5 Trending Questions Our Clients Are Asking About Laws Impacting the Workplace

By Shiloh Theberge and Molly Gilligan

Between changing state and federal laws and the shifting post-pandemic work environment (and behaviors associated with this shift), companies need to make sure they are compliant with the latest labor and employment laws. Here are five trending questions our Labor and Employment attorneys are seeing this year.

1. Requests for remote work as an accommodation under the Americans with Disabilities Act and applicable state laws are rising. How should our company handle that?

Before the pandemic, many courts held that remote work was not a reasonable accommodation. Now, depending on the job in question, it is becoming more difficult for employers to prove that remote work is an unreasonable accommodation. That is because many employees were able to successfully work remotely during the pandemic shutdowns. As a result, when an employee requests remote work as an accommodation for a disability, employers need to make sure they are conducting individualized assessments as to whether remote work is a reasonable accommodation for each employee given the employee’s job duties and ability to perform those job duties remotely.

2. Our company is technically a multi-state employer since people are working remotely. What do we need to do to comply with employment laws?

Many companies suddenly and unexpectedly became multi-state employers, both during the pandemic and afterwards, as a result of the increase in remote work. Employers should recognize that in many circumstances, controlling employment law, including, for example, workers’ compensation, unemployment benefits, leave, and payroll taxes, is the law of the state where the employee performs their work. If employees are working remotely in states where the employer is not located, employers need to ensure that they are complying with the applicable state laws immediately to avoid penalties and fines.

3. Should our company conduct a pay audit given the rise in litigation under the federal and state equal pay laws?

Recently, equal pay claims by employees under the federal Equal Pay Act and similar state laws have significantly increased, even though many of these laws have been on the books for several years. Employers need to be thoughtful about their pay practices and consider whether those practices should be reviewed or revised considering the spike in this type of litigation.

4. How does our company need to change practices around accommodating pregnant and nursing employees?

In January, we wrote about two new federal laws that impact working mothers: The Pregnancy Workers Fairness Act, which goes into effect on June 27, 2023, and the Providing Urgent Maternal Protections (PUMP) for Nursing Mothers Act, which was an expansion of the 2010 Break Time Law and became effective as of January 1, 2023. Employers need to be aware of these laws and consider whether they need to update their practices as a result.

5. What retirement policies do I need to change, and when, according to the provisions in the SECURE 2.0 Act?

The SECURE 2.0 Act of 2022 (SECURE 2.0) was signed into law on December 29, 2022, and included provisions to expand and increase retirement savings, preserve retirement income, and simplify and clarify retirement plan rules. For example, SECURE 2.0 requires that 401(k) and 403(b) plans established after January 1, 2024 include automatic enrollment provisions. SECURE 2.0 also incentivizes small businesses (up to 50 employees) to offer retirement plans by increasing retirement plan startup tax credits for these employers. Because SECURE 2.0 builds upon the 2019 Setting Every Community Up for Retirement Enhancement (SECURE) Act, employers need to be aware of provisions in both pieces of legislation impacting the retirement plans they sponsor or are considering sponsoring.

Bernstein Shur’s Labor and Employment Team partners with companies to provide advice and counsel, in addition to practical guidance, about complying with new laws and regulations. Contact the team for support today.