Quick Hits

• The U.S. District Court for the Southern District of New York ruled that denying an employee’s request to continue working from home as a disability accommodation does not constitute disability discrimination.
• The ruling emphasized that an adverse employment action supporting a disability discrimination claim must be based on an employee’s disability.
• The ruling underscores the importance of the interactive process in accommodating employees and clarifies the difference between proving a failure to accommodate claim versus discrimination.

The district court granted summary judgment in favor of New York City on a claim by a former New York City Department of Social Services (DSS) employee who alleged discrimination under the Rehabilitation Act, which is analyzed under the same standard as under the Americans with Disabilities Act (ADA). The court ruled that while a denial of an accommodation can constitute an adverse action in the context of a retaliation claim, it does not equate to an adverse employment action in the context of a disability discrimination claim.

Alleged Discrimination

Former DSS employee Sally Ramirez filed suit against the city and her supervisor, bringing claims for hostile work environment; race, age, and disability discrimination; constructive discharge; and retaliation. Ramirez, who is of Guyanese and Indian descent, alleged that her supervisor, who is also of Guyanese and Indian descent, made derogatory comments at work about “Guyanese people” and older employees. She alleged that in 2022, she applied for a promotion but was passed over in favor of a white employee.

After not receiving the promotion, Ramirez alleged she became ill—attributing the illness to the stress of learning she did not receive the promotion—and sought leave under the Family and Medical Leave Act (FMLA). The city initially granted her request to work from home as an accommodation. However, after she filed her discrimination lawsuit, it denied Ramirez’s request to extend her work-from-home accommodation on the basis that it would “not allow [Ramirez] to perform all the essential job duties in her role.”

Adverse Employment Action

Following the close of discovery, the city sought partial summary judgment on Ramirez’s claims of disability discrimination, retaliation, and constructive discharge. Regarding the discrimination claim, the court sided with the city, finding that Ramirez had not shown that the denial of her work-from-home accommodation was based on her disability.

The court emphasized the difference between a discrimination claim and a failure to accommodate claim: “[a] discrimination claim on the basis of disability must allege that the discrimination happened because of the plaintiff’s disability. No facts in the record suggest that Ramirez was told to return to work because she is disabled.” (Emphasis in original).

Nor could Ramirez establish a claim for constructive discharge, the court said. Ramirez could not claim that the denial of the promotion was “itself a constructive discharge” since her alleged disability did not arise until after she did not get the promotion. Furthermore, the denial of the extension to her work-from-home accommodation was insufficient to support the constructive discharge claim for the same reason that it was not considered an adverse employment action for a discrimination claim.

The court noted that the record showed the city had offered alternative accommodations for Ramirez’s disability, including allowing her to work from home three days a week. The court further pointed out that the city offered Ramirez additional accommodations for when she was in the office, including additional breaks, ergonomic equipment, and the “use of Access-A-Ride buses to help with her commute.” Instead, Ramirez chose to immediately resign, the court noted.

Regarding Ramirez’s retaliation claim, the court found that there were genuine issues of material fact in dispute regarding whether the refusal to allow Ramirez to continue to work from home was in retaliation for her filing a discrimination lawsuit and allowed that claim to proceed to trial.

Next Steps

The ruling provides key context for employers concerning the grant or denial of employee work-from-home requests as a reasonable accommodation for disabilities, such as qualifying illnesses or mental health issues. The ruling suggests that while work-from-home may be a reasonable accommodation, the denial of such a request alone may not constitute an adverse employment action that can give rise to a disability discrimination claim or constructive discharge.

Moreover, the ruling indicates that for a discrimination claim, the employee must show that the denial was based on the disability. It further highlights the importance of the interactive process as the court noted that the employer had offered other accommodations to the employee. At the same time, the ruling shows that the denial of an accommodation could be seen as retaliatory if it is causally connected to the employee’s protected activity, such as filing a lawsuit.

Employers may want to ensure that they properly document the reasons for denying an accommodation and the steps taken in the interactive process.

Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will provide updates on the Employment Law, Leaves of Absence, New York, and Return to Work blogs as additional information becomes available.

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After the major policy changes of 2025, the Trump administration and the Republican-controlled U.S. Congress undoubtedly view 2026 as an opportunity to cement these gains and further advance their policy agendas. But legislating is hard, rulemaking can be a lengthy process fraught with legal pitfalls, and the midterm elections loom. Set forth below is a preview of what employers can expect from a federal policy standpoint in 2026.

The 119th Congress

Federal lawmakers returned to Washington, D.C., this week for the second session of the 119th Congress. In the U.S. Senate, Republicans have a 53–47 majority, and in the U.S. House of Representatives, Republicans currently have a 218–213 majority (with four vacancies). These slim margins in both chambers mean that Republicans will need the assistance of Democrats to pass most legislation, unless the Republicans take another crack at the reconciliation process, which they used in 2025 to pass the “One Big Beautiful Bill Act” on a party-line basis.

To make things more complicated, the 2026 federal midterm elections will be held on November 3, 2026. The impending elections will heavily influence the Republicans’ legislative agenda in the coming months, as they look to move legislation that they believe will benefit them on Election Day. The midterm elections also create a truncated legislative calendar, as, in addition to their traditionally scheduled August recess, incumbent legislators seeking reelection are currently scheduled to spend nearly all of October campaigning in their districts. The post-election “lame-duck” session of Congress could also present an opportunity for rare moments of bipartisanship.

Here is what to watch:

• Another Shutdown? At the start, Congress faces issues that carry over from 2025: how to address healthcare insurance premium subsidies and a January 30, 2026, federal government funding deadline. As of now, neither party is indicating that they have an appetite for another government shutdown, but that can always change as the deadline approaches. The deal that reopened the federal government in November 2025 after a record-breaking forty-three-day shutdown included three of the twelve spending bills. The clock is currently ticking for Congress to do something about the remaining nine bills.
• Big-Ticket Items. Republicans will likely turn their attention to bills addressing surface transportation and water infrastructure projects, permitting reform, and perhaps another reconciliation bill that would include remaining fiscal goals that would be permitted under the arcane legislative process. The Senate will also focus on confirming nominees to both the executive branch and the federal bench.
• Labor/Employment Legislation. In 2025, Republican Senator Josh Hawley (R-MO) caused a stir with the introduction of his labor reform framework. Hawley promoted these ideas at multiple hearings of the Senate HELP Committee, and he can be expected to continue to push elements of the framework throughout 2026. The question is, will other Republicans jump on board?

As a Republican alternative to Hawley’s framework, Senate HELP Committee chair Bill Cassidy introduced a slate of bills that would enhance employees’ rights vis-à-vis their labor unions. A similar series of bills was introduced in the House. Employers may hear more about these bills in 2026, though they are not expected to pass as long as the legislative filibuster remains intact.

