Top Enforcement Trends for Pregnancy Accommodations Can Teach Employers Lessons

The EEOC hasn’t been shy about launching litigation against employers that haven’t met their accommodation obligations since the Pregnant Workers Fairness Act took full effect. A review of the agency’s PWFA enforcement actions since its final rule took effect in June 2024 reveals that the EEOC will not tolerate forced leaves of absence, ignored interactive process obligations, rigid attendance policies, and flatly denied basic accommodations. By familiarizing yourself with the top five enforcement trends uncovered through a thorough review of the EEOC’s litigation activity, you can shape your PWFA compliance strategy to meet the moment.

General Overview of the PWFA

The Pregnant Worker’s Fairness Act (PWFA), which took effect in June 2023, implemented a new requirement for covered employers to provide reasonable accommodations for a qualified employee’s known limitations due to pregnancy, childbirth, or related medical conditions, unless such an accommodation would cause the employer undue hardship.  

The EEOC released a final rule in June 2024 that sets forth definitions and parameters for the PWFA. For a comprehensive recap, you can read a detailed FAQs about the PWFA here.

The EEOC’s Top 5 PWFA Enforcement Efforts and What They Demonstrate

Here is a review of the top five enforcement positions taken by the EEOC with respect to pregnancy accommodations, along with guidance for employers to ensure compliance.

1. Leaves of Absence or Light Duty Cannot be Forced When Other Reasonable Accommodations Exist

The EEOC has taken action against several employers who have allegedly forced leaves of absence on employees who could have otherwise been provided another reasonable accommodation which would have allowed the employee to continue to work. For example, In EEOC v. Urologic Specialists of Oklahoma, Inc., the agency negotiated a $90,000 settlement with an employer that it alleged denied reasonable accommodations to a medical assistant at its Tulsa facility during the final trimester of her high-risk pregnancy. Rather than allow her to sit, take short breaks, or work part-time, as recommended by her doctor to protect her health and safety, the EEOC alleged that the medical practice forced her to take unpaid leave in violation of the PWFA.

The EEOC has also taken issue with employers placing pregnant employees on light duty or in positions wherein their earning potential could be reduced. In December 2025, the EEOC sued a Minnesota employer that purportedly removed a pregnant individual from the workplace, placed her on an involuntary leave of absence, and ultimately placed her in a light duty job that reduced her earning potential when she could have continued to work in her position with reasonable accommodations. That lawsuit is pending.

However, situations where an employee requests light duty but is denied that accommodation are also on the EEOC’s radar. The EEOC recently sued an employer that allegedly failed to accommodate a pregnant employee’s 20-pound lifting restriction, for example.

2. The Interactive Process Continues to Play an Important Role 

Employers should not assume that they can just grant any accommodation they prefer for qualified employees. The EEOC has brought action against employers who have forced a plaintiff to accept an accommodation without first engaging in the interactive process. For example, in EEOC v. Wabash Nat’l Corp., the EEOC sued a Kentucky employer that allegedly denied a pregnant employee’s accommodation request to transfer to a role that did not require lying on her stomach.

3. Strict Attendance Policies Present Risk Under the PWFA

In one of its most recent actions, the EEOC just sued Florida employer BestBet Jacksonville, Inc., for enforcing a strict attendance policy against a pregnant employee.  The March 31 lawsuit alleges the employer advised the company that she had a high-risk pregnancy and related medical conditions that required her to take some time off work.  The employer allegedly responded by telling her that she could not return to work because the company had a strict policy: “if an employee misses more than two weeks and they do not qualify for leave under the Family Medical Leave Act, they must resign.” The EEOC indicated in its complaint that this employer allegedly had a practice of denying all accommodation requests brought by qualified employees unless those individuals qualified for leave under the FMLA. The EEOC interpreted this approach as the employer “maintaining a blanket policy prohibiting reasonable accommodations under the PWFA.” 

This is not the only action the EEOC has brought against employers who have enforced attendance policies against employees who had allegedly known limitations of pregnancy or related conditions. Last year, the EEOC settled a case against an Alabama employer for $55,000 after the agency alleged it enforced attendance points against an employee who needed time off for pregnancy-related medical appointments and conditions.

4. Reasonable Accommodations for Qualified Employees Remain High Priority 

The EEOC’s enforcement efforts demonstrate that it will take action against employers that fail to reasonably accommodate employees. This includes employers that don’t provide employees with a suitable space to pump breastmilk, don’t provide ready access to water, and don’t provide pregnant employees the ability to sit, take breaks, work light duty, or work part-time.

• Just last month, the agency filed suit against a Wisconsin grocery chain after it allegedly fired a nursing mother for requesting an accommodation at her workstation to maintain her breast milk supply, According to the suit, the employee asked to keep a water bottle at her workstation to maintain her milk supply, but management refused the accommodation and ultimately fired her rather than allow it.
• And as noted above, the agency negotiated a $90,000 settlement in EEOC v. Urologic Specialists of Oklahoma, Inc., after an employer allegedly denied a pregnant employee the ability to sit, take short breaks, or work part-time as reasonable during the final trimester of her high-risk pregnancy.

While these types of accommodations are explicitly listed in the EEOC’s final rule, the agency has also pursued action against employers for denying accommodations that are not specifically enumerated there. In September 2025, for example, the EEOC filed suit against an employer after a pregnant employee’s provider recommended that she limit her driving time to address pain she was experiencing in her back and legs. She requested either shorter commutes and/or transitioning to virtual admissions for the remainder of her pregnancy. Although assignments were available within the requested radius, the employer allegedly failed to reasonably accommodate the employee and she was forced to resign.

