Prosecutorial Reset: NLRB Acting General Counsel Rescinds Biden Guidance Memoranda En Masse
Not waiting for the appointment of a new General Counsel after President Trump’s discharge of both the previous General Counsel and then Acting General and suggesting that his motivation related to the workload of the Agency, on February 14, 2025, National Labor Relations Board’s current Acting General Counsel William B. Cowen rescinded nearly all of the Biden administration General Counsel’s substantive prosecutorial guidance memos.
While these memoranda do not have the weight of law or regulation, they do set out the agency’s priorities and key interpretations of the National Labor Relations Act. As a result, it marks a (not unexpected) complete reversal of the prosecutorial focus of the Office of the General Counsel from General Counsel Abruzzo’s tenure.
There were generally two types of rescissions. Some of the memos were rescinded in full, while others were rescinded “pending further guidance” – suggesting those areas where the new administration will be placing its focus.
The Acting GC’s memorandum did not address the impact of the NLRB’s current lack of a quorum on the Acting GC’s prosecutorial agenda. President Trump’s unprecedented firing of former NLRB Chair Gwynne Wilcox, which deprived the NLRB of a quorum, is currently being litigated.
The list of key rescinded memoranda and their policy impact are summarized below.
Abruzzo GC Memoranda Rescinded in Full
Rescinded General Counsel Memoranda
Topic and Relevant Policy
Memorandum GC 21-01
Offered guidance on mail-ballot elections, because “COVID-19 is no longer a Federal Public Health Emergency”.
Memorandum GC 21-02
Rescinded prior memos, including those that provided guidance on employment handbook rules, decertification petitions, and duty of fair representation cases, among other things.
Memorandum GC 21-03
Advocated greater enforcement of Section 7 rights regarding workplace health and safety in light of COVID-19.
Memorandum GC 21-08
Endorsed prosecuting universities that did not classify student-athletes as employees under the NLRA.
Memorandum GC 22-06
Offered an update on NLRB regional offices seeking broader remedies when prosecuting unfair labor practices (e.g., consequential damages, employer letters of apology).
Memorandum GC 23-02
Advocated prosecuting employers who used AI and algorithms in a way that could chill employee Section 7 activity.
Memorandum GC 23-05
Endorsed prosecuting employers that imposed on employees broadly worded severance agreements with expansive non-disparagement and confidentiality clauses.
Memorandum GC 23-08
Advocated prosecuting employers that imposed on employees noncompetition agreements outside limited cases.
Memorandum GC 24-04
Supported seeking full remedies (e.g., increased healthcare costs, lost pension contributions) for employees in unfair labor practice charge settlements with employers.
Memorandum GC 24-05
Proposed continuing to seek Section 10(j) injunctive relief against employers despite the higher procedural bar set by the Supreme Court in Starbucks Corp. v. McKinney.
Memorandum GC 25-01
Advocated prosecuting employers who imposed on employees stay-or-pay provisions (e.g., training repayment agreement provisions, quit fees, sign-on bonuses).
Abruzzo Memoranda Rescinded – Pending Further Guidance
Rescinded General Counsel Memoranda
Topic and Relevant Policy
Memorandum GC 21-05
Advocated Board prosecutors seek Section 10(j) injunctive relief to protect Section 7 rights from “remedial failure due to the passage of time.”
Memorandum GC 21-06
Endorsed NLRB regional offices seeking a “full panoply” of make-whole remedies, including “consequential damages to make employees whole for economic losses (apart from the loss of pay or benefits)”, such as credit card late fees or higher healthcare costs, in unfair labor practice cases.
Memorandum GC 21-07
Proposed Board prosecutors seek expanded remedies in formal and informal settlements, including consequential damages, front pay, and work authorization sponsorship for immigrant workers, employer letters of apology, among others.
Memorandum GC 22-01
Supported ensuring that immigrant workers’ Section 7 rights were protected, including by NLRB regional offices pursuing deferred action, parole, and a stay of removal, among other things, when immigrants allege they suffered unfair labor practices.
Memorandum GC 22-02
Endorsed NLRB regional offices seeking Section 10(j) injunctive relief in response to employers allegedly committing unfair labor practices during union organizing campaigns.
Memorandum GC 24-01
Offered guidance to Board prosecutors seeking a Cemex bargaining order against employers that allegedly fail to recognize and bargain with unions.