Other bills to watch include the Working Families Flexibility Act of 2025 (H.R. 2870) (allowing employees to choose paid time off in lieu of overtime pay), Tipped Employee Protection Act (H.R. 2312) (providing a more specific definition of “tipped employee”), the Save Local Business Act (H.R. 4366), the Employee Rights Act, as well as bills relating to independent contractors.

• Immigration Legislation. Republicans in Congress are taking their cues from the administration when it comes to scrutiny of immigration policy, as they’ve introduced dozens of bills that would dramatically reform our immigration laws. One bill in particular that employers should monitor is the H-1B and L-1 Visa Reform Act.

The politics surrounding this bill are particularly interesting. Colloquially referred to as the “Durbin/Grassley” bill, besides original co-sponsors Chuck Grassley (R-IA) and Dick Durbin (D-IL), other co-sponsors of the bill include Senators Bernard Sanders (I-VT), Tommy Tuberville (R-AL), and Richard Blumenthal (D-CT)—strange political bedfellows, indeed. Grassley and Durbin have also joined together in demanding that tech companies answer questions about their hiring of H-1B visa holders. The two senators first introduced the bill nearly twenty years ago. With Durbin not seeking reelection and Grassley being ninety-one years old, 2026 might be their last opportunity to push for passage of the bill. All of these factors could provide this bill with traction in the Senate.

Other immigration bills to watch include the Halting International Relocation of Employment (HIRE) Act, the American Tech Workforce Act, “Strengthening Accountability for Employers Hiring Individuals and Reforming Enforcement Act (SAFE HIRE) Act,’’ Colleges for the American People Act (“CAP Act”), and the Pause Admissions Until Security Ensured (PAUSE) Act (prohibits issuance of visas and status adjustments until various changes are made to federal law, such as elimination of the Optional Practical Training Program and codification of President Trump’s H-1B proclamation).

Federal Agencies

Rather than appearing in June or even July of 2025, the Spring 2025 Unified Agenda of Regulatory and Deregulatory Actions (“Spring Regulatory Agenda”) was not released until September 4, 2025. It is, therefore, not surprising that the issuance of the fall 2025 regulatory agenda—often released in November or December—has been delayed. Once the administration releases an updated agenda, it will provide stakeholders with notice of the expected regulatory landscape for approximately the next six months. Until then, the following regulatory forecasts are based on the existing agenda and informed political and policy analysis.

U.S. Department of Labor (DOL)—Wage and Hour Division (WHD)

In 2025, the WHD took steps to implement the administration’s new policy agenda. Examples include the resuscitation of the Payroll Audit Independent Determination (PAID) program, issuing several new Fair Labor Standards Act (FLSA) opinion letters, and walking back enforcement of the Biden-era independent contractor regulation. In 2026, however, the WHD can be expected to accelerate its rulemaking agenda, particularly now that Andrew Rogers has been installed as wage and hour administrator. Examples of rulemakings that WHD can be expected to pursue in 2026 include the independent contractor and joint-employer tests under the FLSA, as well as the rescission of the December 2024 dual jobs rule for tipped employees. Proposed regulations relating to exemptions from minimum wage and overtime pay requirements for certain employees are categorized as “long-term actions” in the most recent regulatory agenda.

DOL—Occupational Safety and Health Administration (OSHA)

Assistant Secretary of Labor for Occupational Safety and Health, David Keeling, was not confirmed by the U.S. Senate until October 2025, and he has not had a lot of time at the helm of the workplace safety agency. However, in 2025, OSHA took steps to reduce penalties for small businesses, proposed revisions to twenty-six standards, and relaunched its opinion letter program. What is on Keeling’s agenda for 2026?

Perhaps the most significant policy question facing OSHA in 2026 concerns the fate of the Biden-era heat injury and illness prevention standard proposal. Rather than pausing the proposal or scrapping it altogether, OSHA has actually moved forward with the proposal, holding public hearings on the matter during the summer of 2025. But while OSHA pushes ahead with the proposal, the Spring Regulatory Agenda has provided no further updates on next steps. Will OSHA issue a final rule, presumably with changes based on the public feedback? If so, will it be a logical outgrowth of the proposal, or will the agency have to issue an entirely new proposal? The next regulatory agenda should provide some clues as to where the proposal is heading.

In 2026, employers can also expect OSHA to move forward with proposed modifications to the general duty clause, the lock-out/tag-out standard, walking-working surfaces, as well as a potential proposed standard relating to tree care work. There was no entry in the Spring Regulatory Agenda regarding OSHA’s controversial “walkaround rule,” which has been challenged in federal court.

Although independent of OSHA, the Occupational Safety and Health Review Commission (OSHRC) plays an important role in adjudicating workplace safety disputes between OSHA and employers. Unfortunately, OSHRC still lacks a quorum and won’t be able to issue decisions until another commissioner is appointed—perhaps in 2026.

U.S. Equal Employment Opportunity Commission (EEOC)

In 2025, under the leadership of now-Chair Andrea Lucas, the EEOC made it clear that it prioritizes investigations of diversity, equity, and inclusion (DEI)–related discrimination and “anti-American” national origin discrimination, ensuring religious liberty in the workplace, and preserving women’s rights to single-sex spaces, among other areas. However, for much of the year, the Commission lacked a quorum. And it still lacks a Senate-confirmed general counsel (though President Donald Trump has nominated management attorney M. Carter Crow to fill that role). However, on October 27, 2025, Brittany Bull Panuccio was sworn in as commissioner, restoring a quorum to the EEOC. In 2026, she is likely to join Chair Lucas in revisiting regulations implementing the Pregnant Workers Fairness Act, as well as the Commission’s guidance on harassment in the workplace.

National Labor Relations Board (NLRB)

Lacking a functional quorum for nearly all of 2025, the National Labor Relations Board (NLRB) failed to address any of the numerous Biden-era Board policies that tilted the labor-management landscape in favor of labor unions. Those policies included ambush election regulations, as well as decisions limiting employers’ abilities to communicate with employees, a lowered standard for the issuance of bargaining orders, expanded remedies, and a second-guessing of commonsense workplace rules, among others.

With Scott Mayer and James Murphy joining lone Democrat David Prouty on the Board, there is now a quorum. However, as the Buzz has discussed on multiple occasions, overturning that Biden-era precedent might not happen so quickly. That’s because the Board traditionally does not overturn existing law unless there are three affirmative votes. So, it is very likely that a third Republican member will need to be confirmed and appointed before the case rollback can really begin. That said, Mayer and Murphy have the authority to amend or address the ambush regulations or engage in other rulemaking. The Board can also begin addressing the current backlog by ruling on noncontroversial cases.

The Board also faces external legal pressures that potentially jeopardize its continued validity.

