Quick Hits

• In Hillsborough County v. Giambrone, a Florida appellate court overturned a lower court’s unprecedented ruling that required a county to accommodate a firefighter-paramedic’s off-duty medical marijuana use after a positive random drug test.
• The court emphasized that the language in the parties’ collective bargaining agreement (CBA) and drug-free workplace policies must be carefully considered.
• The court also held that Florida’s medical marijuana framework does not: 1) create a private cause of action against an employer for wrongful discharge or discrimination; 2) by itself, create an affirmative accommodation mandate; or 3) prohibit an employer from enforcing stringent fitness-for-duty standards in a safety-sensitive setting.
• Forty states and Washington, D.C., have legalized medical marijuana, but state laws vary on workplace accommodations and restrictions on drug testing.

Recreational marijuana use remains illegal in Florida, but medical marijuana use is lawful for adults ages twenty-one and older with a valid Medical Marijuana Use Registry card for a qualifying medical condition. Increasingly, employees have sought to utilize the Americans with Disabilities Act (ADA) or the Florida Civil Rights Act (FCRA) to claim that their personal symptoms or limitations qualify as disabilities for which employers must accommodate medical marijuana usage.

Background

In February 2019, Angelo Giambrone, an emergency medical technician (EMT) for Hillsborough County’s fire department, tested positive for marijuana during a random drug test. He presented his employer with a valid medical marijuana card. He argued that his union contract permitted employees like him to present a medical marijuana card as evidence of a prescription medication authorized under state law, thereby providing a defense to an adverse employment action.

The county placed him on unpaid administrative leave and reported him to the Paramedic and EMT licensing board, which dropped its investigation based on his status as a medical marijuana cardholder.

Giambrone then sued, raising four claims: failure-to-accommodate under the FCRA, wrongful termination, failure to update the county’s drug-free workplace policy to comply with Florida’s constitutional amendment allowing medical marijuana, and breach of contract claim under the CBA. The county argued that a medical marijuana card does not exempt employees from complying with the CBA, the county’s drug-free workplace policy, and federal law, which bans marijuana use.

In December 2024, the trial court sided with Giambrone on every count. The Thirteenth Judicial Circuit Court of Florida ruled that the Florida Constitution requires a public employer to accommodate an employee’s off-duty, off-site medical marijuana use to treat a disability. This was in part because Giambrone’s EMT license was controlled by the state.

The opinion further pointed to the CBA’s language allowing employees to report the use of prescription medications authorized under both federal and state law upon testing positive on a drug test, finding that medical marijuana is akin to a prescription medication despite being illegal under federal law. It also entered a broad, forward-looking order that required the county to accommodate any employee who presented a medical marijuana card after a positive test, so long as there was no proof of on-duty use or impairment on the job.

Appellate Court Ruling

The Second DCA reversed in full, concluding that the trial court committed legal error on several important issues, and it remanded with instructions to enter judgment for the county on all counts.

The heart of the case turned on one key question. Was medical marijuana a “prescription” or “nonprescription medication” under the county’s drug-free workplace policy and CBA? The court said the medical marijuana was a nonprescription medication on both counts.

The CBA prohibited using, possessing, or being under the influence of a “drug” while at work, on county property, in a county vehicle, or while displaying a county logo. The appellate court noted that the CBA defined prohibited “drugs” to include substances that extended well beyond criminally prohibited substances. Importantly, the CBA specifically provided that medications detected on a positive drug test could be excused if they were either a medication prescribed under Florida’s pharmacy laws or an over-the-counter medication authorized for general distribution without a prescription.

The Second DCA noted a “prescription” required dispensing by a licensed pharmacist under Florida’s pharmacy laws, but medical marijuana does not move through that system. Rather, it is authorized by physician certification and dispensed only through licensed dispensaries under a different statute. Moreover, medical marijuana is not an over-the-counter medication because it is not available for general public use. Federal law criminalizes marijuana possession, and Florida law limits it to being dispensed from licensed dispensaries.

The court also addressed the recent federal move to reschedule marijuana from Schedule I to Schedule III, effective April 28, 2026. Because this case was governed by the law in place when the claims arose in 2019 and 2020, that development did not affect its analysis. The court indicated that Schedule III status would not help the employee because reclassification would not make Florida medical marijuana equivalent to an over-the-counter medication. It would still be limited to medical purposes, limited to users authorized by state law, and dispensed through licensed entities under a controlled regulatory framework.

The court contrasted that regime with drugs made available for general public distribution and use without individualized medical authorization. It also noted that Schedule III drugs generally remain subject to prescription-based dispensing rules under federal law. So, even if marijuana is Schedule III, it still would not be a medication authorized for general distribution and use without a prescription.

The court’s prescription analysis depended on Florida’s statutory structure. Medical marijuana is authorized by physician certification and dispensed through licensed dispensaries. Unless Florida’s medical marijuana system changed to make marijuana dispensed through pharmacists, Schedule III status alone would likely not make a medical marijuana card a “prescription” under the CBA at issue.

Finally, the appellate court rejected the trial court’s reading of Florida’s constitutional medical marijuana amendment. It found that nothing in Florida’s medical marijuana amendment requires an employer to accommodate on-site medical marijuana use in a place of employment. The trial court reasoned that, because the amendment only disclaims a duty to accommodate on-site use, employers must therefore accommodate off-site use. The Second DCA rejected that notion, concluding that the amendment’s language is a limitation clause, not a grant of employee rights against employers. It tells courts what the amendment does not require; it does not say what employers must do. Employers retain the ability to “establish, continue, or enforce” a drug-free workplace program or policy.

The Second DCA confirmed that Florida’s medical marijuana framework preserves employer discretion, rather than creating a new accommodation mandate. It found the medical marijuana statute does not require an employer to accommodate the medical use of marijuana in any workplace or an employee working while under the influence of marijuana.

