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January 2023 Newsletter
HOW DOES THE CONSOLIDATED APPROPRIATIONS ACT OF 2023 AFFECT EMPLOYERS?
The Consolidated Appropriations Act of 2023 was signed by President Joe Biden on December 29, 2022. The act includes several provisions affecting employers, with major provisions listed below.
Pregnant Workers Fairness Act (PWFA)
Effective June 27, 2023, the PWFA requires employers with 15 or more employees to provide reasonable accommodations for job applicants and employees with known limitations related to pregnancy, childbirth and related medical conditions. Reasonable accommodations must be made unless the accommodation would impose an undue hardship on the employer's business operations. The terms “reasonable accommodation” and “undue hardship” have the same meanings as under the Americans with Disabilities Act (ADA).
The term “known limitation” means a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee's representative has communicated to the employer whether or not such condition meets the definition of disability specified in section 3 of the Americans with Disabilities Act.”
Reasonable accommodations might include using a stool, taking extra bathroom breaks, keeping a water bottle nearby and being relieved from heavy-lifting duties. Employers may not require an employee to take paid or unpaid leave if another reasonable accommodation can be provided.
Additionally, employers may not require any accommodation other than a reasonable accommodation arrived at through the interactive process as described in the ADA.
An employer may not take adverse action in the terms, conditions or privileges of employment against a qualified applicant or employee requesting or using such reasonable accommodations.
Regulations will be issued by the Equal Employment Opportunity Commission (EEOC) within one year of enactment and will provide examples of reasonable accommodations.
Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act
The PUMP Act, which took effect December 29, 2022, expands workplace lactation accommodations for nursing employees that were first established by the Break Time for Nursing Mothers law, passed in 2010 under the Affordable Care Act and amending the Fair Labor Standards Act (FLSA). Expanded rights to sue for monetary remedies will become effective April 28, 2023.
The prior law excluded most exempt employees from coverage, but the PUMP Act rectifies that by expanding coverage to all employees needing to express and store breast milk at work.
Nonexempt employees who are not completely relieved from duty while taking a break as allowed under the act must be paid for that time. Exempt employees cannot have their pay deducted for these breaks.
Employers with fewer than 50 employees may still be exempt if compliance would cause an undue hardship. Guidance from the Department of Labor is expected within 60 days of enactment.
Employers will have the option to provide pre-deductible coverage of telehealth services for employees with high-deductible health plans (HDHPs) for another two years (ending December 31, 2024) through an extension of the 2020 Coronavirus Aid, Relief and Economic Security (CARES) Act.
The provision allows health savings account (HSA)-qualifying HDHPs to cover telehealth and other remote-care services on a pre-deductible basis. Additionally, an otherwise HSA-eligible individual can receive pre-deductible coverage for telehealth and other remote-care services from a stand-alone vendor outside of the HDHP. In both cases, the pre-deductible telehealth coverage won't hinder an individual's eligibility to make or receive HSA contributions.
Setting Every Community Up for Retirement Enhancement (SECURE) 2.0 Act of 2022
These provisions are intended to build upon the SECURE Act of 2019, incentivizing employers to offer retirement benefits while also improving retirement outcomes for employees. There are approximately 90 retirement-related provisions with various effective dates in the act.
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