• Federal district courts in New York and California have ruled that recently passed laws in each state that grant authority to state public employment boards to intervene in private-sector labor matters are preempted by the National Labor Relations Act. The lack of a Board quorum was likely a motivating factor in enacting those laws; now that there is a quorum at the Board, combined with the courts’ decisions, we are unlikely to see similar efforts in the future.
• However, whether statutory removal protections for both Board members and NLRB administrative law judges are unconstitutional has been addressed by the U.S. Court of Appeals for the Fifth Circuit and the U.S. Court of Appeals for the District of Columbia Circuit.

How—and if—these issues are resolved will have a significant impact on how the Board operates and makes policy, which will clearly have an impact on employers.

Immigration (DOL, U.S. Department of State, and U.S. Department of Homeland Security)

2025 was clearly a year of massive upheaval in the immigration policy arena. Among other issues, the administration sought to end birthright citizenship, instituted multiple travel bans, rescinded Temporary Protected Status from multiple countries, instituted social media vetting for tourists, H-1B holders, and foreign national students, instituted a $100,000 entry fee for H-1B visa holders, and at the very end of 2025, U.S. Citizenship and Immigration Services (USCIS) finalized its H-1B weighted selection rule. In 2026, the administration is expected to continue to scrutinize lawful immigration, and employers should monitor the following developments:

• Prevailing Wages. At the end of 2025, the DOL sent to the Office of Information and Regulatory Affairs a proposal titled, “Improving Wage Protections for H-1B and PERM Employment in the United States.” While the proposal is not public at this time, it is expected to propose increasing the prevailing wage requirement for H-1B visa holders and PERM labor certifications. The proposal is likely similar to a rule that was finalized in the first Trump administration, challenged in federal court, and subsequently withdrawn by the Biden administration. The DOL is also pursuing this latest effort as instructed in President Trump’s H-1B proclamation.
• OPT/STEM OPT. In 2026, U.S. Immigration and Customs Enforcement (ICE) is expected to issue a proposed rule to “amend existing regulations to address fraud and national security concerns, protect U.S. workers from being displaced by foreign nationals, and enhance the Student and Exchange Visitor Program’s capacity to oversee the program.” The proposal is expected to eliminate the program entirely, rather than attempt to make changes to it.
• Fixed Period of Stay Proposal for F-1 Students, J-1 Exchange Visitors. Currently, F-1 students and J-1 exchange visitors are permitted to remain in the United States, as long as they are pursuing a full course of study at an educational institution or participating in an authorized program. ICE now proposes to set the authorized admission periods for F and J nonimmigrants up to the length of the particular program, with a four-year maximum period (at which time they can apply for an extension of stay). The public comment docket for this proposal closed on September 29, 2025. A final rule is expected in 2026.
• H-1B Reform. According to the Spring Regulatory Agenda, USCIS “will propose to reform the H-1B program by revising eligibility for cap exemptions, providing greater scrutiny for employers that have violated program requirements, and increasing oversight over third-party placements, among other provisions.” The Spring Regulatory Agenda had this proposal slated to issue in December 2025, so it is obviously delayed. It is likely that the proposal will issue sometime in the first half of 2026, but an updated agenda will obviously provide a more accurate timeline.
• Project Firewall. The DOL’s H-1B enforcement program—Project Firewall—debuted in late September 2025. Two weeks later, the federal government shut down for forty-three days. Despite the shutdown, Trump administration officials claim that they have launched almost 200 investigations under Project Firewall. Investigations under Project Firewall are expected to increase in 2026 as the initiative picks up steam.

Quick Hits

• On January 7, 2026, OSHAB hosted a roundtable discussion with stakeholders to exchange ideas on changing and improving Board processes and procedures.
• Several key members of Ogletree Deakins’ Workplace Safety and Health Practice Group attended the meeting and provided input.

A variety of topics were discussed at the stakeholders’ roundtable, with invitations to provide commentary and suggestions, including feedback on the following subjects:

• improved practices and procedural rules regarding party status;
• improved access to OSHAB decisions, including via OSHAB’s web page and online services, such as Westlaw and LexisNexis;
• amendments to procedural rules, including requests from workplace safety attorneys that there be more robust rules related to the disclosure of expert witnesses and new rules with deadlines for amending citations; and
• amendments and clarifications to discovery rules and motions to compel (these were requested by Cal/OSHA counsel).

Many stakeholders expressed concern that the procedural rules should be calibrated to avoid negatively impacting self-represented employers. In addition, there was a healthy dialogue regarding procedures for setting trials and other conferences that will provide the Appeals Board with ideas for improving efficiency and enhancing the effectiveness of hearings.

The most robust discussion surrounded proposals to adopt regulations allowing for dispositive motions. There were a variety of viewpoints expressed—some requesting the use of dispositive motions, such as motions to dismiss or summary judgment motions, and other perspectives, including from representatives of California’s Division of Occupational Safety and Health (Cal/OSHA), who expressed trepidation about increased motion practice and its impact on self-represented California employers.

The three-member Appeals Board panel encouraged ongoing stakeholder input and the submission of written comments to thoroughly evaluate potential changes to OSHAB’s procedures and regulations.

Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments regarding proposed changes to OSHAB’s processes and procedures and will provide updates on the California and Workplace Safety and Health blogs as additional information becomes available.

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Quick Hits

• Pay equity developments in the UK sit alongside the EU Pay Transparency Directive, which introduces new and additional reporting obligations in the Republic of Ireland, and the Employment Rights Bill, which introduces additional obligations in England, Scotland, and Wales.
• Gender pay gap reporting has been in discussion in Northern Ireland since the Employment Act (Northern Ireland) 2016, but has faced significant delays, largely due to the suspension of the Northern Ireland Assembly.
• Northern Ireland’s Department for Communities cited plans to publish draft regulations “as soon as possible,” but implementation is not expected before 2027, with the first employer reports likely to be due in 2028 based on 2027 snapshot pay data.

On 7 October 2025, the DfC issued its consultation response, which broadly mirrors the gender pay gap reporting framework already in place in the rest of the United Kingdom. The DfC proposes to align methodology with the Office for National Statistics approach used in England, Scotland, and Wales so that Northern Ireland results are comparable. This would mean employers must report on employees’ mean and median pay broken down by gender, with inclusion of bonuses, and the publication of pay quartiles.

The DfC has stated that further discussions will be required to confirm if Northern Ireland should adopt the same 250 employee reporting threshold as the rest of the UK or if a new threshold should be introduced to give consideration to the fifty-employee threshold in the Republic of Ireland, the DfC also stated that this issue would be reviewed in the context of “any further developments with the EU Pay Transparency Directive.” The DfC has also confirmed in its response that it will be mandatory to accompany gender pay gap data with action plans, as will be introduced in the rest of the UK in April 2026 on a voluntary basis, before becoming mandatory from 2027 by the UK Employment Rights Bill.

