning TPS could be modified or terminated depending on the outcome of the case.
• DHS and U.S. Citizenship and Immigration Services will likely issue additional guidance on its TPS Haiti webpage, including updates on documentation or compliance obligations.

Updated 2/12/2025

On January 21, 2025, President Donald Trump signed an executive order titled “Ending Illegal Discrimination and Restoring Merit-Based Opportunity” (EO). The goal of this order is to eliminate what it terms “illegal” diversity, equity, and inclusion (DEI) employment policies. For federal contractors, the EO rescinds the requirement to maintain affirmative action plans. For all employers, the EO signals increased investigation and enforcement activities relating to DEI programs that use discriminatory preferences.
 
Section 3 of the EO, titled “Terminating Illegal Discrimination in the Federal Government,” specifically addresses the federal contracting process and revokes several previous executive orders and memoranda, including Executive Order 11246 (“EO 11246”). Originally established in 1965 by President Lyndon Johnson, EO 11246 prohibited employment discrimination by federal contractors and subcontractors based on race, color, religion, sex, and national origin. EO 11246 also required covered contractors to take affirmative action to ensure equal employment. President Trump’s EO now bars federal contractors from considering race, color, sex, sexual orientation, religion, or national origin in their employment, procurement or contracting practices “in ways that violate the Nation’s civil rights laws.” The EO ultimately eliminates affirmative action plan obligations for federal contractors.
 
Section 4 of the EO, titled “Encouraging the Private Sector to End Illegal DEI Discrimination and Preferences” directs federal agencies, in coordination with the attorney general, to take necessary actions to implement the EO's principles. Within 120 days, the attorney general, in consultation with agency heads, is required to submit a report with recommendations for enforcing federal civil rights laws and taking other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI. This report must outline key areas of concern within each agency's jurisdiction, identify the most egregious DEI practices, propose specific measures to deter illegal discrimination, suggest strategies for private sector engagement, and indicate potential litigation and regulatory actions.
 
It is crucial to note that President Trump’s EO does not alter existing anti-discrimination laws (like Title VII or the Florida Civil Rights Act) or their judicial interpretations. However, we strongly encourage employers, particularly federal contractors, to evaluate their current DEI initiatives and/or programs to ensure potential compliance with the EO.
 
We will continue to monitor developments regarding this executive order. If you have any questions or concerns about it or other employment-related executive orders, please feel free to reach out to us.

On April 23, 2024, the Department of Labor (“DOL”) issued a Final Rule redefining the “white collar” (or executive, administrative, and professional) overtime exemption under the Fair Labor Standards Act (“FLSA”). In order to qualify as exempt under the white-collar exemptions, employees must meet the following criteria: (1) be paid on a salary basis; (2) be paid at least the minimum weekly salary; and (3) perform certain duties.

Currently, the minimum salary requirement for these white-collar exemptions was $684, or $35,568 on an annual basis. On July 1, 2024, the weekly threshold will increase to $844, or $43,888 annually and will increase again on January 1, 2025 to $1,128 per week (or $58,656 annually). The Final Rule also calls for automatic updates every three years, starting July 1, 2027.

The Final Rule also provides for a salary increase to the Highly Compensated Executive (“HCE”) exemption (currently $107,432 annually) to $132,964 annually. As a result of these changes, millions of previously exempt employees will lose the exemption and be entitled to overtime pay.

Though the Final Rule is currently being challenged in court by several business groups, there is no guarantee that courts will block the Rule from going into effect. Thus, employers should immediately review their payroll practices and identify exempt employees earning between $35,568 and $58,656 per year and decide whether to increase their salary or convert to non-exempt and pay overtime. Of course, there are several factors to consider when evaluating which option may be best for the company, including employee morale, time keeping procedures, actual hours worked/overtime incurred, etc.

HRABC will continue to monitor the status of the pending legal challenges to the Final Rule, which we expect to be decided before July 1.

"Far too many companies are failing to monitor the location of their remote employees," said Peter Siegel, an attorney with Greenspoon Marder in Fort Lauderdale, Fla.

Costly 'Laissez-Faire Attitude'

Siegel said that "such a laissez-faire attitude has caused many employers to run afoul of state tax and related laws, the repercussions of which can be costly."

Suppose a Florida-based company has an employee who technically is a Florida resident but is performing remote duties exclusively from California. "Such an arrangement, while perhaps initially beneficial to the employer and the employee, could inevitably become a liability headache," he cautioned. For example, California might determine that by virtue of this remote setup, the Florida company has become subject to California law.

"Employees working from home in a state different from the assigned office could subject the employer to sales tax, income tax, and, in some cases, local or city gross receipts taxes that they were not subject to before," said Michael Semes, an attorney with BakerHostetler in Philadelphia. An employer may want to contact the taxing agency for its opinion, he suggested. "In that case, however, one should formulate and support an answer beforehand to increase the likelihood of the taxing agency agreeing with the employer's position."

"Whether the issue is daily overtime, enforceability of noncompete agreements, PTO carryover, post-separation payments, family leave rights, 1099 misclassification, unemployment compensation, workers' compensation, licensure requirements, or unexpected state and local taxes, the sudden imposition of burdensome out-of-state laws can be a scary new reality for any business," Siegel said.

Pay particular attention to differences in paid leave and anti-discrimination laws, said Joe Nuzzo, a vice president at ADP in Roseland, N.J. During the pandemic, many states and municipalities created new leave obligations—some related to COVID-19 and vaccinations. "Employers may find that some of their employees are covered by laws that they are not familiar with," he said. "And some of these laws contain notice and posting obligations that should be considered and addressed."

The COVID-19 pandemic has shown many businesses that it's possible for employees to work productively from just about anywhere, Siegel noted. So, he said, it is now incumbent on employers to:

• Aggressively track the locations of their remote employees.
• Become familiar with the tax laws and licensure requirements of those states where their remote employees are working.

In contrast to the laissez-faire attitude of some employers, others have started to limit where they will permit remote workers to be based, not just restricting work from other countries but even from certain states that may have unique compliance obligations, Nuzzo said.

