Quick Hits

• OSHA is making mental wellness a significant part of its modern safety framework.
• Employers may want to ensure that their safety and health management systems include worker input to ensure psychologically safe environments.
• Psychological risk prevention may include employee assistance programs, leaves of absence accommodations, and other accommodations to prevent and mitigate risk exposure.

Psychological safety refers to the mental and emotional well-being of workers in the workplace, including well-being following traumatic workplace events, high-stress work environments, and employee substance use disorders. Improved psychological safety is directly correlated to employee retention, incident reporting compliance, and workplace violence prevention.

While there is no specific standard for psychological safety under the Occupational Safety and Health (OSH) Act, OSHA addresses psychological risks through the General Duty Clause. The General Duty Clause requires employers to provide a workplace free from recognized hazards causing or likely to cause death or serious physical harm. To prove a General Duty Clause violation for psychological safety, OSHA would need to show a recognized hazard of workplace stressors specific to the worksite, that the employer was aware of the stressors, that feasible means of addressing the stressors existed, and that the employer’s efforts were insufficient.

OSHA has previously applied the General Duty Clause to investigations of workplace violence, severe harassment that causes psychological harm, and other emotionally traumatic events, especially those that are linked to physical injuries.

Mitigating Psychological Risks

In the face of OSHA’s increasing focus on emotional and psychological safety, employer programs that provide confidential support services, stress management resources, and mental health days are becoming expected benefits. OSHA now encourages employers to be aware of employees carrying unique emotional loads, identify possible emotional impediments at work and mitigate them if possible, demonstrate that employees are not alone, and provide access to coping and resiliency resources. Employers have many resources at their disposal to mitigate psychological risks within their workforce, including employee assistance programs (EAPs), leaves of absence (LOAs), and enhanced training on mental health. Genuinely accessible EAPs providing stress reduction systems often reduce psychological risks, including high stress and burnout. Many employers also offer LOAs following traumatic events, including workplace accidents and workplace violence incidents.

In anticipation of potential OSHA enforcement on psychological safety, employers may want to ensure any mental health initiatives, including employee and supervisor training, EAPs, and other tools are tailored to the unique stressors of the workplace. Documenting these efforts is also essential to demonstrating the commitment to ensuring workplace safety.

Ogletree Deakins’ Workplace Safety and Health Practice Group and Workplace Violence Prevention Practice Group will continue to monitor developments and provide updates on the Employment Law, Leaves of Absence, Workplace Safety and Health, and Workplace Violence Prevention blogs as additional information becomes available.

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Quick Hits

• Germany’s Federal Labor Court held that an employer’s failure to attempt contact with a vacationing employee for the purpose of a required hearing before issuing an extraordinary termination on suspicion rendered the termination invalid for exceeding the two-week notice period.
• An employer must make a reasonable attempt to reach an employee on vacation within one week of learning the relevant facts, and only such an attempt will suspend the running of the statutory notice period.
• The notice period will be suspended regardless of whether the contact attempt succeeds, but an employer may refrain from attempting contact only in exceptional circumstances.

The Federal Labor Court (Bundesarbeitsgericht (BAG)) (Decision of Dec. 4, 2025 – Ref. No. 2 AZR 55/25) clarifies: Employers must generally attempt to contact the employee who is absent due to vacation in order to facilitate a timely hearing. Under Section 626(2) of the German Civil Code (Bürgerliches Gesetzbuch (BGB)), the start of the two-week notice period for extraordinary termination is suspended only if the employer makes an attempt to contact the employee.

The Case—Termination After Returning From Leave

On April 27, 2023, a colleague accused a train conductor—who was protected against ordinary termination—of sexual harassment at his employer’s workplace.

At that time, the accused employee had already been on leave or approved vacation from April 25, 2023, through May 21, 2023, and was reachable during this period via email and phone on his work cell phone.

A hearing with the accused took place—without prior contact from the employer—only after his return from vacation at the end of May.

The accused employee was not summarily dismissed until June 6, 2023, more than a month after the employer’s authorized representative became aware of the allegation.

The employee challenged the termination without notice by filing an action for unfair dismissal with the Karlsruhe Labor Court (Arbeitsgericht (ArbG)), citing the employer’s failure to observe the two-week notice period required under Section 626(2) BGB.

The lower courts—the ArbG Karlsruhe and the Baden-Württemberg Regional Labor Court (Landesarbeitsgericht (LAG))—ruled in favor of the employee. The employer then filed an appeal with the BAG.

The Decision—Invalidity of the Termination

The BAG confirmed: The extraordinary termination was invalid due to failure to observe the two-week notice period (Section 626(2) BGB).

The two-week notice period began on April 27, 2023, despite the employee’s absence due to vacation, because the employer had not attempted to contact the employee for the purpose of a timely hearing.

Hearing and Start of the Notice Period

The two-week notice period under Section 626(2) BGB generally begins when the party entitled to terminate employment becomes aware of the facts relevant to the termination.

At the same time, an extraordinary dismissal based on suspicion generally requires the employer to hear the employee concerned.

If the employer conducts this hearing within one week of the party authorized to terminate employment first becoming aware of the facts relevant to the termination, the notice period under Section 626(2) BGB does not yet begin to run during this time.

Only the Employee Is on Vacation

If the affected employee is on vacation, this does not exempt the employer from the obligation to hear the employee on vacation in a timely manner, according to the BAG’s decision.

Accordingly, the employer must attempt to contact the employee on vacation—via telephone, email, messaging service, or even by mail—within a reasonable period of time to facilitate a timely hearing.

It follows from the notice period under Section 626(2) BGB that—even in the event of the employee’s absence due to vacation—clear conditions must be established promptly with regard to extraordinary termination.

Furthermore, neither national nor European Union vacation regulations would preclude an employer from contacting an employee who is on vacation for the purpose of a hearing.

Attempt to Contact Suspends Notice Period

The notice period is suspended only if the employer makes such an attempt to contact the employee, even during the employee’s vacation-related absence.