The response has indicated that plans for ethnicity and disability pay gap reporting will not be proceeding at present. The DfC concluded they would not be legally enforceable under existing data collection obligations, citing the absence of a legal requirement to gather ethnicity and disability data, voluntary disclosure norms for disability, and the risk of identification within smaller organisations. It will keep this position under review, including in light of developments in the UK’s Equality (Race and Disability) Bill.

The next steps include the DfC publishing draft Gender Pay Gap Information Regulations, potentially in early 2026, followed by Assembly consideration and finalisation of the legislation. The Equality Commission for Northern Ireland (ECNI) is expected to be responsible for monitoring and enforcement, with sanctions yet to be defined in the regulations.

The Impact of the EU Pay Transparency Directive

The ECNI and the Northern Ireland Human Rights Commission (NIHRC) had previously jointly advised the Northern Ireland government to enact legislation to align with the EU Pay Transparency Directive’s (Directive (EU) 2023/970) gender pay requirements. This is due to the obligations of the Windsor Framework (the post-Brexit legal agreement between the UK and EU in place in Northern Ireland). While EU law no longer directly applies in the UK, under the Windsor Framework, the obligations of the EU Pay Transparency Directive may need to be implemented in Northern Ireland.

The EU Pay Transparency Directive requires member states to implement granular reporting, including category‑of‑worker breakdowns and joint pay assessments where unjustified gaps of 5 percent or more persist beyond six months. If changes are finalised, unlike the rest of the UK, an employer recruiting in Northern Ireland would need to publish the pay range for the role and would be prohibited from asking a candidate about their pay history. Employees based in Northern Ireland would also have the right to request information about the pay gap for men and women performing equal work or work of equal value. The DfC is expected to publish Gender Pay Gap Information Regulations in 2026, and it is thought that these regulations will assist in clarifying whether and to what extent the obligations of the EU Pay Transparency Directive will be brought into force in Northern Ireland.

For more on the EU’s pay transparency directive, see our previous articles, “EU Pay Transparency Directive: Updates on Implementation Across Member States,” “Preparing for the EU’s Pay Transparency Directive,” “EU Pay Transparency Directive: ‘Equal Pay for Equal Work or Work of Equal Value,” and “The June 2026 EU Pay Transparency Directive Implementation Deadline Looms.”

Further information can also be found by listening to our podcast, “Understanding the EU Pay Transparency Directive: What Employers Need to Know.”

Ogletree Deakins’ London office, Pay Equity Practice Group, and Workforce Analytics and Compliance Practice Group will continue to monitor developments and will provide updates on the Cross-Border, Pay Equity, and Workforce Analytics and Compliance blogs as additional information becomes available.

Daniella McGuigan is a partner in the London office of Ogletree Deakins and co-chair of the firm’s Pay Equity Practice Group.

Lorraine Matthews, a practice assistant in the London office of Ogletree Deakins, contributed to this article.

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Quick Hits

• Federal courts must have subject matter jurisdiction over every claim in a lawsuit, and practitioners may not simply add state law claims to a federal lawsuit without a basis for jurisdiction over the state law claims.
• In a non-diversity case, a non-federal claim is properly in federal court only if it is so related to the federal claim that it forms part of the same case or controversy.
• Failing to recognize a lack of supplemental jurisdiction can lead to late-stage dismissal of state law claims, forcing parties to relitigate issues years later when evidence may be stale.

When the case satisfies the rules for diversity jurisdiction, 28 U.S.C. § 1332, the parties may generally rest assured they are comfortably within the federal court’s subject matter jurisdiction.

However, when the federal court’s jurisdiction is based on a federal question, 28 U.S.C. § 1331, things become more complicated. If one or more of those multiple claims is not federal, then it belongs in federal court only if it satisfies the requirements for supplemental jurisdiction set forth in 28 U.S.C. § 1367. That is, in a non-diversity case, a non-federal claim is properly in federal court only if it is so related to the federal claim “that they form part of the same case or controversy under Article III of the United States Constitution.” When the same facts are at issue in the federal and non-federal claims—e.g., when the plaintiff sues based on the same factual scenario under both federal and state versions of laws prohibiting that scenario—supplemental jurisdiction may be found over the non-federal claim.

Not all cases involving state and federal claims, however, boil down to federal and state versions of the same lawsuit. And when the factual bases of the two claims are different, there may be no supplemental jurisdiction over the state law claim.

What is there to lose? Consider this: If litigation goes forward in federal court with state claims that do not really belong, at some point the district court may realize that it does not have jurisdiction over the state claims. The court would have to dismiss the state law claims at that point. Or perhaps the district court never tumbles to the problem, but the district court’s judgment is appealed. At that point, a party or the court of appeals may identify the issue and, even if it rules in the defendant’s favor on the federal claim, the court of appeals will be forced to remand the state law claim with instructions that the district court dismiss it (as it should have done earlier) for lack of subject matter jurisdiction.

The problem? The defendant may then have to defend the state law claim again, even if it had already defended it and possibly even prevailed on it, after lengthy and expensive litigation. Moreover, 28 U.S.C. § 1367(d) provides that the limitation period for that state law claim is tolled during the entire time the claim was (improperly) pending in federal court (plus an extra thirty days). Multiple years may have passed since the events giving rise to the lawsuit, meaning that important witnesses may no longer be available or, if so, only with faded memories. A lawsuit that could have been litigated years earlier—if the supplemental jurisdiction problem had been identified—may thus have to be defended again (at additional expense), but this time perhaps with less strength than it could have been.

Ogletree Deakins’ Appellate Practice Group will continue to monitor developments and provide updates on the Employment Law blog as additional information becomes available.

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Quick Hits

• Employees in Germany must immediately notify their employer of their incapacity to work and its expected duration.
• A doctor’s note is only required by law from the fourth calendar day onwards. Companies can request it from the first day.
• The transmission of the electronic certificate of incapacity for work (eAU) does not release employees from their obligation to report their incapacity for work. 

Reporting and Documentation Requirements in the Event of Incapacity for Work / eAU

As soon as they become aware of their incapacity to work, employees must notify their employer immediately, i.e., “without culpable delay.” This also applies to the continuation of the incapacity to work.

The law only requires a medical certificate to be submitted from the fourth calendar day of incapacity for work. However, employers can require submission from the first calendar day of incapacity for work if this is stipulated in the employment contract, in collective agreements, in works agreements, or by individual order. Weekends, public holidays, and non-working days count as calendar days.

For those with statutory health insurance, the doctor’s office sends the incapacity for work data electronically to the health insurance company. Employers can then access the eAU there. The obligation of employees to report incapacity for work remains unaffected. In the case of private health insurance or in other special cases (e.g., if electronic transmission is not possible or if caring for a sick child), employees must continue to submit the paper certificate in a timely manner.