5. Leave As An Accommodation May Be Appropriate In Some Situations

In September 2024, the EEOC brought an action against a Florida-based employer after it allegedly terminated a worker after she had a stillbirth and requested a six-week leave of absence. The EEOC argued that the employer intentionally discriminated against her pregnancy-related medical condition in violation of the PWFA, and ultimately settled the case.   

Key Takeaways for Employers

• Start with the Basics. The EEOC has largely focused on the basic accommodations listed within its final rule. Ensure you have updated relevant policies and training to allow qualified employees the ability to sit, take short breaks, drink water as well as breastfeed or pump as needed.
• Don’t Default to Leave or Light Duty: Engage in the Interactive Process. Under the PWFA, you should discuss leave and light duty as part of an interactive process with the employee and you should make all efforts to provide reasonable accommodations that allow the employee to continue working.
• Train Managers on Enforcing Attendance Policies. Be sure that your management and human resources teams appreciate that strict attendance policies, even when applied equally to all, can present risk if an employee is qualified under the PWFA and requests time off from work as a reasonable accommodation.
• Consider Leave as an Accommodation. When employees are dealing with symptoms that may be pregnancy or childbirth related, consider leave as an accommodation under the PWFA.

OSHA Updates its Heat Emphasis Program

The federal workplace safety watchdog agency recently announced on April 10th it was renewing its special enforcement focus on heat risks to workers via an updated National Emphasis Program (NEP) ahead of the summer season, ramping up the urgency for employers to prepare for the rising temperatures. Although there’s currently no federal rule that sets specific heat stress mitigation requirements or a threshold for when protections should be implemented, OSHA does have tools to crack down on employers who don’t take heat risks seriously. It’s also important to be familiar with the rules in the jurisdiction you’re operating in, as at least seven states have their own heat stress rules. You should act now before temperatures rise, particularly in industries involving outdoor work, that require heavy or bulky equipment, or where workers are performing strenuous tasks. Here’s everything you need to know about how to keep your staff safe in hot temperatures and what rules you may need to follow.

Federal State of Play

OSHA has been developing a nationwide workplace heat safety standard that would set specific triggers for employers to protect outdoor and certain indoor workers from extreme temperatures. The initiative, which rolled out during the Biden administration, has faced business opposition due to compliance costs.

As originally proposed, the standard would require businesses to provide water, shaded break areas, hire a heat safety coordinator, among taking other preventative steps, when workers are exposed to temperatures at or above 80 degrees Fahrenheit. More requirements kick in when it reaches 90 degrees Fahrenheit or more.

The proposal would also generally require employers to conduct regular heat risk assessments and audits, offer acclimatization programs that gradually increase workloads and exposure time to build up a worker’s tolerance to heat, implement training on how to identify and respond to heat illnesses, as well as develop a written heat injury and illness protection plan.

The Trump-led DOL continued to move forward with the proposal by holding a hearing last summer and a post-hearing comment period that wrapped last September. However, many observers expect the Trump administration to scale back the proposal into something less prescriptive. In the DOL’s regulatory agenda, OSHA indicated that it intends to develop a final heat rule that “adequately protects workers, is feasible for employers, and is based on the best available evidence.”

Updated NEP on Heat-Related Hazards

Since last summer, there’ve been no substantive developments on the proposed national heat standard. In the interim, the DOL announced on April 10th it had updated its NEP on protecting workers from outdoor and indoor heat-related hazards, which will be in place for five years. The revised program focuses inspections and outreach in industries and workplaces where heat stress risks are most likely to occur based on BLS data.

What Changed in the NEP?

The revised NEP includes guidance that OSHA believes will improve tracking and more effectively implement the program’s enforcement and outreach efforts. The industries focused on in the program have also been updated, with 46 target industries removed, 22 added, and 33 retained, for a total of 55 target industries. The new list includes pig farming, cheese and meat processing, plastics and concrete manufacturing, some steel and machinery businesses, department stores, air transportation, and certain housing and relief service providers. Employers should review these updated industries closely.

The new NEP also removes background information and eliminates a former numerical inspection goal. And employers can find reorganized appendices in the program’s updated documents: one for evaluating heat programs and another for citation guidance.

What Did Not Change?

The NEP emphasizes that OSHA conducted nearly 10 times the number of heat-related inspections from 2022 and 2025 compared to 2015 and 2020. The agency says its compliance officers “will continue to conduct outreach and compliance assistance and expand any inspection where there is evidence of heat-related hazards on heat priority days.”

Put bluntly: OSHA inspectors will continue to attempt to expand the scope of any other inspection types when, in the inspector’s view, a heat hazard also exists. And, as in the prior NEP, “compliance officers will conduct random inspections focused on heat hazards in high-risk industries on days when the National Weather Service issues a heat advisory or warning.”

State Rules

Even without a federal standard on the books, your business may still be required to take specific steps to protect your employees from heat, depending on where you operate. A handful of states – California, Colorado, Minnesota, Maryland, Oregon, Nevada, and Washington – have implemented their own heat safety rules, although some are limited to certain industries. And Virginia’s governor just signed legislation April 13th that directs the state’s labor department to develop rules to protect workers from heat illness on the job.