Many State Tax Waivers Have Expired

Earlier in the pandemic, some states adopted interim policies providing that they would not assert certain tax obligations for temporary remote workers during the pandemic. "This was not universal," Nuzzo said. The waivers "did not exempt all of a company's potential obligations."

In addition, such waivers were never intended to be indefinite and many of these waivers have already come to an end, Siegel said.

Considerations for Local Remote Work

Even when remote employees work in the same locality as the company, HR needs to prepare and disseminate new policies that are specifically directed to remote employees, Siegel said.

"In the pre-COVID world, a typical employee handbook would make only scant reference to appropriate protocol and expectations for remote employees," he said.

HR should, according to Siegel, consider dedicating an entire section of the employee handbook to issues uniquely related to remote employment, such as:

• Workers' compensation guidelines for working at home.
• Clocking in and out from outside the office.
• Professional etiquette and dress code for videoconferencing.
• Reimbursing employees for costs directly associated with telecommuting.
• Maintaining confidentiality of company information and related security concerns.

Time-keeping can be challenging for remote workers who lack access to a company time clock. "Companies will want to make sure that employees' ability to log their time is unimpeded and that there are no irregularities," Nuzzo said.

"Be sure to communicate to employees what is expected, and do a self-audit to make sure your record-keeping practices are just as good with your remote workers as when they were onsite," he said. "The pandemic and remote work have led many to feel like they are always on because there is no longer any separation from work, other than the distance between the desk and kitchen. For nonexempt employees, this can create wage and hour issues if not properly monitored and addressed."

Employers might want to reinforce their equal employment opportunity and anti-harassment policies and revamp them to fit the remote-work environment, said Kelly Cardin, an attorney with Ogletree Deakins in Stamford, Conn., and New York City. "Doing so will help remind employees that they should behave appropriately for work even when working at home," particularly as that relates to an employer's e-chat and videoconferencing functions.

Hybrid Workers Pose Fewer Risks

"Hybrid workers do not generate the same amount of risk as full-time remote employees because their at least occasional presence in the workplace allows for some of the more traditional HR safeguards to remain viable and relevant," Siegel said.

Siegel observed that "the explosion of remote work has, in many ways, turned the traditional HR model on its head. An essential component of human resources has always been the constant, in-person evaluation of workplace behavior and production, with the goal being retaining good performers while weeding out the problems."

He concluded, "While that mission continues unabated even during this new era of remote work, it is obviously more of a challenge to effectively evaluate those whom you rarely, if ever, see."

On June 6, DeSantis signed Senate Bill 262 to create the Florida Digital Bill of Rights (FDBR). The law is scheduled to go into effect on July 1, 2024. Although the FDBR resembles other newly enacted state privacy laws, it has several unique aspects that add additional levels of analysis in determining multi-state privacy compliance.

To qualify as a data controller under the FDBR, an organization must have $1 billion in global gross revenue and satisfy one of the following:

• Derive 50 percent of its global gross revenue from the sale of advertisements online.
• Operate a consumer smart speaker and voice command service.
• Operate an app store or digital distribution platform with at least 250,000 different software applications.

Based on these requirements, it is clear that the FDBR is targeting large technology and advertising companies. However, the terms "processor" and "third-party" do not include these same threshold criteria as a data controller, so there are still compliance implications for businesses that process data on behalf of data controllers, as well as those who receive personal data in a third-party capacity, but do not otherwise satisfy the data controller threshold.

Like other data privacy laws, the FDBR provides exemptions to various entities regulated by federal law (e.g., the Health Information Portability and Accountability Act, the Gramm-Leach-Bliley Act, and the Fair Credit Reporting Act). It does not apply to individuals who are acting in a commercial or employment capacity.

The FDBR provides consumers residing in Florida with the following data privacy rights:

• Access rights, including a right to confirm whether the controller is processing any data at all.
• Correction rights.
• Deletion rights concerning the data provided by or about the consumer.
• Data portability rights.
• Opt-out rights related to the sale of personal information, targeted marketing, and profiling.
• Opt-out rights related to the collection of sensitive data.
• Opt-out rights for the collection of personal data through voice recognition features.

The FDBR sets forth specific processes for how data controllers must receive, process, and respond to individuals who exercise their privacy rights, including establishing a privacy rights appeals process.

The FDBR provides that a data controller must obtain a consumer's consent before they:

• Use the consumer's personal data for a purpose that is neither reasonably necessary nor compatible with the purpose for which the personal data is processed, as disclosed to the consumer.
• Process sensitive personal data of a consumer.
• Enroll the consumer in certain financial incentive programs.
  

Like other privacy laws, the FDBR specifically prohibits using "dark patterns."  Though the FDBR does not define dark patterns, it does state that consent cannot be obtained through acceptance of general or broad terms of use, or hovering over, muting, pausing, or closing a given piece of content.

The FDBR creates obligations for organizations that are not otherwise deemed data controllers. Specifically, all for-profit entities that conduct business in Florida and collect personal data are prohibited from selling a consumer's sensitive data without first obtaining the consumer's consent.

In addition to the typical obligations on controllers and processors seen in other states' laws, the FDBR limits the retention of personal data. Controllers or processors may only retain personal data until the initial purpose for the collection was satisfied, the contract for which the data was collected or obtained is expired or terminated, or two years after the consumer's last interaction with the regulated business.

The FDBR requires a data controller to post a privacy notice, which must be updated annually. In addition to the notices regarding the website selling sensitive or biometric data, if the controller operates a search engine, it is also required to disclose the parameters in ranking results. Specifically, the search engines must disclose the prioritization or deprioritization of partisan or political ideology in search results.

Enforcement

Data controllers must undertake data impact assessments before engaging in certain processing activities. The Florida attorney general is granted the authority to request such assessments at any time.

The FDBR grants the state Department of Legal Affairs the exclusive authority to enforce FDBR, and a violation of the FDBR is deemed an unfair and deceptive trade practice. The FDBR authorizes civil penalties of up to $50,000 per violation but does not create a private right of action. The FDBR includes a 45-day cure period that the Department of Legal Affairs may provide before initiating an enforcement action.