Memorandum GC 25-04
Provided insight on the interaction between federal anti-discrimination and labor law, including in cases where an employee engages in Section 7 activity that may be discriminatory.
As always, we will continue to monitor developments related to the Board and provide updates as they develop.
U.S. House of Representatives Takes Up Bill to Codify Recently Revoked Executive Order 11246
On February 5, 2025, a bill was introduced in the U.S. House of Representatives seeking to codify the recently revoked Executive Order 11246.
Quick Hits
The U.S. House of Representatives is considering H.R. 989, legislation that would codify the provisions of recently revoked Executive Order 11246.
H.R. 989 has been referred to the House Committee on Education and the Workforce.
Representatives Shontel Brown (D-OH) and Jamie Raskin (D-MD) introduced H.R. 989, “To codify Executive Order 11246 titled ‘Equal Employment Opportunity,’” which, as of February 18, 2025, had forty-seven cosponsors (all Democrats) representing twenty-five states and the District of Columbia. After being introduced in the House, the bill was immediately referred to the House Committee on Education and the Workforce.
H.R. 989 appears to be a direct response to Executive Order 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”), which on January 21, 2025, revoked Executive Order 11246, an order that had been in place, and amended, since issued in 1965 by President Lyndon Johnson.
New York Public Employers Face New Workplace Violence Prevention Duties
On February 10, 2025, New York Assembly Bill (A) No. 4936 was introduced, which proposes a significant amendment to Section 27-b of the Labor Law. Section 27-b of the Labor Law requires public employers with at least twenty permanent full-time employees to develop and implement workplace violence prevention policies and training programs.
Quick Hits
Expanded Risk Evaluation: Public employers will have to include “abusive conduct and bullying” in their workplace risk evaluations.
Enhanced Reporting Systems: Existing reporting systems for incidents of aggressive behavior will have to be amended to include reporting “abusive conduct and bullying.”
Broader Training Requirements: Existing training requirements will be expanded to require training on how to identify, prevent and report workplace “abusive conduct and bullying.”
Lack of Definitions: The bill does specifically define “abusive conduct” or “bullying,” which may render compliance more challenging.
The proposed amendment would require public employers to include “abusive conduct and bullying” in addition to other factors required to be evaluated and addressed under the existing law. On February 14, 2025, the New York Senate introduced Senate Bill (S) No. 4925, an identical version of A4936. This is a sign that the proposed amendment has support in both legislative houses.
Expanded Risk Evaluation
Section 27-b of the Labor Law requires public employers to evaluate their workplaces for factors that might place employees at risk of occupational assaults and homicides. The bill would add “abusive conduct and bullying” to the list of risk factors that employers must consider. This proposed expansion underscores the growing recognition of psychological safety as a critical component of workplace safety and health and workplace violence prevention.
Enhanced Reporting Systems
Section 27-b also requires public employers that have at least twenty full-time permanent employees to develop and implement a written workplace violence prevention program that includes a list of the risk factors noted above, and the methods that the employer will use to prevent workplace assaults and homicides. The bill would require public employers to amend existing reporting systems for incidents of aggressive behavior to include cases of “abusive conduct and bullying.” Public employers would need to develop clear protocols and designate competent and responsible personnel to manage these reports.
Broader Training Requirements
The bill stipulates that public employers’ written workplace violence prevention programs would have to provide employees with information and training on preventing and reporting workplace “abusive conduct and bullying.” Care would be required to ensure that this information and training was provided upon hire and annually thereafter. The bill states that the training should cover “how to identify and report workplace bullying and abusive conduct,” an obligation that would be added to the already existing requirement that employers include “measures employees can take to protect themselves from such risks, including specific procedures the employer has implemented to protect employees.”
Lack of Definitions
One critical aspect of the bill is its failure to define “abusive conduct and bullying.” This omission could lead to challenges in compliance, as public employers may struggle to determine what behaviors fall under these categories. Without clear definitions, there is a risk of inconsistent application and potential legal disputes. There is also a risk that certain employees will allege “abusive conduct and bullying” against supervisors and managers who are simply engaging in normal performance management. Public employers may need to seek legal guidance to develop their own definitions and ensure they are aligned with the bill’s intent.
Insights for Public Employers
The bill is still in an early stage of development. While the fact that both the Assembly and Senate are considering identical bills is an early sign of support, further legislative steps are required before it becomes law. This may include additional requirements or clarification on what constitutes “abusive conduce and bullying.” As this bill moves closer to becoming law, public employers can consider including abusive conduct and bullying as a factor in their workplace evaluations. While the existing law does not require any specific action yet, early evaluations can streamline future compliance in the event it becomes necessary.