Businesses that are in or have employees working in any of these states should familiarize themselves with these local requirements and ensure their policies are in compliance. Generally, these state laws require employers to take steps similar to what was proposed by the Biden administration, such as conducting a hazard assessment, designating a supervisor to watch for signs of heat illness, or standing up a heat safety plan. Mitigation steps are also tied to specific temperature thresholds in some state rules. Talk with your FP counsel to determine if your business may be covered by one of these state regimes.

6 Practical Steps to Protect Workers from Summer Heat

Regardless of what rules govern your workplace, here are steps you can take to best protect your workers during the hotter seasons.

1. Check the Heat Index to Set Triggers

The heat index (which also measures humidity) is a better indicator of risk than temperature alone. Start precautions around 80°F heat index and increase protections at 90°F and above.

2. Provide Ample Water and Rest Breaks

Water and rest are the simplest and easiest ways to keep your workers safe from potential heat illness. Ensure cool water is plentily available and encourage staff to drink water frequently. OSHA recommends that employees should drink 4 to 6 ounces every 15 to 20 minutes. Ensure water breaks are included in the daily work schedule and that managers are reminding staff to take rest breaks. Allow for unscheduled rest breaks and ensure rest areas are shaded.

3.  Schedule Around the Weather

Plan the most strenuous work tasks for early mornings or cooler parts of the day. Rotate workers to reduce prolonged exposure.

4. Create a Heat Illness Prevention Plan

Draft a prevention program to mitigate against heat-related injuries and illnesses. Conduct a hazard analysis to identify what roles are at risk for heat illness and use those findings to develop a prevention program specific to your company. If you are in a state OSHA plan location, be sure to review your heat illness prevention program plan against any state requirements. Documenting your business’s policies and protocols related to heat illness, as well as clearly outlining emergency procedures in a central policy document, is key to a strong, uniform, heat prevention program.

5. Implement Acclimatization for New and Returning Workers

The risk of heat illness is highest during the first few days on the job.

• Ease in new workers gradually over five to seven days
• Start with lighter tasks and increase workload over time
• Pair new workers with trained supervisors for close monitoring
• OSHA provides a full list of detailed recommendations that you should implement for a one-to-two-week period, including guidance on work periods, rest breaks, job tasks, and more.

6. Train Supervisors and Staff to Recognize Red Flags

Train all staff on emergency response procedures and empower managers to act quickly. Designate someone at each worksite to monitor worker health and conditions on days of extreme heat. You may also consider requiring a buddy system on hot days and enforcing a procedure for employees to report heat stress symptoms.

Rules & Limits on Section 125 Plans & Self Employed Individuals

A Section 125 plan, sometimes called a cafeteria plan, is one of the most valuable tools available to employers for helping employees pay for benefits with pre-tax dollars. However, the tax rules that make Section 125 plans valuable for employees can create limitations for certain business owners. Individuals who are treated as self-employed are generally not permitted to participate in a Section 125 plan as employees, and attempting to include them can jeopardize the tax advantages of the arrangement for the plan as a whole.

What is a Section 125 plan?

Under Section 125 of the Internal Revenue Code (IRC), an employer can establish a plan that allows employees to choose between taxable compensation (cash) and certain non-taxable benefits. When an employee elects a benefit under the plan, such as health insurance premiums, a Health Flexible Spending Account (FSA) or a Dependent Care FSA (DCFSA), the amount is deducted from their paycheck before federal income and payroll taxes are calculated. This reduces the employee’s taxable income, as well as the employer’s payroll tax obligation.

The tax exclusion under Section 125 is available only to employees as defined by the IRC. Put simply, if the Internal Revenue Service (IRS) treats an individual as an owner rather than an employee, they are not eligible for pre-tax deductions under Section 125. Therefore, individuals who are considered self-employed for tax purposes do not qualify as employees under this definition and cannot participate in a Section 125 plan on the same basis as W-2 employees.

It is also important to remember that eligibility for pre-tax deductions is separate and distinct from eligibility for an underlying health plan or benefit. It is possible that someone may be eligible for an employer’s health benefit, like the medical or dental plan, but may also NOT be eligible to pay premiums for that benefit on a pre-tax basis.

Who is considered self-employed?

The restriction noted above applies to four categories of individuals, each treated as self-employed under the Internal Revenue Code:

• Sole proprietors are individuals who own and operate a business as a single person without forming a separate legal entity. The business and the owner are treated as the same taxpayer for federal tax purposes, which means the owner cannot also be an employee of their own sole proprietorship.
• Partners in a partnership are also treated as self-employed, regardless of how active they are in the business. A partner who works full-time in the partnership is still not considered an employee for purposes of Section 125.
• S corporation shareholders who own more than two percent of the corporation’s stock are treated similarly to partners under the tax code. This two-percent threshold is important: a shareholder who owns two percent or less is treated as an employee and may participate in the Section 125 plan. A shareholder above that threshold is not.
• LLC members are treated based on how the LLC is taxed. If the LLC is taxed as a sole proprietorship or partnership, the members are treated as self-employed and cannot participate. If the LLC has elected to be taxed as a C corporation, its members may be treated as employees. If taxed as an S corporation, the two-percent ownership rule described above applies.

Entity names that include terms such as “Corporation” or “LLC” do not provide enough detail on how the entity is taxed. Thus, an entity’s name alone does not indicate whether the owners can participate in a cafeteria plan.

