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.
Nevada Bill Introduced to Expand General Jurisdiction Over Businesses
Nevada’s 2025 legislative session has commenced, and at least one bill is already raising concerns. Assembly Bill 158 would expand general jurisdiction in Nevada to an entity that “is organized, registered or qualified to do business pursuant to the laws of this State.” Simply stated, merely registering to do business in Nevada would create general jurisdiction over that entity. This could expose entities to lawsuits in Nevada that have nothing to do with the state. It could also lead to extreme forum shopping because of the potential to sue entities anywhere.
AB 158 appears motivated by the United States Supreme Court’s 2023 decision in Mallory v. Norfolk Southern Railway Co., 600 U.S. ___ (2023). Mallory concluded that a Pennsylvania statute requiring a foreign corporation to consent to general jurisdiction in Pennsylvania as a condition of doing business there did not violate due process. However, Mallory leaves at least one question unanswered. Justice Alito noted in his concurrence that although the statute might not violate due process, it might be unconstitutional under the Commerce Clause. That issue, though, was not before the court in Mallory. Whether a statute such as AB 158, as proposed, is constitutional remains unknown.
Privacy Tip #431 – DOGE Has Access to Our Personal Information: What You Need to Know
According to a highly critical article recently published by TechCrunch, the Department of Government Efficiency (DOGE), President Trump’s advisory board headed by Elon Musk, has “taken control of top federal departments and datasets” and has access to “sensitive data of millions of Americans and the nation’s closest allies.” The author calls this “the biggest breach of US government data.” He continues, “[w]hether a feat or a coup (which depends entirely on your point of view), a small group of mostly young, private-sector employees from Musk’s businesses and associates — many with no prior government experience — can now view and, in some cases, control the federal government’s most sensitive data on millions of Americans and our closest allies.”
According to USA Today, “The amount of sensitive data that Musk and his team could access is so vast it has historically been off limits to all but a handful of career civil servants.” The article points out that:
If you received a tax refund, Elon Musk could get your Social Security number and even your bank account and routing numbers. Paying off a student loan or a government-backed mortgage? Musk and his aides could dig through that data, too.
If you get a monthly Social Security check, receive Medicaid or other government benefits like SNAP (formerly known as food stamps), or work for the federal government, all of your personal information would be at the Musk team’s fingertips. The same holds true if you’ve been awarded a federal contract or grant.
Private medical history could potentially fall under the scrutiny of Musk and his assistants if your doctor or dentist provides that level of detail to the government when requesting Medicaid reimbursement for the cost of your care.
A federal judge in New York recently issued a preliminary injunction stopping Musk and his software engineers from accessing the data, despite Musk calling the judge “corrupt” on X. USA Today reports that the White House says Musk and his engineers only have “read-only” access to the data, but that is not very comforting from a security standpoint. The Treasury Department has reportedly admitted that one DOGE staffer, a 25-year-old software engineer, had been mistakenly granted “read/write” permission on February 5, 2025. That is just frightening to me as one who works hard to protects my personal information.
Tech Crunch reported that data security is not a priority for DOGE.
“For example, a DOGE staffer reportedly used a personal Gmail account to access a government call, and a newly filed lawsuit by federal whistleblowers claims DOGE ordered an unauthorized email server to be connected to the government network, which violates federal privacy law. DOGE staffers are also said to be feeding sensitive data from at least one government department into AI software.”
We all know that Musk loves AI. We are also well aware of the risks of using AI with highly sensitive data, including unauthorized disclosure and the ability to include it in outputs.
All of this has prompted questions about whether this advisory board has proper security clearance to access our data.
Should you be concerned? Absolutely. I understand the goal of cutting costs. But why do these employees have access to our most private information, including our full Social Security numbers and health information? Do they really need that specific data to determine fraud or overspending?
I argue no. A tenet of data security is proper access controls, only having access to the data needed for business purposes. DOGE’s unfettered access to our highly sensitive information is not limited to only data needed for a specific purpose. The security procedures for accessing the data are in question, and proper security protocols must be followed. According to Senator Ron Wyden of Oregon and Senator Jon Ossoff of Georgia, who is a member of the U.S. Senate Intelligence Committee, this is “a national security risk.” As a privacy and cybersecurity lawyer, I am very concerned. A hearing on an early lawsuit filed to prohibit this unrestricted access is scheduled for tomorrow. We will keep you apprised of developments as they progress.
2025 Outlook – the Department of Health and Human Services Under the Second Trump Administration – Diagnosing Health Care [Video, Podcast]
New from the Diagnosing Health Care Video Podcast: It is critical for health care and life sciences businesses to understand what might and might not change during this transitionary period.
