Quick Hits

• The Court of Justice of the European Union (CJEU) clarified that the EU may not set requirements for the specific level of minimum wages but may only establish procedural and transparency standards.
• National collective bargaining autonomy and the member states’ competence for wage setting remain safeguarded by the judgment.
• For companies in Germany, implementing the remaining procedural and transparency requirements will likely mean more documentation, closer monitoring, and additional internal compliance processes in practice.

The Case: Denmark and Sweden Before the CJEU

In the proceedings before the CJEU, Denmark and Sweden brought an action against the EU Minimum Wage Directive, arguing that it violates the EU’s division of competences. Both countries have strong, comprehensive collective bargaining systems. There is no statutory minimum wage there—wages are determined exclusively between trade unions and employers’ associations.

Directive (EU) 2022/2041 does not provide for an EU-wide minimum wage, but it does contain detailed requirements on how member states should set and update minimum wages. Denmark and Sweden now fear that this undermines national collective bargaining autonomy and the competence for wage setting. The CJEU had to decide whether the directive exceeds the EU’s competences and interferes with national wage setting.

Court Decision: CJEU Draws a Clear Line on Competence

The CJEU held that the EU partially exceeded its competences with the Minimum Wage Directive because Article 153(5) of the Treaty on the Functioning of the European Union (TFEU) expressly prohibits the EU from legislating on pay. However, the directive remains valid in those parts that are limited to procedural requirements, transparency, and the promotion of collective bargaining, in particular reporting obligations and the involvement of the social partners. By contrast, provisions aimed at harmonizing the components of minimum wages or prescribing how minimum wages are set and updated are void, as they constitute an impermissible interference with national wage setting.

The CJEU’s reasoning is that, under the express intention of EU law, determining the level and the criteria for calculating the minimum wage is reserved exclusively to the member states, and the EU has no competence to interfere with these core areas of national wage policy. The directive may therefore only set EU-level minimum standards for procedures and transparency but may not influence the concrete wage level or its calculation. The CJEU thus essentially follows the arguments of Denmark and Sweden as well as the CJEU’s advocate general.

Key Takeaways

The CJEU sets clear limits on minimum wage policy and clarifies the division of competencies between the EU and the member states. The EU may not set requirements for the specific level or calculation of the minimum wage; it may only prescribe procedural standards and transparency rules. National collective bargaining autonomy and the member states’ competence for wage setting thus remain safeguarded. For Germany, this means that the decision-making power over the level and adjustment of the minimum wage remains exclusively with the national legislature and the Minimum Wage Commission.

The currently applicable minimum wage is €13.90 gross (since January 1, 2026), and will increase to €14.60 gross as of January 1, 2027.

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

Anna Maria von Lieres und Wilkau is an associate in the Berlin office of Ogletree Deakins.

Pauline von Stechow contributed to this article as a research assistant in the Berlin office of Ogletree Deakins.

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Quick Hits

• The legal landscape of employment arbitration continues to evolve as plaintiffs’ attorneys mount new challenges, particularly in light of laws like the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA).
• Employers can avoid pitfalls by staying informed on the latest issues and carefully crafting and regularly evaluating their arbitration agreements to maintain effectiveness and enforceability.

The Federal Arbitration Act (FAA) promotes the use of arbitration agreements, preempts state anti-arbitration laws, and requires federal and state courts to place arbitration agreements on the same footing as other contracts. Several issues and trends—from the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFAA) to plaintiffs’ attorneys’ contesting the enforceability of arbitration agreements—affect best practices for enforceable employment arbitration agreements.

Plaintiffs’ counsel continue to search for new ways to challenge the enforceability of arbitration agreements and class action waivers. In some states, like California, plaintiffs’ counsel have focused in particular on arguing that mandatory employment arbitration agreements are allegedly unconscionable for various reasons. Sometimes courts have agreed and refused to enforce these agreements.

• Enforceability of Arbitration Agreements

Employers may want to ensure that their agreements are clear, conscionable, and easily understood. Typical due process protections in arbitration agreements include not requiring employees to pay fees and costs unique to arbitration (such as arbitrators’ fees), allowing for all substantive remedies, providing parties with sufficient access to discovery, and requiring written arbitration awards.

• Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act

The EFAA is a federal law signed on March 4, 2022, that amended the FAA to limit employers’ ability to enforce mandatory predispute arbitration agreements for disputes involving sexual harassment or sexual assault. While the EFAA applies to specific claims, there is a question whether employers can compel arbitration for an employee’s other non-sexual harassment or non-sexual assault claims brought in the same dispute.

Some courts interpreted the EFAA as requiring that sexual assault or sexual harassment claims be split and litigated while the remaining claims are sent to arbitration. Other courts have come to the opposite conclusion, reasoning that the EFAA applies to a whole “case,” meaning all an employee’s claims brought in the same suit. This interpretation allows employees to prevent the enforcement of otherwise valid arbitration agreements.

Employers may want to review their agreements to determine whether they can be modified to mitigate the risk that entire “cases” will be barred from arbitration if they include a sexual harassment or sexual assault dispute.

• Covered Claims

Employment arbitration agreements typically apply to all claims related to employment with the employer, including those arising from the application process and termination of employment. Some notable exceptions include workers’ compensation benefits, unemployment benefits, benefits under a collective bargaining agreement that provides its own method for dispute resolution, and claims filed with a federal, state, or local administrative agency such as the U.S. Equal Employment Opportunity Commission (EEOC) or the National Labor Relations Board (NLRB).

However, federal legislation is regularly proposed that would exempt more types of disputes from the FAA or expand existing carveouts along the lines of 2022’s EFAA. For example, the Forced Arbitration Injustice Repeal (FAIR) Act, Senate Bill (S) 2799, proposed in September 2025, would, if enacted, “prohibit predispute arbitration agreements that force arbitration of future employment, consumer, antitrust, or civil rights disputes” and predispute class action waivers. At this time, the likelihood of such federal legislation passing appears low, but employers should continue to monitor legislative developments.

• Interstate Transportation Worker Exemption

While the FAA provides that most employment arbitration agreements are valid and enforceable, the FAA excludes “seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce” from the FAA. This is known as the “transportation worker” exemption.

This exemption means that arbitration agreements with covered transportation workers are not covered by the FAA. Arbitration agreements with transportation workers are thus subject to state law, which, depending on the jurisdiction, may limit or bar employment arbitration agreements or class actions waivers. In recent years, employees have increasingly sought to avoid  the FAA and challenge the enforceability of their arbitration agreements and class action waivers under state law by arguing they are transportation workers exempted from the FAA.

The Supreme Court of the United States continues to clarify the meaning of the FAA’s “transportation worker” exemption. In recent cases, the Court has rejected an industrywide approach and held that the inquiry focuses on whether, based on the worker’s job duties, the worker is “actively engaged in transportation of those goods across borders via the channels of foreign or interstate commerce.” The Court is currently considering a case asking whether local delivery drivers who do not deliver goods across state lines are covered by the FAA’s transportation-worker exemption.

Next Steps

Employment arbitration, which provides a fair and efficient manner to resolve employment disputes, continues to face challenges from plaintiffs’ attorneys and potential new regulation. Employers can avoid pitfalls by staying informed on the latest issues and carefully crafting and regularly evaluating and updating their arbitration agreements to maintain their effectiveness and enforceability.

An Arbitration Agreement Package is available through Ogletree Deakins. Additional template packages are also available.

Ogletree Deakins’ Arbitration and Alternative Dispute Resolution Practice Group will continue to monitor developments and will provide updates on the Arbitration and Alternative Dispute Resolution blog as additional information becomes available.

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Quick Hits

• Employees may use FMLA leave to attend medical appointments related to serious health conditions for themselves or for a qualifying family member.
• FMLA leave also covers reasonable travel to and from such appointments.
• Medical certifications need not include an estimate of travel time to be complete and sufficient.