Maryland DOL Seeks to Delay Paid Family and Medical Leave Insurance Program
Enacted in 2022, the Maryland Family and Medical Leave Insurance (FAMLI) program covers all employers with Maryland employees and will eventually provide most of those employees with up to twelve weeks of paid family and medical leave, with the possibility of an additional twelve weeks of paid parental leave.
Following several prior delays, employee contributions were scheduled to begin on July 1, 2025, with benefits commencing one year later on July 1, 2026. However, the Maryland Department of Labor (Maryland DOL) is now proposing a delay until January 1, 2027, for deductions and January 1, 2028, for benefits, based on the need to focus on supporting Maryland businesses and their employees in light of the significant uncertainty arising from President Donald Trump’s many employment-related executive orders.
Quick Hits
Due to concerns about readiness and cost, the Maryland DOL is proposing to delay the start of employee contributions to the Maryland FAMLI program to January 1, 2027, and the commencement of benefits to January 1, 2028.
The FAMLI program, enacted in 2022, aims to provide up to twelve weeks of paid family and medical leave for most Maryland employees, with the potential for an additional twelve weeks of paid parental leave.
A state senator has introduced a bill to delay the FAMLI program’s effective dates, highlighting the business community’s concerns over the lack of final regulations and the program’s significant economic impact.
Where Are the Regulations Now?
The Maryland DOL’s FAMLI Division was directed to issue regulations to implement the FAMLI program. As we previously noted in our multipart series on the FAMLI program, the Maryland DOL has engaged in an unusually extended and inclusive rulemaking process, likely impacted by amendments and delays to the program that were enacted in each of the 2023 and 2024 Maryland General Assembly sessions. At this point, the Maryland DOL has issued two sets of proposed regulations, which we covered in Part II (General Provisions, Contributions, and Equivalent Private Insurance Plans) and Part III (Claims and Dispute Resolution) of our series. But other sections of the proposed regulations, including Enforcement, have yet to be issued.
Concerns About Implementation and a Proposed Delay
There have been significant concerns about the Maryland DOL’s readiness to implement this complex program, as well as its overall cost (approximately $1.6 billion) in the current economic climate. In fact, Maryland state Senator Stephen Hershey has proposed a bill, Senate Bill (SB) 355, that seeks to delay the effective contribution and benefits dates by two years. In a hearing on this bill before the Senate Finance Committee on February 5, 2025, Fiona W. Ong (the author of this article) testified about the business community’s concern that final regulations—and even entire sections of the proposed regulations—have yet to be issued only months before the first deadlines. For example, employers are supposed to begin filing a declaration of intent (DOI) to have an equivalent private insurance plan (EPIP) starting on May 1, 2025. But at this point, employers do not have final rules about creating a self-insured plan, and insurance companies do not have final rules on creating commercial plans (which would also need to be compliant with insurance laws and regulations).
The Maryland DOL acknowledges that legislative action is required to authorize the delay and, in its press release, states that it is working closely with leadership in the General Assembly to extend the implementation dates. It is unclear whether the General Assembly will use Senator Hershey’s bill or issue a new bill. But given the Maryland DOL’s public statements, it is almost certain that the delay will take place.
This is obviously a significant development for employers with Maryland employees, many of whom are concerned about the cost and impact of this program in which the state, and not the employer, grants the paid leave benefit.
Health Agencies Face Terminations; Jim Jones Resigns from FDA’s Human Foods Program
Thousands of workers employed across the Department of Health and Human Services received notices that they would be terminated following four weeks of leave, including at least 89 members of FDA’s Human Foods Program staff, as part of the Trump administration’s overhaul of the federal workforce. The layoffs follow the confirmation of Robert F. Kennedy, Jr. as HHS secretary on February 13.
Terminated staff from FDA’s Human Foods Program include those working on nutrition, infant formula, and food safety response, as well as 10 staff members “who were charged with reviewing potentially unsafe chemicals in the nation’s food supply.”
Jim Jones, FDA’s deputy commissioner for human foods, resigned from the Agency on February 17, citing the “indiscriminate firing” of food program staff and Robert F. Kennedy, Jr.’s rhetoric toward staff. In a letter, Jones wrote: “I was looking forward to working to pursue the Department’s agenda of improving the health of Americans by reducing diet-related chronic disease and risks from chemicals in food. It has been increasingly clear that with the Trump Administration’s disdain for the very people necessary to implement your agenda, however, it would have been fruitless for me to continue in this role.”