Data Breach Notifications

The FDBR amends the state's data breach notification law. Florida's data breach statute previously identified the following categories of data as personal information that, if compromised, could potentially trigger a data breach notification requirement: government identifiers (e.g., Social Security number, a driver license or identification card number, a passport number, military identification number); certain financial account numbers and access codes; medical data and health insurance policy numbers; and certain usernames or e-mail addresses in conjunction with their passwords.

The FDBR expanded this list of protected personal data to include an individual's biometric data and any information regarding an individual's geolocation, when connected to an individual's name.

This amendment is especially important for organizations that use cookies, pixels, and tags on their website to identify an individual, such as through their social media account, and track their location, as such data may be subject to data breach notification requirements. The FDBR's definition of geolocation does not correspond to the definition of "precise geolocation data" used elsewhere in the law and likely is broader in scope.

Steven G. Stransky and Brenna Fasko are attorneys with Thompson Hine in Cleveland. Marla Izbicky is an attorney with Thompson Hine in Chicago. ©2023 Thompson Hine. All rights reserved. Reprinted with permission via Lexology.

For example, in Dallas and Austin, Texas, construction workers are entitled to a 10-minute rest break for every four hours worked in order to prevent heat illness. Austin also has a local law including gender identity among classes protected from discrimination. St. Petersburg, Fla., and Pinellas County, Fla., have ordinances to prevent wage theft.

"For employers that have employees in multiple cities across the state, complying with these different [local] regulatory requirements can be challenging and impose additional risk of noncompliance," said Jonathan Rector, an attorney with Littler in Dallas.

Texas Law

On June 14, Texas Gov. Greg Abbott signed the Texas Regulatory Consistency Act, HB 2127, which precludes municipalities and counties from adopting or enforcing an ordinance in certain fields, unless explicitly authorized by law. The fields include labor, occupations, finance, insurance, agriculture, natural resources and civil remedies. The new law is scheduled to take effect on Sept. 1.

On July 3, the city of Houston sued Texas, claiming the new law violates the state constitution. The new law would "repeal Texas constitutional home rule, impermissibly expand the scope of state pre-emption of local law, and improperly shift the burden of disproving pre-emption to cities," the lawsuit states."

The Texas Constitution expressly champions the local control and innovation that has been key to the tremendous economic dynamism in cities like Houston. [HB 2127] reverses over 100 years of Texas constitutional law without amending the Constitution," said Houston Mayor Sylvester Turner.

There may be some leeway for counties and cities to pass rules outside of the fields listed in HB 2127.

"Given its broad language, it is difficult to predict which local ordinances [HB 2127] will invalidate when it takes effect. In the short term, local governments may be less inclined to pass ordinances, fearing the act's pre-emptive effect," Greta Ravitsky and Mason Gardner, attorneys with Epstein Becker Green in Houston, wrote in an analysis.

A major goal of the law "is to create uniformity among regulations governing the employment relationship. Employers should now be able to look only to state or federal law on these issues, which will make it easier to implement policies and practices on a statewide basis, rather than having different policies and practices based on the ordinances of a particular city," Rector said.

This year, "business leaders across the state made it clear that the Texas Regulatory Consistency Act was a legislative priority for them," he added. "It appears that the Texas Legislature and Governor Abbott agreed there was a need for employers to be able to rely on consistent regulation when it comes to employment practices.

"On Twitter, the Texas AFL-CIO, a group of labor unions, expressed concerns about worker safety, stating, "Banning required rest breaks for construction workers in the Texas heat is deadly." It called attention to a utility lineman who died of heat stroke in Texas recently.

Florida Law

On June 29, Florida Gov. Ron DeSantis signed SB 170, which requires a county to stop enforcement of an ordinance if it's the subject of a lawsuit challenging the ordinance's validity on the grounds that it is pre-empted by the state constitution or state law. A board of county commissioners must prepare a business impact statement before the enactment of a proposed local ordinance. The new law will take effect on Oct. 1.

State legislators introduced the legislation because they were concerned that some county and local policymakers were passing rules that might not be helpful in attracting and retaining businesses in the state, said Charles Caulkins, an attorney with Fisher Phillips in Ft. Lauderdale, Fla.

SB 170 "allows for the collection of attorney fees, if the plaintiff prevails because an ordinance is arbitrary, unreasonable or expressly pre-empted. The bill sets out the legal challenge process, including suspending enforcement, until it works through the judicial process," Caulkins said.

Going forward, employers should see less variation in rules across the state.

"This legislation should discourage local municipalities from enacting employment-related ordinances different from those in place in state statutes and regulations," Caulkins said. "This will assure Florida employers that, if they have more than one location in the state, they will not have to be double checking on items like safety laws, minimum wage rates, and other regulations and workplace standards. There will likely be one source for employment regulations laws in Florida: the state of Florida."

On May 10, 2023, Governor DeSantis signed SB 1718 into law. The new legislation, which goes into effect on July 1, 2023, requires Florida private employers with 25 or more employees to use E-Verify for all new hires. Failure to comply with the new law comes with strict penalties and sanctions, including fines and potential suspension of business licenses. In addition to using E-Verify, the new laws makes it unlawful for employers to knowingly employ, hire, recruit, or refer any person who does not have authorization to work in the United States. Employers who violate this provision, effective July 1, 2024, could face fines of $1,000 for the first violation and a $2,500 fine and a misdemeanor charge for the second and subsequent violations.

What is E-Verify?

For those not familiar with the platform, E-Verify is an “internet-based system that compares information entered by an employer from an employee’s Form I-9, Employment Eligibility Verification, to records available to the U.S. Department of Homeland Security and the Social Security Administration to confirm employment eligibility.” See E-Verify.gov. HR Professionals who are unfamiliar with the system may benefit from attending webinars offered on the E-Verify website.

How do I comply?

Starting July 1, 2023, if you are a private employer with 25 or more employees who perform services in Florida , you must certify the eligibility of employees who are performing services in Florida using the E-Verify system within three business days from the employee’s first day of work. Importantly, the law only applies to employers who employ 25 or more employees in Florida. Therefore, an employer that has 100 employees, but only 15 who perform work in Florida, that employer is likely not subject to SB 1718. Further, true independent contractors hire to perform a specified portion of labor or services are not counted towards the 25 employee threshold and employers do not need to verify eligibility for those workers.