Health FSA restrictions

A Health FSA allows employees to set aside pre-tax dollars to pay for eligible out-of-pocket medical expenses such as deductibles, copays and certain over-the-counter items. Because a Health FSA is offered through a Section 125 plan, the individuals described in the prior section cannot participate.

HSA restrictions and contribution rules

A Health Savings Account (HSA) is a tax-advantaged account available to individuals enrolled in a qualifying High Deductible Health Plan (HDHP). Unlike a Health FSA, an HSA is not tied to an employer plan, which means self-employed individuals can open and contribute to one directly. However, the Section 125 restriction still affects how contributions work.

W-2 employees who contribute to an HSA through their employer’s Section 125 plan avoid both income taxes and payroll taxes (Social Security and Medicare) on those contributions. Self-employed individuals who contribute directly to an HSA can deduct the contributions on their personal tax return, which reduces their income tax. But those contributions are still subject to self-employment tax. The practical effect is that self-employed individuals pay slightly more in tax on the same HSA contribution than a W-2 employee would.

Dependent Care FSA restrictions

A DCFSA allows employees to set aside pre-tax dollars to pay for eligible dependent care expenses, such as daycare, after-school programs or care for a dependent adult. Like the Health FSA, a DCFSA is offered through a Section 125 plan, and the same restrictions apply.

Premium-Only Plan restrictions

A Premium-Only Plan (POP) is the simplest form of a Section 125 plan. It only allows employees to pay their share of employer-sponsored health insurance premiums with pre-tax dollars. Many employers establish a POP simply to reduce the payroll tax cost of offering health coverage.

Self-employed individuals in the covered categories cannot participate in a POP for the same reason they cannot participate in any other Section 125 arrangement. A more-than-two-percent S corporation shareholder, for example, cannot have their health insurance premium deducted on a pre-tax basis through the company’s POP. Instead, the premium must be included in the shareholder’s W-2 wages in Box 1. The shareholder may then claim the self-employed health insurance deduction on their personal return. The deduction is still available, but it works differently and does not reduce self-employment tax the way a POP deduction would for a regular employee.

Takeaways

Section 125 plans provide real tax benefits, but those benefits are limited to employees as defined by the tax code. Sole proprietors, partners, more-than-two-percent S corporation shareholders and most LLC members cannot participate in a Health FSA, DCFSA, HSA salary reduction arrangement or POP through their own business. Including these individuals in a Section 125 plan without recognizing these restrictions can create tax compliance problems for the business and for the individual.

When Employees Are in Crisis: A Practical Resource to Guide Employers

Courtesy of Fisher & Phillips LLP

When an employee stops showing up to the office, talks about wanting to give up, or appears impaired during work hours, managers and HR staff might feel unsure how to respond. But you can be supportive while also addressing legal obligations, safety, and business needs through a bit of planning, training, and resources. While employers are generally not mental health professionals, you can play a critical role in identifying warning signs and connecting employees with the support they need. Here are eight practical steps to help your managers and HR department respond in real time to serious and sensitive situations, as well as the key legal points to keep in mind.

1. Train Managers and Employees to Recognize Warning Signs

Managers and co-workers are often the first to notice changes in an employee’s behavior. Watch for frequent absences, poor performance, detachment, or comments that suggest they feel hopeless or are thinking about self-harm.

Action Items

• Provide managers with a reference guide that includes check-in language, such as: “I’ve noticed you seem overwhelmed lately. How are you doing?” The National Alliance on Mental Illness (NAMI) says the key is being understanding and non-judgmental.
• Emphasize that employees and managers alike should follow the organization’s crisis and workplace violence prevention protocols rather than attempt to manage the situation themselves. They should raise concerns with their manager or HR as soon as they see a potential issue.
• Remind managers and HR that they should respect employee privacy and should not ask for a specific diagnosis, details of treatment, or other unnecessary medical information.

2. Establish Clear Internal Response Procedures

Developing a clear internal process for handling a crisis at work – and ensuring employees are familiar with it – can help ensure a consistent and safe response.

Additionally, it is recommended to develop a workplace violence prevention plan with procedures for responding when an employee’s conduct poses a safety risk to others. Note that:

• California requires that virtually all employers have workplace violence prevention plans, which include procedures for alerting employees of the presence, location, and nature of workplace violence emergencies.
• Otherwise, employers are expected to maintain a hazard-free workplace under the Occupational Safety and Health Act’s General Duty Clause.
• When it comes to enforcement, OSHA agencies typically look at whether an employer knew or should have known of a serious risk and failed to act. Yet employers need to balance their OSHA obligations with confidentiality concerns under disability discrimination and privacy laws.
• This underscores the benefit of engaging legal counsel early to mitigate risks in difficult situations with complex compliance considerations.

Action Items

You may want to create written procedures that outline:

• Who employees should contact internally when a crisis arises.
• When emergency services should be called.
• When crisis resources such as the 988 Suicide and Crisis Lifeline may be appropriate.
• When to call legal counsel.

You should train managers on these procedures periodically, so the appropriate protocols remain fresh in their minds if a situation arises.

3. Consider ADA and FMLA Implications

When you’re managing employee mental health, you’ll need to consider potential implications under the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and similar state laws. Key considerations include:

• Employees with mental health conditions may be entitled to a reasonable accommodation, such as leave time, additional breaks, or a modified schedule. You should engage in a back-and-forth “interactive” dialogue to identify potential reasonable accommodations.
• Certain mental health conditions may also qualify as a serious health condition under the FMLA, particularly if they involve inpatient care or ongoing medical treatment.
• Recognize that additional laws and resources may come into play, such as state leave and disability-related laws and short-term disability.

