May 2023 Volume 5

OPERATIONS & MANAGEMENT

Happy Spring! Jim Warren, FIA President & CEO, asked me to share some thoughts on current topics employers face. Some are new laws, other familiar favorites, and then the National Labor Relations Board (NLRB) also added some guidance concerning severance agreements. Labor Laws FAQ By Johanna Fabrizio-Parker

2. What is the PUMP for Nursing Mothers Act, and how can it apply to me? Under earlier amendments to the Fair Labor Standards Act (FLSA), non-exempt employees were guaranteed break time to express milk during the first year following birth. The PUMP act expands this protection to all employees who need to express milk and expands the time period from one year to two. The employer also continues to have the obligation to provide a private place shielded from view from coworkers/public, not a bathroom, for the employee to express milk. 3. Can I prohibit marijuana use by employees, and/or how can I address employees who test positive for marijuana? If you are a federal contractor or otherwise specifically subject to federal law, the answer should be yes (at least for those employees). If not, it really depends on state law. Multiple states allow for the legal use of marijuana (in certain circumstances) and are moving to restrict an employer’s ability to take adverse action against an employee for legal off-duty conduct. The challenge – as is starting to be addressed in states like California, New York and New Jersey – is that tests for marijuana do not necessarily indicate that someone is under the influence at that time (as compared to an alcohol test, for example). So, testing positive may mean that the employee used marijuana recently (and legally in these states) but not at work. More, like “reasonable suspicion” that the employee is under the influence of marijuana a work based on some observable behavior, would be needed before an employer could take an adverse action, e.g., discipline or discharge. 4. Can I require employees to be back in the office? Generally, yes, you can require that employees work in the office. Of course, you need to do so in a non-discriminatory way. If you select certain groups, it should be by job function or something comparable, and not specific individuals. However, if an employee makes a request to work remotely as a purported accommodation, you have to address that request with that employee in the interactive process. You cannot just say – we have a rule and that is the reason you need to be here. Now, depending on the underlying issue motivating the request, there may be other potential reasonable accommodations, e.g., a separate office, air filter. An employer does not necessarily have to grant the requested accommodation. But, if there is not another option for a reasonable accommodation and the employer denies the request, the employer either will have to prove that coming to the office is an essential job function or it will be the employer’s burden to prove that it is an undue hardship. For the former, the pandemic has changed that analysis. It will not be enough to have a generalized statement of collaboration, preference, etc. The employer will have to show specifically why this individual

1. What is the Pregnant Workers Fairness Act, and how can it apply to me? Employers all know (or should know) that they cannot discriminate against employees due to pregnancy. But until the PregnantWorkers Fairness Act (taking effect in June 2023), there was no specific requirement to accommodate pregnant employees. Now, some of you may be thinking – wait, I know we have had accommodation conversations for employees related to pregnancy. We considered it under the Americans withDisabilities Act (ADA). And I’m sure you did. Conditions related to pregnancy (e.g., preeclampsia) may be considered a disability, and therefore subject to accommodation. But pregnancy itself is not a disability. The PWFA, effectively, closes this “hole” on the federal level. (Many states already have comparable laws.) Under the PWFA, employers are required to provide reasonable accommodations to pregnant employees. Examples provided are: “the ability to sit or drink water; receive closer parking; have flexible hours; receive appropriately sized uniforms and safety apparel; receive additional break time to use the bathroom, eat, and rest; take leave or time off to recover from childbirth; and be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.” Find more information in the article “What You Should Know About the Pregnant Workers Fairness Act” provided by the U.S. Equal Employment Opportunity Commission (eeoc.gov). Like the ADA, an employer does not have to provide an accommodation that would be an “undue hardship,” i.e., “significant difficulty or expense for the employer.”

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