The concurring opinion observed that Giambrone was a firefighter-paramedic who was subject to the statutory requirement of not being a convicted felon and maintaining good moral character. Thus, he could not maintain his firefighter certification while continuing to use medical marijuana, since such use was a federal felony. In addition, the essential functions of the job, which is a safety-sensitive position, indicated that his requested accommodation—off-duty medical marijuana usage—was not necessarily a reasonable request.

Practical Takeaways

Several questions remain open. The majority opinion stressed that its holding is narrow, tied to this specific CBA and policy. Other employers with different contract language may see different results. It is also unclear whether the Florida Supreme Court will take up this issue, or whether the legislature will revisit the statutes in light of continued litigation.

The federal rescheduling of marijuana to Schedule III may eventually reshape how courts analyze disability accommodation claims under the FCRA and ADA, even though it did not affect this case. Notably, the majority opinion in this case did not fully resolve the underlying FCRA claims, including whether Giambrone qualified as an individual with a disability entitled to accommodation. Florida employers should expect this area of law to keep developing, and may want to monitor both appellate decisions and any legislative action closely.

Even though the county ultimately won, the case shows where employer policies can be misread or challenged. Florida employers may want to review drug-free workplace policies along with CBA definitions to determine whether they utilize the terms “prescriptions” and “nonprescription medication” so that they track the proper statutory language, rather than looser terms that could be stretched to cover medical marijuana. Clear, consistently enforced policy language may help employers defend decisions involving medical marijuana use.

While a Florida medical marijuana card does not automatically make continued off-duty marijuana use a required workplace accommodation, Florida employers still may wish to engage in an interactive process to determine a reasonable accommodation, if any, when an employee is a medical marijuana cardholder.

Ogletree Deakins’ Drug Testing Practice Group and Florida offices will continue to monitor developments and will post updates on the Drug Testing and Florida blogs as additional information becomes available.

Information on state and federal marijuana laws, as well as drug testing requirements, is available on the Ogletree Deakins Client Portal. As new laws are enacted, the Client Portal will provide updates on the Florida Medical Marijuana Law Summary, the Florida Recreational Marijuana Law Summary, the Florida Drug Testing Marijuana Law Summary, and the Florida Lawful Off-Duty Conduct Law Summary. Template policies and full law summaries are available for Premium and Advanced 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.

Dee Anna D. Hays is a shareholder in Ogletree Deakins’ Tampa office.

Karen M. Morinelli is a shareholder in Ogletree Deakins’ Tampa office.

John C. Getty is of counsel in Ogletree Deakins’ Tampa 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

• DHS is proposing a $103,265 fee for every new fiscal year (FY) 2028 H-1B cap-subject petition on top of all existing fees.
• The fee would apply to all cap-subject employers, regardless of size.
• The fee would not apply to cap-exempt petitions (i.e., those filed by universities, nonprofit research organizations, and government research organizations) or to petitions to extend or amend existing H-1B status or to change an existing H-1B to a different employer.
• Public comments are due in late September 2026. If the rule is finalized, the fee will apply to cap-subject petitions filed in 2027. Significant legal challenges to the rule are anticipated.

Background

The proposed rule describes DHS’s authority to establish and collect fees sufficient to recover the costs of providing immigration services. Historically, U.S. Citizenship and Immigration Services (USCIS) fee rules generally recovered only USCIS’s costs. The proposal would adopt a novel interagency cost-recovery approach, using the fee to recover approximately $8.78 billion in identified costs across six federal agencies, including USCIS, the U.S. Department of Labor, U.S. Immigration and Customs Enforcement, the U.S Department of State, and others. Divided among 85,000 projected cap-subject petitions, those costs equal approximately $103,265 per petition. The proposed rule states that cap-subject H-1B employers are best suited to bear these added costs, rather than spreading them among all applicants or petitioners.

Analysis

The proposed fee would not affect existing H-1B petitions or beneficiaries already in H-1B status. It would apply prospectively to H-1B cap-subject petitions for fiscal year 2028 (calendar year 2027), including petitions filed on behalf of beneficiaries already in the United States, and would apply to quota-subject employers of all sizes.

Cap-exempt H-1B petitions, including those filed by nonprofit research organizations, governmental research organizations, and educational institutions, would not be subject to the fee. The fee would be separate from the prior $100,000 H-1B fee, which applied to certain petitions filed on or after September 21, 2025. The presidential proclamation establishing the $100,000 fee is set to expire on September 21, 2026, one year after its issuance, unless extended. A federal court in Massachusetts struck down the fee as an unlawful tax and vacated its implementing guidance on June 8, 2026. The administration’s appeal to the U.S. Court of Appeals for the First Circuit remains pending.

Next Steps

The proposed rule is not yet in effect. DHS published it on August 25, 2026, with a thirty-day window for public comments closing on September 24, 2026. After reviewing comments, DHS will decide whether to finalize, revise, or withdraw the rule. If the rule is finalized, the fee could apply to H-1B cap-selected petitions as early as April 1, 2027, unless litigation blocks its implementation. Given the recent vacatur of a similar $100,000 H-1B payment as an unlawful tax, the proposed fee is likely to face significant legal challenges.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments and will provide updates on the Higher Education and Immigration blogs as additional information becomes available.

For additional insight into the critical immigration issues facing employers today, please join our Virtual Immigration Insights Symposium on Wednesday, October 7, 2026, from noon to 2:30 p.m. ET. Register here.

This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ Administration Resource Hub.

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Quick Hits

• Spain published its draft Royal Decree on 4 August 2026, and Portugal published its draft proposal on 5 August 2026.
• Consultation for both drafts closed recently—24 August for Spain and 25 August for Portugal.
• Further legislation is expected to provide greater clarity on unaddressed provisions.

Despite being published within days of each other, the approaches taken by the two governments vary considerably. Both drafts have been open for relatively short consultation periods; however, that is not to say that they do not offer a helpful insight into how the respective governments plan to transpose the Directive.

Pre-Employment Obligations

As the legislation currently stands, Spain has not yet addressed starting pay or pay-range disclosure at the recruitment stage. This is deliberate and is likely to be the subject of a further consultation and/or draft legislation in due course.