Action Items

• When an employee’s crisis affects attendance or performance, HR should evaluate whether leave or other workplace accommodation is required.
• Ensure managers know to contact HR when an employee references difficulty performing their job because of a health condition.
• When requesting medical information to support leave or accommodation, limit requests to functional limitations and anticipated restrictions, consistent with applicable federal and state law.

4. Address Unexplained Absences Thoughtfully

Unexcused no-shows and prolonged absences are often legitimate grounds for terminating employment, but they may also signal a crisis.

• Employers should maintain consistent attendance policies while allowing HR to evaluate whether to excuse such absences based on legal protections or company policy as applied.
• Employers commonly have policies that require employees to give reasonable notice regarding absences – and they may consider a three-day “no show” a voluntary separation (unless state laws require longer notice). While this is generally a permissible policy, it should also allow HR to evaluate whether FMLA leave, ADA accommodations, or other leave rights apply.

Action Items:

• Create a fair and consistent process for handling no-shows in a way that balances operational needs, legal protections, and potential health conditions.
• Work with experienced legal counsel to create balanced policies and procedures in this area.

5. Handle Substance Use Concerns with a Safety Focus

Substance use disorder may intersect with mental health conditions, and in some cases, may qualify as a disability under the ADA and equivalent state law. At the same time, employers must maintain safe workplaces and are not required to allow an employee to be impaired on the job. Therefore, substance abuse policies should distinguish between:

• Active impairment while working or on work premises
• An underlying substance use disorder
• Lawful use of prescribed medication
• Participation in treatment or recovery programs

Action Items

• You should train managers to focus on observable workplace behaviors (such as unsafe equipment operation or clear signs of impairment) rather than speculating about a medical condition.
• Managers and supervisors should know when to halt unsafe activities immediately – and know who to contact in HR or on your legal team to guide them through the process from there. Safety comes first, but it’s also important to avoid assumptions.
• Employers may also consider recovery-supportive approaches, such as allowing time off for treatment or using return-to-work agreements where appropriate, as well as legally compliant drug testing protocols.

6. Make Use of Employee Assistance Programs

Employee Assistance Programs (EAPs) can provide confidential counseling and referrals to outside services, among other resources. An effective EAP can be the foundation of an employer’s workplace mental health support system.

Action Items:

• Promote the EAP as a voluntary and confidential resource for employees and their families.
• Clearly communicate protections and limitations.
• Consult legal counsel before requiring EAP participation as part of a return-to-work agreement, since mandatory participation may raise concerns under various employment laws.

7. Protect Confidentiality But Don’t Overpromise

Confidentiality requirements apply to employee medical information, including mental health conditions. Additionally, employers should store medical information separately from personnel files.

However, to the extent an employee seeks confidentiality in raising concerns about their own or a co-worker’s condition, you don’t want to promise complete confidentiality. You may need to share critical information with appropriate internal leaders and outside resources or emergency service providers on a need-to-know basis.

Action Items

Ensure your policies and practices:

• Prohibit disclosure of an employee’s health condition to co-workers with no need to know.
• Share only necessary information, such as adjustments to tasks, assignments, and duties – or temporary coverage arrangements.
• Curb workplace gossip and maintain employee privacy.

8. Plan for Return-to-Work and Continued Support

Employees returning from mental-health-related leave often need additional support as they adjust to being back at work.

Action Items

• Review your return-to-work procedures and consider addressing fitness-for-duty certifications, modified schedules, and other accommodations when appropriate.
• Schedule check-ins during the first few weeks back to review expectations and provide support.

👉 For more tips on mental health awareness in the workplace, read the Fisher & Phillips complete guide here.

AAG’s 2026 Educational Seminar Recording is Available

The recorded presentation of AAG’s 2026 Educational Seminar held on April 22, 2026 is now available for viewing. Guest Speaker and Attorney Keith Hammond, of Hammond Law Center, focused on the Best HR Practices & Tips for Avoiding Employee Lawsuits.

This seminar is also approved for 2 Professional Development Credits (PDCs) with SHRM for all attendees.

Please let us know if you would like access to the recording or need the activity code to claim your PDCs with SHRM.

AI Glasses Entering the Workplace

AI-enabled smart glasses – which combine eyewear with real-time audio, video, and AI functionality – are now entering the workplace. They provide productivity and accessibility benefits by allowing users to capture information, receive prompts, and interact with AI systems hands-free. But they also introduce legal risks that your existing policies and regulatory frameworks were likely not designed to address. As adoption increases, you should evaluate whether your existing workplace rules and compliance frameworks are equipped to manage the legal, privacy, and operational implications of AI-enabled eyewear. The following Insight provides answers to common questions employers are asking as AI glasses enter the workplace.

Do AI Wearables Raise Workplace Recording Concerns?

Yes – and in many cases, the risks are more significant than employers initially realize.

Unlike smartphones, AI-enabled glasses may:

• Operate hands-free and discreetly
• Record audio or video passively or continuously
• Connect automatically to cloud-based AI platforms
• Capture, analyze, and store data without obvious user action
• Collect, use, and disclose biometric information

In many instances, smart glasses are indistinguishable from ordinary eyewear, making it difficult for managers or coworkers to determine whether recording is occurring. This creates enforcement challenges and potential compliance exposure if workplace communications are captured without authorization.

