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Labor & Employment Law Alert: EEOC, ACA and NLRB

August 8, 2014

EEOC Issues Significant New Guidance on the Pregnancy Disability Act

In the EEOC's updated Enforcement Guidance, the agency provides much anticipated clarification on workplace accommodation requirements under the federal Pregnancy Disability Act ("PDA"). The Guidance is in direct response toYoung v. United Parcel Service, 707 F.3d 437 (4th Cir. 2013), cert granted, No. 12-1226. Peggy Young alleged that UPS ran afoul of the PDA when it denied her light-duty accommodations during her pregnancy despite providing such accommodations to other employees "similar in their ability or inability to work." In particular, UPS provided light duty accommodations to employees who suffered on-the-job injuries, fell within the definition of "disabled" under the Americans with Disabilities Act, or lost their Department of Transportation certification. The Fourth Circuit ultimately ruled against Young, refusing to read a "reasonable accommodation" requirement into the PDA. Although Young is now pending before the U.S. Supreme Court, the EEOC was determined to get its word in first. It expressly rejects the Fourth Circuit's holding in its Guidance. For a more in-depth review of Young and the other employment cases pending before the U.S. Supreme Court, click here.


The Guidance provides that, based on the ADA's amended definition of "disabled," employees with temporary pregnancy-related impairments may now be covered under the ADA. Accordingly, employers must provide pregnant employees equal access to accommodations that are offered to non-pregnant employees who cannot perform their job duties due to injury, illness, or a "disability" under the ADA.  The Guidance also directs employers to accommodate the lactation-related needs of new mothers. Finally, the Guidance reminds employers that adverse employment decisions based on an employee's past, current, or future (possible) pregnancy are strictly prohibited under the PDA.

Although the Enforcement Guidance does not carry the full force of law, it is a significant development because the EEOC will follow it and courts will likely defer to it as persuasive authority. Employers, therefore, should evaluate their workplace policies with particular attention to how accommodations are provided to pregnant employees. Connecticut employers should be aware that this Enforcement Guidance does not replace the already strict protections for pregnant women under Connecticut law.

ACAAffordable Care Act Under Fire Again

Within the span of two hours, two federal appeals courts reached contradictory conclusions on whether the Affordable Care Act ("ACA") permits the payment of premium subsidies through federal insurance exchanges. In  Halbig v. Burwell, No. 14-5018 (D.C. Cir. Jul. 22, 2014), the D.C. Circuit panel held that the plain, unambiguous language of the ACA authorizes only state-facilitated exchanges to provide such subsidies. It consequently struck down the IRS's rule, which enables federal exchanges to provide the subsidies as well. Meanwhile, in  King v. Burwell, No. 14-1158 (4th Cir. July. 22, 2014), the Fourth Circuit determined that the ACA is ambiguous and deferred to the IRS's rule as a "permissible exercise of the agency's discretion." The issue may be headed for another highly publicized and political showdown at the U.S. Supreme Court.

Note that Connecticut has a state run exchange, and is therefore not directly impacted by these rulings. Moreover, since the decisions, the federal government has stated that it will continue paying the subsidies pending further review of the issue.

NLRBNLRB's Ruling Has Major Impact for Franchise Relationships

The NLRB's general counsel recently announced in an  opinion letter that McDonald's will be named a "joint employer" alongside its franchisees in dozens of cases concerning workers' rights. In the past, corporate franchisors have generally been immune to administrative claims and lawsuits brought by franchisee workers under the basic assumption that the franchisees control the terms and conditions of employment and labor practices. In this case, however, labor organizers argued that the fast-food giant oversees all facets of its business - e.g., menu, décor, uniforms - with such specificity that it is undoubtedly also responsible for management standards. This is a major shift in policy that could have a dramatic impact on and create liability for a huge number of businesses that operate on the franchise model, including hospitals, hotels, car dealers, and temporary agencies.  McDonald's has said it will contest the general counsel's action.

NLRB2NLRB Ruling Invalidates Broadly Worded Privacy and Information Security Policy

In  Fresh & Easy Neighborhood Market, the NLRB recently ruled that language in an employer's Code of Business Conduct under the section: "Confidentiality and Data Protection" violated employee rights.  At issue, was the following rule:  "Keep customer and employee information secure. Information must be used fairly, lawfully and only for the purpose for which it was obtained." 

Initially, the NLRB issued a complaint, claiming that this work rule reasonably tended to chill employees in the exercise of their Section 7 rights under the NLRA.  An administrative law judge dismissed that complaint finding that, read in context, the challenged rule prohibited only the release of "collected" and "confidential" information, not relevant to employee's Section 7 rights under the NLRA.  In a 2-1 decision, however, the NLRB overturned that ruling and found that, without further qualification, employees would understand the rule as prohibiting protected uses of "employee information."  As such, the NLRB ordered the employer to remove the language from its "Confidentiality and Data Protection" policy.  This case is another in a long line of cases where the NLRB has aggressively challenged company policies.

The growing body of privacy and information security laws and regulations require businesses to have comprehensive information security programs and security awareness training.  Fresh & Easy Neighborhood Market highlights just one of the intricacies of implementing an effective and compliant program.