Federal Compliance Update

FCRA Summary Updated

On March 20, 2023, the Consumer Financial Protection Bureau (CFPB) issued a final rule which, among other things, updates their Summary of Your Rights Under the Fair Credit Reporting Act (FCRA) and replaces the 2018 version. The summary details the major rights guaranteed under the act. For instance, employers that use a credit report to deny employment must provide the applicant with the name, address, and phone number of the agency that provided the credit report information. The final rule also makes non-substantive changes to the act to include removing outdated business references.

The final rule is effective April 19, 2023, but the mandatory compliance date is March 20, 2024.

Form I-9 Flexibilities Ending: Check Documents by August 30

As we let you know last October, the end date for the COVID-related I-9 verification flexibility was (and still is) scheduled for July 31, 2023. Given the number of times this deadline had been extended, it seemed possible, though not probable, that it would be extended yet again. However, U.S. Immigration and Customs Enforcement (ICE) has now announced that the deadline is firm, and employers that were taking advantage of the COVID-19-related flexibility will have until August 30, 2023, to do in-person verifications of employment documents that were only inspected virtually. U.S. Citizenship and Immigration Services (USCIS) has provided a very useful FAQ as well as instructions on how to notate the Form I-9 when inspected in-person after originally being inspected virtually.

Next Steps

If you haven’t kept a list of those employees whose documents were inspected virtually, pull that information together and determine who will serve as your authorized representative to inspect the documents in-person.

Once you know whose documents need to be inspected and their work location, you may be able to save both time and money on travel with a bit of strategy. You can have different authorized representatives for different regions. This job can be assigned to anyone you’d trust with a sensitive task. Given that employers are liable for any violations in connection with the form or the verification process, you should choose someone who can pay attention to detail and train them on exactly how you want the verification done. You can also outsource the role of authorized representative to a law firm, notary, or someone else who can legally offer this service.

Finally, consider having someone from your HR team remotely oversee the in-person inspection (via phone call, video, or messaging app) to ensure a consistent process is followed as well as to be available to address any questions or concerns from the employee or person acting as the authorized representative.

EEOC’s FAQs on the Pregnant Workers Fairness Act

To help employers prepare for changes under the Pregnant Workers Fairness Act (PWFA), the Equal Employment Opportunity Commission (EEOC) has issued frequently asked questions and answers (FAQs) on its new protections for pregnant and nursing workers.

The PWFA, which goes into effect on June 27, 2023, amends the Americans with Disabilities Act (ADA) to require reasonable accommodations for a qualified individual’s limitations related to pregnancy, childbirth, or related medical conditions.

The EEOC’s FAQs, part of its “What You Should Know” series of guidance, include a general overview of the PWFA and notes that the EEOC will issue proposed regulations to implement the new requirements.

This Compliance Overview provides the EEOC’s FAQs.

What You Should Know About the PWFA

1. What is the PWFA? - The PWFA is a new law that requires covered employers to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth or related medical conditions unless the accommodation will cause the employer an “undue hardship.” The PWFA applies only to accommodations. Existing laws that the EEOC enforces make it illegal to fire or otherwise discriminate against workers on the basis of pregnancy, childbirth, or related medical conditions. The PWFA does not replace federal, state, or local laws that are more protective of workers affected by pregnancy, childbirth, or related medical conditions. More than 30 states and cities have laws that provide accommodations for pregnant workers.

2. When does the PWFA go into effect, and will the public have input on any regulations? - The PWFA goes into effect on June 27, 2023. The EEOC is required to issue regulations to carry out the law. The EEOC will issue a proposed version of the PWFA regulations so the public can give their input and offer comments before the regulations become final.

3. Is the EEOC accepting charges under the PWFA? - The EEOC will start accepting charges under the PWFA on June 27, 2023. For the PWFA to apply, the situation complained about in the charge must have happened on June 27, 2023, or later. However, a pregnant worker who needs an accommodation before June 27 may have a right to receive an accommodation under another federal or state law. In some situations, workers affected by pregnancy, childbirth or a related medical condition may be able to get an accommodation under Title VII of the Civil Rights Act (Title VII) or the ADA. Therefore, until June 27, 2023, the EEOC will continue to accept and process Title VII or ADA charges involving a lack of accommodation regarding pregnancy, childbirth, or related medical conditions. After June 27, 2023, the EEOC will analyze charges regarding accommodations for workers affected by pregnancy, childbirth, or related medical conditions under the PWFA (if the violation occurred after June 27, 2023) and, where applicable, under the ADA or Title VII.