Jones, who was appointed as deputy commissioner for human foods in 2023, had committed to priority areas of preventing foodborne illness, decreasing diet-related chronic disease, and safeguarding the food supply, as we previously blogged.
Governor Hochul Signs Amendment Extending Key Effective Date for the New York Retail Worker Safety Act
In what might have been a Valentine’s Day gift for retail employers across New York, on February 14, 2025, Governor Kathy Hochul signed into law an amendment to the New York Retail Worker Safety Act (S8358B/A8947C, Chapter 308). Among other things, the amendment extends the effective date of the act’s workplace violence prevention policy, training, and notice provisions from March 4, 2025, to June 2, 2025.
Quick Hits
On February 14, 2025, Governor Kathy Hochul signed into law an amendment to the New York Retail Worker Safety Act, extending the effective date for workplace violence prevention policies, training, and notice provisions from March 4, 2025, to June 2, 2025.
The amendment adjusts training requirements for employers with fewer than fifty employees and mandates state model templates in English and the twelve most common non-English languages spoken in New York.
Effective January 1, 2027, employers with 500 or more retail employees statewide will be required to provide silent response buttons for internal alerts.
The amendment also modifies the following other provisions of the act:
“Panic Buttons” that would alert law enforcement are now replaced with “silent response buttons” (SRBs) that alert internal staff (security officers, managers, or supervisors).
SRBs are now required for employers with 500 or more retail employees statewide rather than nationwide. The amendment has not changed the effective date for the SRB requirement, which remains January 1, 2027.
Employers with fewer than fifty retail employees now only need to provide workplace violence training to their retail employees upon hire, and then every other year, rather than annually.
New York State model templates will now be issued in English and the twelve most common non-English languages spoken in New York (as determined by data published by the United States Census Bureau).
This amendment provides covered retail employers with an additional ninety days before they must comply with the requirements for a workplace violence prevention plan, training program, and notice to employees. It is anticipated that the state will issue additional guidance about the act’s requirements and potential enforcement as this deadline approaches. While the guidance may provide additional insight, covered employers may want to act now so that they can implement the requirements in compliance with the June 2, 2025, deadline.
Healthcare Preview for the Week of: February 18, 2025 [Podcast]
President’s Day Shortened Week
After the President’s Day long weekend, the House is out of session this week. The Senate is in session, with a continued focus on nominations and potential floor action on the budget resolution that the Senate Budget Committee reported last week. This week the Senate Homeland Security & Governmental Affairs Committee will hold a hearing for Dan Bishop, nominated to be deputy director of the Office of Management and Budget. Healthcare could certainly be a topic that is raised at the hearing.
What remains to be seen this week is whether there will be additional steps toward budget reconciliation. Last week, the Senate and House budget committees passed very different budget resolutions. The Senate version is the first of two reconciliation efforts and is focused only on energy, immigration, and defense policies, while the House wants to pass one big package with all priorities, including extending the Trump tax cuts. Either version will likely include healthcare policies in order to offset spending priorities, although the magnitude of healthcare cuts, in particular for Medicaid, is far greater in the House, whose budget resolution targets a minimum of $880 billion in savings from the House Energy and Commerce Committee. With the House out this week, the Senate could advance its budget resolution to floor consideration and send it on to the House. Of course, the House is not required to then act on that bill. It is very possible that the House could move forward with its own approach. But, before either body can turn to the substantive work of developing a reconciliation package, a unified budget resolution must pass both bodies.
Last Thursday, Robert F. Kennedy (RFK) Jr. was confirmed and sworn in as secretary of the US Department of Health and Human Services (HHS). His Senate confirmation vote was 52 – 48, with Sen. McConnell (R-KY) the sole Republican to vote no. As predicted, immediately after RFK Jr.’s swearing in, President Trump took several healthcare actions. He signed an executive order establishing the Make America Healthy Again Commission, whose initial mission is to advise the president on how to address childhood chronic diseases. The order directs the commission to study contributing causes, advise the president on public education, and provide government-wide recommendations to address contributing causes. Additional executive orders on healthcare could be forthcoming.