Conversely, Portugal has been clear that applicants must receive their pay or pay range, based on objective gender-neutral criteria, before the employment contract is entered into, closely aligning with the Directive.

Transparency Obligations During Employment and the Right to Request Information

Proactive Disclosure of Pay Criteria

All employers in Spain must provide their staff, in a comprehensible and easily accessible manner, with information on the criteria used to determine pay and the pay levels applicable to different jobs or professional categories. Those criteria must be objective and gender-neutral. Employers with 50 or more workers must additionally provide information on the criteria for pay progression. This information must be kept up to date and be made available to workers whenever the criteria are amended.

In Portugal, employers must display in customary locations, or on their intranet, the criteria used to determine pay, pay levels, and pay progression. Companies with fewer than 50 employees are exempt from the obligation regarding pay progression information.

Both countries, therefore, require proactive disclosure of pay criteria and levels without the need for an employee request.

Right to Request Individual Pay Information

In both Spain and Portugal, workers may request pay information once per year and can expect a response within two months of receipt of the request. In Spain, workers have the right to receive written information on their individual pay and the average pay, expressed in annual and hourly terms and broken down by sex, for workers performing equal work or work of equal value. In Portugal, employees may also receive both individual and average pay level information, broken down by sex, for comparable groups.

The channels through which right-to-information requests are made also vary. In Spain, employees may request such information directly, through workers’ representatives where present, or through the Women’s Institute. While the first two options remain available for employees in Portugal, they may also bring requests through the Commission for Equality in Labour and Employment (CITE).

Pay Register and Pay Audit (Spain)

Under the existing (now amended) Royal Decree 902/2020, all employers in Spain, regardless of size, must maintain a pay register showing the arithmetic mean and median pay, broken down by sex, by each pay component, and by professional classification. Where the arithmetic mean or median of the total pay of one sex exceeds the other by 25 percent, the register must include a written justification. This is a separate and distinct threshold from the Directive’s 5 percent trigger if an employer meets the employee threshold for gender pay gap reporting (see below).

Spain also requires mandatory pay audits for employers with 50 or more workers. These audits must include job evaluation; identification and analysis of pay differences using at least three years of historical data; and preparation of an action plan to remedy any unjustified pay inequality, with a maximum implementation deadline of six months.

Ultimately, Spain is more prescriptive regarding job evaluation; the legislation details specific soft skills and factors to be considered by employers, including hardship, dexterity, thoroughness, isolation, financial responsibility, responsibility for the well-being of others, versatility, interpersonal skills, care skills, conflict-resolution skills, and organisational skills. Conversely, Portugal’s legislation aligns closely with the Directive’s broader language, which assesses four key factors: responsibility, effort, skills, and working conditions.

Gender Pay Gap Reporting

Both countries will require employers with 50 or more workers to report on the gender pay gap—a much lower threshold than the Directive requires. Pursuant to the Directive, employers with 250 or more workers must report annually, and those with between 50 and 249 workers must report every three years. The first reports are due by 7 June 2027 for employers with 150 or more workers and by 7 June 2031 for employers with between 50 and 149 workers.

In Spain, reports are submitted to the newly established Commission for Monitoring Pay Transparency, an interministerial tripartite body that will publish data in an easily accessible format and retain it for at least four years. In Portugal, reports are submitted to the designated data-processing authority, which will similarly publish data and keep it accessible for at least four years.

Enforcement of Unjustified Pay Gaps

Portugal has adopted a more active enforcement model than the Directive requires. Where an unjustified pay gap of 5 percent or more persists within a category of worker, the labour inspectorate notifies the employer to submit a joint pay assessment (involving employee representatives) within forty-five days, with corrective measures to be implemented within ninety days. Pay differences that the employer fails to justify are presumed to be discriminatory.

In Spain, unjustified pay gaps are addressed through the pay audit framework. Where inequality is identified, the employer must prepare an action plan with a maximum six-month remedy deadline. The Commission for Monitoring Pay Transparency collects and analyses the data, but it does not directly initiate enforcement in the manner of Portugal’s labour inspectorate.

Additionally, Spain retains its unique 25 percent register justification threshold for the arithmetic mean or median total pay gap between the sexes, sitting alongside the Directive’s 5 percent reporting trigger. The Portuguese legislation aligns solely with the Directive’s 5 percent joint pay assessment trigger.

Sanctions

Portugal’s draft legislation provides tiered sanctions for noncompliance (“very serious,” “serious,” or “minor,” depending on the obligation breached). For repeated infringement, ancillary sanctions include withdrawal of tax and financial incentives, loss of public benefits, disqualification from public procurement for up to two years, and mandatory training. Spain’s draft relies on its existing labour inspection and sanctions framework and does not introduce any new specific penalties.

Current Status and Next Steps

Neither piece of legislation has a confirmed implementation date, as both are subject to the parliamentary process. Following the closure of the consultation periods, there may be more changes and, one hopes, more clarity on timing.

Information and updates on the progress of the Directive’s implementation across the European Union can be found using the Ogletree Deakins’ EU Pay Transparency Directive 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.

Mai Barry, a paralegal in Ogletree Deakins’ London office, contributed to this article.

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Quick Hits

• A California appellate court reinstated a $13.1 million jury verdict in a gender discrimination case, rejecting trial court limits on noneconomic damages.
• The court found the trial court had erroneously found a cap on damages for noneconomic damages, even when limiting claims to “usual” distress.
• The court further held that witnesses are competent to testify to their own retirement plans to support future economic damages.

In Glick v. City of Los Angeles, the California Court of Appeals, Second Appellate District, found the “trial court abused its discretion by capping a jury’s damages for what the trial court called “garden-variety emotional distress,” and “erroneously” rejected the plaintiff’s own testimony about future economic damages.

