by Lana L. Rupprecht, Esq. - AVP Product Compliance
January 12, 2024
Happy New Year! We at Reliance Matrix are excited for 2024 and hope you are as well. To bring in the New Year, we are providing you with a countdown of the top 5 leave management trends we expect to see in 2024.
Trend # 1: Increased Pregnancy Protections!
The Pregnant Workers Fairness Act (PWFA) went into effect June 27, 2023, and the proposed regulations were published for public comment on August 11. Read our prior blogs on this here:
- Get Ready to Comply with the Pregnant Workers Fairness Act (PWFA) in 2023
- PWFA Proposed Regulations, Part 2 (absencementor.blog)
- PWFA Proposed Regulations, Part 1 (absencementor.blog)
The PWFA is much broader and far reaching than prior laws such as the Americans with Disabilities Act (ADA) and the Pregnancy Discrimination Act (PDA). We expect the following in 2024:
- Increased attention and scrutiny from the Equal Employment Opportunity Commission (EEOC) and from courts on accommodations for workers who are affected by pregnancy, childbirth, and related medical conditions
- Employees receiving a wider array of accommodations under the PWFA than the ADA or PDA
- Accommodations granted in most cases under the PWFA especially those categorized as a "predictable assessment" which include:
- carrying water and drinking while working
- taking additional restroom breaks
- sitting/standing modifications
- breaks, as needed, to eat and drink
Also, the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) expands protections for employees who recently gave birth. Under PUMP, exempt and non-exempt employees have the right to take lactation breaks (usually unpaid) as often as needed. Employers must:
- Provide a reasonable break time for employees to express breast milk each time such employee has the need for up to 1 year after the child's birth
- Create a place, other than a bathroom, which is shielded from view and free from intrusion from coworkers and the public, which may be used by employees to express breast milk
The U.S. Department of Labor (DOL) is responsible for enforcement of the PUMP Act and like the EEOC, we expect increased attention in this area for 2024.
Stay tuned for our whitepaper on pregnancy protections to be published after the final PWFA regulations are out.
Trend #2: Increased Coordination Between Regulators!
As we previously reported in September, Two Major Federal Agencies Agree to Collaborate in Employer Investigations (absencementor.blog), the EEOC and DOL entered into a Memorandum of Understanding (MOU). The purpose of the MOU is to enhance enforcement of the laws each agency is responsible for overseeing and to further coordinate information sharing, joint investigations, training, and outreach.
As a result, expect more oversight by both agencies in 2024, and be mindful about all laws that may be at issue—not just the one raised in the specific complaint.
Trend #3: Employee Friendly Court Decisions
We saw some employee friendly court decisions in 2023. We expect that this may increase in 2024 and continue to expand through the leave management and accommodation space. Here are some examples:
In Groff v. DeJoy, the U.S. Supreme Court, in an opinion dated June 29, 2023, clarified the meaning of "undue hardship" under Title VII of the Civil Rights Act of 1964 (Title VII) so that it is now more difficult for employers to deny an employee's request for a religious accommodation in the workplace on the basis that it is an "undue hardship" to the business. We wrote about this case in a prior blog if you want more information: Supreme Court Clarifies the "Undue Hardship" Test for Religious Accommodations: The Standard is Higher.
Recently, a Texas jury awarded $2.4 million to Le Roy Torres, a former state trooper and Army reservist who had a combat deployment in Iraq, and upon his return to work, claimed his workplace accommodation was denied. See, Torres v. Tex. Dept of Public Safety and Army Reservist Awarded $2.49M - VFW.
Torres could not return to his prior job as a state trooper due to a severe respiratory condition he sustained while serving. As a result, he asked for reemployment to a different administrative role. His request was denied, and he brought failure to accommodate claims under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Under USERRA, Torres' employer was required to make reasonable efforts to accommodate Torres' disability and help him become qualified to perform a job with equivalent seniority, status and pay. This is broader than what is required under the ADA.
Here is a good summary from us on USERRA : USERRA - A Leave Law Like No Other | Absence Mentor and USERRA – A Leave Law Like No Other – Part 2 | Absence Mentor.
And there is the 5th Circuit case, Hamilton v. Dallas County (5th Cir. Aug. 18, 2023), which held that employees do not have to show that a discriminatory practice results in an "ultimate employment decision" such as terminations or failures to promote. In this case, the Sheriff's Department permitted men but not women to take full weekends off. The court rejected the employer's argument that the employees had no actionable claim, stating: "Nowhere does Title VII say, explicitly or implicitly, that employment discrimination is lawful if limited to non-ultimate employment decisions."
Trend #4: More Reproductive Loss Laws and/or Bereavement Loss Laws
We informed you back in October and again in December of 2023 about the new law in California effective January 1, 2024, California Reproductive Loss Leave (absencementor.blog), which provides employees with up to 5 days of reproductive loss leave for a failed adoption or surrogacy, miscarriage, stillbirth or unsuccessful assisted reproduction. We anticipate more of these type of laws in 2024. Stay tuned as we will monitor similar proposed bills throughout the year.
Trend #5: More for Paid Family and Medical Leave (PFML) Laws!
And of course, we expect new state legislation relating to PFML laws in 2024 as well as regulations interpreting existing PFML laws. We are constantly updating the legal requirements so check out our Statutory Disability and Paid Family and Medical Leave Laws (reliancematrix.com) page and subscribe to this blog so you can keep up!
Reliance Matrix Can Help!
Reliance Matrix offers employers federal and state leave administration and accommodation services, including pregnancy accommodations under the PWFA, ADA, Title VII and as applicable, corresponding state laws and other laws. For more information, contact your Reliance Matrix account manager or send us a message to [email protected].