As forecast, the Trump administration laid off thousands of HHS employees on Friday and over the weekend, including at the US Food and Drug Administration, the Centers for Medicare and Medicaid Services, and the National Institutes of Health. The Trump administration contends that the layoffs did not include essential workers. Individuals laid off primarily include those in a probationary period, but the impact of these changes is still being understood and is likely to impact the operation of Medicare, Medicaid, federal grant programs, and other HHS functions.
Today’s Podcast
In this week’s Healthcare Preview podcast, Debbie Curtis and Rodney Whitlock join Julia Grabo to recap the mass HHS layoffs over the long weekend and discuss next steps in the budget reconciliation process.
President Trump’s Recent Executive Orders and Their Potential Impact on Social Initiatives
President Trump started his second term by signing executive orders that covered a number of environmental, social, and governance (ESG)-related issues, such as eliminating diversity, equity, and inclusion (DEI) programs in departments and agencies in the executive branch, repealing DEI directives from the Biden administration, requiring enhanced vetting and screening processes for individuals seeking U.S. citizenship, limiting the enforcement of federal civil rights law and labor law, among others. The effects of President Trump’s executive orders have already begun as an United States Office of Personnel Management (OPM) memo placed DEI officers on immediate leave and set a January 31, 2025, deadline for agencies to submit plans to dismiss the employees that were put on leave.
This article focuses on executive order Ending Illegal Discrimination and Restoring Merit-Based Opportunity, as it is the order most likely to have a significant impact on the private sector’s human capital management initiatives. That executive order noted that major companies, as well as other entities, are engaging in “race- and sex-based preferences under the guise of” DEI programs that may be in violation of federal civil rights laws. The order further encouraged federal agencies and the Attorney General to take the necessary steps to promote “individual initiative, excellence, and hard work.” The order also tasked the Attorney General and Director of the Office of Management and Budget to prepare a report that outlines (a) ways to leverage federal laws and “other appropriate measures to encourage the private sector to end illegal discrimination and preferences, including DEI,” (b) key areas of concern, (c) “[t]he most egregious and discriminatory DEI practitioners in each” area of concern, (d) plans and strategies “to deter DEI programs or principles . . . that constitute illegal discrimination or preferences,” and (e) litigation and potential regulatory action that can be taken. Of note, the order instructs executive departments and agencies to identify at least nine civil investigations that may be taken of public companies, “large non-profit corporations, . . . foundations with” more than 500 million in assets, medication associations, and other entities.
With respect to the federal government, the order, among other things, requires “executive departments and agencies” to cease “discriminatory and illegal” initiatives and enforcement proceedings and mandates that these departments and agencies “combat illegal private-sector DEI preferences, mandates, policies, programs, and activities.” There were also a host of items in the order directed to federal contractors or grant recipients, including a requirement to certify that they do not have DEI programs in violation of federal law.
Impact on the Private Sector
Before the recent executive orders, several Fortune 500 companies ended or reduced their DEI initiatives. The recent executive orders, particularly the order on Ending Illegal Discrimination and Restoring Merit-Based Opportunity, will likely drive more companies to pare back their DEI programming (or expedite their prior plans to reduce those initiatives). That said, as was the case before the executive orders, there will continue to be some companies that maintain their DEI initiatives until a court decision or law compels a different approach. Further clarity on the scope of what may be considered illegal discrimination beyond existing case law may be elucidated by the Attorney General’s report, which need not be submitted until May 21st. During the time that the report is being prepared, government officials will be identifying candidates for potential investigations. Further, we expect litigation to test the bounds of what constitutes illegal discrimination.
Adding to the complexity of the situation, on the state level, attorney generals are taking action in the DEI arena. For example, after Costco rejected a shareholder proposal to analyze the risks of its DEI policies, 19 Republican attorney generals demanded that within 30 days the company announce that it has repealed its DEI policies or explain why not. Conversely, a group of 13 attorneys general publicly noted their concerns with attempts to paint DEI initiatives as illegal. That group of attorneys general cited to a statement from the Equal Employment Opportunity Commission that confirmed that DEI programs remain legal. Put simply, companies may find themselves pulled in opposite directions by federal and state regulators while simultaneously confronting litigation in this area from private actors. Public companies may also see increased shareholder action with respect to DEI initiatives.