How can you advocate for your needs and priorities in a time of such uncertainty?
On this episode, Epstein Becker Green (EBG) attorneys James Boiani, Rachel Snyder Good, Marjorie Scher, and Rob Wanerman discuss the proposed leadership of the U.S. Department of Health and Human Services under the second Trump administration and the top-ticket items for these potential new leaders.
Chevron deference article mentioned in today’s show
This podcast was recorded on January 23, 2025. Since then, EBG has put out several important free resources in response to President Trump’s executive orders and other executive actions to make sure EBG subscribers have the information they need to navigate any uncertainty. Some examples include:
DEI and Affirmative Action Programs Blitzed, While Executive Order 11246 Is Revoked
Navigating Executive Orders: Insights and What Lies Ahead
The Trump Administration’s Immigration Enforcement Policy: What Hospitals and Health Care Providers Must Know for Their Patients, Staff, and Visitors
Let It Be…Taxed? The Carried Interest Debate Continues
On February 6, Congressional Republican leaders met with President Donald Trump to address the Trump Administration’s 2025 budget and tax priorities. During that meeting, the Trump Administration proposed to eliminate capital gains tax treatment on carried interest.
On that same day, Democrats in the House and Senate introduced bills to completely eliminate capital gains tax treatment on carried interest.
Background and Takeaways
Carried interest is generally a form of equity compensation granted to investment fund managers (e.g., private equity, venture capital or hedge funds) in exchange for investment services provided to the fund. The typical fund structure used by sponsors enables fund managers to benefit from long-term capital gains tax treatment (e.g., 20%) on their carried interest when underlying fund investments are sold, as opposed to ordinary income tax treatment more typically imposed on wage or service income (e.g., up to 37%).
The tax benefits provided by carried interest to fund managers have been under political pressure since 2006. Under the Trump Administration in 2017, the Tax Cuts and Jobs Act of 2017 (TJCA) was enacted and increased the one-year holding period requirement to a new three-year holding period requirement for fund managers to generate long-term capital gains treatment on their carried interest.
Most recently, carried interest survived more pressure during the enactment of the Inflation Reduction Act of 2022, when Senator Kyrsten Sinema (D-AZ) successfully opposed an increase to the three-year holding period requirement for carried interest.
It remains to be seen how the Trump Administration’s tax priorities with respect to carried interest will be implemented and how quickly tax legislation will move through the legislative process during 2025.
The Senate has taken the lead in the budget reconciliation process and is marking up a budget resolution this week, suggesting that a two-bill approach to 2025 tax legislation may be more likely than the one-bill approach favored by House Republican leadership. The Senate’s two-bill approach would likely push substantive tax legislation to the latter half of 2025. However, the House Budget Committee announced yesterday it will move forward with its markup of a budget resolution in tandem with the Senate this week, throwing into question the two-bill approach favored by Senate Republicans. In short, the timing of when substantive tax legislation will move through Congress is currently in flux.
Fund managers and investors should remain focused on 2025 tax legislation. Many fund agreements provide general partners the right to make certain unilateral changes to their fund agreements in the event of a change in taxation of carried interest. Thus, fund managers and investors should review existing fund documents to determine their potential strategic options if modifications to carried interest rules are enacted (e.g., does the fund agreement include provisions addressing such changes in law?).
Fund managers and investors looking ahead to future (or current) negotiations of fund documents should consider including protective language in such fund documents to mitigate downside economic exposure to changes in law that reduce the after-tax value of their carried interest or that could otherwise affect investors’ legal or commercial positions.
Continued Momentum for Social Consumption Lounges
For a long time, social consumption lounges have been a sort of “White Whale” in the adult-use cannabis industry, murmured about and pursued but rarely spotted. Luckily for us Captain Ahabs, a number of state legislatures have begun taking action on developing a licensing and operational framework for social consumption lounges and cannabis events permitting consumption. The Cannabis Control Commission of Massachusetts issued its proposed rules and licensing structure at the end of 2024 (see Social Consumption Lounges in Massachusetts: Proposed Rules for more information). Most recently at the end of January, Maryland’s house and senate also took action by introducing two complementary bills to establish rules and to regulate the hosting of events permitting cannabis consumption in the Old Line State (Legislation – HB0132 and Legislation – SB0215). Connecticut, New Jersey, and New York have also recently taken steps towards developing and enhancing the social consumption lounge regime in their respective states.