Background

The case involved an internal investigation of police officers stemming from allegations made by an individual arrested on suspicion of driving under the influence of alcohol (DUI). The suspect had alleged mistreatment and that officers failed to request medical attention in a timely manner. Two male police officers who were investigated and disciplined, Stephen Glick and Alfred Garcia, alleged that the department treated them differently from female officers involved in the arrest. They filed a lawsuit alleging gender discrimination and retaliation under California’s Fair Employment and Housing Act (FEHA).

A jury awarded Glick $8,621,358 (including $5 million in past noneconomic damages, $3 million in future noneconomic damages, and $621,358 in future economic damages) and Garcia $4.5 million (including $3 million in past and $1.5 million in future noneconomic damages). The trial court conditionally granted a new trial unless Glick accepted a reduction to $250,000 and Garcia to $125,000. Both plaintiffs rejected the remittitur.

Decision

The Second Appellate District reversed and reinstated the original jury verdicts in full. First, the court held that the trial court improperly set a fixed standard or judicial cap for noneconomic damages. Even when plaintiffs stipulate under Code of Civil Procedure section 2032.320 “that no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed,” damages are not limited to “usual” mental and emotional distress without expert testimony.

The appellate court said the trial court had effectively treated such a stipulation as a ceiling on damages. Further, the appellate court emphasized that emotional distress within jurors’ common experience requires no expert testimony, and a jury’s assessment of the severity and duration of that distress is entitled to deference.

Second, the court held that Glick was competent to testify about how the city’s allegedly discriminatory actions changed his plans to retire at fifty years of age rather than fifty-five. This testimony, combined with a forensic economist’s analysis, substantially supported the $621,358 future economic damages award. The trial court erred in considering such testimony inadmissible, “confusing” credibility with admissibility. Even the possibility of Glick changing his mind and receiving “‘a windfall’ or ‘double recovery’ did not render his testimony inadmissible.”

Key Takeaways

This decision may prompt employers to reassess their potential exposure to damages in FEHA litigation. The Glick decision indicates that “garden-variety” emotional distress claims are not subject to a cap on damages. Employees who forego a mental health expert and limit their claims to the “usual” emotional distress experienced by someone subjected to discrimination are not, as a matter of law, limited to modest damages. Employers defending these cases may no longer be able to rely on a section 2032.320 stipulation as a practical damages ceiling, and early assessments may want to account for the possibility that a jury may find plaintiffs sympathetic enough, even without supporting medical evidence.

At the outset of any litigation, employers may want to build up affirmative evidence to challenge a plaintiff’s claimed emotional distress. Evidence regarding the causation of any such distress and the presence of any alternative stressors, as well as the plaintiff’s overall credibility, is key. Additional means of discovery, including targeted interrogatories, depositions of percipient witnesses to the plaintiff’s claimed emotional distress, and subpoenas to any relevant healthcare providers are also vital, and may help lay the foundation to compel a mental examination notwithstanding any proposed stipulation.

Additionally, when considering a section 2032.320 stipulation, it may be worthwhile to negotiate additional terms designed to constrain the scope of emotional distress claims at trial. Such negotiations can help narrow the scope of the claimed emotional distress and further establish a record that may support motions in limine, jury instructions, or even appellate challenges.

Further, with the appellate court accepting the officer’s testimony to his retirement plans as evidence of future economic damages, employees may feel emboldened to testify about how discrimination disrupted their career and retirement plans without corroborating documentary evidence. Employers may not be able to rely on admissibility objections to such testimony.

Finally, the underlying facts underscore the litigation risk created by inconsistent internal investigations. The jury found that the alleged differential treatment of male and female officers provided compelling evidence of discriminatory animus. Employers may wish to ensure that workplace investigations apply consistent standards regardless of the protected characteristics of the employees involved.

Ogletree Deakins’ California offices and Workplace Investigations and Organizational Assessments Practice Group will continue to monitor developments and will provide updates on the California, Employment Law, and Workplace Investigations and Organizational Assessments blogs as additional information becomes available.

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Quick Hits

• A federal court in Rhode Island vacated grant conditions imposed on nonprofit organizations serving unhoused individuals and survivors of domestic violence and sexual assault that required certification of compliance with executive orders targeting DEI and gender ideology.
• The court ruled the government-imposed grant conditions were arbitrary and capricious, finding the agencies had failed to provide a reasoned explanation for and consider the grantees’ reliance interests on contradictory compliance obligations.
• The ruling has implications for similar agency actions to enforce the Trump administration’s executive orders and policy priorities. The decision is the latest in a series of federal court rulings scrutinizing agency implementation of the administration’s anti-DEI policies.

In Rhode Island Coalition Against Domestic Violence v. Kennedy, U.S. District Judge Melissa R. DuBose found that the grant conditions restricting DEI initiatives were arbitrary and capricious in violation of the Administrative Procedure Act (APA). The judge granted summary judgment in favor of nearly two dozen organizations serving unhoused individuals and survivors of domestic violence and sexual assault that challenged the conditions under the APA.

The conditions required grant recipients to certify compliance with Trump administration executive orders aimed at eliminating unlawful DEI, including Executive Order (EO) 14168, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government,” and forbade recipients from using federal funds to promote “gender ideology” as defined under the EO. HHS specifically required recipients to certify that “complying with [federal antidiscrimination] laws is a material condition of receiving federal funding streams” and that “[r]ecipients are responsible for ensuring subrecipients, contractors, and partners also comply.”

The plaintiff groups alleged the conditions and certification requirements were unlawful and required them to certify to vague, “ill-defined” terms in the face of severe legal consequences, including the threat of False Claims Act (FCA) liability, if the government later deemed them noncompliant. They argued the conditions would thus force them to dismantle staff training, inclusive hiring practices, culturally specific programming, and other DEI-related activities.