Each employer required to use the E-Verify system must certify their compliance on its first return/report each calendar year made to Florida’s unemployment compensation/reemployment assistance system.

The Department of Economic Opportunity (DEO) will enforce compliance with the employment verification requirements beginning July 1, 2024. Employers who are in violation will have a 30-day cure period to rectify the non-compliance. Employers that fail to use the E-Verify system three times within a 24-month period could be fined $1,000 per day until proof of compliance is provided.

In addition, employers who discover that an employee is ineligible to work in the United States or is no longer eligible to work in the United States must terminate the worker immediately in order to avoid incurring penalties.

Lindsay Massillon is a Partner at Weiss Serota Helfman Cole + Bierman in the Firm’s Labor and Employment Department. Her email address is LMassillon@wsh-law.com and her office number is (561) 835-2111.

DISCLAIMER: The information contained in this post does not constitute legal advice.

            Effective April 28, 2023, stronger protections for nursing mothers under the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”) went into full effect. The PUMP Act applies to all employers that are covered under the Fair Labor Standards Act (“FLSA”) and protects all nursing mothers (with very limited exception for certain employees of airlines, railroads, or motor coach carriers), regardless of whether the employee is exempt from minimum wage or overtime. Although there is a narrow exemption for small employers (fewer than 50 employees), it is a high bar to clear. To qualify for the exemption, employers must prove that compliance with the PUMP Act would “impose an undue hardship by causing the employer significant difficulty or expense.”

Requirements. Under the PUMP Act, employers are required to provide reasonable break time to nursing mothers each time the employee needs to express breast milk for up to one year after the birth of their child. Because the law requires breaks “each time” the employee needs to pump, employers may not restrict the duration or frequency of the breaks. In addition, nursing employees must be provided with a functional space that is (1) shielded from view; (2) free from intrusion from coworkers and the public; and (3) may be used to pump breast milk. This space cannot be a bathroom (no matter how private), but can be a temporary or “as needed” space—such as an empty office—so long as the employer puts a sign on the door to alert others not to enter, or, better yet, provides a space that can be locked from the inside. Employers must provide a functional space for each nursing mother; so it may be necessary for employers to designate more than one space depending on the needs of their employees.

Employers are cautioned not to forget about their remote employees. While employers do not have to provide a functional space to remote workers, employers must allow remote employees to turn off their cameras while the employee is pumping, and must also ensure that employees are completely relieved of their duties or properly compensated.

Compensation. Employers are not required to pay for breaks as long as the employee is fully relieved from their duties when pumping. If the employee is not completely relieved of their duties, their hours must be counted as working time and employees must be compensated accordingly under the FLSA. Moreover, if an employer already provides paid breaks to its employees, and the nursing employee chooses the paid break time to pump, the employer must pay the employee in the same way as it pays other employees for the break time.

            Anti-Retaliation. Employers are prohibited from retaliating against employees exercising their rights under the PUMP Act and an employee who believes they are the victim of retaliation can purse a claim under the FLSA.

            Remedies. As of April 28, 2023, employers who fail to provide reasonable break time and/or functional space requirements may be required to compensate employees for lost wages, liquidated damages, compensatory damages, and punitive damages “where appropriate.” These remedies are in addition to other equitable remedies, such as employment, reinstatement, and promotion.

            In light of the PUMP Act and the Pregnant Workers Fairness Act, employers should carefully review their current policies and make sure that they align with these new mandates. Most importantly, employers must ensure their supervisors and human resource personnel are educated on these new laws and equipped to effectively handle employee concerns to reduce exposure to litigation.

Here are some key principles from the EEOC’s publication:

It starts at the top. Anti-harassment policies and training must come from the company’s top leadership and not just the responsibility of human resources. Employees need to see all levels of leadership involved in anti-harassment training so that it is clear that no one is above the company’s “zero-tolerance” culture.

Keep policies clear and implementation consistent. While every employee handbook ideally includes an anti-harassment policy, the policy should be reviewed periodically to make sure that the language is clear, approachable, and relevant. Employees should know who to contact when they experience or observe harassment, how to complain, when they should complain, and what happens after they complain. The EEOC also suggests creating recommended “penalty ranges” for disciplinary actions to demonstrate consistency—without regard to tenure or title. This may include barring an employee who has been found to have violated the company’s anti-harassment policy from promotions and/or loss of performance awards or discretionary bonuses.

Accountability. The more explicit an anti-harassment policy, the more the company demonstrates accountability for preventing and managing harassment. This includes affirmative statements that the company will: (1) take immediate action upon receiving complaints of harassment, (2) ensure impartiality, (3) keep matters confidential and only reveal identities when absolutely necessary, and (4) guarantee that no adverse action will be taken against employees who make a complaint in good faith, or who are victims/witnesses of harassment.

“Virtual” harassment is harassment. Policies should clearly communicate to employees that harassment is not limited to the traditional workplace or situations where employees are physically in the same place at the same time. This means that employees won’t escape discipline/termination when they make harassing comments via text message, work chats, social media, during remote meetings, when taking things “off line,” etc. It is advantageous to reference the company’s anti-harassment policy in other related policies, such as social media, bring your own device, acceptable use, equipment, and communications.

Leadership is the front line. Companies must hold supervisors and managers to even higher levels of accountability when it comes to reporting harassment. Although every employee is encouraged to report harassment, companies may want to discipline managers who were found to have knowledge of harassment and failed to report it. To that end, specialized training for management is critical to the overall anti-harassment culture of a company. Managers must be equipped to spot harassment and understand when to escalate issues to the appropriate person to further investigate and issue discipline.

Reinforcement. Since many employees may not thoroughly read employee handbooks or may forget the contents over time, HR and C-Suite executives should prioritize reminding employees of the anti-harassment policy and hold small and large group trainings on the company’s anti-harassment policies.

In today's workplace, the importance of preventing and addressing harassment cannot be overstated. By reviewing the EEOC's guidance, revisiting and strengthening their anti-harassment policies, and conducting regular training sessions, employers not only reduce the risk of harassment claims but also create a safe and respectful workplace for their employees. Furthermore, taking these preventative measures can serve as a "safe harbor" for companies, limiting their exposure in harassment litigation. Creating a safe workplace not only helps in retaining talent but also prevents costly litigation. There is no better time than the present to protect our employees and take measures to ensure a safe and healthy work environment.