The suspension of the notice period is then independent of the success of the attempt to contact the employee. If, for example, the employer is unable to reach the employee or the employee refuses to comment, citing his or her vacation, the notice period will still not begin to run during the entire vacation.

In the case at hand, however, the employer refrained entirely from attempting to contact the employee, so that the notice period—without suspension—had already begun to run on April 27, 2023.

Inaction Only in Exceptional Cases

Only in exceptional cases may the employer refrain from taking action during the employee’s vacation-related absence if “special circumstances” render the attempt to contact the employee futile or make a hearing after the vacation appear appropriate.

Special circumstances generally exist, for example, when contacting the employee for the purpose of a timely hearing is impossible or unreasonable for the duration of the vacation. Contact may be impossible if the employee is known to be in a remote region during the vacation that offers no means of communication, such as by phone, email, messaging services, or mail. Contact may be unreasonable if advance notice of an intended hearing could complicate or prevent the clarification of the allegations.

However, in this case, the employer had not presented any such special circumstances in the dispute. Furthermore, the employee was generally reachable via his work cell phone during his vacation—making an attempt to contact him both possible and reasonable.

Key Takeaways—Implications for Practice

Employers must generally hear the affected employee within one week of the employer’s first knowledge of the facts relevant to the termination before proceeding with an extraordinary termination based on suspicion. As a rule, this places significant time pressure on the employer.

If the affected employee is on vacation, the employer cannot simply sit back and wait for the employee to return. Rather, the employer must attempt to contact the employee—by phone, email, messaging service, or mail—for the purpose of a hearing. An employer is permitted to refrain from attempting to contact an employee who is on vacation for a hearing only in rather rare cases, such as when there is a risk of evidence tampering.

If the employer attempts to contact the employee for the purpose of a hearing, this suspends the start of the two-week notice period under Section 626(2) BGB until the hearing takes place or until the end of the employee’s vacation.

Dr. Martin Greßlin is a partner in the Munich office of Ogletree Deakins.

Niklas Thiel, a law clerk in the Munich office of Ogletree Deakins, contributed to this article.

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

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Though neither Virginia nor Maine requires the disclosure of benefits information, both states’ laws require employers to disclose compensation information in job postings. Further, they continue the trend of the laws varying in nuanced and significant ways. For example, Maine imposes a ten-employee coverage threshold for purposes of its job posting requirements, and also incorporates recordkeeping and employee-request obligations; Virginia combines its posting requirements with a salary history ban, anti-retaliation protections, and, importantly, a dual-enforcement scheme that includes a private right of action but limits civil penalties to an enforcement action by the attorney general.

Quick Hits

• Virginia and Maine will implement new pay transparency laws in July 2026, joining approximately twenty-five other state and local jurisdictions with similar requirements. Maine joins every other state in New England with such a law; Virginia has become the first Southern state to enact one.
• These laws mandate the disclosure of salary ranges in job postings and include distinct provisions regarding enforcement and employer obligations.
• Virginia’s law has no employer size threshold and includes a private right of action with civil penalties, while Maine’s law applies to employers with ten or more employees and relies solely on state enforcement without explicit penalties or private remedies.

Virginia: HB 636/SB 215—Salary History Ban and Wage Range Disclosure

After some back-and-forth between the governor and the legislature, Virginia’s law was approved on April 22, 2026, and takes effect on July 1, 2026. The law applies broadly to “employers” without a headcount threshold and includes both a salary history ban and pay transparency requirements.

Specifically, employers may not seek a prospective employee’s wage or salary history or rely on it when considering that individual for employment or to set the individual’s pay upon hire. There is a limited exception that permits an employer to rely on an applicant’s voluntarily-disclosed wage or salary history or to seek to confirm the wage or salary history, but only to support a higher offer that does not violate state or federal equal pay laws. The law defines “wage or salary history” as the wage or salary paid to the prospective employee by the current or previous employer.

Additionally, employers must disclose the wage, salary, or wage or salary range in each public and internal posting for each job, promotion, transfer, or other opportunity, and must set the range in good faith. A “wage or salary range” is the minimum and maximum wage or salary for the position, set in good faith by reference to a pay scale, a previously determined range, the actual range for persons holding equivalent positions, or the budgeted amount. Determination of “good faith” includes considering the breadth of the range. The statute does not require a description of benefits or other compensation in postings and prohibits retaliation for not providing salary history or for requesting a wage or salary range.

Virginia adopts a two-track enforcement model. The attorney general may bring a civil action, with civil penalties of up to $1,000 for a first violation and up to $5,000 for subsequent violations, and courts may award other legal and equitable relief. In addition, any aggrieved prospective employee or employee may bring a private action within one year of the violation to recover actual damages and other legal and equitable relief, subject to a correction opportunity for posting failures.

As a prerequisite for the private right of action, there is a cure period. For alleged violations based on failing to disclose pay in a posting or failing to set a range in good faith, a prospective employee may not sue if the employer corrects the posting on the original posting locations within fifteen business days after receiving written notice; a single written notice for a posting suffices for the duration of that posting.

This model differs from the many states that rely exclusively on state agency enforcement, and Virginia thereby joins Washington as a state that provides a private right of action for job posting violations. In Washington, that has prompted a number of class actions against employers. But it could have been worse for employers. The legislature originally sent the governor a bill that would have authorized statutory damages of $1,000 to $10,000, or actual damages, whichever was greater, plus reasonable attorneys’ fees and costs, and permitted suits to be brought individually, jointly, or as a collective action within two years of the prohibited action. The enacted law replaces statutory damages and fee-shifting with the remedy limited to actual damages and other legal or equitable relief, shortens the limitations period to one year, and omits express collective action and attorneys’ fees provisions.