‘Arbitrary and Capricious’ Conditions

Judge DuBose ruled that the grant conditions were arbitrary and capricious for three reasons. First, Judge DuBose found that the administrative record from HUD and HHS offered “no explanation” as to why the new conditions were imposed “beyond statements suggesting they were executed for the purpose of aligning with the executive branch’s E.O.’s.” Second, she found that the agencies had entirely failed to consider the serious reliance interests of grant recipients that had built programs around preexisting grant terms. Third, she found the agencies had neglected “important aspects of the problem,” including how grantees could simultaneously comply with contradictory obligations—such as a directive to avoid “gender ideology”—while HUD’s own regulations required them to serve individuals in accordance with their gender identity.

Importantly, the judge granted summary judgment to the organizations and vacated the conditions nationwide, not limiting her ruling to the named plaintiffs. However, the judge declined to grant the organizations’ request for a permanent injunction to block such conditions from being imposed going forward.

What It Means for Employers

The ruling has implications for similar agency actions to enforce Trump administration executive orders targeting unlawful DEI and seeking to define sex as binary and immutable, and requirements that private employers certify compliance under penalty of the FCA. Specifically, the judge found that the agencies “failed to reasonably support their decision to enact them beyond citing the various implicated E.O.s.,” suggesting that agencies’ desires to execute the president’s policy priorities are, alone, insufficient under the APA to justify grant conditions.

However, the judge did not find that the grant conditions, particularly the certification requirements, were categorically unlawful. The ruling indicates that agencies must provide reasoned explanations, consider reliance interests, and address practical compliance challenges before imposing them. The agencies could seek to impose the same or similar restrictions by conducting a more deliberative process and with a more robust administrative record, particularly one that more adequately considers the recipients’ reliance interests.

In addition, the ruling highlights how some courts have viewed the FCA certification requirements and arguably vague terms in the EOs are problematic for compliance. The court found that the recipients could not reasonably understand their obligations.

Outside of grants, this ruling may have implications for Executive Order 14398 (issued March 26, 2026), which, among other things, established a contractual compliance and monitoring framework for federal contractors—specifically prohibiting “racially discriminatory DEI activities” in contracting and requiring a new Federal Acquisition Regulation (FAR) contract clause. The Federal Acquisition Regulatory (FAR) Council issued implementation guidance on April 17, 2026, directing agencies to insert the clause in new and existing contracts. However, a group of nineteen states and the District of Columbia filed a lawsuit in June 2026 challenging the federal government’s rollout of EO 14398.

Analogous to the Rhode Island Coalition Against Domestic Violence case, that complaint asks that the FAR Council and other agency implementing actions be set aside because, “If the defendants had followed the required procedures, the plaintiff States could have alerted the FAR Council and other agencies to the myriad problems with the FAR Council memorandum and agency actions as currently formulated, and the FAR Council and other agencies could have addressed those problems.” It will also be interesting to monitor any future litigation challenging regulatory processes as agencies, including the Office of Federal Contract Compliance Programs OFCCP and the U.S. Equal Employment Opportunity Commission (EEOC), seek to quickly implement executive orders and administration priorities.

Next Steps

Employers may want to take the opportunity to audit their DEI programs for legal defensibility. Rather than a permanent reprieve, this decision may serve to guide agencies toward better-supported processes and rationales as they engage in rulemaking in accordance with the Trump administration’s priorities. Indeed, the next round of agency action, if it comes with reasoned analysis and proper process, could survive judicial review where this one did not. Further, as mentioned, employers may want to monitor parallel developments, especially if they are federal contractors or subcontractors or receive federal funds.

Ogletree Deakins’ Diversity, Equity, and Inclusion Practice Group, Government Contracting and Compliance Practice Group, and Workforce Analytics and Compliance Practice Group will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Ethics / Whistleblower, Government Contracting and Compliance, and Workforce Analytics and Compliance blogs as additional 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.

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Quick Hits

• USCIS has revised its policy manual section on the public charge standard ahead of the September 18, 2026, effective date.
• The new policy asks whether an adjustment of status applicant is likely, at any time, to depend on the government for basic needs such as shelter, food, or healthcare, meaning likely to rely on any means-tested public benefit.
• The guidance applies only to adjustment of status applications, covering both employment-based and family-based applicants subject to the public charge ground of inadmissibility.

Under the Immigration and Nationality Act (INA), an applicant for a visa, admission, or adjustment of status is inadmissible if the reviewing officer believes an individual is likely at any time to become a public charge. The public charge ground of inadmissibility applies to any noncitizen applying for a visa to travel to the United States (temporarily or permanently), for admission at a port of entry, or for adjustment of status to that of a lawful permanent resident. However, USCIS clarifies that the new policy manual guidance applies only to those applying for Application to Register Permanent Residence or Adjust Status (Form I-485). The policy manual guidance does not apply to applicants for admission at ports of entry adjudicated by U.S. Customs and Border Protection (CBP), or noncitizens applying for nonimmigrant and immigrant visas through the U.S. Department of State. Additionally, it does not apply to the adjudication of adjustment of status applications by the Executive Office of Immigration Review (EOIR) of the U.S. Department of Justice (DOJ).

The public charge ground of inadmissibility is based on the longstanding policy that noncitizens should not be dependent on public benefits to meet their basic needs (i.e., shelter, food, or healthcare). The INA does not define “public charge,” and this has historically been defined through policy guidance and rules. As previously reported, under the Biden-era 2022 rule, officers were limited to seven enumerated factors when determining if an applicant is more likely than not to become a public charge: age, health, family status, financial status, education/skills, affidavit of support, and receipt of specified benefits. The new guidance builds on the Biden-era rule and allows officers to consider a broader variety of factors, including:

• factors considered under the 2022 rule, including age, health, family status, financial status, education/skills, affidavit of support, and receipt of specified benefits;
• receipt of and dependence on any means-tested public benefit, including both cash and noncash benefits (examples include, but are not limited to cash assistance, public or assisted housing, financial aid for postsecondary education, food assistance, government-funded health coverage, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit); and
• any factors the officer determines are relevant to public charge (e.g., the noncitizen’s willingness and ability to work, the noncitizen serves as a primary caregiver within his or her household, the noncitizen is an active-duty servicemember or spouse of an active-duty servicemember, or the noncitizen was the victim of a crime, domestic violence, or other adverse circumstances).