Family and Medical Leave Act (FMLA) poster – 2023 marks the 30^th anniversary of the FMLA as law! This updated FMLA poster revises language to provide FMLA information in a way that puts workers’ questions and experiences first.

Keep in Mind: The U.S. Equal Employment Opportunity Commission (EEOC) is in the process of updating its “Know Your Rights” poster to address the Pregnant Workers Fairness Act, which goes into effect on June 27, 2023.  For covered employers that purchase an all-in-one poster from third party vendors, you may wish to defer purchasing a new vendor-created poster until after the EEOC releases its updated poster in June 2023 and, in the interim, print and post the free versions of the FLSA and FMLA posters from the WHD website.

Relevant links:

https://link.edgepilot.com/s/3735ff4a/ymvH934N70aoC1rPlXkNnA?u=https://www.dol.gov/agencies/whd/pump-at-work

https://link.edgepilot.com/s/ba30fb6a/RJcVHCtyrkSRsh78x4qmxA?u=https://www.eeoc.gov/poster

https://link.edgepilot.com/s/292c779d/MnVuV6V3ykO5o0OKcE5KQw?u=https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act

By Justin McConnell

If you thought March madness was exhilarating, just wait for what’s in store during April madness. Hold on a second, you haven’t heard of April madness?

Of course, I’m talking about the 2023 regular session of the Florida State Legislature. It’s the annual convention of our Florida State Senators and Representatives where they meet to discuss, debate, and pass legislation.

This year’s legislative session, which is set to adjourn on May 7, is now in the final stretch and the bills have been flying. The question now is what bills will make it to the end? Will there be any “bracket busters”? What about any “Cinderella” bills?

With the Florida Republican party holding majority control of both the Florida House of Representatives and the Florida Senate, and with Republican Governor Ron DeSantis in control of the governor’s office, the Florida Republican Party currently has a trifecta control of the Florida state government.

Against this backdrop, we largely predict that it will be the Republican-led initiatives most likely to gain traction this year. As a result, here are some of the Republican-sponsored, employment-related bills that we’re watching closely:

SB 670 / HB 721 – Paid Family Leave Insurance

These bills seek to create private paid family leave insurance that could be purchased by an employer as an amendment or a rider to a group disability income policy, included in a group disability income policy, or issued as a separate group insurance policy.

An employee enrolling in the insurance would be eligible for benefits where the employee needed to care for a family member suffering from a serious health condition, for bonding with the employee’s child during the first 12 months after birth, adoption, or foster care, for qualifying exigencies because the employee’s spouse, child, or parent is on active duty or has been notified of an impending call or order to active duty in the United States Armed Forces, or to care for the employee’s family member who was injured in the line of duty while serving the United States Armed Forces. The terms of any paid family leave insurance would be governed by the terms of the policy and regulated by the Florida Office of Insurance Regulation.

Notably, these bills would not require employers to offer paid family leave to employees nor would it require employers to offer paid family leave insurance benefits.

SB 170 / SB 1515 – Local Ordinances

Under these bills, a private business would be authorized to initiate a civil action against a local government to challenge the adoption of any ordinance on the grounds that it is “arbitrary or unreasonable.” The challenged ordinance could not be enforced during any pending litigation. If the business were to prevail, then a court would be authorized to award the business up to $50,000 for attorney’s fees and costs.

A similar bill passed both chambers of the legislature last year, however, Governor DeSantis ultimately vetoed the bill because it exempted “emergency orders,” such as those that were passed by local governments in the wake of the COVID-19 pandemic.

Supporters of these bills argue that it provides Florida businesses a new means to challenge local ordinances, such as “living wage” ordinances, that impose stricter and costlier requirements on businesses than state and federal law. Opponents argue that these bills expose local governments and taxpayers to needless litigation.

SB 150 / HB 543 – Permit-less Concealed Carry

These bills seek to expand the rights of authorized Floridians to carry a concealed weapon or firearm without the need for a concealed carry license. These bills would continue to restrict employers from conditioning employment on whether a person is authorized to carry a concealed weapon or firearm. They would also continue to restrict employers from prohibiting an employee or prospective employee from keeping a legal firearm locked inside, or locked to the employee’s personal vehicle. These bills would not, however, otherwise authorize an employee to carry a concealed weapon on an employer’s premises or in an employer’s vehicle if the employer has prohibited the possession of weapons on its property.

SB 738 / HB 315 – Civil Remedies for Unlawful Employment Practices

Last year, the Florida Legislature passed, and Governor DeSantis signed into law, the Individual Freedom Act (also sometimes known as the Stop WOKE Act), which amended the Florida Civil Rights Act (“FCRA”) to expand unlawful discrimination to include – if as a condition of employment – training, instruction, or “any other required activity” that espouses, promotes, advances, inculcates, or compels individuals to believe that certain statutorily defined concepts constitute discrimination based on race, color, sex, or national origin. Such prohibited concepts include that an individual, by virtue of his or her race, color, sex, or national origin is inherently racist or oppressive, whether consciously or unconsciously, or that members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin. As a result of the recently enacted amendment, an employee claiming a violation of these expanded discriminatory practices may currently pursue the same remedies otherwise afforded to employees seeking relief from discrimination.

The bills introduced this session seek to create even stricter penalties for employers that violate the new protections added by last year’s law. Specifically, if an employee were awarded punitive damages, these bills would impose a minimum award of $50,000 with a cap of $1 million. Additionally, if an employee were awarded any compensatory damages, this bill would require that the amount awarded to the employee must equal the employee’s actual damages or three times the amount of the employee’s highest annual salary, whichever is greater.

SB 1674 / HB 1521 – “Safety in Private Spaces Act”

These bills would require that any business qualifying as a public accommodation, educational institution, public shelter space, provider of substance abuse services, or health care facility, to the extent that it maintains a water closet, to have at least one restroom designated for exclusive use by females and one restroom designated for exclusive use by males (the bill defines “females” and “males” as the biological sex of the person at birth), or provide a unisex restroom (which the bill limits to those that are intended only for a single occupant). Similarly, if a business maintains a changing room such as a dressing room or locker room, it would be required to have at least one for exclusive use by males and another for exclusive use by females, or provide a unisex changing room (again, limited to only one occupant).