Next Steps
The DEI-related executive orders are poised to have a significant impact on the private sector at this time (and in the foreseeable future) as companies grapple with identifying the contours of what is permitted and safe from legal challenge (or at least defensible in the event of a lawsuit or governmental inquiry). In this rapidly evolving DEI landscape (which will almost certainly evolve yet again once the Attorney General’s report is issued), it is important that companies evaluate their contracts, internal and external policies and procedures, and messaging. Companies should also train their personnel on any changes to their DEI initiatives. Because this area is rapidly developing, it will also be crucial for companies to ensure they have reliable methods to track developments in the sector.
President Trump Imposes Sanctions on the International Criminal Court
On February 6, 2025, President Donald Trump issued an Executive Order titled “Imposing Sanctions on the International Criminal Court” (the “E.O.”). The E.O. was issued in reaction to the International Criminal Court’s (ICC) assertion of jurisdiction over non-member states, their leaders and personnel.
The ICC
The ICC (not to be confused with the United Nations International Court of Justice) is a treaty-based entity established in 2002 under a multilateral treaty known as the Rome Statute. The ICC has 124 member countries. About 40 countries, including the United States, China, Russia, Egypt, Israel, Saudi Arabia, Sudan, Singapore, Turkey, India, and Indonesia are not members.
The ICC has asserted jurisdiction over, and has opened preliminary investigations into personnel of, the United States and Israel (both of which are non-member states), and has issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu and Former Minister of Defense Yoav Gallant.
The E.O.
The E.O. finds that the ICC has engaged in “illegitimate and baseless actions” that target the United States and certain allies, including Israel. The E.O. notes that “[t]he ICC has no jurisdiction over the United States or Israel, as neither country is party to the Rome Statute or a member of the ICC.” The E.O. further notes that “[n]either country has ever recognized the ICC’s jurisdiction[.]”
The E.O. cites the American Servicemembers Protection Act of 2002, 22 U.S.C. 7421 et seq., which Congress enacted “to protect United States military personnel, United States officials, and officials and military personnel of certain allied countries against criminal prosecution by an international criminal court to which the United States is not a party.”
The E.O. declares that the ICC’s actions set a dangerous precedent, endangering U.S. military and other personnel by exposing them to harassment, abuse, and possible arrest, which threatens U.S. sovereignty and undermines U.S. national security and foreign policy.
The E.O. cautions that “the ICC and parties to the Rome Statute must respect the decisions of the United States and other countries not to subject their personnel to the ICC’s jurisdiction, consistent with their respective sovereign prerogatives.”
The Sanctions
The E.O. imposes sanctions on Karim Kahn, the Chief Prosecutor of the ICC, and authorizes the imposition of sanctions on additional persons that “have directly engaged in any effort by the ICC to investigate, arrest, detain, or prosecute a protected person without consent of that person’s country of nationality[.]”
A ”protected person” is defined to include any U.S. person (unless the United States formally consents to the exercise of jurisdiction over that person or becomes a party to the Rome Statute); any foreign person who is a citizen or lawful resident of a U.S. ally that is not a party to the Rome Statute and that has not consented to the exercise of jurisdiction over that person; and officials of the U.S. government and U.S. allies.
The principal sanctions imposed on Khan (and to be imposed on future designees) are:
Blocking (i.e., freezing) of property and interests in property of the sanctioned person(s) that are in the United States, or that are or come within the possession/control of any U.S. person; and
Prohibiting any U.S. person from providing funds, goods, or services to the sanctioned person(s), or from receiving funds, goods, or services from the sanctioned person(s).
U.S. sanctions are potent tools that lie at the intersection of law, commerce, and international relations. While this particular deployment of sanctions is noteworthy because of its unusual nature, there are thousands of sanctions rules and regulations that govern many facets of international commerce. U.S. and foreign companies should be mindful of their compliance obligations.
Safety Perspectives From the Dallas Region: Trump Executive Orders and Their Impact [Podcast]
In this inaugural episode of 2025 for our Safety Perspectives From the Dallas Region podcast series, shareholders John Surma (Houston) and Frank Davis (Dallas) discuss President Trump’s new executive orders and their impact on the Dallas region. Frank and John address staffing issues arising from the hiring freeze, explore the “fork in the road” email regarding deferred employee resignations, and examine the return-to-work executive order, among other topics.
New York City to Require Employers to Physically and Electronically Post Lactation Room Accommodation Policy
New York City employers will be required to physically and electronically post a copy of their written lactation room accommodation policy under recent amendments to New York City’s lactation accommodations law set to take effect on May 11, 2025.
Quick Hits
New York City employers will be required to physically and electronically post a written lactation room accommodation policy to employees.