The new guidance considerably broadens an officer’s discretion in determining if a noncitizen is considered a public charge. Newly relevant noncash, means-tested benefits include:

• Medicaid;
• the Children’s Health Insurance Program (CHIP),
• Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), and
• the Supplemental Nutrition Assistance Program (SNAP).

Earned benefits indicated in a noncitizen’s household income are not considered means-tested public benefits, such as:

• Title II Social Security benefits,
• government pension benefits,
• unemployment insurance payments, and
• veterans’ benefits.

Officers will review public charge factors based on a “totality of the circumstances” analysis. The new policy guidance grants officers wide latitude, which USCIS acknowledges may result in divergent outcomes from one adjudicator to the next, including inconsistent requests for evidence issued on similar facts.

USCIS maintains that no single factor controls the outcome, with the exception that an insufficient Form I-864 Affidavit of Support, where required, can be dispositive on its own. The affidavit of support is generally required for family-based adjustment of status applications. When officers decide in their discretion to consider sufficiency of a Form I-864, they should give it weight based on the likelihood that the sponsor will actually provide the mandated financial support to the sponsored noncitizen. In assessing that likelihood, officers may consider:

• the sponsor’s relationship to the sponsored noncitizen, including whether the sponsor lives with or intends to live with the sponsored noncitizen;
• whether the sponsor has provided the statutorily required amount of support to any noncitizen(s) he or she has sponsored in the past or is currently sponsoring;
• the degree to which the sponsor’s annual income, assets, and resources exceed the minimum level required by the statute;
• whether the sponsor is currently receiving means-tested public benefits;
• whether the sponsor has received a fee waiver from USCIS for an immigration benefit request; and
• the sponsor’s financial history, including a history of bankruptcy or failure to meet his or her financial responsibilities.

Next Steps

The new guidance applies only to Form I-485 Application to Register Permanent Residence or Adjust Status filed on or after September 18, 2026. Any means-tested public benefit sought or received on or after September 18, 2026, may be weighed in a public charge determination and may impact the outcome of the Form I-485 application. Benefits sought or received before that date remain governed by the 2022 rule’s narrower cash-assistance and institutionalization standard.

To learn more about this development and other critical immigration issues facing employers today, please join our Virtual Immigration Insights Symposium on Wednesday, October 7, 2026, from noon to 2:30 p.m. ET. Register here.

Ogletree Deakins’ Immigration Practice Group will continue to monitor developments and will post updates on the Immigration blog as additional information becomes available.

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Quick Hits

• The U.S. Court of Appeals for the Third Circuit held in an August 2026 ruling that whether in-person teaching was an “essential function” of a professor’s job responsibilities was fact-dependent and, thus, an issue for resolution by a jury.
• Employers retain the right to choose among reasonable accommodations and need not grant an employee’s preferred accommodation where alternative accommodations are effective.
• Declaring that all remote work requests fundamentally alter the job may undermine an employer’s claim that it engaged in a good-faith interactive process, but may not by itself establish a failure to accommodate as a matter of law.

Background

In 2021, following the COVID-19 pandemic when all teaching was done remotely for some period, Kutztown University in Pennsylvania reopened its campus and instituted a policy requiring in-person teaching. An associate professor with an autoimmune disorder requested an accommodation of teaching remotely for four consecutive semesters. Her request for the first three semesters was denied due to the university’s blanket determination that remote teaching constituted a “fundamental alteration” of the university’s academic program, although the university’s reasonable accommodations policy required individualized assessments.

For the third semester, the university offered to let the professor teach behind a plexiglass podium, wearing a plexiglass face shield. For the fourth semester, the university offered a more extensive solution: the podium, a separate classroom entrance, limited student capacity, and enhanced air filtering. The professor rejected both accommodations, insisting that only remote instruction could adequately protect her.

The professor sued the university, including for violation of her rights under Section 504 of the Rehabilitation Act, which is the public-sector equivalent to the Americans with Disabilities Act (ADA). A federal district court granted summary judgment largely in the professor’s favor, finding no disputes of material fact under the applicable legal standards. The university appealed the district court’s ruling to the Third Circuit.

Legal Framework

Both the Rehabilitation Act and the ADA prohibit discrimination against qualified individuals with a disability. A “qualified individual” is one who can perform the essential functions of the job with or without reasonable accommodation. The U.S. Equal Employment Opportunity Commission (EEOC), which enforces both laws, has issued guidance indicating various factors may be considered in determining whether a function is essential, including the employer’s judgment, but also (as relevant here) written job descriptions and the actual work experience of those in the job.

Under both laws, an employer must provide reasonable accommodation, unless the accommodation would impose an undue hardship, meaning a significant cost or difficulty. Determining the appropriate accommodation involves a good-faith interactive process between the employer and employee.

The Third Circuit’s Ruling

The Third Circuit vacated most of the lower court’s summary judgment ruling and remanded the case for trial, finding disputes of material fact on several key issues. It affirmed summary judgment on one issue in the university’s favor—that the fourth semester accommodation was reasonable as a matter of law. Among the court’s key points:

• Whether a function is essential may be a fact-specific determination—at least in the Third Circuit. The Third Circuit took the position that “the essential function determination is a factual issue that ‘must be decided by a jury.’” It further noted the dueling facts here: although the university asserted that in-person presence was essential, there was no written policy to that effect, and the professor had taught some classes remotely for over a decade.
• A blanket denial of the requested accommodation is not helpful, but may not be determinative. Although the district court found the university’s “blanket policy” prohibiting remote work to violate the law, the Third Circuit disagreed. Rather, like the essential function analysis, it found the issue to be a factual one that should be left to the jury to resolve.
• An employee is not entitled to his or her requested accommodation. As the Third Circuit noted, “an employer’s obligation is only to provide an accommodation that is reasonable in and of itself—not the accommodation that ‘is the most reasonable or the employee’s prefer[ence].’” (Emphasis in the original.) The Third Circuit found that the offer to extensively modify the classroom in the fourth semester was reasonable as a matter of law, even if it was not the accommodation desired by the professor.