The Attorney General would be authorized to bring a civil action against any business to enforce compliance and would be further authorized to impose a $10,000 fine on any violating business. Businesses requiring licensure to operate in the state would be required to submit documentation regarding compliance with this bill starting on July 1, 2023.

SB 952 / HB 1265 – Employer Coverage of Gender Dysphoria Treatment (the bill is also titled the “Reverse Woke Act”)

These bills seek to require that if an employer were to cover the cost, directly or through benefits offered to its employees, of gender dysphoria treatment, the employer would also be required to cover the total costs associated with any treatment reversing the gender dysphoria treatment. The employer’s obligation to provide the cost of any reverse treatment would continue regardless of whether the employee remained employed by the employer. If an employer refused to cover the costs of any reverse treatment, then an employee could file a civil action for the unpaid costs as well as any damages incurred by the person due to the employer’s non-compliance.

What’s Next?

There’s still a long legislative session ahead. Whether any of these bills will survive committee, will pass in both legislative chambers, or will be signed into law by the Governor, remains to be seen. Either way, we recommend that Florida businesses and employers keep a close watch to see which bills will make it to the end. It’s madness, alright!

A pendulum-swinging decision from the National Labor Relations Board yesterday means that severance agreements – in both unionized and non-union workplaces – could once again be deemed unlawful if they could be construed to broadly restrict a worker’s rights to speak about the agreement or otherwise talk negatively about their former employer, among other things. While several Trump-era rulings permitted employers to include confidentiality provisions and non-disparagement clauses in severance pacts, yesterday’s ruling in McLaren Macomb wiped those decisions off the books – thereby jeopardizing any agreements including them. How should you change your standard severance agreement practices thanks to this setback, what should you do about existing agreements, and what does this decision signal for the future? Here are the answers to your nine most important questions.

1. What Happened in Yesterday’s Decision?

   McLaren Macomb, a unionized teaching hospital in Michigan, was forced into laying off a portion of its staff during the pandemic. The employer included standard confidentiality and non-disparagement provisions in the severance agreements for at least 11 of the workers it released.

    

   Once called into question by the workers, the company justified these provisions by pointing out it was merely following the standard set by the Trump-era NLRB, which essentially permitted employers wide latitude in crafting agreements with departing workers. Under that standard, employers would only violate the National Labor Relations Act (NLRA) by entering into such provisions if they committed a separate unfair labor practice discriminating against workers by implementing them against the backdrop of union organizing or other protected activity.

    

   But after the workers filed Unfair Labor Practice (ULP) charges about these provisions, the NLRB held they were unlawful because they were deemed too broad and tended to “chill” the exercise of employees’ rights to collectively band together in an effort to improve the workplace (also known as NLRA Section 7 rights). The Board essentially resurrected an old standard that concluded a severance agreement violates the NLRA if its terms tend to interfere with workers’ organizing rights. Note: not all workers have Section 7 rights. For instance, independent contractors, managers, most supervisors, public sector employees, and some agricultural workers are not covered by these NLRA protections.

    

2. Was Yesterday’s Decision All That Surprising?

   Not really – we saw this one coming. For a while now, we’ve heard rumblings that the NLRB has been interested in revisiting the two 2020 Trump-era decisions that had given parties the right to include these types of provisions in severance agreements. In fact, the NLRB’s General Counsel telegraphed her intent to take on these kinds of cases two years ago in GC Memo 21-04. In other words, this decision has been a foregone conclusion for some time now. It was not a question of “if,” but only “when.”

    

3. What if We Enter Into Such Agreements But Don’t Enforce Them?

   It will no longer be a sufficient defense to point out to the NLRB that you haven’t sought to enforce a non-disparagement or confidentiality provision. Yesterday’s decision is significant because the Board held that that the mere “proffering” of a severance agreement containing the two problematic provisions amounted to an independent unlawful labor practice. That’s because the act of conditioning receipt of benefits on the acceptance of what it considered to be unlawful terms waiving Section 7 rights was deemed coercive in and of itself. 

    

   Some may see this as a stretch – but according to the Biden NLRB, doing so could be seen as a way to bar departing employees from cooperating in government investigations related to possible workplace wrongdoing. This represents a key departure from Trump-era decisions that required an additional showing of additional unlawful conduct on the part of the employer.

    

   In other words: under the newly resurrected rule, you may be found to have committed an unfair labor practice simply by offering your workers severance agreements with overly restrictive language even if you don’t seek to enforce them.

    

4. Could a Disclaimer Serve as a Workaround?

   Maybe. It’s important to note that both covenants in the McClaren case were drafted broadly, and neither were accompanied by a comprehensive disclaimer (such as, “these provisions do not prevent you from enforcing your Section 7 rights,” etc.). And while the Board members who wrote the opinion stop short of suggesting that any disclaimer could have saved these provisions, they do insinuate that – at the very least – any such disclaimer would need to affirmatively allow employees to:

    

• participate in Section 7 activity;
• file ULP charges;
• assist others in doing so;
• and otherwise cooperate with the Board’s investigative process.

   

  In other words, there may be a chance that a finely crafted and very broad disclaimer contained in a severance agreement could allow you to also include non-disparagement and confidentiality provisions. Of course, the disclaimers might need to be so broad that they would be rendered almost useless in practice.

   

1. Are There are Other Safeguards We Could Put in Place to Salvage Severance Agreements?

   It’s possible. Again, the Board members who wrote yesterday’s decision specifically deemed the employer’s non-disparagement covenant unlawful due in part to the fact that it was not limited to matters regarding past employment, contained no temporal restriction, and otherwise failed to offer any definition for “disparagement” (such as, "so disloyal, reckless or maliciously untrue as to forfeit the Act's protection"). This would seem to indicate that the Board is opening the door to lawful non-disparagement provisions to the extent they are accompanied by these kinds of safeguards. 

    

   By the same token, the Board scrutinized the confidentiality provision at issue only to quickly invalidate it for similar reasons, including a finding that it purported to prohibit disclosure to any third party – including a labor union – and with one’s own co-workers. 