The recent amendment also aligns New York City law with New York State law requirements to provide paid break time for employees who need to express or pump breast milk.
The changes take effect on May 11, 2025.
The new amendments in Int No. 0892-2024, which became law on November 12, 2024, change existing language under the New York City Human Rights Law requiring employers to “develop and implement a written policy regarding the provision of a lactation room.”
Under the new amendments, employers will be required to “make such written policy readily available to employees, by, at a minimum, conspicuously posting such policy at an employer’s place of business in an area accessible to employees and electronically on such employer’s intranet, if one exists.” This requirement is in addition to an employer’s obligation to distribute a written policy to all employees “at the commencement of employment.”
The new amendment also incorporates recent changes to New York State’s lactation break law that went into effect in June 2024, requiring covered employers to provide paid thirty-minute breaks for employees who need to express breast milk for a nursing child. In addition to providing such paid break time, employers must also provide a statement in their written policy that they will provide “30 minutes of paid break time, and … permit an employee to use existing paid break time or meal time for time in excess of 30 minutes to express breast milk.” (Emphasis added).
New York City Lactation Laws
In 2018, New York City enacted Local Law 185 and Local Law 186, requiring employers to provide lactation accommodations for employees who need to express or pump breast milk at work and establish a written policy for using lactation rooms.
Local Law 185 requires employers to provide a dedicated “lactation room” that is “a sanitary place, other than a restroom, that can be used to express breast milk shielded from view and free from intrusion.” The lactation room must include “an electrical outlet, a chair, a surface on which to place a breast pump and other personal items, and nearby access to running water.” Covered employers must also provide “a refrigerator suitable for breast milk storage in reasonable proximity to such employee’s work area.”
Additionally, Local Law 186 requires covered employers to develop a written lactation room accommodation policy that includes, among other things, an explanation for how employees can submit requests to use the lactation room, a procedure for when two or more employees request to use the room, and a statement that employers will respond to requests within a “reasonable amount of time,” which is not to exceed five business days.
Next Steps
New York City employers may want to carefully review and revise their current break policies and practices to ensure compliance with this amendment. Specifically, New York City employers may want to ensure their lactation room policies are electronically and physically posted and include a statement regarding an employee’s right to an additional thirty minutes of paid break time to express breast milk.
New York Proposes Expansion of Disclosure Requirements for Material Health Care Transactions
Governor Kathy Hochul released the proposed Fiscal Year 2026 New York State Executive Budget on January 21, 2025 (FY 26 Executive Budget). The FY 26 Executive Budget contains an amendment to Article 45-A of New York’s Public Health Law (hereinafter, the Disclosure of Material Transactions Law), which has been in effect since August 1, 2023. The law currently requires parties to a “material transaction” to provide 30 days pre-closing as well as post-closing notice to the New York State Department of Health (DOH). Since the law has taken effect, DOH has received notice of 9 material transactions, the details of which are listed on its website. If enacted, the amendment will change the reporting parties’ notice requirement, extend waiting periods, and increase DOH’s oversight of material health care transactions.
Existing Pre-Closing Notice Requirements
The Disclosure of Material Transactions Law currently requires a written notice to be submitted to DOH at least 30 days prior to the proposed material transaction’s closing. A transaction will be considered “material” if any of the below occur, whether in a single transaction or through a series of related transactions during a rolling 12-month period that results in a health care entity increasing its gross in-state revenues by $25 million or more:
A merger with a health care entity;
An acquisition of one or more health care entities, including, but not limited to, the assignment, sale, or other conveyance of assets, voting securities, membership, or partnership interest or the transfer of control (which is presumed if any person, directly or indirectly, owns, controls, or holds with the power to vote, 10% or more of the voting securities of a health care entity);
An affiliation or contract formed between a health care entity and another person; or
The formation of a partnership, joint venture, accountable care organization, parent organization, or management service organization for the purpose of administering contracts with health plans, third-party administrators, pharmacy benefit managers, or health care providers.
