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    Employment Law Update – Summer 2023

    By Labor & Employment

    NLRB ISSUES SIGNIFICANT PRO-EMPLOYEE DECISIONS

    Over the last few months, the National Labor Relations Board (NLRB) has issued two rulings of significance to employers—whether or not they have unions in the workplace. Section 7 of the National Labor Relations Act (NLRA), which applies even to non-union companies, provides that “[e]mployees shall have the right (1) to self-organization, (2) to form, join, or assist labor organizations, (3) to bargain collectively through representatives of their own choosing, and (4) to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and (5) shall also have the right to refrain from any or all of such activities.” Using this provision, the NLRB is increasingly trying to exert its authority.

    Recently, the NLRB took on the issue of separation agreements. Employers often require employees to sign separation agreements providing for severance pay in exchange for releases or waivers of claims or agreement to not disparage the company or to not divulge confidential information. In February, the NLRB ruled that employers cannot draft such agreements so broadly that the provisions force employees to waive their rights under the NLRA. As a result, employers should revisit severance agreements to ensure they do not run afoul of this new decision and consider adding a carve-out provision specifically addressing rights under the NLRA.

    In a May 1st decision, the NLRB considered how to deal with an employee who has an outburst in dealing with his boss. Generally, employers are prohibited from retaliating against employees engaged in protected activity but free to discipline employees who are insubordinate. The NLRB’s decision granted more protection to inappropriate or insubordinate employees when they are engaging in protected activity under Section 7 and requires that the outburst be evaluated in the context of the protected activity. An employer will now have to think twice before disciplining an employee who engages in abusive behavior to determine whether such behavior was part of a protected activity.

    I-9 FLEXIBILITY ENDING ON JULY 31ST

    During the COVID-19 pandemic, the U.S. Department of Homeland Security and U.S. Immigration and Customs Enforcement allowed some flexibility with the completion of the Form I-9. For remote employees, employers did not have to physically inspect identification and employment authorization documents in the presence of employees until such employees engaged in non-remote work on a regular, consistent, or predictable basis. That flexibility ends as of July 31, 2023. With the end of this flexibility, employers now must go back and comply with the Form I-9’s physical inspection requirements. Not only do employers need to ensure they are physically inspecting original documents for all new hires, they also have to go back and update any I-9 forms completed during the pandemic using the flexible standard. Employers need to make arrangements to conduct a physical inspection of employee eligibility documents, and once the physical inspection is completed, the employer should add the notation “documents physically examined” and the date of the examination to the additional information field in Section 2 of the Form I-9 or use Section 3 if appropriate. Employers should start planning now because they must complete this process no later than August 30, 2023.

    VEC REQUIRES ELECTRONIC REGISTRATION

    Virginia employers are now required to electronically register and submit unemployment insurance claim information to the Virginia Employment Commission (VEC). In a May 31, 2022, press release, the VEC explained that one of the largest contributors to the backlog of unemployment insurance benefit claims is the time lost during the factfinding process. The new requirements are expected to increase the speed and efficiency of processing claims, while also decreasing the number of appeals filed each year that are associated with unread notices and mailings. Fortunately, employers who previously enrolled in the State Information Data Exchange System (SIDES) or the VEC’s Employer Self-Service (ESS) portal will be considered to have met the requirements of the new statutory requirements. Otherwise, employers need to register through the ESS. The ESS portal allows employers to review and update claim information, report short-time compensation plans, review and file appeals, and view historical tax and wage report data. For more information on the ESS portal and instructions on how to register please click here

    EXPANDED FEDERAL PROTECTIONS FOR PREGNANT,
    POSTPARTUM, AND LACTATING EMPLOYEES

    Two recent federal laws have expanded rights for pregnant, postpartum, and lactating employees: the Pregnant Workers Fairness Act (PWFA), which requires employers to provide reasonable accommodations to pregnant and postpartum employees, and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) which requires employers to provide lactating employees with break time and a private space to pump breast milk.

    Virginia employers have already been subject to similar requirements since 2020 under the Virginia Human Rights Act which requires employers with five or more employees to provide reasonable accommodations to pregnant, postpartum, and lactating employees.

    PWFA: Employers with at least 15 employees (regardless of work site) must make reasonable accommodations for employees who have “limitations” related to their pregnancy, childbirth, or related medical condition, unless doing so would impose an undue hardship on the employer. The employee need not be disabled to be entitled to accommodations. Potential reasonable accommodations could include the ability to sit or drink water or eat while working; closer parking; flexible hours; appropriately sized uniforms and safety apparel; additional break time to use the bathroom, eat, and rest; leave or time off to attend prenatal appointments or recover from childbirth; and being excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.