Certificates of Incapacity for Work From Telemedicine Platforms

The acquisition of certificates of incapacity for work via telemedicine providers is becoming increasingly popular among employees. The Hamm Regional Labor Court has now ruled that a certificate of incapacity for work obtained via an internet portal without any contact with a doctor does not meet the requirements for the certificate of incapacity for work. If an employee submits such a certificate to their employer and thereby gives the impression of medically certified incapacity for work, this may justify extraordinary termination without notice and without prior warning.

Working From Home During Illness

During a certified incapacity to work, there is generally no obligation to work, either at the company or from home. Employees are exempt from work during this period.

There is generally no obligation to be available during certified incapacity for work. Only brief consultations on urgent, work-related issues that do not interfere with recovery and uphold the employer’s duty of care are permitted.

Unilaterally assigning other tasks despite incapacity for work is generally inadmissible. The situation is different if employees are unable to perform their original duties but are able to perform other reasonable tasks that are appropriate to their condition. If employers assign such work that is appropriate to the employee’s condition within the authority to issue instructions—for example, working from home—then legally speaking, the employee is no longer considered unfit for work in relation to the assigned work. However, this is subject to the condition that the employee is actually fit for work in relation to the specific, adapted work and that there is a corresponding contractual agreement regarding working from home. In practice, however, this will be difficult to prove, as employers are generally unaware of the nature of their illness.

What Happens If the Illness Occurs During Vacation?

If employees fall ill during their vacation and their incapacity to work is certified by a doctor, these days are not counted as part of their vacation. At least, this applies to statutory vacation entitlement.

In the case of illness abroad, additional notification and documentation requirements apply, such as immediately informing the employer of the address at the place of stay and informing the statutory health insurance fund of the incapacity to work.

A certificate of incapacity for work issued in a country outside the European Union has the same evidential value as a certificate issued in Germany. The circumstances of the individual case always are decisive. However, the certificate must show that the foreign doctor has distinguished between mere illness and incapacity for work.

Does Caring for a Sick Child Count as “Incapacity for Work”?

If a child under the age of twelve is ill, no other caregiver is available, and a medical certificate confirming the need for care has been provided, parents with statutory health insurance are entitled to unpaid leave from work. In addition, they are entitled to child sickness benefit for a legally limited number of calendar days per year. In these cases, the parent providing care is not considered to be unable to work. Employers are therefore not generally obliged to continue paying wages.

However, this does not apply if this has been agreed in an individual or collective agreement (collective bargaining agreement or works agreement) or if Section 616 of the German Civil Code (“Bügerliches Gesetzbuch – BGB”) has not been effectively excluded by contract. According to Section 616 of the German Civil Code, employees are also entitled to remuneration if they are temporarily prevented from working for personal reasons through no fault of their own for a relatively insignificant period of time. This also includes caring for a sick child, whereby in practice a period of up to five days is considered a relatively insignificant period as a rough rule of thumb. In the event of a child’s illness, a paper certificate of incapacity for work must be submitted; an eAU certificate is not sufficient.

Employer Tips

Employers may want to note the following:

• If employees violate their obligation to provide proof or their obligation to notify their employer in the event of illness abroad, companies may withhold continued payment of wages.
• Employers can issue a warning to employees who fail to notify or provide proof of incapacity to work due to illness.
• Employers may want to check certificates of incapacity for work issued by telemedicine platforms that issue certificates without medical contact based on an online questionnaire, and, if necessary, question and reject the certificate.
• Mobile working or working from home requires the ability to work and an appropriate contractual basis.
• In the event of medically certified incapacity to work during vacation, the corresponding vacation days must be granted retrospectively.

Key Takeaways

Employers may want to clearly define responsibilities and reporting procedures in the event of incapacity for work and communicate these to employees in writing. Employers may also want to set requirements and conditions for working from home. Reports and evidence of incapacity for work must be documented carefully and in compliance with data protection regulations. Implementing internal controls to verify certificates of incapacity for work is another step employers may want to take. In addition, Section 616 of the German Civil Code can be contractually excluded so that paid leave is not granted in the event of temporary personal incapacity to work, such as when a child is ill. As a general rule, there is no obligation to work during certified incapacity to work. The same applies when sick children under the age of twelve need to be cared for.

Ogletree Deakins’ Berlin and Munich offices and Cross-Border Practice Group will continue to monitor developments and will post updates on the Cross-Border, Germany, and Leaves of Absence blogs as additional information becomes available.

Daniela Schumann is a senior associate in the Berlin office of Ogletree Deakins.

Teodora Ghinoiu contributed to this article as a research assistant in the Berlin office of Ogletree Deakins.

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Quick Hits

• President Donald Trump has instructed the U.S. Department of Justice to reclassify marijuana, which could happen in 2026.
• In recent years, a growing number of states have legalized medical and recreational marijuana, provided job protections for medical and/or recreational marijuana use, and passed new restrictions on workplace marijuana testing.
• Aside from marijuana issues, employers continue to struggle with managing opioid abuse in their workforce and have begun to experience new challenges in dealing with substances such as fentanyl and ketamine.
• A new saliva drug test may make it easier for employers to conduct drug tests at the workplace.
• Disability accommodation questions continue to create difficult issues for employers to manage.

Reclassifying Marijuana

Forty states and Washington, D.C., have legalized marijuana for medical purposes. Twenty-four states and Washington, D.C., allow marijuana for recreational purposes. However, marijuana use and possession remain illegal at the federal level.

On December 18, 2025, President Trump signed an executive order directing the attorney general to reschedule marijuana from a Schedule I to a Schedule III drug under the federal Controlled Substances Act. If that happens, marijuana use and possession would continue to be illegal at the federal level, but the federal penalties for certain offenses may be reduced.

In addition, employees who have a disability may be able to obtain a reasonable accommodation under the Americans with Disabilities Act (ADA) for consuming cannabis because Schedule III drugs are recognized as having a currently accepted medical use. While medical marijuana cardholders have regularly had success in recent years asserting claims for disability discrimination under state anti-discrimination laws, individuals have had less success asserting claims under the federal ADA due to marijuana’s status as a Schedule I drug. This could change with federal rescheduling of marijuana.

Importantly, the illegality of marijuana under federal law does not provide a defense to state law claims for non-federally-regulated workers, regardless of what class marijuana is scheduled in. These state claims include lawsuits for violating employment protection provisions contained within state medical or recreational marijuana legalization laws, state disability discrimination laws, or state lawful off-duty conduct laws.

Opioids, Fentanyl, Ketamine

Employers are still dealing with opioid abuse issues, including the question of whether to utilize Narcan to prevent overdoses at the workplace. There are new challenges emerging, including the rise in employee use of fentanyl, ketamine, and other substances. The emergence of these new challenges is indicative of the reality that workplace drug and alcohol testing and related issues are never-ending.