Using FMLA Leave for Medical Appointments

The FMLA entitles eligible employees of covered employers to take up to twelve work weeks of unpaid, job-protected leave during a twelve-month period for, among other reasons, the treatment of the employee’s own serious health condition or to care for a parent, child, or spouse with a serious health condition. Leave may be taken intermittently or on a reduced-leave schedule when “medically necessary.” The law’s definition of “serious health condition” includes inpatient care or continuing treatment by a health care provider, and it further contemplates that such care or treatment includes the use of FMLA leave for medical appointments to diagnose, monitor, and treat a serious health condition. Employers may require a medical certification to support the need for intermittent or reduced schedule leave, including leave to attend medical appointments.

The DOL’s Opinion Letter

While the FMLA and its regulations were silent on whether travel time to and from a medical appointment is covered, the DOL’s opinion letter addresses that gap. According to the DOL, “Part and parcel of obtaining care and continuing treatment from a medical provider may require the employee to travel to the provider’s location.” Accordingly, the associated travel time is FMLA‑protected when it is tied to a covered appointment. This applies whether the appointment is for the employee’s own condition or to care for a qualifying family member.

The DOL opinion letter further asserts that medical certifications need not address travel time. Certifications are limited to “medical facts” within the provider’s knowledge related to the condition, and providers typically do not have knowledge of the patient’s commute to and from the appointment. Accordingly, a certification is complete and sufficient without an estimate of travel time.

At the same time, the DOL emphasizes that the FMLA does not protect the use or misuse of leave for travel (or other activities) that are unrelated to an FMLA-covered appointment. Employers may treat such time as unprotected and may apply normal attendance policies to such absences.

The DOL goes on to offer several illustrative examples of when travel is or is not covered by the FMLA, summarized as follows:

• An employee’s thirty minutes of travel to her 4:00 p.m. dialysis appointment, plus the treatment time, qualify for FMLA leave.
• An employee’s approximately two-and-a-half hour absence, every other week to leave work, pick up his mother, drive her to an appointment that lasts thirty minutes, and take her back home is FMLA-protected and counts against his FMLA entitlement.
• An employee who takes leave to accompany a child with a chronic serious health condition on a school band trip, during which the child does not require care, is not using FMLA‑covered time because the absence is not related to the child’s condition.
• An employee who normally uses two hours of intermittent FMLA leave on Friday afternoons for physical therapy and travel requests three hours one day to run personal errands after therapy. The two hours related to therapy and travel are FMLA‑covered; the additional hour is not and does not count against the employee’s FMLA entitlement.

Practical Implications for Employers

Employers may want to consider aligning attendance and leave administration practices with the opinion letter by recognizing travel to and from covered medical appointments as part of intermittent FMLA leave when related to the serious health condition of the employee or a covered family member. Training for leave administrators and managers may encompass how to distinguish FMLA‑covered travel time from unrelated activities, ensure certifications are evaluated for medical sufficiency without requiring travel estimates, and accurately account for protected versus unprotected time when tracking FMLA usage and applying attendance policies.

Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group will continue to monitor developments and will provide updates on the Leaves of Absence blog as additional information becomes available.

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Quick Hits

• CBP recently proposed changes to its Visa Waiver Program and Electronic System for Travel Authorization and invited public comment through February 9, 2026.
• Proposed changes include moving to a mobile-only application (the ESTA mobile app) and requiring extensive new data, including social media information and family member details.
• Enhanced vetting and security changes include adding required applicant biometric uploads (i.e., a photograph of the applicant’s face or a “selfie,” and, potentially, fingerprint, DNA, and iris biometrics) and geolocation information.

The proposed changes aim to enhance security and streamline the application process by requiring additional details about an applicant. The public has until February 9, 2026, to submit comments in response to the proposed changes.