The risk is heightened by state recording laws, which vary across jurisdictions. Eleven states require all-party consent before conversations may be recorded. If an employee uses AI glasses to record workplace discussions without proper consent, the employer may face legal exposure, particularly where confidential internal meetings or customer-facing interactions are captured. Even if the employer did not direct or approve the recording, a lack of clear policies or enforcement protocols may complicate response efforts and increase litigation risk.

Do Restrictions on AI Glasses Raise NLRA Concerns?

Not necessarily.

Section 7 of the National Labor Relations Act (NLRA) protects employees’ rights to engage in concerted activity concerning wages, hours, and working conditions. AI smart glasses, by their nature, typically include the ability to record audio and video, take photographs, and sometimes even stream content in real time. These functions may be analogous to those found in cell phones and other electronic devices previously considered by the National Labor Relations Board (NLRB).

In certain circumstances, recording workplace conditions may qualify as protected activity. This is particularly true where the recording documents safety concerns, harassment, discrimination, or union-related activity, and is undertaken to further a group interest, such as preserving evidence for collective action.

The NLRB 2023 Stericylce standard remains in effect despite recent guidance from the Board’s General Counsel, and it means that labor officials will scrutinize even facially neutral workplace policies that prohibit  recording in the workplace. The current standard says that workplace rules are presumptively unlawful if a reasonable employee could interpret them as chilling protected concerted activity under Section 7 of the NLRA. To overcome this presumption, employers have to demonstrate that the rule is narrowly tailored to address a legitimate and substantial business interest such as trade secrets, confidentiality, or customer privacy,

With this in mind, employers should review their policies governing AI glasses to ensure they are narrowly tailored and clearly tied to legitimate business justifications so as not to infringe on employees’ Section 7 rights.

Do AI Glasses Create Data Security Risks?

Quite possibly. Data security risks associated with AI-enabled wearables could be significant and, in some cases, difficult to detect.

AI-enabled glasses could capture proprietary processes, trade secrets, internal communications, and customer or patient data. Since these devices often connect to third-party AI platforms, information may be transmitted, stored, or processed outside the employer’s direct control.

Once data leaves the organization’s internal systems, questions arise regarding retention practices, secondary use, security safeguards, and regulatory compliance. Employers may have limited visibility into how that information is handled, which can create exposure under confidentiality agreements, trade secret laws, and applicable privacy statutes.

Organizations in regulated industries, including healthcare and financial services, should be especially cautious. The inadvertent capture or transmission of protected or confidential information through wearable AI devices may implicate industry-specific privacy and security obligations.

How Do Disability Accommodation Obligations Apply to AI Glasses?

Many AI glasses are designed to look and function like ordinary eyewear and may even contain prescription lenses. While the glasses themselves may provide vision correction, the AI functionality embedded within the device is a separate consideration.

At present, ordinary prescription eyewear does not constitute a disability under the Americans with Disabilities Act (ADA), and employers are not required to permit AI-enabled glasses simply because they include corrective lenses. In other words, presence of prescription lenses does not, by itself, transform the device into a protected accommodation.

However, this may change since wearable AI glasses can function as assistive technology. Emerging AI glasses now can provide real-time transcription, object recognition, navigation assistance, visual magnification, which may be in the future considered workplace accommodations for individuals with visual, auditory, or neurological impairments. As the technology continues to evolve, employers may consider conducting a case-by-case assessment if you identify the possible need or request for an accommodation. This may include evaluating whether the device is medically necessary, whether it addresses a documented limitation, whether there are alternative accommodations available, and whether the use of AI glasses presents safety, confidentiality, or operational concerns.

Can Employers Prohibit AI Glasses in the Workplace?

In most cases, yes.

Employers generally may restrict or prohibit AI-enabled glasses and other wearable devices where the policy supports legitimate business interests. Common justifications include maintaining workplace safety, protecting confidential or proprietary information, safeguarding customer, employee, or patient privacy, and ensuring compliance with applicable recording and data privacy laws.

If an employer decides to implement a ban, consistent enforcement is essential. Any uneven application of the policy may give rise to disparate treatment or retaliation claims.

What Steps Should Employers Take Now?

Given these new slate of risks, many employment law firms recommend you consider the following steps.

1. Review and Consider Updating Applicable Policies

• Audit electronic device, recording, confidentiality, and acceptable use policies to determine whether they expressly encompass AI-enabled glasses and other recording-capable wearables
• Identify outdated language that references only “phones” or “cameras” or broadly prohibits “unauthorized recording.”
• Revise policies to clearly define the scope of covered devices to include wearable AI technology and ensure that legitimate business justifications for such restrictions are articulated.

2. Consider Building an Accommodation Framework That Considers AI Glasses 

• Ensure workplace policies allow for case-by-case assessment where an employee asserts that AI glasses are medically necessary as a reasonable accommodation.
• Establish a clear internal process for engaging in the interactive process, including evaluating medical documentation, identifying the specific limitation at issue, and determining whether the device enables the employee to perform essential job functions.
• Document the analysis and decision-making process to support defensibility in the event of future challenges.

3. Train Managers on AI Glasses and How to Deal With Them 

• Ensure supervisors understand what AI-enabled glasses are, how they function, and how to identify potential recording, safety, or confidentiality concerns.
• Provide guidance on how to respond if a manager observes an employee wearing AI glasses, including when to escalate issues to HR, compliance, or legal.
• Train relevant stakeholders on how to handle accommodation requests appropriately and avoid making unilateral decisions that could create ADA or retaliation risk.