Maine: LD 54—Pay Range Disclosures and Recordkeeping

Maine’s law takes effect on July 29, 2026. Covered employers, for purposes of the new job posting requirements, are those that have ten or more employees (though the statute does not specify whether the threshold is limited to Maine-based employees). These employers must include in each posting a statement listing the prospective range of pay to be offered to a successful applicant—or, for commission-only-based positions, a statement that compensation for the position is based solely on commission.

The law defines a “posting” as any solicitation intended to recruit applicants for a specific available position. A “range of pay” is the range the employer anticipates relying on in setting wages, which may reference a pay scale, a previously determined range, the actual range for equivalent positions, or the budgeted amount for the role. The “range of pay” definition excludes compensation based solely on commission. The law does not require the disclosure of benefit information on job postings.

Beyond postings, the statute requires all employers, upon an employee’s request, to disclose the range of pay the employer offers for the position the employee currently holds. Employers also must maintain a record of each position held by an employee and the employee’s pay history in each position during employment and for three years after termination.

The law does not specify private remedies or penalties and allocates funding for the state Department of Labor to enforce the new law.

Next Steps

Employers recruiting in Maine may want to start preparing a defensible, good-faith “range of pay” that aligns with current incumbent pay, in light of expected employee requests for the pay ranges for current positions. Employers may also want to carefully review the recordkeeping obligations.

Meanwhile, the Virginia law creates a significant risk of litigation. Virginia employers may want to review their existing postings for compliance. The Virginia law, coupled with some regulatory attempts in New Jersey to define the breadth of a good-faith pay range, suggests increasing scrutiny of the sizes of pay ranges. Further, Virginia employers may need to train on salary history inquiries and start building a cure protocol, with a single advertised point of intake for job postings.

Finally, in light of both laws, this may be a good time to perform privileged pay equity analyses, conduct grade and level housekeeping, and monitor internal mobility to prepare for increased disclosure and litigation risks.

Ogletree Deakins’ Multistate Advice and Counseling Practice Group and Pay Equity Practice Group will continue to monitor developments and will provide updates on the Multistate Compliance, Pay Equity, and State Developments blogs as additional information becomes available.

In addition, the Ogletree Deakins Client Portal covers developments in Pay Transparency, including in Virginia and Maine, and in Salary History Bans, including the new Virginia law. Premium and Advanced subscribers have access to detailed information about these new laws. Snapshots and updates are available to all registered client users. For more information on the Client Portal or for a Client Portal Subscription, please reach out to clientportal@ogletree.com.

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Quick Hits

• Maine Governor Janet Mills recently signed a bill that updates the state’s existing substance use testing law to prohibit arbitrary drug testing in the workplace.
• The new provisions permit drug testing based on reasonable suspicion of impairment, criteria-based testing, and random testing based on neutral selection methods.
• The law will take effect on July 29, 2026.

The legislation updates Maine’s existing substance use testing law as follows:

• Employers are permitted to perform “criteria-based” testing.
• “Observable behavior” and “random testing” are defined.
• Employers are required to give employees and job applicants an opportunity to contest a “non-negative test result,” meaning “a test result that indicates the presence of a substance … above the cutoff level[,] but that has not been confirmed by a confirmation test.”
• Employers are required to ensure the testing facility and confirmation testing laboratory has the ability to test blood samples.
• Medical review officers are required to report test results to employers.
• Employers may comply with the requirements governing drug testing facilities to be considered a qualified testing laboratory to collect samples from employees.

In a departure from the earlier drug testing law, the updated law prohibits arbitrary drug testing for all employees and instead allows random, reasonable suspicion, and criteria-based testing. The law defines “random testing” as a neutral selection method by which all employees have an equal chance of being selected for testing. Criteria-based testing is defined to include testing based on set events unrelated to substance use, such as an employment anniversary or a promotion.

An employer with an approved drug testing policy still may require a specific worker to take a drug test if it has a reasonable suspicion of impairment, based on observable behaviors, including appearance, behavior, speech, and odor, that are usually associated with substance use. The employer must state in writing the facts supporting its reasonable suspicion that the employee is impaired and provide the statement to the employee prior to conducting the test. Notably, and consistent with the current law, reasonable suspicion cannot be based on information from an anonymous informant or information related to an employee’s off-duty drug use. The updated law permits reasonable suspicion testing following a single work-related accident if the employee’s observable behavior indicated impairment at the time of the accident.

The updated law indicates that an applicant or employee with a non-negative test result must be given an opportunity to speak with the medical review officer or laboratory representative if the applicant or employee believes the non-negative result is due to a legitimate medical explanation. If the medical review officer or laboratory representative determines that there is a legitimate medical explanation for the non-negative result, the result must be communicated to the employer as a “confirmed positive with a legitimate medical explanation.”

In addition, the law requires medical review officers to (1) review confirmed positive results with applicants and/or employees and (2) determine whether a legitimate medical explanation may explain it. This process may involve contacting the applicant or employee’s physician if necessary.

Following receipt of a confirmed positive test result or a refusal to submit to drug testing, employers must provide employees with the opportunity to participate in a rehabilitation program for twelve weeks (updated from six months), prior to discharging an employee, disciplining an employee, or changing an employee’s work assignments. The employer does not have to pay the cost of the rehabilitation program.

In Maine, employers cannot legally fire or discipline employees for legal, off-duty use of marijuana. They can fire or discipline employees for drug use, possession, or impairment at the workplace.

Maine employers seeking to perform drug testing of applicants or employees must first have a written drug testing policy approved by the Maine Department of Labor. To be approved, the  written drug testing policy must contain information about which jobs will be subject to drug testing, the substances for which the test screens, the cutoff levels for screening tests and confirmation tests, the consequences for a positive test result, the procedure for appealing a positive test result, and any opportunities for partaking in a rehabilitation program.

The Maine law does not apply to employers that are required to comply with federally mandated drug testing programs, such as for safety-sensitive jobs in transportation and law enforcement.