    

   If the past is any indication, this decision will be followed in the coming months by General Counsel advisory memos offering more concrete examples of lawful severance covenants. Stay tuned for those.

    

2. What About Existing Severance Agreements with Confidentiality and Non-Disparagement Provisions? Are Those Still Valid? Do We Need to Affirmatively Rescind Them or Risk a ULP?

   This is the million-dollar question. What does this all this mean for the countless numbers of severance agreements you already have in place with departed employees over the past several decades? Surely many of them contain similar provisions that would be deemed inherently coercive under this standard. Does yesterday’s decision mean all of them are now immediately invalid and can be safely disregarded without fear of disgorging severance benefits? 

    

   Not exactly. For one thing, the Board’s own procedural limitation rules effectively bar workers from bringing charges that fail to relate back to a violation that occurred within the past six months.

    

   Further, if you drafted the severance agreement at a time when the law allowed such provisions, this could serve as a potential defense to any complaint seeking retroactive application of the newly revived rule.

    

   If the past is any predictor of the future, it stands to reason that the vast majority of concerns you may have after reading this Insight will rarely make their way to the agency. Which means your response to any previous severance agreements that you entered into in the past is now in the classic “risk tolerance” zone – leaving risk-averse employers to weigh the benefits of retroactive compliance against the dangers that may come from these old skeletons in your closet.

    

3. What Can Employers Expect?

   For many of you, this shift will not be an unfamiliar one. After all, most employers became adept at operating under the Board’s tight scrutiny of company policies during the Obama era. While the 2017 Boeing decision introduced common-sense scrutiny of employer policies that employers have enjoyed for the better part of five years, most have expected the pendulum to swing back to the pre-2017 state of affairs now that the NLRB is governed by a majority of Biden appointees.

    

4. What Should We Do?

   We obviously would not advise employers to disregard compliance obligations when it comes to this new standard – particularly when the standard comes from an agency that regulates conduct of virtually every workplace in the country. But unfortunately there is no “one-size fits all” approach when it comes to the best way to comply with this new standard.

    

   For some risk-averse employers, it might make sense to immediately cease from including confidentiality and non-disparagement clauses in your severance agreements. For others, a healthy disclaimer clause or other written safeguards will be the best approach. Still others may decide to take a business-as-usual approach.

    

   In order to decide which approach is right for your organization, you should coordinate with your labor counsel. The kinds of factors you should take into account include your risk tolerance level, the backdrop of the Board’s remedial authority when it comes to your organization and industry, the potential vulnerability of the decision on appeal, and the deterrent value that any disclaimer or safeguard language will bring you in the interim.

    

5. What Does the Future Hold?

We expect that this decision will be just the first step in a full shift back to a landscape where you can expect all of your workplace policies to be closely scrutinized by the NLRB, regardless of whether you are unionized. In this way, you should view yesterday’s McLaren decision as a harbinger for an even bigger decision that we expect in the coming months that will fully wipe away the freedom granted to employers in the 2017 Boeing case.

Stay tuned for a decision in the Stericycle case that will revert the nation’s law to a standard that renders unlawful any policy seen as “inherently coercive” by a more progressive Labor Board. In a very real way, yesterday’s decision can be seen as the agency simply getting a leg up on things by applying that standard to confidentiality and non-disparagement handbook provisions – which could soon be deemed facially unlawful once the Board issues its Stericycle decision.

When that day comes, employers will once again need to evaluate handbook policies much like we now must evaluate severance agreement provisions – particularly as extended to current (rather than previously severed) employees who continue to enjoy rights under the NLRA.

Conclusion

We’ll continue to monitor NLRB and other agency decisions that impact your day-to-day operations and provide updates as necessary, so you should sign up for the Fisher Phillips Insight Service to ensure you receive updates directly to your inbox. If you have questions, contact your Fisher Phillips attorney, the author(s) of this Insight, or any member of our Labor Relations Practice Group for further information.

As part of the federal omnibus spending bill, President Joe Biden recently signed into law the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act), expanding federal protections for both pregnant and nursing workers.

Read the article: New Protections for Pregnant and Nursing Workers in 2023
Bracewell via SHRM | Jan 2023

Text of PWFA and PUMP Act.

Effective Dates
The PWFA applies to employers with at least 15 employees and becomes effective on June 27, 2023.

The PUMP Act expands existing employer obligations under the Fair Labor Standards Act (FLSA) to provide an employee with reasonable break time to express breast milk for the employee's nursing child for one year after the child's birth. Except for changes to available remedies, the amendment to the FLSA took effect on December 29, 2022. The changes to remedies will take effect on April 28, 2023.

Additional Articles

Complying With New Federal Pregnant Workers Fairness Act, PUMP for Nursing Mothers Act
Jackson Lewis | Jan 2023

Congress Expands Protections for Pregnant and Nursing Employees
Mintz | Jan 2023

What Employers Need to Know About the Pregnant Workers Fairness Act (PWFA)
Verrill | Jan 2023

Congress Enacts New Employment Protections for Pregnant Employees and Nursing Mothers
Morgan Lewis | Jan 2023

By Laura L. Fischer and Natalie Miller © Spencer FaneJanuary 18, 2023

Sponsors of group health plans received welcome relief from Congress and regulatory agencies which should make health plan administration and reporting less burdensome. The relief comes in the form of a permanent extension of certain Affordable Care Act (ACA) reporting deadlines, a temporary reprieve from new prescription drug reporting requirements, and a two-year continuation of the ability to offer telehealth and remote care services under HSA-compatible high deductible health plans.

ACA Reporting: 2022 and Thereafter

In December, the IRS published final regulations on the reporting requirements under the ACA. Each year, health plans, insurers and applicable large employers (ALEs)—employers with at least 50 full-time equivalent employees—are required to provide individual statements to participants and employees and complete a filing with the IRS regarding the health care coverage they offer. Providers of minimum essential coverage—namely, health plan sponsors and insurers—must furnish individual statements to participants using Form 1095-B. Plan sponsors must also file copies of the individual statements with the IRS under cover of transmittal Form 1094-B.

ALEs must provide individual statements to employees using Form 1095-C and must submit copies of the statements to the IRS under cover of transmittal Form 1094-C.

