May 2023 E-Update


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The DOL Provides Additional Guidance on the PUMP Act

Following issuance of Frequently Asked Questions and an updated Fact Sheet on the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP” Act) as discussed in our March 2023 E-Update, the U.S. Department of Labor has now released a Field Assistance Bulletin to provide additional clarification on how this new law should be applied. For more, click here.

Reasonable Accommodations Are Required as to Employer-Provided Benefits and Privileges of Employment

A recent case highlights and clarifies an oft-overlooked provision of the Americans with Disabilities Act – that employers must provide accommodations not only to enable employees with disabilities to perform the essential functions of their job, but also to enjoy equal benefits and privileges of employment as non-disabled employees. However, according to the U.S. Court of Appeals for the Eighth Circuit, this requirement is limited to those benefits and privileges that are actually provided by the employer. For more, click here.

More Drama and Uncertainty for the DOL’s 80/20 Tipped Employee Rule

The U.S. Court of Appeals for the Fifth Circuit has reversed a federal district court decision denying a request to preliminarily enjoin a final rule issued by the U.S. Department of Labor that reinstated the 80/20 rule applicable to tipped employees and further limited the amount of an employee’s non-tipped work time for which the employer may take a tip credit. For more, click here.


No Harm, No Foul for Employer’s Technical Non-Compliance with FMLA’s Notice Requirements. According to the U.S. Court of Appeals for the Eleventh Circuit, “an employee doesn’t suffer harm from an employer’s technical non-compliance with the Family and Medical Leave Act’s notice requirements when she receives all her requested time off and is paid for her absences.” For more, click here.

WARN Act Notice Requirements Apply to Operating Units Within a Single Site of Employment. A recent case from the U.S. Court of Appeals for the Second Circuit provides clarification of when an operating unit exists for purposes of requiring advance notice of job loss under the federal Worker Adjustment and Retraining Notification (WARN) Act. For more, click here.

No Playing Around with Pay Rates to Avoid Overtime Liability! Employers may explore creative ways to reduce staffing costs; however, changing an employee’s pay rate to avoid overtime liability is not a legal one, as the U.S. Court of Appeals for the Eleventh Circuit recently emphasized. For more, click here.

Prescription/Legal Drug Policy Does Not Necessarily Result in Disability Discrimination.  In some good news for employers, the U.S. Court of Appeals for the Third Circuit found that a relatively common policy prohibiting the misuse of prescription or over-the-counter (OTC) drugs did not discriminate against employees with disabilities. For more, click here.

No More COVID? NLRB GC Revises Manual Election Procedures.  With the declared end of the COVID-19 national and public health emergencies, the General Counsel of the National Labor Relations Board has revised the protocols for manual (i.e. in-person) elections. For more, click here.

Federal Contractors – There’s a New Mandatory Voluntary Self-ID of Disability Form. The Office of Federal Contract Compliance Programs has revised the mandatory (for federal contractors) Voluntary (for applicants and employees) Self-Identification of Disability Form, which must be implemented by July 25, 2023. For more, click here.

The DOL Has a New Website to Provide Workplace Mental Health Resources. 

Mental health issues have become increasingly prevalent in the workplace. In recognition of Mental Health Awareness Month, the U.S. Department of Labor has announced a new website with resources to assist employers in legal compliance and in creating supportive workplaces. For more, click here.

TOP TIP: Employers – It’s Time to Update Your Mandatory FMLA and FLSA Posters!

The U.S. Department of Labor has revised its mandatory posters under the Family and Medical Leave Act and the Fair Labor Standards Act, and employers will need to take action to remain in compliance with their posting obligations under these laws. For more, click here.