Next Steps

Employers in Maine may wish to review and update their drug testing policies and practices to comply with the updated law before July 29, 2026, and further to ensure their policies have been approved by the Maine Department of Labor. They may wish to carefully document their reasons for drug testing based on a reasonable suspicion of impairment, but this does not have to meet the higher legal standard of probable cause.

Employers also may wish to carefully document their reasons for firing or disciplining an employee for failing a drug test or refusing to take a drug test. Although legal protections exist for off-duty marijuana use, the law does not permit workers to possess, consume, or be impaired by drugs while on duty at the workplace.

Ogletree Deakins’ Portland office and Drug Testing Practice Group will continue to monitor developments and will post updates on the Drug Testing, Maine, and Workplace Safety and Health blogs as additional information becomes available.

Further information on state law requirements is available on the Ogletree Deakins Client Portal in the Drug and Alcohol Testing, Recreational Marijuana, and Medical Marijuana law summaries. Full law summaries and template policies are available for Premium and Advanced-level subscribers; Snapshots and Updates are available for all registered client users. For more information on the Client Portal or a Client Portal subscription, please reach out to clientportal@ogletree.com.

Aimee B. Parsons is a shareholder in Ogletree Deakins’ Portland 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

• The standard workweek in Mexico will decrease from forty-eight to forty hours, by two hours per year starting in 2027.
• A six-day schedule remains permissible.
• Noncompliance carries fines up to $586,550.00 Mexican pesos ($33,517.39 USD), with potential criminal implications under labor exploitation statutes.

The FLL amendment details what the Constitution provides and establishes additional employer obligations to support the gradual reduction of the workweek.

Key Changes Under the Federal Labor Law Amendment

Reduced weekly hours. The standard workweek will decrease to forty hours by 2030. The working week will reduce gradually by two hours per year to harmonize FLL with the constitutional amendment published on March 3, 2026. The schedule is the following:

• 2026: forty-eight hours
• 2027: forty-six hours
• 2028: forty-four hours
• 2029: forty-two hours
• 2030: forty hours

Rest days. Although the reduction to forty hours may suggest a five-day workweek with two rest days, the amendment preserves the right of employees and employers to schedule weekly hours by mutual agreement.

This means that a six-day schedule is still permissible, provided the weekly total does not exceed the applicable cap and the daily maximum (daily shift of eight hours, night shift of seven hours, and mixed shift of seven-and-a-half hours) is respected.

Overtime restructured. Overtime will be capped at twelve hours per week by 2030. These twelve hours may be spread over a maximum of four days per week, with no more than four hours of overtime worked on any single day (the four-day and four-hour limits are independent caps, not a multiplier). If an employee works beyond the twelve-hour weekly limit, the law requires the employer to pay those additional hours at 200 percent more than the regular hourly wage. Even at this rate, an employee may work no more than four additional hours.

Minors are prohibited from working overtime.

It is worth noting that the reform simultaneously reduces the standard workweek and expands the permitted overtime from nine to twelve hours, according to the following:

• 2026: nine extra hours
• 2027: nine extra hours
• 2028: ten extra hours
• 2029: eleven extra hours
• 2030: twelve extra hours

Electronic time tracking. The amendment requires employers to implement electronic time tracking for hours worked by each employee. The statutory deadline is January 1, 2027, but implementation is subject to criteria and guidelines to be issued by the STPS, which have not yet been released.

Noncompliance will range from MXN $29,327.50 to $586,550.00 (approximately USD $1,675.87 to $33,517.39).

No sector-specific exceptions. One aspect of the reform that has generated considerable discussion is the absence of transitional regimes for specific industries, something that recent reforms in other Latin American jurisdictions have included.

What Employers Must Take Into Account

Even though some obligations under this amendment depend on action by the Ministry of Labor and Social Welfare (Secretaría del Trabajo y Previsión Social (STPS)), employers may want to consider the following factors when preparing for when the amendment becomes fully enforceable.

• The amendment establishes a fine of 250 to 5,000 Units of Measure and Update (UMAs), which is equivalent to MXN $29,327.50 to $586,550.00 (USD $1,675.87 to $33,517.39), for employers that fail to comply with the provisions regarding overtime payment and work shift scheduling.
• Failure to comply with overtime limits and the payment of overtime may have criminal implications, as this is directly related to the latest reforms regarding the Human Trafficking Law.
• Mandatory electronic time tracking creates a documentary trail, and increased STPS inspection authority combined with the explicit linkage to anti-exploitation statutes means overtime noncompliance could escalate beyond a labor dispute into a criminal matter; however, this is still pending, and STPS needs to issue its regulations. To avoid noncompliance with the provisions of the amendment regarding the scheduling of the workweek, employers may want to ensure that they have sufficient evidence to demonstrate that they have agreed upon this with their employees.
• Employers that fail to comply with electronic time tracking requirements can be subject to a fine of 250 to 5,000 UMAs, which is equivalent to MXN $29,327.50 to $586,550.00 ($1,675.87 to $33,517.39 USD).

Preparing for Implementation

Given the reform’s gradual implementation, employers may want to approach implementation as a gradual compliance program rather than a one-time adjustment. In our experience, the areas below are where early action tends to be most beneficial:

First, and perhaps most urgently, employers may want to review and update internal work regulations (reglamento interior de trabajo), employment contracts, and overtime policies. Employers may want to ensure that any agreed-upon scheduling of weekly hours  is documented in writing, as the amendment places the burden of proof directly on employers.

Second, employers may also want to conduct internal diagnostics of actual hours worked in order to determine the actual steps that need to be taken.

Third, timekeeping systems capable of recording entry/exit times, ordinary and overtime hours, rest periods, and holidays, with data retention and auditability, are likely to be needed and may have a practical impact on data privacy notices.

Fourth, budgeting for each phase of the reduction, including overtime differentials, additional headcount requirements, and social security contribution increases, is another area that deserves attention early.