The proposed changes include the following:

• Introducing a new feature in the ESTA mobile app to allow travelers subject to I-94 requirements to voluntarily report their departures from the United States by submitting biographic data, facial images, and geolocation information. This optional functionality aims to close the information gap on traveler entries and exits, ensuring more accurate exit records through biometric confirmation. The app would use geolocation to verify that a traveler is outside the United States and “liveness detection” software to ensure the facial image is current. This data would help reconcile a traveler’s exit with the traveler’s last arrival, recording the information in the Arrival and Departure Information System (ADIS), which CBP maintains.
• Requiring each applicant to submit a photo of his or her face in addition to mandating the existing requirement of submitting the applicant’s passport biographic page. This proposed change aims to align the website application process with the mobile application process and ensure that the ESTA applicant is the same person as the one on the passport biographic page.
• Requiring applicants to provide a five-year history of their social media activity. This measure is intended to enhance the security and vetting process.
• Requiring applicants to complete additional “high value” data fields, including:
  • “Telephone numbers used in the last five years”;
  • “Email addresses used in the last ten years”;
  • “IP addresses and metadata from electronically submitted photos”;
  • Family member details (e.g., names, telephone numbers, dates of birth, places of birth, and residencies);
  • “Biometrics—face, fingerprint, DNA, and iris”;
  • “Business telephone numbers used in the last five years”; and
  • “Business email addresses used in the last ten years.”

According to the proposal, “CBP believes that moving to a mobile-only approach for ESTA submissions will both enhance security and improve efficiency.” By collecting more comprehensive data up front, CBP aims to expedite the application/approval process and minimize delays caused by insufficient or inaccurate information. The goal of these updates is to permit ESTA applications solely through the ESTA mobile app while maintaining the ESTA website as an informational resource.

Next Steps

The proposed changes, their final implementation, and timeline are subject to public feedback. CBP invites written comments and suggestions on the proposal through February 9, 2026, at CBP_PRA@cbp.dhs.gov. Comments must include the OMB Control Number 1651-0111 in the subject line and the agency name.

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

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Quick Hits

• New York Assembly Bill A9452 seeks to amend the newly enacted Trapped at Work Act, which prohibits stay or pay agreements that require employees to repay training expenses if they leave their job.
• The proposed chapter amendments would narrow the scope of the original law to apply specifically to employees, excluding independent contractors and other workers from the prohibitions on reimbursement agreements.
• The amendments would also allow employers to enter written agreements with employees providing for the repayment of certain educational expenses for degrees, skills, or qualifications not required for the job with the employer or that are beyond the employer’s specific business.
• The amendments also provide that repayment agreements for bonuses, relocation assistance, and other non-educational incentives or payments remain permissible, unless the employee was “terminated for any reason other than misconduct or the duties or requirements of the job were misrepresented to the employee.”

Introduced in the state Assembly on January 6, 2025, Assembly Bill A9452 would amend the “Trapped at Work Act” (Article 37, N.Y. Lab. Law §§ 1050–55), which generally prohibits the use of certain “employment promissory notes”—defined as agreements that require employees to pay the employer “a sum of money” if the employee “leaves such employment before the passage of a stated period of time”—as a condition of employment or prospective employment.

Governor Hochul signed the Trapped at Work Act into law on December 19, 2025. At the time of the signing, she indicated that she had reached an agreement with lawmakers on chapter amendments, which are amendments passed by lawmakers to revise a bill after it has been signed, concerning educational expenses and voluntary tuition assistance programs.

As anticipated, A9452 would revise the Trapped at Work Act, clarifying the distinction between “training” expenses and “education” expenses. A9452 would also eliminate independent contractors from coverage, and prohibit reimbursement agreements in circumstances when employees have been discharged for reasons other than “misconduct” or when job duties were “misrepresented.”

Effective Date

Notably, the bill would delay the effective date of the act, which took effect immediately, to one year after “it” becomes law. The amendment draft does not specify whether this is measured from the date of enactment of the act (that is, December 19, 2025) or from the date of the amendment. It also does not clarify whether agreements that could constitute promissory notes entered into before the effective date are exempt from the prohibition.

Covered Employers and Employees

The Trapped at Work Act applies to all “workers,” including employees, independent contractors, externs, interns, volunteers, and apprentices. However, the new bill would significantly narrow the application of the law to “employee[s],” defined as “any person employed for hire by an employer in any employment.”