    PUMP Act: All employers are subject to the PUMP Act except for certain airline, railroad, and motorcoach employers. Employers with fewer than 50 employees are excused from compliance only if providing pumping breaks would cause an undue hardship on the employer. The PUMP Act requires employers to provide break time and a private space to lactating employees for up to one year after the birth of the employee’s child. Generally, lactating employees spend approximately 15 to 30 minutes every 3 to 4 hours to express breast milk. However, the frequency and duration of breaks needed will be specific to the lactating employee and may change over time.

    Employers cannot force employees to make up missed working time for pumping breaks. For non-exempt employees, if the employee works during the break or is not completely relieved of duty during the break, the employee must be paid for the pumping break. Exempt employees may not have their weekly salaries reduced for pumping breaks, whether or not they work during the pumping breaks.

    The pumping space must be private and not a bathroom. It does not have to be a permanent space, though. A temporarily created or converted space is sufficient, such as a manager’s office, an unused conference room, or even a temporary room created by room dividers or curtains, if the space is private and shielded from view.

    Action Items for Compliance: Employers should take specific steps to comply with these laws.

    •  Post all required posters.
      •  The “Pregnant Workers Fairness Act” poster.
      • The revised “Employee Rights Under the Fair Labor Standards Act” poster which includes a description of employees’ pumping rights;
      • The “Virginia Human Rights Act Reasonable Accommodation for Pregnancy” poster.
    • Revise policies to include pregnancy, childbirth and related medical conditions, and lactation as protected characteristics in EEO and anti-harassment policies. Revise or develop accommodation policies to include pregnant and postpartum employees, and develop a lactation/pumping policy.
    • Provide copies of relevant policies to employees. The VHRA specifically requires employers to develop a written handbook policy describing the rights of pregnant, postpartum, and lactating employees. The policy must also be given to all new hires and any employee who announces a pregnancy within 10 days of the announcement.

    Prepare for the logistics of providing pumping breaks and a pumping space to lactating employees. The Office on Women’s Health, a division of the U.S. Department of Health & Human Services, has a detailed “solutions” webpage to help employers explore options that are specific to their industry.

    ADA COVERAGE CONTINUES TO EXPAND

    On August 16, 2022, the federal appellate court over Virginia became the first federal appellate court in the country to rule that gender dysphoria is not barred by the Americans with Disabilities Act’s (ADA) exclusion for “gender identity disorders.” Kesha Williams, a transgender woman, suffers from gender dysphoria—defined as clinically significant distress experienced by a person as a result of a discrepancy between the person’s gender identity and the person’s gender at birth. She sued the Fairfax County Sheriff and other staff members at the Fairfax County jail for alleged ADA violations when she was assigned to the men’s housing unit, was harassed by officers and inmates because of her gender identity, and experienced a delay in the hormonal-based medical treatment of her gender dysphoria.

    The defendants in the case filed a motion to dismiss Williams’ lawsuit, arguing that the ADA’s exclusion for “gender identity disorders not resulting from physical impairments” barred Williams’ claim. The district court in Alexandria agreed with the defendants and dismissed Williams’ ADA claim. However, on appeal, the federal appellate court ruled that gender dysphoria is different from “gender identity disorder,” especially as such disorder was understood when the ADA became law, and did not fall within the ADA’s exclusion. The court also ruled that Williams’ hormone treatment, as well as pertinent medical and scientific research, supported the reasonable notion that her gender dysphoria resulted from physical impairment, again removing it from the ADA’s exclusion. In reaching this conclusion, the federal appellate court was explicitly mindful of the ADA’s requirement that courts construe coverage as “broadly as possible” and exceptions “narrowly.” The fact that its construction of the ADA avoided “a serious constitutional question” of whether the exclusion denies equal protection of law to transgender people also factored into the Court’s decision. Given this reasoning, the appellate court reversed the dismissal of Williams’ ADA claim and is giving the plaintiff her day in court.

    PRACTICAL POINTER

    This recent decision highlights the expansive nature of the ADA’s coverage and the recognition of disabilities—especially mental disabilities—that may be unfamiliar to most people. When faced with an accommodation request for such a disability, employers are well-advised to be mindful of the ADA’s edict that “disability” is construed “in favor of broad coverage” and should focus on reasonable accommodation, rather than disputing the alleged disability. Accordingly, employers should engage in an interactive dialogue with the employee. Importantly, as with all employment actions, employers need to make sure they document that discussion.


    The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2023.