DOT and Testing Standards

The standard workplace drug test checks for amphetamines, cocaine, marijuana, opioids, and PCP. The U.S. Department of Health and Human Services (HHS) revised its drug testing guidelines to include fentanyl and norfentanyl with enforcement beginning on July 7, 2025. That rule applies to federal employees in safety-sensitive, security-sensitive, and national security jobs. Likewise, the U.S. Department of Transportation (DOT) proposed adding fentanyl and norfentanyl to its drug testing panels, and a final rule is expected to take effect in early 2026. That rule would apply to private transportation employees in the trucking, aviation, rail, transit, pipeline, and maritime industries.

The DOT’s proposed rule seeks to align with an HHS regulation that established a protocol for drug testing with saliva, rather than urine. However, DOT-regulated employers cannot implement saliva testing until HHS certifies two laboratories to complete those tests. In the meantime, those employers will continue to rely on urine testing. Saliva testing can be easier for employers because it can happen quicky in the workplace under direct supervision without the need for a bathroom and privacy.

Multistate Testing Restrictions

State rules on drug and alcohol testing vary widely, making the situation complex for multistate employers. In some states, employers are prohibited from conducting a drug test before extending a conditional job offer. Some states ban or restrict random drug or alcohol testing but allow drug or alcohol testing for safety-sensitive jobs, when there’s reasonable suspicion of impairment, or after a workplace accident. Some states limit the circumstances under which employers can conduct post-accident or post-injury testing. Finally, some jurisdictions and states impose specific restrictions on marijuana testing.

Many states prohibit employers from disciplining or firing an employee for off-duty, legal medical and/or recreational marijuana use. While no state prohibits an employer from enacting policies curbing the use or possession of marijuana while on duty or when someone is impaired at work, drug tests are unable to measure impairment.

Disability Accommodations

An employee might ask for a reasonable accommodation to consume marijuana for a medical condition, such as chronic pain, nausea, muscle spasms, epilepsy, insomnia, anxiety, or post-traumatic stress disorder. Currently, the ADA does not require employers to accommodate “current illegal drug use,” which has lessened the burden on employers to provide a reasonable accommodation for medical marijuana use. However, this could change if marijuana is rescheduled. In addition, state disability discrimination laws may still come into play and create accommodation obligations. State disability discrimination laws may prohibit employers from discriminating against an employee who has a disability and a valid, state-issued medical marijuana card permitting the employee to use medical marijuana while off duty.

The differences in employment protections across states are vast and must be strictly followed, particularly as this area has become more litigious. Employers generally can discipline or fire an employee for being impaired by marijuana while on the job, although testing positive for marijuana on a drug test is not a proxy for impairment.

Next Steps

Employers may wish to take these steps to be prepared to properly handle drug and alcohol testing and related issues in 2026:

• Reviewing written drug and alcohol testing policies and any other process or procedure documents and consider whether updates are needed to comply with applicable state laws.
• Becoming familiar with the relevant state drug and alcohol testing laws, and the relevant state drug and alcohol testing laws.
• Considering whether the rescheduling of marijuana warrants an internal change to employer policies or practices with regards to marijuana testing.
• Considering whether to begin testing for substances, such as fentanyl or ketamine, that may not be included within standard panel drug tests.
• If using a third-party drug testing vendor, coordinating with the vendor to ensure compliance with any changes to state and federal laws and regulations. Employers may also want to evaluate whether the existing vendor is meeting expectations and performing well, or whether a change in vendors might be necessary.
• Avoiding asking questions about marijuana or prescription medication use during job interviews, as it could lead to a discrimination lawsuit or accommodation obligations.
• Carefully documenting the reasons for disciplining or firing an employee, such as violating the drug policy, violating the safety policy, or evidence of impairment at work, including slurred speech, poor motor coordination, or the odor of drugs.
• Considering engaging in an interactive process for disability accommodation if an employee is a medical marijuana cardholder. Also consider the nature of the employee’s job duties, the work environment, safety concerns, and any information provided by the employee’s doctor.
• Training supervisors to spot signs of intoxication in the workplace through effective reasonable suspicion training.

Ogletree Deakins’ Drug Testing Practice Group will continue to monitor developments and will provide updates on the Drug Testing, Leaves of Absence, and Trucking and Logistics blogs as new information becomes available. This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ Administration Resource Hub.

A new drug testing template and a new workplace marijuana guide are available through Ogletree Deakins now. Additional template packages are also available.

Michael Clarkson is a shareholder in Ogletree Deakins’ Boston office.

M. Tae Phillips is a shareholder in Ogletree Deakins’ Birmingham office.

Michael S. O’Malley is an associate in Ogletree Deakins’ Stamford office.

This article was co-authored by Leah J. Shepherd, who is a writer in Ogletree Deakins’ Washington, D.C., office.

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Quick Hits

• In 2025, Washington State passed thirty-nine new laws impacting all aspects of employment.
• State agencies increased and expanded enforcement tools and activity in 2025.
• Heading into 2026, employers may want to review their policies and practices for compliance as well as prepare for an increase in litigation and administrative enforcement.

New Employment Laws

Washington’s 2025 legislative session had a renewed focus on labor and employment that largely expanded protections for workers. Key measures relate to recruitment and hiring leave and accommodations, layoffs, and other workplace rights.

Recruitment and Hiring

In 2026, the minimum wage and the compensation requirement for noncompete agreements will increase. In addition to changes in procedures and potential damages under the job posting law, there are other new laws affecting the recruitment and hiring process.

• Limitations on Requiring a Driver’s License: Under Substitute Senate Bill (SSB) 5501, employers may not require a driver’s license as a condition of employment, and may not include such a requirement in a job posting, unless driving is an essential job function or related to a legitimate business purpose for the position.

• New Requirements for Background Checks: Engrossed House Bill ((HB) 1747 broadens the Fair Chance Act’s requirements to cover more employers (implemented over time), prohibits employers from automatically excluding a person with a criminal record from an employment position; requires employers to make a conditional offer of employment before obtaining an applicant’s criminal record or rejecting an employee for failure to disclose a criminal record; limits the ability to take adverse employment actions based on an applicant’s or employee’s criminal history; and adds a written notice to applicants who volunteer criminal history information. The law took effect on July 27, 2025, but its application is delayed until July 1, 2026, for employers of fifteen or more employees and until January 1, 2027, for those with fewer than fifteen employees.

Leave, Benefits, and Accommodations

Washington employees will also be entitled to more leave and accommodations.

• Expansion of Washington Paid Family and Medical Leave: The Employment Security Department (ESD) recently completed the rulemaking for the amendments to the Washington Paid Family and Medical Leave law. The ESD also updated its employer toolkit and other guidance for implementing the new elements of the law, including greater rights to job protection and insurance. Employers must notify employees of the higher premium rate for 2026 and may want to revisit their policies to ensure compliance with the new aspects of the program. Importantly, employees who return from leave starting January 1, 2026, may be entitled to job protection, even if they did not qualify for it in 2025.

• Paid Sick and Safe Leave Coverage: Engrossed Substitute House Bill (SHB) 1875 allows employees to use their paid sick and safe leave to prepare for or participate in immigration proceedings for themselves and family members.