4. Consult Experienced Legal Counsel 

• Engage workplace counsel/attorney who understands the intersection of data privacy, cybersecurity, workplace safety, labor law, and disability accommodation to evaluate and mitigate risks associated with AI glasses in the workplace.

Conclusion

We will continue to monitor developments related to AI wearable technology.

A Costly Oversight: The Importance of a Written Section 125 Plan

Many employers offer popular pre-tax benefits such as health insurance premiums, health FSAs, and dependent care FSAs, assuming that running deductions through payroll on a pre-tax basis is enough. However, one critical component to offering these plans that is often overlooked is that these benefits generally must be offered pursuant to a written Section 125 plan. Often discovered during an audit or transaction, the failure to maintain a written plan document can expose employers to unexpected tax penalties.

What Is a Section 125 Plan?

A Section 125 plan, commonly referred to as a cafeteria plan or Premium Only Plan (POP), provides employees with the option of purchasing employer-sponsored benefits on a pre-tax basis. These plans allow employees to pick between increased total compensation and contributing part of their compensation towards the payment of benefit premiums. Employees that choose to contribute part of their salary to premiums can do so by making an election. These elections are generally irrevocable during the plan year and a new election cannot be made until the next annual open enrollment period. 

Pre-tax salary reductions are only permitted if they are made under a written cafeteria plan. If no written plan exists, or if the document is outdated or inconsistent with actual operations, the IRS may treat all employee contributions as taxable income. A common misconception is that payroll practices or other enrollment materials can substitute for a written plan, however, SPDs, benefit summaries, or other insurance carrier certificates do not replace a Section 125 plan document. The plan must be formally adopted and should clearly spell out:

• Eligible employees
• Benefits offered on a pre-tax basis
• Election rules (including irrevocability and change-in-status events)
• Other administrative provisions required under Section 125.

Offering pre-tax benefits is a valuable tool for both employers and employees, but only when done correctly. We frequently find that employers are not properly handling their pre-tax salary reductions for their benefit plans. Taking the time to confirm a written plan document is in place, up to date, and properly administered can help avoid unnecessary tax penalties. If you have questions or need assistance reviewing your current plan documents, please let us know.

DOL Releases AI Literacy Framework for the U.S. Workforce

The Department of Labor released a comprehensive AI Literacy Framework providing employers with a roadmap for training workers to use artificial intelligence technology responsibly and effectively. The framework marks the Trump administration’s latest effort to prepare American workers for an AI-driven economy, emphasizing that “every worker will need baseline AI literacy skills to succeed, regardless of industry or occupation.” While the framework doesn’t create any new legal requirements, it signals DOL’s expectations for how employers should approach AI training – and offers practical guidance for organizations looking to upskill their workforce. Here’s an overview and steps you should take.

DOL’s AI Literacy Plan

The framework builds on the Trump Administration’s AI Action Plan released in July 2025. Both prioritize worker training and upskilling. It defines AI literacy as “a foundational set of competencies that enable individuals to use and evaluate AI technologies responsibly, with a primary focus on generative AI.”

Absent from this framework is any discussion of worker protections, discrimination safeguards, or new regulatory requirements. This marks a departure from the Biden administration’s approach, which emphasized AI guardrails alongside worker training.

Foundational Concepts

The DOL framework starts by identifying five core competencies it believes every worker should develop.

1. Understand AI Principles

Workers need to understand how AI operates, not technical mastery, but enough to use AI confidently. This includes understanding that AI identifies statistical patterns (not “thinking”), can produce incorrect outputs (“hallucinations”), and reflects human design decisions.

2. Explore AI Uses

Workers should understand practical applications across workplace settings: using AI to draft documents, analyze reports, answer questions, generate creative assets, or support decision-making. DOL emphasizes that AI use varies by industry and context.

3. Direct AI Effectively

Because AI depends heavily on user input, workers must learn how to provide clear instructions, include necessary context, and iterate to improve results. This includes prompt techniques, supplying relevant data, and avoiding vague requests.

4. Evaluate AI Outputs

Workers need skills to assess whether AI-generated outputs are accurate, complete, and appropriate. This includes verifying facts, spotting logical errors, and applying human judgment rather than treating AI as a final authority.

5. Use AI Responsibly

Workers must understand the boundaries of appropriate use: protecting sensitive information, following workplace policies, avoiding misuse, and maintaining accountability for AI-assisted work.

The 7 Delivery Principles for Employers

The framework also offers seven principles for how employers should deliver AI training.

1. Enable Experiential Learning

Training works best through hands-on use, not abstract reading. Employers should embed AI tools into real work tasks, provide interactive exercises, and allow trial-and-error learning.

2. Embed Learning in Context

Training should be relevant to workers’ jobs and industries. The training should also use industry-specific examples, align with actual workflows, and integrate AI literacy into existing training programs rather than creating standalone courses.

3. Build Complementary Human Skills

The guidance notes that AI amplifies human capabilities, it doesn’t replace them. Training should demonstrate how AI enhances critical thinking, creativity, and communication, emphasizing that AI’s value depends on human judgment.

4. Address Prerequisites to AI Literacy

Some workers may lack digital literacy, device access, or broadband connectivity. Employers should identify and address these barriers, ensuring all employees can engage with training.