Transferrable Credentials

The amendment would clarify that the law would exclude agreements with employees to “reimburse the employer for the cost of tuition, fees, and required educational materials for a transferable credential” that is beyond what is required for the specific job. Specifically, a “transferrable credential” would mean “any degree, diploma, license, certificate, or documented evidence of skill proficiency or course completion” that provides the employee skills or qualifications separate from the “employer’s specific business practices” and would “demonstrably enhance the employee’s employability with other employers.”

The amendment would still prohibit employers from requiring reimbursement for “employer-specific or non-transferrable training,” meaning “instruction regarding the employer’s proprietary processes, proprietary systems, internal policies, proprietary software, or proprietary equipment unique to the employer” or instruction that “consists of skillful variations of general processes known to the relevant trade or industry” that does not necessarily qualify the employee for another job or occupation.

Furthermore, employers would be prohibited from requiring repayment for mandated federal, state, or local safety or compliance training, including Occupational Safety and Health Administration (OSHA) certifications, sexual harassment prevention training, and diversity training.

Valid Reimbursement Agreements

The bill would require that agreements for repayment of educational expenses:

• be set forth in writing and be separate from any employment contract;
• not require the employee to obtain the transferrable credential as a condition of employment;
• specify the repayment amount that is not to exceed the cost of tuition, fees, and other required materials;
• provide the prorated repayment amount during any required employment period; and
• not require repayment if the employee is discharged, except if discharged for misconduct.

Additionally, the bill would exclude agreements to require employees “to repay a financial bonus, relocation assistance, or other non-educational incentive or other payment or benefit that is not tied to specific job performance, unless the employee was terminated for any reason other than misconduct or the duties or requirements of the job were misrepresented to the employee.”

The bill does not specify what it means for a payment or benefit to be tied to specific job performance, nor does it define “misconduct” or provide insight into what would constitute “misrepresentation” of job duties. If the proposed amendments are adopted, employers may want to consider articulating that the employee had been discharged for “misconduct” as well as updating their job descriptions and carefully reviewing job postings to prevent claims of misrepresentation.

Penalties

The Trapped at Work Act does not provide a private right of action but allows the New York State Department of Labor (NYDOL) to seek civil penalties ranging from $1,000 to $5,000 per violation. However, A9452 would enable aggrieved employees to file a complaint with the NYDOL. Further, in assessing the penalties, the NYDOL would be required to give “due consideration to the size of the employer’s business, the good faith basis of the employer to believe that its conduct was in compliance with the law, the gravity of the violation, and the history of previous violations.”

Next Steps

The Trapped at Work Act comes amid a broader trend of prohibiting “stay or pay” agreements, but it has created significant uncertainty for employers in the state. Such expense repayment agreements are often used in the financial services industry, both for jobs that require significant upfront training and/or regulatory licenses, as well as for sign-on and retention bonuses and relocation expenses. As such, the prohibitions on requiring repayment of training expenses and the proposed limitations on repayments of bonuses and other payments under the New York law could have a major impact on financial services employers.

The proposed amendments, if enacted, would provide more clarity around reimbursable and nonreimbursable educational expenses, but also create a potential loophole for discharged employees to argue that they were not discharged for “misconduct” or that their job duties were “misrepresented.” The bill has been referred to the Assembly Standing Committee on Labor. For now, the Trapped at Work Act as signed remains in effect.

For more information, please join us for our upcoming webinar, “New York’s Trapped at Work Act: What It Means for ‘Stay-or-Pay’ Agreements,” which will take place on Thursday, January 15, 2026, from 2:00 p.m. to 3:00 p.m. EST. The speakers, Joseph B. Cartafalsa, Carly E. Grey, and Aaron Warshaw, will discuss which agreements are covered and which are exempt from coverage under New York’s Trapped at Work Act, as well as how employers can effectively navigate the changes. Register here.

Ogletree Deakins’ New York offices will continue to monitor developments and will provide updates on the Employee Benefits and Executive Compensation and New York blogs as additional information becomes available.