Both Maryland bills remain under review of the respective finance committees, but here is a quick hitter summary on the contents.
Initially, the state would accept applications for 15 licenses that would permit the serving of single-serving, infused beverages and edibles sourced from third-party operators.
Neither the smoking of cannabis nor the infusion of foods and beverages on-site would be permitted.
Licensed locations would provide the Maryland Cannabis Administration at least 60 days advance notice of an event involving cannabis consumption. Therefore, this license type wouldn’t operate as a social consumption lounge, but would permit a location to host a temporary cannabis event where the consumption of cannabis products is permitted.
As you can see, the proposed bills are quite restrictive, but I choose to view progress as is and take solace in the old adage, “Rome wasn’t built in a day.”
Alabama Appellate Court Appears Poised to Deliver Big Win for Cannabis Commission
Longtime readers of Budding Trends (and there are dozens of you) know that I have been saying over and over recently that – as counterintuitive as it may sound – the fastest way to get Alabama’s medical cannabis program launched is through the court system.
At times did it feel like I was trying to speak it into existence in the face of facts on the ground? Look, I majored in history not psychology. But whether I was well-informed, clairvoyant, or just lucky, it appears as though we had our first breakthrough in Alabama’s medical cannabis program, and it came courtesy of the court system.
What Happened?
Yesterday the Alabama Court of Civil Appeals heard arguments in an appeal from the Montgomery County Circuit Court hearing all of the medical cannabis cases. Specifically, the court focused its inquiry on two questions: (1) does the circuit court have jurisdiction to entertain the claims of Alabama Always, an applicant for an integrated facility license who has not been awarded a license, against the Alabama Medical Cannabis Commission, and (2) does the temporary restraining order halt the AMCC from taking any steps towards issuing integrated facility licenses?
Over the course of three hours, it became apparent to the author that the court was prepared to rule in the AMCC’s favor on both issues. I got the sense that the panel believed disappointed applicants should have exhausted their administrative options – including, most importantly here, participating in the investigative hearing process – before resorting to litigation. It also seemed clear that the panel believed the existing TRO was unnecessarily broad and should be modified to, at a minimum, call for the AMCC to conduct investigative hearings and then perhaps refrain from actually issuing the licenses until further word from the court.
What’s Next?
As always, what happened is only part of the analysis, and often the harder question is what happens next. I believe the tone and substance of the questions from the court very well may impact the next steps.
Less than two hours after the oral argument in the Alabama Court of Civil Appeals, the circuit court had a status conference to discuss steps moving forward in the various medical marijuana cases currently pending. The court set several briefing schedules and appears to be taking steps to move the cases along. It will be interesting to see whether the circuit court, which has not been moving with all deliberate speed, will now begin to move more quickly with a decision from the appeals court looming.
Then, there’s the ole “legislative fix.” As I wrote previously:
Looking around and finding themselves in this maze, many have turned to the Alabama Legislature for help. This is nothing new to those who have been working on medical cannabis since it was enacted into law in 2021. Like clockwork, every year when a new legislative session approaches, certain dissatisfied applicants use the specter of a “legislative fix” in an effort to bring other stakeholders to the table to find a compromise. The problem with finding a compromise under the existing law is that limited licensing is a zero-sum proposition and there is very little chance all applicants will agree to the same rules.
True to form, and as we wrote earlier this week, Alabama Senate Bill 72 dropped last week. It would, among other things, (1) expand the total number of integrated licenses from five to seven; (2) shift the authority of issuing licenses from the AMCC to a consultant; and (3) shield the decision from any judicial review. At the time, I wrote that “this bill has little chance of becoming law as drafted.” Having now heard oral arguments and believing that the court may expedite this process, I think the chances are even lower.
It’s faint, but I believe that just might be light at the end of this long and winding tunnel. It’s impossible to know when the court will hand down its ruling in this case. Prognosticators predict a ruling in late March or early May. As always, we’ll stay on top of this so you don’t have to.
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GeTtin’ SALTy Episode 46 | Oregon’s Tax Landscape: Revenue, Legislation, and Local Changes with Jeff Newgard [Podcast]
In this episode of GeTtin’ SALTy, host Nikki Dobay is joined by Jeff Newgard, president of Peak Policy, to discuss Oregon’s 2025 legislative session. They explore Oregon’s revenue outlook fueled by personal income tax gains and the expiration implications of federal tax provisions. They delve into the state’s budgetary and tax policy processes, highlighting the nuances of legislative priorities, including a potential transportation package and tweaks to the longstanding estate tax. Jeff and Nikki reflect on the potential political and fiscal impacts of recent voter sentiment against tax increases, while also considering the challenges posed by anticipated federal tax reforms. The conversation rounds out with a look at local tax dynamics within Portland’s government structure, and Jeff offers insights into maintaining a sunny disposition during Oregon’s gray winter months—a glimpse into his astrophotography hobby.
