Bipartisan Passage of Workplace Laws Puts Employers on Notice

An unusually productive 2022 for employment legislation in Congress represents a shift for women in the workplace as businesses adapt their training and policies after the height of the Covid-19 pandemic and the #MeToo movement.

Congress passed the Pregnant Workers Fairness Act and the PUMP Act as part of the 2023 government funding bill late last year. The bills require employers to provide reasonable accommodations to pregnant employees in the workplace, and expand protections and close employer loopholes for nursing parents who need to pump at work, respectively.

And earlier in the year, President Joe Biden signed bills that ended forced arbitration for sexual harassment and assault cases, and voided some nondisclosure agreements for workers making similar claims.

The bipartisan efforts to pass those bills are in part the result of cultural shifts focused on what women experience in the workplace after an exodus during the pandemic, and will push employers to be more proactive in ensuring protections for those workers, according to attorneys.

“I think that this is continuing legislation that needed bipartisan support at a federal level following the #MeToo movement, which was five years ago, and we’re finally seeing federal legislation addressing some of these real issues in the workplace,” said Nancy Gunzenhauser Popper, an employment attorney at Epstein Becker & Green PC in New York.

“It will mean that employers need to take a close look at their policies and documents that go to employees, and make sure that they are up to date and reflect these changes,” she said.

Training, Prevention

A renewed emphasis on training and updated policies are likely the immediate tasks employers should tackle to avoid litigation under the new set of federal laws.

Managers and supervisors will be key in engaging with employees, and establishing an open dialogue for concerns and requests for accommodations, said Rick Grimaldi, a partner at Fisher & Phillips LLP.

“It’s going to require increased training. Make sure not only your HR team, but your front-line supervisors, your management team is aware of these changes,” said Grimaldi. They are the ones who “are going to have to engage and want to create the right culture.”

The enactment of the Ending Enforced Arbitration of Sexual Assault And Sexual Harassment Act as well as the Speak Out Act may turn employers’ attention to yearly harassment trainings for workers.

These sessions are not legally required in all jurisdictions across the country, Gunzenhauser Popper said. Definitions of sexual harassment also vary by state, with some lacking clear statutes, and some mandating prevention training while others don’t.

Those state-by-state differences are especially important for companies complying with the NDA-focused Speak Out Act. The potential impact of the new law needs to be thought of in “geographical terms,” said employment attorney Doug Kauffman.

“Employers, for example, in Alabama, may need to make more adjustments than perhaps employers that are in California,” said Kauffman, a partner at Balch & Bingham LLC in Birmingham, Ala..

The new federal laws might motivate employers in states without harassment training mandates to implement them annually, Gunzenhauser Popper said.

In the months since the slew of 2022 legislation was enacted, employers have already started to update their handbooks to stay ahead of the curve on the changes, said Kauffman.

In the case of the pair of new pregnancy discrimination laws, simple updates to existing company guidelines to broaden current policies for workers who need accommodations and apply those policies to pregnant employees may be enough, he added.

Employers are going to “take their policies and practices for accommodating disability and now apply it to pregnancy, childbirth, and medical conditions related to it,” Kauffman said.

Before the Pregnant Workers Fairness Act passed, employers were prohibited from discriminating against pregnant employees and job applicants, but didn’t have a clear obligation to provide accommodations such as lighter duty and more frequent bathroom breaks.

The PUMP Act expanded nursing protections for workers who had been excluded from previous legislation, such as teachers and registered nurses. Employers that did not provide a private space other than the bathroom and specific break times for nursing parents must do so now.

An accommodation policy “is incredibly helpful to make sure that not only the employees understand their rights to lactation accommodation, but also ensures that employers are prepared for someone who requests it,” Gunzenhauser Popper said. They can “start to think about where that space would be, how the break time would be handled, how to communicate with managers or other employees who ask ‘How come this person is getting an extra break?’”

Effects Still Unclear

But some employment attorneys said the workplace legislation passed in 2022 might not actually provoke such a dramatic shift. While the bills raise awareness around these issues, employers have been attentive in these areas, said James Paretti, an employment attorney in the Washington DC office of Littler Mendelson P.C.

“I don’t know that any of them are going to have a dramatically profound impact on the workforce,” he said, noting that companies have expanded protections to pregnant workers, for example, since the 2015 Supreme Court decision in Young v. United Parcel Service Inc.

“As a practical matter, I’m not sure that that’s not what most employers haven’t been doing anyway for fear of running into a Pregnancy Discrimination Act claim, or something of that sort,” Paretti added.

In the case of forced arbitration, the new law applies to very specific situations, Paretti said, and employers will be looking to the courts to have a clearer picture of what is required under the Speak Out Act.

But nonetheless, Paretti said the laws increase attention to these issues, and may move employers to work on preventing instances that would be in violation of the new measures.

They may “now understand their obligation and avoid problems before they start,” he said. “I would hope that is the case.”

What’s Next?

There’s potential for 2023 to bring even more obligations and concerns for employers.

While Congress is currently divided and Democrats have lost their US House majority lawmakers hope to tackle more employment legislation.

A bipartisan working group on paid leave co-chaired by Reps. Stephanie Bice (R-OK) and Chrissy Houlahan (D-PA) launched this month as states expand their leave legislation.

Advocates say they’d like to see more robust action on that front as well as an expansion of the Speak Out Act measures beyond sexual harassment and assault.

“I hope that we’ll see the NDA issue be applied more broadly outside of the sexual assault and sexual harassment context to when you’re a victim of age discrimination or race discrimination or sexual orientation discrimination,” said Summer Murshid, a National Employment Attorneys Association board secretary and an attorney with Hawks Quindel SC in Milwaukee.