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Quick Hits

• The IRS, DOL, and HHS recently issued a proposed rule to “improve the standardization, accuracy, and accessibility of public pricing disclosures” in group health plans.
• The proposal builds on a 2020 final regulation on price transparency in health care.
• The proposed regulations would take effect twelve months after publication of the final regulations and for plan years beginning on or after January 1, 2027.

Since July 2022, nongrandfathered group health plans and health insurers have been required to post machine-readable files each month for each plan or coverage they offer. This includes an in-network rate file, disclosing in-network rates for all covered items and services; an allowed amount file, disclosing out-of-network allowed amounts and the associated billed charges; and a prescription drug file, disclosing in-network rates and historic net prices for covered items and services.

If finalized, the proposed rule would:

• require health plans to exclude from the in-network rate files certain data for services providers would be unlikely to perform;
• require health plans to organize in-network rate files by provider network, rather than by plan;
• require change-log and utilization files, so users can identify what has changed from one in-network rate file to the next and understand which in-network providers are actively providing which items and services;
• reduce in-network rate and allowed amount files from monthly to quarterly; and
• reorganize the allowed amount files by health insurance market type, reduce the claims threshold to eleven or more claims, and increase the reporting period from three months to six months and the lookback period of data from 180 days to nine months.

In addition, the proposed rule would align with consumer protections established under the federal No Surprises Act. Group health plans would be required to provide the same price information online, in print, or by telephone.

To make the information easier to find, the proposed rule would require group health plans to post a plain text file located in the root folder of a payer’s website with information on the specific location of the machine-readable files and contact information for the people who are responsible for the machine-readable files. It also would require group health plans to add a link in the footer of the home page of the plan’s website titled “Price Transparency” or “Transparency in Coverage” that routes directly to the web page that hosts the machine-readable files.

The Centers for Medicare and Medicaid Services (CMS) published a fact sheet with information about the proposed rule, which amends another regulation from 2020.

Next Steps

The public has until February 23, 2026, to submit comments on the proposed rule. It is unclear when a final rule may be released.

Health insurers and employers with self-insured health plans may wish to review their policies and practices for disclosing price information to ensure that they comply with federal regulations that are already in effect. They may wish to consider any adjustments that may be needed if the proposed rule takes effect.

Ogletree Deakins will continue to monitor developments and will provide updates on the Employee Benefits and Executive Compensation and Healthcare blogs as new information becomes available.

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

Karen N. Brandon is a shareholder in Ogletree Deakins’ Morristown 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

• Requests for USCIS’s Premium Processing Service postmarked on or after March 1, 2026, must include the new fee.
• The premium processing fee for Form I-129 nonimmigrant worker petitions requesting classifications such as E-3, H-1B, L-1, O-1, and TN will increase to $2,965.
• The premium processing fee for Form I-140 immigrant petitions requesting classification in employment-based categories will increase to $2,965.
• The premium processing fee for certain Form I-539 and Form I-765 applications will also increase to $2,075 and $1,780, respectively.

These updated fees will apply to any Form I-907, Request for Premium Processing Service, filed with USCIS, and postmarked on or after March 1, 2026. The revenue generated from these fee increases will be used to support premium processing services, enhance adjudication processes, reduce existing backlogs, and provide funding for USCIS adjudication and naturalization services.

Increased Premium Processing Fees

Next Steps

Under the Emergency Stopgap USCIS Stabilization Act, the U.S. Department of Homeland Security maintains authority to adjust USCIS’s premium processing fees every two years to account for inflation, which last occurred in February 2024. Employers and applicants may wish to be mindful of the fee increases and the date on which their requests for premium processing service are postmarked when filing, as requests that are filed with incorrect fees will be rejected.

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

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Quick Hits

• Certain organizations in Florida that work with children and vulnerable adults must link to the state’s Agency for Health Care Administration (AHCA) new public background checks resource in their job postings for any position that requires a screening through Florida’s Care Provider Background Screening Clearinghouse.

• AHCA’s Care Provider Background Screening Clearinghouse Education and Awareness webpage includes details on disqualifying offenses, exemption procedures, and timelines.
• AHCA has begun issuing bulletins to impacted employers regarding posting the link.