And finally, employers may want to conduct periodic reviews of shift structures, staffing, and compensation budgets as annual two-hour reductions continue through 2030 and overtime caps expand in parallel.

Ogletree Deakins’ Mexico City office will continue to monitor developments and will provide updates on the Cross-Border and Wage and Hour blogs as additional information becomes available.

Pietro Straulino-Rodríguez is the managing partner of the Mexico City office of Ogletree Deakins.

Natalia Merino Moreno is an associate in the Mexico City office of Ogletree Deakins.

María José Bladinieres is a law clerk in the Mexico City office of Ogletree Deakins.

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Quick Hits

• A lawful strike in Germany can supersede previously approved vacation, resulting in  an employee not receiving vacation pay for the strike period.
• Vacation from the previous year may expire if it is not taken during the carryover period; the employer’s special obligations to cooperate may be set aside if the vacation has already been requested and approved.

The Case—Vacation Approved, Strike Underway: Who Pays?

The employer, a recycling company, had employed the employee since July 1, 2021. Prior to the start of industrial action, it granted the employee recreational leave for the period from December 11, 2023, to December 15, 2023. However, starting on November 8, 2023, the employee participated in a lawful strike at the company, which continued without interruption until May 2024. During this time, he did not do any work. The employer did not pay vacation pay for the approved vacation period. During the strike, the employee received strike pay from the union (IG Metall). In a letter dated February 21, 2024, he claimed vacation pay and later filed a lawsuit (most recently: EUR 774.10 gross plus interest); alternatively, he subsequently requested five days of recreational leave.

The Decision—Primary Obligations Suspended: Vacation Entitlement Lapses

The LAG dismissed the appeal and confirmed that the employee was neither entitled to vacation pay nor—in the alternative—the retroactive granting of five days of vacation from 2023. The starting point is that the fulfillment of the vacation entitlement generally requires a declaration of release from work by the employer and the payment or unconditional promise of vacation pay. The court also cites the Federal Labor Court’s (Bundesarbeitsgericht (BAG)) case law (BAG, judgment of May 28, 2024 – Ref. No. 9 AZR 76/22), according to which the employer has initially fulfilled its obligations by setting the vacation period at the employee’s request, and subsequent events generally do not invalidate the suspension of the duty to work that has already been effected “for the purpose of performance.”

However, a decisive exception applies in the case of active participation in a lawful strike: participation in the strike supersedes the previously granted leave of absence. This is justified by the constitutionally protected status of industrial action (Art. 9(3) GG) and the legal consequence under labor dispute law that the mutual primary obligations arising from the employment relationship are suspended for the duration of participation in the strike (BAG, judgment of July 26, 2005 – Ref. No.1 AZR 133/04).

The consequence is the loss of the right to remuneration—and thus also the right to vacation pay—for the period during which the employee is on strike in the legal sense.

The LAG considered the participation in the strike to be undisputed. Following the call to strike, the employee did not report to work starting November 8, 2023, participated in the strike, and received strike pay. He also failed to demonstrate that he had terminated his participation in the strike during the vacation period vis-à-vis the employer and indicated his readiness to work; such a declaration might be necessary for the contractual obligations under the employment contract (and thus the basis for vacation “in kind”) to be reinstated. The recreational purpose of the vacation is not fulfilled by strike-related leave; a strike serves the pursuit of collective interests, not recreation.

The alternative claim was also unsuccessful. Vacation from 2023 had lapsed pursuant to § 7(3) of the Federal Vacation Act (Bundesurlaubsgesetz (BUrlG)) because it was not taken (at the latest) during the carryover period. The court rejected an extension due to the employer’s lack of cooperation because the employee had already applied for and been granted the vacation and, moreover—unlike in cases of long-term illness, for example—had in principle had the opportunity to take the vacation.

An appeal is pending before the BAG (Ref. No. 9 AZR 58/26).

Key Takeaways

During periods of industrial action, employers may want to clearly distinguish whether employees are actually taking vacation or are participating in a legal strike. In the case of active participation in a strike, the entitlement to vacation pay for the relevant period may lapse, even if vacation was previously approved. Clear communication and documentation processes are of practical importance, particularly when employees wish to “activate” vacation periods during ongoing strikes. Furthermore, the decision shows that vacation entitlements may, in principle, be subject to the rules of Section 7(3) BUrlG despite industrial action. An automatic prevention of forfeiture cannot be inferred from the strike situation.

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

Dr. Martin Römermann is a partner in the Berlin office of Ogletree Deakins.

Pauline von Stechow, a law clerk in the Berlin office of Ogletree Deakins, contributed to this article.

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Quick Hits

• EU member states Estonia, Malta, Lithuania, and Slovakia have released recent updates on their respective implementation of the EU Pay Transparency Directive.
• Delays are now expected for Estonia; meanwhile, Malta, Slovakia, and Lithuania are still on track to meet the 7 June 2026 deadline.
• The European Commission has previously stated that the date for implementation remains 7 June 2026.

Estonia

The Economic Affairs Minister for Estonia, Erkki Keldo, has declared that Estonia would rather pay a fine to postpone the EU’s pay transparency enforcement than increase the burden on national businesses. Keldo maintains that the reporting requirements of the EU Pay Transparency Directive will only increase the ‘administrative burden on entrepreneurs’ and, instead, the emphasis should be placed on explanatory work among employers and employees.

Following this statement, it can be assumed that Estonia will not meet the EU Pay Transparency Directive implementation deadline of 7 June 2026. No further updates have been confirmed at this time.

Lithuania

Lithuania remains on track to meet the 7 June 2026 deadline and has revised its draft legislation implementing the Directive. The Government approved an updated version on 18 March 2026. It is planned that the new requirements will become mandatory on 7 June 2026.

Under the current draft, each employer would be required to classify the jobs within their organisation into separate job categories based on the same or similar jobs and work of equal value using objective, gender-neutral criteria.