“Unleashing Prosperity Through Deregulation” — How Effective Will It Be in Practice?
President Trump, on January 31, 2025, issued Executive Order 14192, “Unleashing Prosperity Through Deregulation.” This has been referred to as President Trump’s “ten-to-one deregulation initiative” that he spoke about when he was campaigning. If this initiative seems familiar, it may be because you remember Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs,” issued on February 3, 2017, by President Trump in his first term. That Executive Order called for a two-to-one repeal of regulations.
Section 3 of Executive Order 14192 requires that “whenever an executive department or agency (agency) publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least 10 existing regulations to be repealed.” For Fiscal Year 2025, the heads of all agencies are directed to ensure that the total incremental cost of all new regulations, including repealed ones, shall be “significantly less than zero” as determined by the Director of the Office of Management and Budget.
It is one thing to identify regulations to be repealed. It is another thing to repeal existing regulations. The Congressional Review Act (CRA) is one way to eliminate regulations, but that requires legislation and has limits. According to the Congressional Research Service, the CRA has been used to overturn a total of 20 rules: one in the 107th Congress (2001-2002), 16 in the 115th Congress (2017-2018), and three in the 117th Congress (2021-2022). The other way is to follow the Administrative Procedure Act (APA), which is a more time-consuming option that does not lend itself to the “make immediate change” actions of the new Administration.
A cynic would say that the ten-to-one Executive Order is more about making headlines and inviting the perception of action because that is what people will remember. President Trump campaigned on reducing regulatory burdens and the reach of government, so actions such as this should not be surprising to anyone.
It remains to be seen how many significant regulations will be targeted for repeal and eventually be repealed by the Trump Administration. It will be interesting to watch how businesses in highly regulated industries, including the chemical manufacturing industry, could benefit or be challenged by these potential regulatory actions.
Blast from the Past: The Potential Ripple Effect of the ‘Return to In-Person Work’ Executive Order on the Private Sector and Key Considerations for Employers
President Donald Trump’s “Return to In-Person Work” executive order (EO) mandates that federal employees return to full-time office work. This EO effectively ended the widespread hybrid and remote work arrangements that had become common in the government sector. Federal agencies must now “take all necessary steps” to enforce in-person attendance. While the EO does not apply to the private sector, it may encourage private employers to implement similar policies. Although employers generally have the right to require in-person work, they must ensure that such requirements comply with the law.
Reasonable Accommodations & Remote Work
One of the most pressing legal issues tied to return-to-office mandates is the question of reasonable accommodation under federal and state disability laws. The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations for employees with disabilities. In recent years, many employees with disabilities requested remote work as an accommodation. Pre-COVID-19, many employers were skeptical of remote work. In the wake of the pandemic shutdown that necessitated remote work, many employers had to revisit this issue and determine whether remote work might be a reasonable accommodation.
Key Considerations for Employers When Providing Reasonable Accommodations
The duty to accommodate under the ADA arises once the employer is aware of an employee’s disability. While the employee generally bears the responsibility to request accommodation, some courts require employers to provide accommodations if they knew or should have known about the disability and need for accommodation. You have to engage in the interactive process in making your determination. In doing so, employers should consider the following:
Essential Job Functions
The key factor in evaluating whether remote work is a reasonable accommodation of an employee’s disability is whether the employee can perform the essential job functions remotely. You should review job descriptions to determine if in-office presence is necessary. If you think it is, you may request medical documentation to confirm the disability and why remote work is medically necessary (and for how long). Remember that you do not have to remove any essential job functions. You should also make sure that other employees are not currently performing this job remotely (and have not done so in the past).
Undue Hardship
Employers must determine if remote work would cause an undue hardship by considering:
The nature and cost of the accommodation
The facility’s financial resources, workforce size, and expenses
The employer’s overall resources, size, and locations
The impact on operations and workforce structure
The effect on facility operations
Frankly, proving an undue hardship, particularly in connection with a remote work request, is an uphill battle.
The Choice is Yours
As organizations implement return-to-office policies, it’s crucial to balance business needs with compliance under the ADA. Employers should enforce in-person attendance but should not automatically reject an employee’s request for remote work as an accommodation. Have a good process in place to ensure all requests are evaluated in accordance with the law.
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