Employment Law Update - June 27, 2024

By Sean A. Monson

Litigation is a Crap Shoot: The PWFA Regulations and Two Completely Different Judicial Outcomes

The Pregnant Workers Fairness Act (PWFA) requires that employers with at least 15 employees provide reasonable accommodations for pregnant applicants and employees required for pregnancy, childbirth and related medical conditions. The PWFA became effective June 27, 2023.

On April 15, 2024, the Equal Employment Opportunity Commission (EEOC) issued its?final regulations?about its enforcement of the PWFA—a mere 408-pages long document! The final regulations make clear that the EEOC takes a broad view of the meaning of pregnancy, childbirth and related medical conditions, including abortions. The regulations state that employers are required to accommodate employees desiring time off to obtain, and recover from, abortion procedures.

After the final regulations were released, lawsuits were filed by various states and Catholic organizations. In?State of Tennessee v. EEOC, 17 states, including Utah and Idaho, filed suit to invalidate the EEOC’s final rule, specifically that portion of the rule requiring accommodations for abortion procedures and recovery. A federal judge in Arkansas dismissed the claim, finding that the states lacked standing.?

In?State of Louisiana v. EEOC, a similar lawsuit was filed by the states of Louisiana and Mississippi as well as several Catholic organizations in a federal court in Louisiana. In that case, the court granted a preliminary injunction and denied enforcement of the PWFA final rules requirement that covered entities provide accommodation for the elective abortion procedures sought by employees when “not necessary to treat a medical condition related to pregnancy." However, that injunction only applies to the "States of Louisiana and Mississippi and agency thereof," "any covered entity under the Final Rule with respect to all employees whose primary duty station is located in Louisiana and Mississippi," and "the Bishop plaintiffs (consisting of the U.S. Conference of Catholic Bishop, Catholic University of America, the Society of and the Roman Catholic Church of the Diocese of Lafayette)."?

Two lessons are to be learned here. First, until there is an injunction issued against enforcement of the PWFA regulations which applies a jurisdiction in which you have employees, you are required to comply with the PWFA and its regulations. Second, the different outcomes of the cases highlight, again, the uncertainty of litigation. Two identical cases – two completely different outcomes.

Doing Business in California: Why Does Anyone Do It?

True to its reputation as being on the leading edge of protecting employee rights, beginning July 1, 2024, California will be the first state in the Union to require employers to have workplace violence prevention policies. California Labor Code section 6401.9 requires California employers to adopt a Workplace Violence Prevention Plan (WVPP), train employees on workplace violence and to log violence incidents.

The statute applies to all California employers, employees, workplaces and employer-provided housing. There are limited exceptions, including: (a) remote employees working at a location of their choosing that is not under the control of the employer; (b) workplaces with fewer than 10 employees working at a given time that is not accessible to the public; and (c) certain healthcare facilities.

Among the requirements required by the statute are the following:

1. If there are different hazards at different locations, then an employer’s WVPP must be customized to the hazards specific to the location. ?
2. Employers must record information in a violent incident log regarding every incident, post-incident response and workplace violence injury investigation.
3. Animal attacks are specifically considered workplace violence under the statute.?
4. Plans must be reviewed at least once a year.
5. Employers must provide effective training to employees that addresses workplace violence risks.
6. The WVPP must be accessible to employees either on the worksite, in common areas or on a company intranet.
7. Employers may not prohibit an employee from, and cannot take punitive or retaliatory action against, an employee for seeking assistance and intervention from local emergency services or law enforcement when a violent incident occurs.

If you have employees working in California, be sure to check with your counsel to see whether you are required to have a WVPP and to help you craft such a plan.

Once You Can Check In, You Can Never Leave: Employees Suing for Benefits After They Are No Longer Employees

The United States Supreme Court is set to determine the extent to which a former employee is entitled to benefits. The court has taken up a case that could resolve a split among six federal appellate courts over whether ex-employees have the right to sue under the Americans with Disabilities Act (ADA) over discriminatory post-employment policies.

Karyn Stanley took early disability retirement from her firefighting job due to Parkinson’s disease. She has alleged that a change in city policy that caused her to receive only two years of free health insurance after leaving her job, rather than longer-term coverage, was biased against disabled workers in violation of the ADA.

The Federal Eleventh Circuit Court of appeals stated that Stanley lacked standing to sue because the ADA only applies to workers who currently hold or seek a job. The ADA’s statutory language specifies it applies to workers with disabilities who can perform the essential functions of the job the person “holds or desires.” The Eleventh Circuit concluded that the ADA only applies to current employees or individuals seeking a job. Stanley has argued that former employees like herself are “qualified individuals” under the ADA, as the law’s prohibition of bias isn’t tied to timing of claims if discrimination has occurred.

Although few employers offer “post-termination benefits,” those that do could be dissuaded from continuing to offer such benefits in the future if the Court rules in Stanley’s favor. We will know the Court’s answer next year.?