4. Who does the PWFA protect? - The PWFA protects employees and applicants who work for a covered employer and have known limitations related to pregnancy, childbirth, or related medical conditions. Covered employers include private and public sector employers with at least 15 employees. They also include Congress, federal agencies, employment agencies and labor organizations.
   

5. What are some examples of reasonable accommodations for pregnant workers? “Reasonable accommodations” are changes to the work environment or the way things are usually done at work. The House Committee on Education and Labor’s Report on the PWFA provides several examples of possible reasonable accommodations, including the ability to:

• Sit or drink water;
• Receive closer parking;
• Have flexible hours;
• Receive appropriately sized uniforms and safety apparel;
• Receive additional break time to use the bathroom, eat and rest;
• Take leave or time off to recover from childbirth; and
• Be excused from strenuous activities or activities that involve exposure to compounds not safe for pregnancy.

Employers are required to provide reasonable accommodations unless they would cause an “undue hardship” on the employer’s operations. An undue hardship is a significant difficulty or expense for the employer.

6. What else does the PWFA prohibit?

Covered employers cannot:

• Require an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer;
• Deny a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
• Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
• Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
• Interfere with any individual’s rights under the PWFA.

7. What other federal laws may apply to pregnant workers?

Other laws that apply to workers affected by pregnancy, childbirth or related medical conditions include:

• Title VII (enforced by the EEOC), which:

• Protects an employee from discrimination based on pregnancy, childbirth or related medical conditions; and
• Requires covered employers to treat a worker affected by pregnancy, childbirth, or related medical conditions the same as other workers similar in their ability or inability to work;

• The ADA (enforced by the EEOC), which:

• Protects an employee from discrimination based on disability (while pregnancy is not a disability under the ADA, some pregnancy-related conditions may be disabilities under the law); and
• Requires covered employers to provide reasonable accommodations to a person with a disability if the reasonable accommodation would not cause an undue hardship for the employer;

• The Family and Medical Leave Act of 1993 (enforced by the U.S. Department of Labor), which provides covered employees with unpaid, job-protected leave for certain family and medical reasons; and
  
• The Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) (enforced by the U.S. Department of Labor), which broadens workplace protections for employees to express breast milk at work.

New Guidance about PUMP Act Protections

On May 17, 2023, the U.S. Department of Labor released a field assistance bulletin (No. 2023- 02) to help with enforcement of the pump at work provisions of the Providing Urgent Maternal Protections for Nursing Mothers Act (the PUMP Act), which amended the Fair Labor Standards Act.

Under the PUMP Act, most nursing employees have the right to reasonable break time and a place, other than a bathroom, that is shielded from view and free from intrusion to express breast milk while at work. This right is available for up to one year after the child’s birth.

This bulletin supplements previously issued materials, including:

• Fact Sheet #73: FLSA Protections for Employees to Pump Breast Milk at Work;
• Frequently Asked Questions—Pumping Breast Milk at Work; and
• Pump at Work Protections under the Fair Labor Standards Act presentation.

State Compliance Update

State Enacts Vaccine and Immunity Passport Restrictions Act

Effective May 2, 2023, employment discrimination based on an individual’s vaccination status or whether they have an immunization passport is prohibited. This applies to all employers and all parts of employment such as hiring, pay, and employment terms and conditions.

Under the law, an immunity passport is a document, digital record, or software application indicating that an individual is immune to a disease, whether through vaccination or infection and recovery; and vaccination status is an indication of whether an individual has received one or more doses of a vaccine.

The law has some exceptions. For instance, it doesn’t apply to certain people working in childcare or when federal law mandates a vaccination.

The law also has an exception for, and it doesn’t apply to, employers that:

• Establish a connection between a vaccination requirement and the employee’s assigned duties and responsibilities; or
• Identify an external requirement for vaccination that is not imposed by the employer and is related to the employee’s duties and responsibilities.

The state prohibits discrimination based on immunity status; however, the law doesn’t prohibit employers from recommending that an employee get vaccinated.

(2023 UT HB 131 was signed by the governor on March 15, 2023)

Compliance Calendar

June

06/01 – Prescription Drug Data Collection Reporting (group health plans and health insurers submit data regarding drug costs to the Department of Treasury, Department of Labor, and Health and Human Services.

July

07/01 – 2022 EEO-1 Component 1 Data Collection Opening (all private sector employers with 100 or more employees, and federal contractors with 50 or more employees meeting certain criteria must submit)

07/31 – Form 5500 Filing Deadline (calendar year plans) 07/31 – Form 941 Filing Deadline (second quarter) 07/31 – PCORI Fee Deadline

August

08/01 – VETS-4212 Filing Open (federal contractors)