The Third Circuit’s jurisdiction includes Delaware, New Jersey, and Pennsylvania.

Key Takeaways

This decision offers practical guidance for employers managing remote work accommodation requests:

• Essential function determinations may need to be resolved by a jury, at least in the Third Circuit. At the same time, employers may want to establish clear evidence as to how and why in-person attendance is an essential function of the job. Past practice may be relevant to this assessment.
• Employers may want to ensure they are conducting individualized assessments for every request, particularly employers that have promulgated policies stating that they will do so.
• An employee’s requested accommodation may not be the only option. Where there are several effective reasonable accommodations, the employer may choose which one to implement, even if it is not the employee’s preferred one or not the most effective choice.

Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will post updates on the Delaware, Higher Education, Leaves of Absence, New Jersey, Pennsylvania, and Return to Work blogs as additional information becomes available.

Leslie A. Lajewski is a shareholder in Ogletree Deakins’ Morristown office.

Fiona W. Ong is a shareholder in Ogletree Deakins’ Baltimore 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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Third Republican Officially Joins NLRB. On August 17, 2026, James R. Macy was sworn in as a member of the National Labor Relations Board (NLRB) for a term that will conclude on August 27, 2030. Macy, a Republican, and David M. Prouty, a Democrat, were both confirmed by the U.S. Senate on August 7, 2026. Approximately eighteen months into the Trump administration, the Board is finally poised to revisit Biden-era cases that largely favored labor unions. How quickly policy changes might come about depends on a variety of factors—in particular, whether cases on the Board’s current docket involve issues that are ripe for reversal.

OFCCP Finalizes Repeal of Affirmative Action Regulations. Today, the Office of Federal Contract Compliance Programs (OFCCP) published a final rule rescinding the regulations that implemented Executive Order 11246. These regulations required federal contractors to adhere to contractual nondiscrimination provisions and to develop and maintain a written affirmative action plan (AAP) for each of their establishments. However, on January 21, 2025, President Trump issued Executive Order 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” which rescinded Executive Order 11246, thereby providing “a standalone and sufficient basis for rescinding regulations promulgated solely to implement that Order.” This week’s action, which goes into effect on October 26, 2026, finalizes a proposed rulemaking that was issued on July 1, 2025. The final rule does not impact federal contractors’ obligations under Section 503 of the Rehabilitation Act or the Vietnam Era Veterans’ Readjustment Assistance Act. Lauren B. Hicks, Christopher J. Near, and Zachary V. Zagger have the details.

Unions, Education Groups Challenge “Duration of Status” Regulation. This week, labor unions and educational organizations filed a legal challenge to the U.S. Department of Homeland Security’s / U.S. Immigration and Customs Enforcement’s (ICE) July 17, 2026, final rule that eliminated the “duration of status” framework for nonimmigrant students and exchange visitors and instead installed a “period of stay” requirement of four years. The complaint, filed in the U.S. District Court for the District of Massachusetts, alleges that the rule is arbitrary and capricious under the Administrative Procedure Act because ICE failed to conduct an adequate cost-benefit analysis. In particular, the complaint alleges that ICE “entirely refused to quantify costs to stakeholders or the economy writ large caused by a decline in enrollment of international students.” The complaint further alleges that ICE “made no effort to estimate the purported benefits of the Final Rule” while also failing to rationally explain why the elimination of duration of status would address national security concerns, the agency’s purported rationale for the change.

USCIS Issues Public Charge Inadmissibility Guidance. On August 18, 2026, U.S. Citizenship and Immigration Services published new policy guidance “explaining how the agency will determine whether an alien applying for adjustment of status to that of a lawful permanent resident is likely at any time to become a public charge.” The new guidance implements the July 20, 2026, final rule that removed the public charge determination from governance via regulation, which limited hearing officers’ ability to “consider any other factors or information relevant to determining an alien’s likelihood at any time of becoming a public charge in the totality of the alien’s circumstances.” Pursuant to the Immigration and Nationality Act, hearing officers must consider an applicant’s age, health, family status, assets, resources, and financial status when making public charge determinations. Under the new guidance, in addition to these factors, hearing officers are instructed to consider “any other factor relevant to assessing the alien’s likelihood at any time of becoming a public charge, including the alien’s receipt of means-tested public benefits, such as cash assistance for income maintenance, housing assistance, food stamps, financial aid for college, or any other similar benefit.” The guidance becomes effective on September 18, 2026.

A Proclamation to End the War. On August 20, 1866—160 years ago this week—President Andrew Johnson brought about a legal end to the American Civil War by issuing “Proclamation 157—Declaring that Peace, Order, Tranquillity, and Civil Authority Now Exists in and Throughout the Whole of the United States of America.”

Although most military hostilities had ceased on April 9, 1865, at Appomattox Court House, Virginia, when Ulysses S. Grant, lieutenant general of all U.S. armies, accepted the surrender of Confederate General Robert E. Lee and his Army of Northern Virginia, reassertion of federal authority over the former Confederate states proved challenging. As pockets of resistance were quelled, President Johnson issued proclamations—first in June 1865 and again in April 1866—acknowledging an end to the rebellion in various states. But Texas remained in turmoil for several more months until President Johnson declared, via the proclamation, “that the insurrection which heretofore existed in the State of Texas is at an end … and that peace, order, tranquillity, and civil authority now exist in and throughout the whole of the United States of America.”

Congress subsequently confirmed August 20, 1866, as the official end of the Civil War by passing legislation to extend soldiers’ pay “for three years from and after the close of the rebellion, as announced by the President of the United States by proclamation, bearing date the twentieth day of August, eighteen hundred and sixty-six.”

Quick Hits

• The SEC is forming a new enforcement unit to combat fraud in accounting and financial reporting.
• The new unit signals the agency’s intent to heighten regulatory scrutiny of accounting, financial reporting, and auditing practices.
• Whistleblower information may play an important role in bolstering the Division of Enforcement’s efforts in this area.

