September 2023 E-Update


Click here to view entire E-Update as a PDF


More Cooperation Among Federal Agencies – Which Means More Liability for Employers

In the past, the various federal workplace agencies – the Equal Employment Opportunity Commission, the National Labor Relations Board, and the Department of Labor (and its various divisions, including the Occupational Safety and Health Administration, the Wage-Hour Division, and the Office of Federal Contract Compliance Programs) – did not communicate. For more, click here.

Denial of Religious Accommodation Requires Proof of “Substantial” Burden

Following the Supreme Court’s recent overhaul of the undue hardship standard for religious accommodations requests under Title VII, which we discussed in our June 29, 2023 E-Lert, the U.S. Court of Appeals for the Fifth Circuit recently found that an employer failed to meet the heightened standard and, in so doing, provided some guidance to employers on how to apply the standard. For more, click here.

Can Maryland Employers Test and Discipline for Recreational Marijuana Use? 

As most Maryland employers know, recreational marijuana was legalized as of July 1, 2023. The law does not contain any workplace provisions, and employers (and employees!) wondered what their rights were with regard to testing and disciplining employees for marijuana use. For more, click here.



The DOL is Serious About PUMP Act Rights for Breastfeeding Mothers.  As we most recently discussed in our May 2023 E-Update, the DOL has issued guidance for employers, employees and its own staff on the  Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP” Act), which requires employers to provide nursing mothers with a reasonable amount of break time and private space to express milk for up to one year after the child’s birth. For more, click here.

A New Disability Resource for Federal Contractors from the EEOC and U.S. DOL.  The Equal Employment Opportunity Commission has partnered with the Department of Labor’s Office of Federal Contract Compliance Programs and Office of Disability Enforcement Policy to release a resource guide about recruitment, hiring, and employment of individuals with disabilities, “Employment Protections Under the Rehabilitation Act of 1973: 50 Years of Protecting Americans with Disabilities in the Workplace.” For more, click here.

Employers – Beware of the EEOC’s Targeted Priorities.  The Equal Employment Opportunity Commission has released its final Strategic Enforcement Plan for FY 2024-2028, listing the priority issues that it intends to target over the next five years. For more, click here.

Separation Agreements Should Not Prohibit Whistleblowing Activity or Recovery.  In many cases, employers enter into separation agreements with employees to bring full closure to the relationship and cut off any further issues. For more, click here.

An Aggressive Offense Is Not Always the Best Defense.  That was the lesson for a meteorologist who argued that his termination for engaging in sexual harassment was actually race discrimination. For more, click here.

Requiring an Employee to Pay for a Leadership Program May Be Discrimination.  Following its recent decision that an “adverse employment action” under Title VII need not be an “ultimate employment action” (as discussed in our August 2023 E-Update), the U.S. Court of Appeals for the Fifth Circuit has now provided a further example of what kind of employment action is sufficient to support a discrimination claim. For more, click here.



TOP TIP: What to Expect from Maryland’s Paid Family and Medical Leave Program – The Sequel

In last month’s Top Tip, we discussed two regulatory outlines (Equivalent Private Insurance Plans and Contributions) and a discussion document (Claims) that had thus far been issued by the Maryland Department of Labor’s FAMLI Division as part of its process to develop regulations for the forthcoming paid family and medical leave program. For more, click here.