Legislative Updates

The National Labor Relations Board (NLRB) ruling on May 1st will make it more complicated to fire workers who display offensive conduct while engaged in protected activity under the NLRB.  The Board indicated that a fundamental difference exists between employee misconduct that is committed during working hours and during Section 7 activity.  

The NLRB overruled a 2020 decision known as General Motors.  The ruling replaces three previous standards on 1) offensive conduct on the picket line 2) worker's interactions with management and 3) worker's postings on social media/conversations with colleagues.  

COVID-19 temporary flexibilities for the I-9 Form will end on July 31, 2023.  US Immigration and Customs Enforcment (ICE) recently announced that employers must complete in-person document inspections for employees whose documents were inspected remotely by August 30, 2023.  This will give employers additional time to complete the in-person inspection.  

View USCIS Q&A at:  Questions and Answers Related to COVID-19 | USCIS

The Pregnant Workers Fairness Act (PWFA) will go into effect on June 27, 2023 which requires covered employers to provide "reasonable accommodations" to a worker's known limitations relating to pregnancy, childbirth or a related medical condition.  Reasonable accommodations are changes to the work environment or the way things are usually done at work.  Like the ADA, employers would not need to provide a reasonable accommodation if it would cause the employer undue hardship. 

Read more at: What You Should Know About the Pregnant Workers Fairness Act | U.S. Equal Employment Opportunity Commission (eeoc.gov)

The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) was signed into law on December 29, 2022 which extends more rights to nursing mothers.  The PUMP Act applies to all employers unless they have fewer than 50 employees and can show that compliance would cause an undue hardship.  Employers are required to provide a reasonable amount of break time for nursing mothers for one year following the birth of a child as often as is necessary.  The break time does not need to be paid unless the employer compensates other employees break times.  Employers must provide a space that is shielded from view and free from disruption that is not a bathroom.  

Beginning April 28, 2023, employees who are denied breaks, not given proper space or are not paid for breaks as other employees may bring private action or may file a complaint with the Department of Labor.  

Read more at: Frequently Asked Questions – Pumping Breastmilk at Work | U.S. Department of Labor (dol.gov)

On March 30, 2023, a federal judge in Texas issued a ruling invalidating some provisions of the ACA.  The ruling generally invalidates requirements that grandfathered plans cover preventative care recommended by the US Preventative Services Task Force with no cost sharing after the effective date of the ACA.  Some impacted services would be some cancer, heart and STD screenings along with tobacco programs. 

The Court previously found that the mandate to cover pre-exposure prophylaxis, an HIV preventative medication, violates religious beliefs under RFRA.  That ruling only applies to the plaintiff.  

It is unclear how and when the ruling will impact group health plans.  

The IRS released final regulations on February 21, 2023 which expands electronic filing for the forms W-2, 1099, 1094-C, 1095-C and other returns.  Under the new regulations, organizations that file 10 or more returns or statements in total (which can be between multiple forms) are required to file electronically beginning in 2024.  The IRS has created a new online portal to help businesses file Form 1099 returns electronically.  

IRS and Treasury issue final regulations on e-file for businesses | Internal Revenue Service

On February 27th, the National Labor Relations Board (NLRB) confirmed that employers are not able to terminate or discipline employees for raising concerns about racism in the workplace.  The NLRB issued a memo relating to a case in California where a physician engaged in group discussions with students and faculty members about racial bias in the medical field.  The physician claims the school retaliated by ending her contract and discharging her.  She went on to file an unfair labor charge with the NLRB.

On March 24th, the DOL and HHS announced a Memorandum of Agreement to increase efforts to address child labor exploitation.  The agreement will do the following:

*Help identify geographies/employers where children are likely being exploited.

*Aid in investigations to help identify circumstances where children are being lawfully unemployed.

*Ensure that victims of child labor trafficking have access to critical services.

Since 2018, the DOL has seen a 69% increase in violation of child labor laws.

Press Release: Departments of Labor, Health and Human Services announce additional steps to tackle child labor violations, strengthen coordination | U.S. Department of Labor (dol.gov)

On February 22, the Supreme Court ruled 6 to 3 in Helix Energy Solutions Group v. Hewitt that the former employee was eligible for overtime because he was paid on a daily basis.  The former employee who was an offshore oil rig worker was classified as a "bona fide executive" earning more than $200,000 annually and working approximately 84 hours a week.  The supreme court ruled that since the employee was not paid on a salary basis but rather a daily basis they are entitled to overtime.  

Read more at: 21-984 Helix Energy Solutions Group, Inc. v. Hewitt (02/22/2023) (supremecourt.gov)

President Biden announced on January 30th that it is his intention to end both the Public Health Emergency and the COVID-19 National Emergency on May 11th.  The COVID-19 national emergency and public health emergency have been in place since 2020 which allow Americans to receive free tests, vaccines and treatments.