5. Create Pathways for Continued Learning

Foundational AI literacy is just the starting point. Employers will want to provide clear routes for workers to deepen skills, pursue specialized training, or transition into AI-related roles.

6. Prepare Leadership to Lead

Train managers, coaches, and team leaders separately. Each leadership position will need skills to guide others, integrate AI into operations, and support workplace adoption.

7. Design for Agility

AI evolves rapidly. Companies should build training systems that can be updated regularly, use modular content that can be refreshed, and incorporate feedback to stay current.

What Employers Should Do Now

Interested in adopting the DOL’s new framework? Here’s where to begin:

Assess Current State of AI Use– Identify where workers are already using AI tools (officially or unofficially). Survey employees about AI adoption, review workflows where AI could add value, and determine which roles need AI literacy most urgently.

Recognize and Address Employee Relations Hurdles to AI Use– Recognize and address any emotional resistance that employees may experience in the face of integration in the workplace linked to fear of job loss, loss of identity, or diminished value. Provide clear communication about how AI is intended to enhance productivity, reduce administrative burden, and support (not replace) human judgment.

Develop or Update AI Training Programs– Use DOL’s framework as a starting point to build training that fits your industry and workforce. Focus on hands-on practice with tools workers will actually use, not abstract AI concepts. Integrate training into existing onboarding and upskilling programs rather than creating standalone courses.

Create Clear AI Use Policies– If you haven’t already, establish guidelines for appropriate AI use in your workplace. Address data protection, output verification requirements, prohibited uses, and accountability standards. Make sure workers understand the boundaries before they encounter problems.

Train Managers and Team Leaders First– Equip leadership with AI literacy before rolling out broader training. They need to understand AI capabilities, guide team adoption, address worker concerns, and model appropriate use. Managers who resist or misunderstand AI will undermine workforce training efforts.

Build Pathways Beyond Basic Literacy– Think about progression: Who needs advanced AI skills? Which roles might evolve significantly due to AI? How can high performers develop deeper AI proficiency? Create clear next steps for workers who master foundational skills.

Partner with External Resources– Consider leveraging state workforce development programs, community colleges, or industry associations for AI training. Many organizations signed the White House pledge to provide free AI education resources. DOL intends to help connect employers with these offerings.

An Employer’s 5-Step Guide to AI Interviewing and Hiring Tools

AI-enabled interviewing tools have emerged as a common solution for the administrative burdens associated with hiring. These tools improve efficiency, streamline operations, allow you to consider more candidates without expanding your hiring team, keep evaluations consistent across applicants, and make high-volume hiring easier. But their adoption also raises important legal considerations, including potential bias, compliance risks, and data privacy and cybersecurity obligations – all while we face a growing regulatory and litigation landscape targeting the use of these tools. 

5 Steps You Can Take to Mitigate Risks

If your organization uses or is considering AI interview tools, the following five steps can help proactively manage risk.

1. Develop Comprehensive AI Policies. While many organizations rely on a single, high-level AI policy, a more effective governance framework typically includes multiple, complementary policies tailored to different aspects of AI use. At a minimum, you should establish a comprehensive program to address three areas: organizational AI governance, ethical use of AI, and tool-specific acceptable use policies.

2. Ensure Ongoing Vendor Oversight. You should treat AI interview vendors as an extension of the hiring process rather than as standalone technology providers. Managing risk requires clear contractual guardrails, transparency into how tools function, and ongoing monitoring to ensure compliance and fairness.

3. Adopt Measures to Identity and Prevent Deepfakes. Adopting identity verification measures for candidates, particularly in asynchronous interviews, and establishing review protocols to flag irregular or suspicious interview behavior can help mitigate the use of deepfakes. For video interviews in particular, you should implement tools that support human review and train employees to recognize indicators of manipulated or synthetic content.

4. Audit AI Interview Tools and Systems. You should regularly audit AI interview tools to assess whether they rely on signals such as speech patterns, accents, tone, facial expressions, or eye contact, and limit or disable features that may disadvantage candidates with disabilities, neurodivergent traits, or culturally distinct communication styles. You should also ensure that alternative interview formats are available to help prevent qualified candidates from being screened out based on how AI systems interpret communication rather than job-related qualifications.

5. Establish Clear and Balanced Policies on Applicant AI Use. Your approach to applicant use of AI during interviews can present reputational risk if perceived as inconsistent, overly restrictive, or misaligned with the employer’s own use of AI tools. Prohibiting applicant AI use while deploying AI interviewers may be viewed as a double standard, potentially affecting employer brand, candidate trust, and overall recruitment outcomes. Accordingly, you should address applicant use of AI during interviews through transparent, balanced policies rather than blanket prohibitions. This includes clearly communicating what types of AI use are acceptable, such as accessibility tools or interview preparation support, and what uses are not permitted, such as real-time response generation intended to misrepresent a candidate’s abilities.

Reminder: OSHA 300A Logs Must Be Posted by February 1st

All OSHA 300A logs must be posted by February 1st in a visible location for employees to read. The logs need to remain posted through April 30th.

Please note the 300 logs must be completed for your records only as well. Be sure to not post the 300 log as it contains employee details.
The 300A log is a summary of all workplace injuries, including COVID cases,  and does not contain employee specific details. The 300A log is the only log that should be posted for employee viewing.

Please contact our office if you need a copy of either the OSHA 300 or 300A logs.