• Access to WA Cares Fund Begins With Improvements: The Long-Term Services and Supports Act, also known as the WA Cares Fund, became law in 2019. The state-administered insurance program provides long-term care benefits to workers who have paid premiums for a specified time and who need assistance with “activities of daily living.” Benefits become available for the first time in 2026. Engrossed SSB 5291 and new rules improved the program before its launch by (a) creating a pilot program for the first half of 2026; (b) simplifying the ten-year contribution requirements; (c) adjusting exemptions for active-duty service members, temporary workers holding nonimmigrant visas, out-of-state workers, and those with voluntary exemptions; (d) defining terms in the law; (e) creating standards for supplemental long-term care policies designed for coverage after the exhaustion of WA Cares Fund benefits, similar to how Social Security and Medicare work; and (f) automating inflation increases to keep benefits growing over time.

• Expanded Domestic Violence Leave and Accommodations: SSB 5101 allows employees to seek leave and/or safety accommodations if they or their family members are victims of a hate crime and prohibits employers from discriminating or retaliating against employees on that basis.

• Broadened Pregnancy Accommodations: Significant changes under Engrossed SSB 5217 to the Washington Healthy Starts Act will begin on January 1, 2027. First, the law will extend to all employers, not just those with fifteen or more employees. Second, employers will have to pay employees at their regular compensation rate for any breaks for expressing breast milk, which will be in addition to other required meal and rest breaks. The Washington State Department of Labor and Industries (L&I) will take over the enforcement of the law from the attorney general.

Layoffs

Washington employees will also have greater rights after being laid off.

• Public Information About Layoffs: As part of its implementation of the Washington mini-WARN Act, the ESD expanded public access to information about layoffs, including immediate downloading of the letters that employers must submit to ESD to announce a layoff, which were previously only available through a public records request.

• Unemployment Benefits for Striking and Locked Out Workers: Under Engrossed SSB 5041, striking workers can receive up to six weeks of unemployment insurance benefits after a disqualification period and a waiting week, if the strike is not found to violate state or federal law in a final judgment. Benefits also extend to workers affected by employer-initiated lockouts after the one-week waiting period. There is a ten-year sunset period after which the law will expire.

Other Rights

• Immigration Protections Increased: SSB 5104 forbids employers from threatening employees regarding their own or their family members’ immigration status in order to deter protected activities or exercising rights under certain labor and employment laws.

• Healthcare Worker Protections Updated: Special rules were already in place for the meal periods and rest breaks of hourly hospital employees (or those covered by a collective bargaining agreement) involved in direct patient care activities or clinical services. Under RCW 49.12.480 (amended by SHB 1879), beginning January 1, 2026, hospitals and those employees can agree to waive (a) the meal period, if any, in a shift of less than eight hours; (b) the second and/or third meal periods in shifts eight hours or longer, as long as at least one meal period is provided and used during the shift; and (c) the timing requirements for meal periods and rest breaks, as long as the meal period starts no earlier than the third hour worked and no later than the second to last hour scheduled. The waiver must be in writing and meet various requirements. In addition, pursuant to Second Substitute House Bill (2SHB) 1162, beginning January 1, 2026, all healthcare settings must implement workplace violence prevention plans, timely investigate every incident, conduct comprehensive reviews, and update their plans annually.

• Amended Rules for Isolated Workers: The Washington Law Against Discrimination currently requires employers to take various steps to prevent sexual harassment of certain “isolated employees”—janitors, security guards, hotel or motel housekeepers, or room service attendants who also spend a majority of their working hours alone or whose primary work responsibility involves working without another coworker. Under 2SHB 1524, starting January 1, 2026, the definition of “isolated worker” will be expanded to apply to those same categories of employees who (a) perform work in an area in which two or more coworkers and/or supervisors are unable to immediately respond to an emergency without being summoned by the employee, or(b) spend at least half their working hours without a supervisor or coworker present. New requirements for the purchase, use, and training on panic buttons will also take effect.

• Cause of Action Created for Personnel File Access: The legislature also created a new private right of action for employees regarding access to their personnel files.

Increased Enforcement Activity and Tools

In addition to new laws that enhance workplace rights, administrative agencies are boosting their enforcement capabilities in several ways.

First, state agencies are scaling up enforcement efforts. The Washington State Department of Labor & Industries (L&I) Workplace Rights Investigations Report for fiscal year (FY) 2025 indicates a slight increase in closed wage and protected leave investigations compared with FY 2024 and over $2.9 million in penalties—almost double the amount assessed in FY 2024.

Second, as stated in some of the new laws and various public announcements, state agencies are coordinating efforts by leveraging audits and investigations by one agency to produce compliance with laws administered by others.

Third, the Washington State Office of the Attorney General created a Worker Rights Unit in direct response to declining federal enforcement of workplace standards, particularly relating to wage theft, pregnancy discrimination and accommodation, retaliation, and heat protection for outdoor workers. The attorney general’s (AG) office announced that it will also be “partnering with legislators on proposals for the 2026 session to provide tools to make investigations by the AG’s office more efficient and to add new protections for immigrant workers.”

Strategies for 2026

Employers may want to gear up for these new requirements by updating their written policies, workplace posters, and notices. Employers may also want to audit practices and protocols for recruiting, hiring, leave administration, and layoffs. Employers that receive notice of any governmental complaint, investigation, or audit may want to review all information for potential vulnerabilities in all areas of compliance.

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Quick Hits

• California employers face steep penalties for failing to provide compliant rest breaks, including additional pay, potential wage statement violations, waiting time penalties, and attorneys’ fees.
• The high penalties reflect the consensus among the legislature, courts, and labor commissioner that rest breaks are essential for employee health, safety, and productivity, benefiting both employees and employers.
• Employers may want to ensure they adopt clear policies, ensure breaks are duty-free, accurately calculate premiums, document compliance, eliminate discouraging practices, train managers, and conduct audits to manage litigation risks.

Why are the penalties so high? Some may claim that it just reflects a strong plaintiffs’ lobby in Sacramento. But for California employers that need to train their managers to ensure rest break compliance, a more comprehensive explanation is needed: Penalties are high because the consensus among the legislature, the courts, and the labor commissioner is that rest breaks are a win-win for California employers—a boon to employee health and safety and an essential element for improving employee productivity and efficiency. For employers, the law’s bite reflects this understanding of California law: short, regular pauses make people safer and more efficient. A Tenth Circuit Court of Appeals’ decision from the 1950s, Mitchell v. Greinetz, vividly illustrates this understanding of the benefits of breaks.

The Loom Room That Proved the Point

In Mitchell, a weaving shop ran “primitive hand-operated looms,” a demanding setup requiring constant attention and precise coordination—work that the court described as “intricate and fatiguing” and, after a few hours, “monotonous and tiring.” The employer initially operated an eight-hour day, but noticed that employees went home exhausted and returned still fatigued, a cycle that led to illness and breakdowns—bad for the employees and bad for the business.