Forms 1095-B and 1095-C—Individual Statements due March 2, 2023

Historically, the individual statements on Forms 1095-B and 1095-C have been due by Jan. 31 of the year following the calendar year for which coverage is reported. However, for the past several years, the IRS has issued 30-day extensions of this deadline. In its 2021 proposed regulations, the IRS seemed poised to make this 30-day extension permanent, and with the December 2022 final regulations, the service has done just that.

For 2022 reporting, Forms 1095-B and 1095-C must be furnished by March 2, 2023. In future years, the deadline will continue to be March 2, consistent with the final regulations. (In years when March 2 falls on a weekend or holiday, the deadline will be the next business day).

Forms 1094-B and 1094-C—IRS submissions due March 31, 2023

The final regulations do not alter the deadline for the submission of Forms 1094-B and 1094-C to the IRS. Filers must continue to submit copies of the individual statements along with Form 1094-B or 1094-C by March 31 (if filing electronically). Filers requiring more time for the IRS submission must submit Form 8809 before the due date to receive an automatic 30-day extension.

Alternative Method of Distribution for Form 1095-B

The final regulations also provide an alternative method of furnishing Forms 1095-B to individuals. Typically, plan sponsors furnish Forms 1095-B by mail or pursuant to electronic distribution rules. Pursuant to the final regulations, plan sponsors may now post a "clear and conspicuous notice" on their website informing individuals how to request a copy of Form 1095-B and providing contact information. The final regulations contain specific instructions regarding alternative distribution methods for Form 1095-B, as well as a safe-harbor example for the required notice. Plan sponsors must provide the Form 1095-B within 30 days of an individual's request.

This alternative distribution method generally does not apply to Forms 1095-C, except in limited circumstances for non-employees and non-full-time employees.

Goodbye to Good-Faith Relief

In prior years, the IRS offered "transitional good-faith relief" under which penalties were not imposed on plan sponsors and employers who demonstrated a good-faith effort to comply with the ACA reporting requirements would. That good-faith relief expired after 2020, and the final regulations confirm that such transitional relief has been eliminated. Plan sponsors and employers who fail to properly complete the forms and satisfy the reporting requirements will now be required to show reasonable cause to be eligible for penalty relief.

Group Health Plan Reporting on Prescription Drug and Health Care Spending Extended Through Jan. 31, 2023

Section 725 of ERISA (as added by the Consolidated Appropriations Act, 2021) requires group health plans to submit detailed online reporting through the CMS Health Insurance Oversight System, including specific information related to the plan's prescription drug spending. (Parallel reporting requirements under the Internal Revenue Code and Public Health Services Act apply to non-ERISA group health plans.) The initial report was to be due no later than Dec. 27, 2022, and cover the relevant plan information for 2020 and 2021.

The Departments of Labor, Health and Human Services and Treasury jointly issued guidance (in the form of an FAQ) extending this deadline on Dec. 23, 2022. The FAQ provide welcome relief for employers and plan sponsors for the initial submission including:

• A grace period through Jan. 31, 2023, in which to complete the initial submission; and
• A commitment not to take enforcement action against plans that have made a good faith effort to comply.

In addition, the FAQ provides flexibility concerning the data that must be included in this first round of reporting.

While many employers and plan sponsors will rely on their third-party administrators or insurance carriers to submit the required information, the plan ultimately is responsible for any failure to satisfy the reporting obligations. Employers and plan sponsors should confirm with their reporting entities that the applicable report is submitted by the end of the grace period provided in the FAQ.

First-Dollar Coverage of Telehealth and Remote Care Services Under-Compatible HDHPs Extended Through Dec. 31, 2024

The CARES Act established a safe harbor that allowed HSA-compatible high-deductible health plans (HDHPs) to provide first-dollar coverage of telehealth and remote care services without compromising the ability of participants to make HSA contributions. This safe harbor was extended by the Consolidated Appropriations Act 2022, but was set to expire on Dec. 31, 2022. Absent this safe harbor, HSA-compatible HDHPs may not cover any healthcare expenses until participants have met the applicable deductible.

The recently enacted Consolidated Appropriations Act, 2023, has extended the ability of HDHPs to provide first-dollar coverage of telehealth and remote care services for plan years beginning after Dec. 31, 2022, and before Jan. 1, 2025. Calendar-year HDHPs therefore can continue to provide first-dollar coverage of telehealth and remote care services throughout the 2023 and 2024 plan years. Non-calendar year HDHPs must be careful to account for the gap created by the legislation, which does not allow for first-dollar coverage of telehealth and remote care services for any months remaining in the 2022 plan year that fall in 2023. Employers and plan sponsors should review their plans carefully, as many plan documents will likely require amendments to provide for this extension of telehealth coverage.

Laura L. Fischer is an attorney with Spencer Fane in Denver. Natalie Miller is an attorney with Spencer Fane in Overland Park, Kan. © 2023 Spencer Fane. All rights reserved. Reposted with permission.

FLSA Overtime Exemption

On March 7, 2019, the Department of Labor announced a new proposed rule that would extend eligibility for overtime pay to approximately 1.1 million additional workers.  The proposed rule would require overtime pay for all employees earning less than $35,308 per year.  Employees who earn more than this threshold amount can still qualify for overtime exemptions if their job duties primarily involve executive, administrative, or professional functions, often called the “white-collar” exemptions.

Unless exempt, employees covered by the Fair Labor Standards Act must receive at least one and one-half times their regular hourly pay rate for all hours worked over 40 in a workweek.  This includes both salaried and hourly employees.  

Employers should carefully examine the salaries for any employees who are currently deemed exempt from overtime requirements to be prepared for the proposed rule change.  A number of strategies are available to businesses to ensure that reclassification of employees does not result in additional payroll expenses.  While compliance with the new proposed rule is not required yet, this presents a good opportunity for employers to audit whether their currently exempt employees actually satisfy the duties test for the white-collar exemptions.

HRABC Legislative Affairs Director Michael S. Kantor, Esq., specializes in employment law and is available for consultation at legislativeaffairs@hrabc.org should you have any questions. 

For more information view this article posted by SHRM.

Remember to periodically check out HRABC's Legal Updates page under the Resources tab for the latest information.