All employers, regardless of the number of employees, would be required to adopt a remuneration system and make a monthly submission of pay data to the State Social Insurance Fund Board (Sodra), specifically regarding their employees’ pay, working hours, and job categories. This data will subsequently be used to prepare gender pay gap reports.

If the draft is passed, from 7 June 2026, employees would have the right to receive information on their own average pay and that of other employees in the same job category, broken down by gender. Employers would also be prohibited from asking about a candidate’s pay history. Employers in Lithuania are already required to provide pay information in all job postings.

Malta

The Malta Employers’ Association (MEA) has made an official request to the government to postpone the transposition of the Directive. The MEA argues that, despite the rapidly approaching deadline, no draft of the Maltese implementing legislation has been published, leaving employers without the clarity needed to prepare for compliance.

The postponement would follow a growing number of EU countries that have announced delays with the June deadline. Sweden, for example, has already announced its intention to delay implementation and seek a renegotiation of the Directive, citing administrative burdens and insufficient flexibility in the current framework. The MEA aligns itself with these concerns, arguing that a postponement would allow time for a potential EU‑level review and for Maltese employers to prepare adequately once a draft law is available. If postponement goes ahead, Malta would join those countries awaiting the outcome of the requests and concerns raised at the European level. The MEA emphasises that such a move would not undermine the Directive’s goals but would instead ensure legal certainty and a more practicable implementation framework.

As of now, the European Commission has not issued any formal comment on the calls for postponement or review of the Directive. Member states requesting delays are awaiting clarity on whether the Commission will consider adjustments to the implementation timeline or framework.

Slovakia

Slovakia is at the forefront of transposition in line with the Directive’s deadline. The draft implementation text proposes a strict deadline: employers must have compliant pay structures in place by 31 July 2026, while the Ministry of Labour must publish analytical tools and methodologies by 30 June 2026. The text largely follows the Directive, with employers required to report pay data, grant employees the right to information, and ensure transparency during the recruitment process.

Employers with at least 150 employees must submit their first pay report by 7 June 2027, covering the period from 1 August 2026 to 31 December 2026.

For more information on employers’ obligations in Slovakia, please see our article of 15 April 2026, “EU Pay Transparency Directive Implementation in the Czech Republic and Slovakia.”

Staying Informed

Employers are encouraged to stay informed about the implementation process in their respective jurisdictions. Information and updates on the progress of the directive’s implementation across the European Union can be found using Ogletree Deakins’ Member State Implementation Tracker.

Ogletree Deakins’ London office, Cross-Border Practice Group, 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 Ogletree Deakins’ London office, contributed to this article.

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Quick Hits

• In Chao v. Hallmark Poultry Processors Ltd., the British Columbia Court of Appeal unanimously upheld the termination for cause of a long-tenured employee who continued working for several hours after learning his roommate had tested positive for COVID-19, in violation of a known workplace safety policy.
• The decision reinforces that a single serious breach of a clearly communicated safety policy can constitute just cause for dismissal without notice, particularly where the conduct poses real risks in a safety-sensitive industry.
• The case also illustrates that well-documented workplace policies, thorough early-stage investigations that record the employee’s own account, and consistent enforcement create a termination record capable of surviving successive layers of administrative and judicial scrutiny.

The decision offers a useful reminder that well-documented safety policies, consistently enforced, can withstand scrutiny at every level of administrative and judicial review.

The Facts

Ken Kua Yung Chao worked as a packer for Hallmark Poultry Processors Ltd.for more than six years. During the pandemic, British Columbia’s poultry processing industry experienced several COVID-19 outbreaks and shutdowns. In response, the company implemented a policy requiring employees to stay away from the workplace if they had been in contact with a symptomatic individual or a household member who had tested positive.

On September 28, 2021, Mr. Chao learned during his morning coffee break that his roommate (a fellow Hallmark Poultry Processors employee) had tested positive for COVID-19. Rather than leave the workplace, Mr. Chao continued working for another 3.75 hours, later explaining that he felt fine, was not symptomatic, and ultimately tested negative.

When he returned to work on October 4, Hallmark Poultry Processors dismissed him for cause.

A Long Road Through the Tribunals and Courts

Mr. Chao challenged his dismissal at every available stage. At each one, the result was the same.

The Employment Standards Branch found that Hallmark Poultry Processors had just cause, concluding that Mr. Chao had breached his duty to the employer and committed serious misconduct by violating a known policy during a pandemic that posed real risks to the industry.

The Employment Standards Tribunal’s Appeal Panel dismissed the appeal, finding no procedural fairness issues and no error on just cause.

At the reconsideration stage, Mr. Chao raised a new argument for the first time: that his supervisor had actually directed him to continue working after he disclosed his roommate’s positive test. The Reconsideration Panel rejected the evidence on two grounds. First, it was inadmissible under the Tribunal’s criteria for new evidence because it could have been raised earlier with reasonable diligence. Second, the claim was simply not credible: throughout the investigation and prior proceedings, Mr. Chao had consistently said he returned to work because he felt healthy, never mentioning any supervisor’s direction. His explanation that he “just forgot” to raise this critical fact was unpersuasive.

The Supreme Court of British Columbia on judicial review, and ultimately the Court of Appeal, agreed. The Court of Appeal confirmed that the applicable standard of review was patent unreasonableness—an exceptionally high bar requiring a decision to be “clearly irrational” or “evidently not in accordance with reason” or “so flawed that no amount of curial deference can justify letting it stand.” The Reconsideration Panel’s decision cleared that bar comfortably.

What This Means for Employers

Clear, written policies are a strong foundation. The outcome in Chao turned in significant part on the fact that Hallmark Poultry Processing had a defined COVID-19 policy and that Mr. Chao was demonstrably aware of it. Employers may want to ensure that any safety, conduct, or operational policy they intend to enforce “up to and including termination” are clearly articulated in writing and communicated to employees.

Documenting acknowledgment and awareness. A policy on paper is not enough. Employers may want to be able to prove the employee knew about the policy, through signed acknowledgments, training records, posted notices, or email communications.