The Productivity Jolt From Coffee Breaks

Against the backdrop of the World War II labor shortage, the employer had historically staffed the weaving operation with young men, but “when the war effort took nearly all young men,” the employer was forced to look elsewhere for labor. Older men could not handle the physical demands and coordination required by the “primitive” looms, and the employer ultimately hired women because they possessed the necessary coordination and skill for the work. The court expressly tied this replacement to the wartime shortage of young men, situating the shop-floor transformation squarely within the exigencies of the early 1940s.

After conferring with the workforce, the company adopted two fifteen-minute rest breaks—midmorning and midafternoon—so employees could step away from the looms and relax with a soft drink or a cup of coffee. In practice, employees stayed on the same floor during breaks, aided by a table and equipment for making tea or coffee—essentially a forerunner to the modern breakroom espresso bar. The employer soon noticed that those short pauses enhanced performance. He testified that the breaks and shorter hours transformed four of the poorest performers into the best in the shop within weeks; without the breaks, he would have needed another shift to maintain production. The employer also observed that the female employees produced more in six-and-a-half hours than the young men had in eight before they were drafted into military service.

The Legal Bottom Line

The court concluded that the five- to twenty-minute “coffee breaks” promoted efficiency and thus had to be counted as hours worked. The short rest periods were not mere perks, as they drove measurable gains in output. On these facts, the Tenth Circuit reversed the trial court and held that the rest breaks were compensable under the Fair Labor Standards Act.

While the break time was beneficial to employees, it was considered equally—if not more—beneficial to the employer, who made the breaks mandatory once their advantages became clear. The court’s holding reflected what many states had begun to codify: short rest breaks are an accepted part of employment and are treated as work time, because they increase efficiency. This decision also reflects the consensus of California courts and the labor commissioner that scheduled pauses are integral to productive work and must be paid as time worked. That is why steep penalties are imposed in California when an employer fails to provide compliant rest break opportunities.

Key Takeaways

Because California’s legislature, courts, and the labor commissioner agree that paid, duty-free rest breaks are not only compassionate but also operationally smart, California employers must ensure that they provide compliant breaks and document their compliance to manage litigation risks. The following steps can help employers remain compliant with California’s rest break requirements:

Adopting clear and detailed written policies: Consider presenting policies that mirror the wage orders and case law; expressly authorize duty‑free, paid breaks; prohibit on‑call or interrupted breaks; address timing “insofar as practicable”; and include sample rest break schedules.

Making breaks truly duty‑free: Prohibiting work during breaks, refraining from interruptions, and removing any on‑call, radio, or device‑monitoring requirements during breaks can help employees enjoy their breaks.

Calculating and truing‑up premiums correctly: Consider ensuring that pay for missed‑break premiums is made at the “regular rate of pay,” including nondiscretionary bonuses, commissions, differentials, piece‑rate earnings, etc.; and implementing timely payment and periodic true‑ups for monthly/quarterly/annual earnings.

Tracking document provision and exceptions: Employers may want to determine methods to capture contemporaneous attestations that compliant breaks were authorized and permitted, and use exception–based workflows that prompt automatic premium payments when compliance fails.

Eliminating discouraging practices: Employers may want to ensure that their productivity metrics, schedules, handheld/dispatch systems, and staffing models account for rest time.

Training managers and enforcing neutrality: Employers may want to remind managers that they should not encourage employees to skip or delay breaks, and that employees should not be required to be reachable or work during breaks.

Responding and auditing: Employers may want to ensure that when violations occur, they pay the premium and record it accurately on wage statements. They may also want to regularly use internal audits to identify patterns, ensure regular‑rate true‑ups, remediate root causes, and preserve evidence of good‑faith compliance.

Ogletree Deakins’ California offices and California Class Action and PAGA Practice Group will continue to monitor developments and will provide updates on the California, Class Action, and Wage and Hour blogs as additional information becomes available.

In addition, the Ogletree Deakins Client Portal covers developments in California employment laws, including California Onboarding and California Workplace Posters. Premium subscribers have access to details about California laws and downloadable templates. All client-users have access to updates. For more information on the Client Portal or a Client Portal subscription, please reach out to clientportal@ogletree.com.

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Quick Hits

• Under the new California “Workplace Know Your Rights Act,” employers must provide a stand-alone written notice to employees by February 1, 2026, detailing workers’ compensation, immigration-related protections, union organizing rights, and other key legal rights.
• The California labor commissioner has provided a template notice in English and Spanish, with plans to offer additional translations in several other languages soon.
• Employers must distribute the notice to current employees by February 1, 2026, and annually thereafter, using methods like personal service, email, or text message, and must also provide it to new hires upon employment and to collective bargaining representatives annually.

What does the template notice say?

The new law, codified at California Labor Code sections 1550-1559, requires employers to provide a “stand-alone written notice” addressing workers’ compensation, protections against unfair immigration-related practices, the right to notice of federal immigration inspections, the right to organize a union in the workplace, constitutional rights when interacting with law enforcement at the workplace, and rights related to designating an emergency contact to be notified if the employee is arrested or detained while at work. The law also requires that the notice include a list of any new legal developments that the labor commissioner deems “material and necessary.”

The Labor Commissioner’s Office states that it intends to post an updated template notice annually.

When and how should employers send the notice?

Employers must provide the notice:

• to current employees, on or before February 1, 2026, and then annually, in a manner normally used to communicate employment-related information, such as by personal service, email, or text message, if it can reasonably be anticipated to be received by the employee within one business day of sending;
• to new employees, upon hire; and
• to an employee’s exclusive collective bargaining representative, annually, by electronic or regular mail.

Language requirements

Employers must provide the notice in the language the employer normally uses to communicate employment-related information to an employee and which the employee understands, if the template notice is available in that language on the labor commissioner’s website. Otherwise, the notice may be provided in English. The labor commissioner has already provided the template notice in English and Spanish, and states that it will soon provide the template notice in Chinese, Hindi, Korean, Punjabi, Tagalog, Urdu, and Vietnamese.

Next Steps

Employers may want to determine the best distribution method; timely provide the notice; and keep compliance records for three years, including the date that each notice is provided or sent.

Ogletree Deakins’ California offices will continue to monitor developments and will post updates on the California, Immigration, and Traditional Labor Relations blogs as additional information becomes available.

In addition, the Ogletree Deakins Client Portal covers developments in California employment laws, including California Onboarding (where the Workplace Know Your Rights Act requirements are included in the update field and under the Miscellaneous tab) and California Workplace Posters. Premium subscribers have access to details about California laws and downloadable templates. All client-users have access to updates. For more information on the Client Portal or a Client Portal subscription, please reach out to clientportal@ogletree.com.

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