The SEC announced it will establish a new unit within the Division of Enforcement to pursue accounting and financial reporting fraud cases, as well as general misconduct in the accounting and auditing areas. The Financial Reporting and Accounting Unit will be staffed by attorneys and accountants with expertise in financial reporting, accounting, and auditing in securities regulation.

Accounting and financial reporting misconduct includes the intentional manipulation, falsification, or omission of financial records to deceive investors, lenders, or regulators. For example, it could involve misrepresenting revenue, debt, expenses, or assets.

Key Takeaways

• The establishment of the new unit signals prioritization of these types of matters by the Division of Enforcement. Information from whistleblowers submitted via the SEC’s Office of the Whistleblower has been an important tool in enforcement actions and will likely bolster the division’s efforts in this area.
• Because of expected enhanced scrutiny in this area, companies may wish to ensure internal reporting systems are robust to capture internal reports related to accounting and financial reporting misconduct or fraud.
• Companies may wish to ensure management is trained in identifying and appropriately escalating concerns related to accounting and financial disclosures.
• Standard practices include making sure to communicate to an internal reporter that the organization is taking their report seriously. Many times, employees report to a regulator when they believe their concerns have not been heard or taken seriously internally.

Ogletree Deakins’ Whistleblower and Compliance Practice Group and Financial Services Industry Group will continue to monitor developments and will post updates on the Employment Tax and Ethics/Whistleblower blogs as additional 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.

Jane A. Norberg is a shareholder in Ogletree Deakins’ Washington, D.C., 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 Hill v. 1359768 Ontario Inc. (B&B Towing) (2026 ONCA 577), the Ontario Court of Appeal unanimously held that a trial judge did not err in finding that an employment contract was not frustrated where an employee’s physical limitations were temporary, could be accommodated, and did not prevent the employee from performing the essential duties of his position within a reasonable time.
• However, the court allowed the appeal in part on the issue of damages, holding that the trial judge erred in awarding more than $125,000 in damages for the loss of use of a company tow truck and cellphone that were work tools rather than personal employment benefits.

The decision reinforces the high threshold employers must meet to establish frustration and provides a practical framework for distinguishing compensable fringe benefits from mere employment tools in damages assessments.

The Facts

Jack Hill worked for B&B Towing for approximately seventeen years as its “road boss,” managing fifteen to twenty-seven drivers, ordering parts, maintaining vehicles, handling complaints, hiring and discharging employees, and overseeing administrative work; physical towing comprised about 10 percent of his duties. After emergency surgery in May 2020, he received long-term disability benefits and, by late 2021, his doctors recommended a trial return with accommodations, including lifting no more than thirty pounds and a preference for administrative duties.

While Hill was on leave, B&B’s principals assumed his road boss duties and told him in September 2021 that the position had been eliminated for financial reasons; he would return as a tow truck driver at lower pay. He returned under protest in January 2022, injured his back on February 17 when an accommodation winch malfunctioned, and formally took the position that he had been constructively dismissed on February 25. He never returned to work.

The Decisions Below

The trial judge found that the appellant had constructively dismissed Hill by demoting him and rejected the employer’s frustration defence. She assessed the reasonable notice period at twenty-two months and awarded damages of $236,163.77, which included $123,000 for the loss of use of a company tow truck and $2,640 for the loss of use of a cellphone during the notice period.

The Court of Appeal’s Analysis

Frustration: Defence Dismissed

Despite the trial judge’s brief reasons, the court of appeal held that she applied the correct contextual framework, which required consideration of:

1. whether Hill could perform the material duties of the road boss position at termination of employment;
2. whether he could return to a comparable position within a reasonable time with reasonable accommodation; and
3. whether his limitations were temporary or constituted a frustrating event.

The court upheld the result: Hill’s nineteen-month absence was relatively short; the business operated without him; his doctors supported a trial return; and B&B had previously accommodated his restrictions. His February 2022 injury resulted from a malfunctioning accommodation device, not his underlying limitations.

Damages: Tow Truck and Cellphone Not Compensable Benefits

The court allowed the appeal on damages, deducting $125,640 for the tow truck and cellphone, and distinguished employment tools from compensable fringe benefits.

A company vehicle or cellphone is compensable only if the employee proves it provided a personal benefit as part of contractual compensation; otherwise, it is an employment tool. The court found that Hill’s negligible personal use of the specialized tow truck—which was not pleaded or reported as a taxable benefit and had a lease value disproportionate to his salary—did not establish a compensable benefit, and that his cellphone claim likewise failed for lack of evidence beyond a bare assertion.

What This Means for Employers

Frustration remains a high bar, and accommodation history matters. Employers must show that a disability is serious, lengthy, and ongoing, prevents performance of essential duties within a reasonable time, and cannot be accommodated without undue hardship; a relatively short absence, medical evidence supporting a return, or prior accommodation will undermine the defence.

Work tools are not fringe benefits. Specialized equipment supplied to perform the job—such as tow trucks, radios, and machinery—does not create damages exposure merely because the employer tolerates negligible personal use.

Evidentiary markers of personal benefit matter. Courts will consider objective indicia such as T4 reporting, Canada Revenue Agency (CRA) disclosure, pleadings, and the benefit’s value relative to salary; employees must prove meaningful personal benefit, not merely assert it.

Documenting the purpose of company assets. Employers may want to state whether vehicles, phones, and other equipment are work tools or personal benefits, and align reporting practices accordingly.

The Bottom Line

Hill v. B&B Towing provides useful guidance on frustration and damages, confirming that temporary disabilities may not frustrate an employment contract where accommodation is feasible and that specialized company equipment is not a compensable benefit absent evidence of personal use. The decision offers a practical, evidence-based framework for employers that provide specialized equipment to their workforce.

Ogletree Deakins’ Toronto office will continue to monitor developments and will post updates on the Canada, Cross-Border, and Leaves of Absence blogs as additional information becomes available.

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