The law requires all “health care entities”, defined under Article 45-A of New York’s Public Health Law to include physician practices or groups, management services organizations or similar entities that provide all or substantially all administrative or management services under contract with at least one physician practice, provider-sponsored organizations, health insurance plans, and any other health care facilities, organizations, or plans that provide health care services in New York (except for insurers or pharmacy benefit managers regulated by the New York State Department of Financial Services), to submit the notice to DOH. Such notice must include:
The names of the parties to the transaction and their current addresses;
Copies of any definitive agreements governing the terms of the material transaction, including pre- and post-closing conditions;
Identification of all locations where each party provides health care services and the revenue generated in the state from such locations;
Any plans to reduce or eliminate services and/or participation in specific plan networks;
The closing date of the transaction;
A brief description of the nature and purpose of the proposed transaction;
The anticipated impact of the material transaction on cost, quality, access, health equity, and competition in the markets the transaction will impact, which may be supported by data and a formal market impact analysis; and
Any commitments by the health care entity to address anticipated impacts.
Change to Pre-Closing Notice Requirement
The proposed amendment to the Disclosure of Material Transaction Law would modify the timing and content requirements of the required notice to DOH. First, the written pre-closing notice would need to be submitted to DOH at least 60 days prior to the closing of the proposed transaction, as opposed to 30 days under the current law. Second, the written pre-closing notice would require:
A statement as to whether any party to the transaction, or a controlling person or parent company of such party, owns any other health care entity which, in the past three years has closed operations, is in the process of closing operations, or has experienced a substantial reduction in services; and if so,
A statement as to whether a sale-leaseback agreement, mortgage, lease payments, or other payments associated with real estate are a component of the proposed transaction. If so, the parties shall provide the proposed sale-leaseback agreement or mortgage, lease, or real estate documents with the notice.
DOH Preliminary Review
When the Disclosure of Material Transactions Law was initially proposed in the Fiscal Year 2024 Executive Budget (FY 24 Executive Budget), it included not only the notification requirement but also a DOH approval process. Under the FY 24 Executive Budget proposal, each material transaction would be subject to DOH review and approval, including DOH’s consideration of several factors (Review Factors), such as:
If the potential positive impacts of the transaction outweigh any potential negative impacts;
Potential anticompetitive effects of the transaction;
The parties’ financial conditions;
The character and competence of the parties, their officers, and their directors;
The source of funds or assets involved in the transaction; and
The fairness of the exchange.
The amendment to the Disclosure of Material Transactions Law proposed in the FY 26 Executive Budget does not revive the Review Factors. However, it does provide that DOH shall conduct a preliminary review of all proposed transactions and, at its discretion, conduct a full cost and market impact review of the transaction. DOH shall notify the parties of the date the preliminary review is completed, and if DOH requires a full cost and market impact review, it shall notify the parties that such a review is required. The law does not specify a timeframe by which DOH must complete its preliminary review. However, if a full cost and market impact review is required, DOH has the power to delay the transaction until the review’s completion, however, closing cannot be delayed more than 180 days from the completion of the preliminary review. As part of a review, DOH may require the parties to the transaction (including parent and subsidiary companies of the parties) to submit additional documentation and information as necessary. Additionally, DOH may require that the parties to a transaction pay to DOH all actual, reasonable, and direct costs incurred by DOH in reviewing and evaluating the notice. Any information obtained by DOH pursuant to the cost and market impact review may be used by DOH in assessing certificate of need applications submitted by the parties. The proposed amendment to the Disclosure of Material Transactions Law in the FY 2026 Executive Budget does not propose a DOH approval process for material transactions, as initially sought in the FY 24 Executive Budget. However, it does give DOH the power to delay transaction closings until it receives all requested information from the parties.
Five-Year Transaction Reporting Requirement
The proposed amendment would add an annual reporting requirement for five years following the transaction’s closing. Each year on the anniversary of the transaction’s closing, the parties to the material transaction would need to provide a report to DOH so that DOH can assess the impact of the transaction on cost, quality, access, health equity, and competition. In addition, DOH may require any parents or subsidiaries of the parties to the material transaction to submit to DOH within 21 days upon request information needed for DOH to assess the impact of the transaction on cost, quality, access, health equity, and competition.
Implications
The proposed amendment indicates the DOH’s desire to heavily regulate and increase its oversight over health care transactions in New York. Including a cost and market impact review signals that DOH may be trying to move toward a more comprehensive review and approval process similar to the framework implemented in Massachusetts in 2012. For providers and other entities who are currently party to a transaction, or contemplating entering into such a transaction, that would be subject to the Disclosure of Material Transactions Law, it is important to note that these proposed amendments may significantly lengthen the timeline of your transaction. In this case, it may behoove such providers and others to proceed with such transactions sooner rather than later.
We will continue to monitor and report on this proposal and other state legislative efforts to broaden the scope of government review of health care transactions.