Investigating thoroughly and recording the employee’s account early. One of the most compelling aspects of this case was Mr. Chao’s own consistent statements during the investigation that he returned to work because he felt fine were devastating to his credibility when he later tried to change his story. Employers may want to ensure the employee’s version of events is documented in detail at the earliest opportunity; a well-conducted investigation is not just a procedural formality—it builds the evidentiary record that may be tested through multiple layers of review.

Context matters—articulating the “why.” The Tribunal and courts considered the broader context of COVID-19 outbreaks in the poultry industry, which made the violation more serious than it might appear in isolation. When terminating for cause, employers may want to ensure they can explain not only what the employee did, but why it mattered—what risks the conduct created and what interests the policy was designed to protect.

Proportionality is always in play, but serious misconduct is serious misconduct. Just cause is a high standard, and employers bear the burden of proving it, but Chao reaffirms that a single serious act can justify dismissal without notice—even for a long-tenured employee—where the conduct strikes at the heart of workplace safety and the employer’s legitimate operational needs.

Late-raised evidence faces steep headwinds. Employees who fail to raise relevant facts during an investigation may find those facts excluded or discredited later. For employers, this reinforces the importance of giving employees a genuine, documented opportunity to tell their side of the story. This guards against procedural fairness challenges and locks in the evidentiary record.

The Bottom Line

Chao v. Hallmark Poultry Processors Ltd. is a straightforward case on its facts, but a powerful one in its implications. When employers invest in clear policies, consistent communication, and thorough investigations, termination decisions can withstand multiple rounds of administrative and judicial review. For employers in safety-sensitive industries, or any workplace where policy compliance is essential, the decision is a welcome affirmation that the system works when the groundwork is properly laid.

Ogletree Deakins’ Canada offices will continue to monitor developments and will post updates on the Canada, Cross-Border, and Workplace Safety and Health blogs as additional information becomes available.

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Quick Hits

• Oklahoma’s HB 3127 imposes a mandatory zero-tolerance drug and alcohol standard for safety-sensitive positions and replaces the previous broad employer-judgment standard with a specific list of qualifying duties.
• Employers now have expanded authority to act on positive marijuana tests under any compliant written drug and alcohol testing policy—not just for safety-sensitive roles.
• Employers still cannot take adverse action solely because someone holds a medical marijuana license.

Zero Tolerance for Safety-Sensitive Positions

The biggest change in HB 3127 is a mandatory zero-tolerance drug and alcohol standard for employees in “safety-sensitive positions.” Every applicant or employee in a safety-sensitive role is now subject to this standard, no matter what other testing policies the employer may have in place. Under the old law, safety-sensitive jobs were excluded from the ban on adverse action for a positive marijuana test. The new language goes further—employers are now effectively required, not just allowed, to enforce a zero-tolerance standard for these roles.

Revised Definition of ‘Safety-Sensitive Position’

HB 3127 also changes what counts as a “safety-sensitive position.” Previously, the term covered “any job that includes tasks or duties that the employer reasonably believes could affect the safety and health of the employee performing the task or others,” combined with a list of examples of on-the-job activities. While the broad employer judgement standard was removed, the nonexhaustive list of duties that render a position safety-sensitive remains with no revisions:

• Handling, packaging, processing, storage, disposal, or transport of hazardous materials
• Operating a motor vehicle, other vehicle, equipment, machinery, or power tools
• Repairing, maintaining, or monitoring the performance or operation of equipment, machinery, or manufacturing processes, the malfunction or disruption of which could result in injury or property damage
• Performing firefighting duties
• Operating, maintaining, or overseeing critical services and infrastructure, including electric, gas, and water utilities, power generation, or distribution
• Extracting, compressing, processing, manufacturing, handling, packaging, storing, disposing, treating, or transporting potentially volatile, flammable, combustible materials, elements, chemicals, or any other highly regulated component
• Dispensing pharmaceuticals
• Carrying a firearm
• Providing direct patient care or direct childcare

Because the statutory list is nonexhaustive, employers may want to review their current job classifications against the new criteria and focus on the specific activities employees perform to determine whether a position qualifies as safety sensitive. Some roles previously classified as safety-sensitive may no longer meet the definition, while others may now clearly fall within its scope.

Broader Drug Testing Authority for Employers

Under the pre-amended law, employers could act on a positive marijuana test only if the position involved safety-sensitive duties. HB 3127 broadens that: employers may now take adverse action based on any written drug and alcohol testing policy that complies with the Standards for Workplace Drug and Alcohol Testing Act. The HB 3127 also upgrades the prior language—which merely said the act would not “prevent” employers from having drug testing policies—to a stronger statement that the act does not “limit” an employer’s ability to implement and enforce written policies, including policies banning marijuana use in the workplace or while performing job duties.

No Change to Positive Test Threshold

HB 3127 does not change the standard for what counts as a “positive test for marijuana components or metabolites”: a result at or above the cutoff level set by the U.S. Department of Transportation (DOT) or Oklahoma law on being under the influence, whichever is lower. This continues to give employers an objective, easy-to-apply benchmark.

Stronger Workplace Protections for Employers

HB 3127 also clarifies that employers do not have to allow the use, possession, or influence of medical marijuana at the workplace or “while performing job duties”—replacing the phrase “during hours of employment.” This matters because “job duties” can extend beyond a fixed schedule, giving employers broader authority to enforce workplace rules.

The law does not adjust the remedies available to employees who challenge an employer’s action. Aggrieved applicants and employees may only pursue the remedies available under the Oklahoma Standards for Workplace Drug and Alcohol Testing Act, specifically 40 Okla. Stat. § 563. This exclusive-remedy provision helps employers manage litigation risk.