On June 4, 2025, Governor Ron DeSantis signed into law a bill that requires the AHCA to create and maintain a webpage for background screening education and awareness. The AHCA had until January 1, 2026, to activate this webpage, which is now live. The agency is required to update the webpage by October 1, 2026, and then by October 1 each year, to incorporate any changes to law, the employment screening process, or the Care Provider Background Screening Clearinghouse, which retains fingerprint data and allows the results of criminal history checks to be shared among certain entities that provide care or placement services for children or vulnerable adults.

The clearinghouse is Florida’s central system for completing and sharing Level 2 background screenings, which are fingerprint-based checks for positions of trust, such as healthcare, education, childcare, and law enforcement jobs. The Level 2 screenings search state and national criminal records for serious disqualifying offenses. The clearinghouse constantly reviews new criminal history information and matches fingerprints retained in the clearinghouse against fingerprints received for new arrests that occur after an individual was originally screened. Once a person’s screening record is in the clearinghouse, that person may avoid the need for any future state screens and fees for screenings.

Going forward, organizations must include a link to the AHCA’s resource in their job postings for all positions requiring background screening through the clearinghouse. For example, this may include public schools, healthcare providers, home health agencies, assisted living facilities, nursing homes, residential care facilities, group homes, and youth athletic programs.

The following entities must link to the AHCA’s webpage about background screening:

• School districts, special school districts, charter schools, and alternative schools
• Florida School for the Deaf and the Blind
• Florida Virtual School
• Virtual instruction programs
• Regional workforce boards
• County-level agencies with authority to license and oversee childcare facilities
• Florida Department of Health
• Florida Department of Children and Families
• Florida Department of Elder Affairs
• Florida Department of Juvenile Justice
• Florida Agency for Persons with Disabilities
• Florida Department of Education
• Florida Department of Veterans’ Affairs

Next Steps

Employers with positions involving mandatory background screenings may wish to update their webpages and job listings to comply with the new state law. They may wish to become familiar with the information posted on AHCA’s resource on background checks and how to use the clearinghouse.

Ogletree Deakins’ Background Checks Practice Group, Healthcare Industry Group, and Miami and Tampa offices will continue to monitor developments and will provide updates on the Background Checks, Florida, and Healthcare blogs as new information becomes available.

Dee Anna D. Hays is a shareholder 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

• Employers must submit separation information through the NJDOL’s Employer Access portal. Previously, employers provided separation information to the NJDOL via a designated email address.
• Employers may want to register now for portal access and use it to make all timely separation submissions, despite some ambiguity about what separation-related information the NJDOL requires employers to provide.

What the 2022 UCL Amendments Require

The 2022 amendments to New Jersey’s Unemployment Compensation Law (UCL) added a new reporting requirement. Beginning July 21, 2023, employers were required to “immediately and simultaneously” transmit electronically to the NJDOL (1) the unemployment start date contained on the Form BC‑10 provided to the separated employee and (2) additional information sufficient to enable the NJDOL to make a benefits determination.

When those changes first took effect, employers were asked to provide a designated contact email for communications and submissions to the NJDOL. Recently, the NJDOL quietly announced that, as of December 8, 2025, employers must report all employee separations using the Employer Access portal. According to the NJDOL, the portal enables employers to submit separation information, respond to NJDOL information requests, track submissions, and manage mass‑layoff data.

What’s New: The Employer Access Portal Requirement

The Employer Access portal now requires employers to enter the following information when reporting a separation:

• the separated employee’s name, Social Security number, first and last day of work, work schedule, rate of pay, reason for separation, nature of separation (i.e., temporary or permanent), and whether the separated employee is receiving a retirement benefit and/or pay after the employee’s last day of work;
• the name and job title of the separated employee’s immediate supervisor;
• whether the separated employee worked for the employer providing the response; and
• the name, job title, and phone number of the individual providing the employer’s response.

The portal also requests optional information, including:

• the email of the individual providing the employer’s response;
• the city in which the separated employee worked;
• the phone number of the separated employee’s immediate supervisor; and
• the separated employee’s email address.