Core Employee Protections Remain Intact

Despite these changes, the law’s core employee protections remain in place. Employers still cannot take action against someone solely because they hold a medical marijuana license. And a positive marijuana test alone is still not enough—employers can only act if the employee lacks a valid license, uses or is under the influence of marijuana at work or while fulfilling job duties, or the employer is following a compliant written testing policy.

Next Steps

Employers may want to take the following steps prior to the November 1, 2026, effective date:

• Reviewing and updating written drug and alcohol testing policies to make sure they comply with the Standards for Workplace Drug and Alcohol Testing Act. Under HB 3127, an employer’s ability to act on a positive test now depends on having a compliant written policy, including but not limited to satisfying the notice requirements for a revised or new policy under the act. Unwritten or informal policies will not be enough.
• Auditing job classifications against the new list of safety-sensitive duties. Because the definition has shifted from a broad employer-judgment standard to a specific duties-based list, some classifications may need to change. This is critical, since safety-sensitive roles now carry a mandatory zero-tolerance standard.
• Confirming that drug testing cutoff levels match the threshold—the lower of the DOT cutoff or the Oklahoma standard for being under the influence. Employers may want to coordinate with testing laboratories as needed.
• Training HR staff, hiring managers, and supervisors on the updated rules, especially the ongoing ban on adverse action based solely on medical marijuana license status.

Finally, employers may want to determine how HB 3127 fits with existing policies, collective bargaining agreements, and any federal drug-free workplace requirements.

Ogletree Deakins’ Oklahoma City office and Drug Testing Practice Group will continue to monitor developments and will post updates on the Drug Testing, Oklahoma, Workplace Safety and Health blogs as additional information becomes available.

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DHS Reopens. On April 30, 2026, President Trump signed into law a funding bill that reopened the U.S. Department of Homeland Security (DHS) after the agency had been shut down for seventy-five days due to a funding lapse. The enacted legislation funds all of DHS’s subagencies, such as the Transportation Security Administration (TSA) and the Federal Emergency Management Administration (FEMA), through September 2026, but it does not provide funding for Immigration and Customs Enforcement (ICE) or U.S. Customs and Border Protection (CBP). Those agencies have been operating by using funds appropriated by 2025’s One Big Beautiful Bill Act, and Republicans plan to further fund ICE and CBP by using the reconciliation process, which would allow them to pass such legislation without any Democratic votes in the U.S. Senate.

EEOC General Counsel Nominee Withdraws. This week, the White House withdrew the nomination of Carter Crow to serve as general counsel of the U.S. Equal Employment Opportunity Commission (EEOC) after the management-side attorney pulled his name from consideration for the position. Crow was nominated in November 2025 but had yet to have a confirmation hearing in the Senate Committee on Health, Education, Labor and Pensions (HELP). The road from nomination to Senate confirmation is certainly often rocky and unpredictable. In the meantime, Catherine Eschbach continues to serve as acting general counsel.

SCOTUS Hears Challenge to TPS Rescission for Haiti, Syria. On April 29, 2026—its last scheduled day of arguments for its current term—the Supreme Court of the United States heard oral arguments in cases challenging then-secretary of homeland security Kristi Noem’s termination of Temporary Protected Status (TPS) for Haiti and Syria. The federal government argues that the applicable provision of the TPS statute renders Noem’s determinations to end the TPS designations unreviewable (the statutory provision reads, “There is no judicial review of any determination of the [Secretary] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection”). On the other hand, the challengers argue that their issue isn’t with Noem’s determination itself, but with the process she used to make the determination. For example, the challengers claim that Noem failed to consult with appropriate agencies (such as the U.S. Department of State) prior to making the determinations, which is a statutory requirement. They further argue that Noem based her determinations, at least in part, on the “national interest,” which is not a factor for determining whether to continue or terminate TPS status. Rather, they argue, a review of the “conditions in the foreign state” is what is required by the statute. The Court is expected to issue a decision in June.

Republican Senators Introduce Bill to Prohibit OSHA Heat Standard. Eight Republican senators, including the chairman of the Senate HELP Committee, Bill Cassidy (R-LA), have introduced the Heat Workforce Standards Act. The bill would prohibit the Occupational Safety and Health Administration (OSHA) from finalizing, implementing, or enforcing its 2024 proposal, “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings,” or any “substantially similar standard.” The bill follows on the heels of Chair Cassidy’s recent letter to then-Secretary of Labor Lori Chavez-DeRemer, raising concerns about the proposal, which is still being pursued by OSHA.

RIP, Vice President Barkley. Alben W. Barkley, vice president to Harry S. Truman, and former U.S. senator and congressman, died on April 30, 1956. A Democrat, Barkley had just finished delivering a speech at the Washington and Lee (W&L) University Mock Convention, a mock presidential nominating convention held every four years by the students of W&L, in Lexington, Virginia, when he collapsed on stage and died of a heart attack at the age of seventy-eight. Barkley began his political career by representing Kentucky in the U.S. House of Representatives from 1913 to 1927. During his time in the House, Barkley served on the Interstate and Foreign Commerce Committee, where he introduced the Howell-Barkley bill, a precursor to the Railway Labor Act of 1926. Before he was tapped as vice president for Truman’s second term, Barkley served as a U.S. senator from Kentucky, from 1927 to 1949, serving as Senate majority leader for ten of those years. During that time, Barkley was a staunch ally of President Franklin D. Roosevelt, and he was instrumental in passing New Deal legislation. Barkley also helped secure passage of the Hatch Act (limiting the political activities of federal employees and certain state/local employees), as well as the Lend-Lease Act, while opposing the Taft-Hartley Act of 1947. Barkley also holds some unique records as vice president:

• Barkley remains the oldest person to have served as vice president, both at the time of the start of his vice presidency (seventy-one years old) and at the end of his term (seventy-five years old).
• Barkley is the only vice president to have married while in office. He married his second wife, Jane Hadley Barkley, in November 1949. Barkley was seventy-one years old; Hadley was thirty-eight.

Barkley is the last Democratic vice president never to have received the party’s presidential nomination.