Finally, the portal gives the employer the option to upload:

• documents including the relevant policy, warnings, and other supporting documents regarding the final incident, if the separated employee’s employment was terminated or the employee resigned in lieu of termination;
• documents to support prior complaints, resolution attempts, leave-of-absence requests, medical documentation, or any other supporting documentation, if the separated employee resigned;
• documents regarding whether the separated employee is receiving retirement pay; and
• documents regarding whether the separated employee is receiving pay after the employee’s last day of work.

What Information Is Truly Required?

As of the date of this article, the NJDOL’s frequently asked questions (FAQ) guidance suggests that employers are still not required to submit any information beyond the information historically required by the BC-10 form. However, the NJDOL’s press release directs all employers to use the portal, and the portal requires employers to supply certain additional information as outlined above.

What Employers Can Do Now

Despite this ambiguity, employers nonetheless may want to take the following steps:

• continue to provide Form BC‑10 to separated employees;
• register the employer and any additional authorized users (e.g., third-party payroll processors) to use the portal, and use it when separating employees;
• complete all required fields and supply optional information when appropriate;
• continue to respond timely to any NJDOL requests; and
• until NJDOL publishes formal “directions,” treat the portal as the required channel for separation reporting, though enforcement of the “immediately upon separation” requirements may be in flux.

Ogletree Deakins’ Morristown office will continue to monitor NJDOL updates and any additional instructions related to the Employer Access portal and will provide updates on the New Jersey blog as additional information becomes available.

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Quick Hits

• When an employee is using less than a full week of FMLA leave, hours that fall during a partial-week closure do not count against the employee’s FMLA entitlement unless the employee is scheduled and expected to work during the closure and actually uses FMLA leave for that time.
• When an employee is on a full week of FMLA leave, a partial-week closure does not change the calculation; the full week still counts as FMLA leave.
• The calculation of FMLA leave usage is not affected by whether the closure was planned or unplanned, or the reason for it.

Prior DOL Guidance on Holidays and Workplace Closures

The FMLA provides eligible employees with up to twelve weeks of leave in a twelve‑month period, measured in “workweeks.” FMLA leave may be taken continuously, intermittently, or on a reduced schedule, but employers may not reduce employees’ FMLA leave entitlement beyond the amount of leave actually taken. These core principles govern calculations when schedules are disrupted by holidays or closures.

The DOL’s regulations, as confirmed in a 2023 opinion letter, specifically address the intersection of holidays with an employee’s use of FMLA leave. If an employee is taking leave on an intermittent or reduced-schedule basis, a holiday does not count against the employee’s FMLA entitlement unless the employee is scheduled and expected to work on the holiday and uses FMLA leave that day. By contrast, if an employee takes a full week of leave, the entire week is counted against the FMLA entitlement, even if a holiday occurs within the week.

The same regulations also explain that, when an employer has ceased operations for one or more full weeks, and employees are not expected to report to work, those full weeks of workplace closure do not count against an employee’s FMLA entitlement. For example, a business closes down for two full weeks at the end of the year. Employees are not expected to report to work during that time. Those two weeks will not count against an employee’s FMLA leave entitlement.

DOL Opinion Letter FMLA2026-2

The new opinion letter addresses partial-week, unscheduled closures not explicitly covered by the regulations. It applies the same principles: time during which the workplace is closed and an employee is not expected to work should not be deducted from the employee’s FMLA entitlement when the employee is taking less than a full week of leave. If the employee is out for a full workweek, however, a partial-week closure does not alter the calculation; the full week still counts as FMLA leave.

The DOL further underscores that whether a closure is planned or unplanned—and the reason for the closure—does not change the calculation of the amount of leave used. Any later “make‑up” days, such as those in school settings, do not retroactively alter how leave is counted for the closure week.

Practical Implications for Employers

Employers may wish to align policy language and payroll/HRIS configuration with these rules. Managers and leave administrators should understand that for partial-week closures, counting FMLA usage turns on whether the employee was scheduled and expected to work during the closure, and whether the employee was using intermittent versus full-week FMLA leave.

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

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