Quick Hits

• In Edwards v. Shelby County, Tennessee, the Sixth Circuit recently held that an employee’s night blindness may qualify as a disability that would require a reasonable accommodation under the ADA.
• Night blindness is not automatically a disability but may constitute one, depending on the individual’s functional limitations, consistent with the ADA’s fact-specific inquiry.
• This decision reinforces the ADA’s broad protections after the ADA Amendments Act (ADAAA).

Background on the Case

The employee began working as an environmentalist inspector for Shelby County, Tennessee, in 2020 and was later assigned to a position that required some nighttime driving, which involved delivering groceries to guests at a hotel. Over time, her night vision deteriorated. She testified that bright lights created halos that made it difficult to see barricades, lane markers, and road signs, and she experienced impaired depth perception when driving in the dark. Although she had previously noticed problems with night vision, she did not disclose these issues on her pre-employment questionnaire or during her pre-employment medical examination, which occurred during daylight hours and did not reveal her night blindness. 

On October 4, 2021, the employee’s supervisor reassigned her to a new shift from 3:00 p.m. to 11:00 p.m., which required her to work and drive home at night. The employee objected, explaining that she had night blindness and raising additional personal safety concerns about working alone at the hotel at night. She offered to provide medical documentation and contacted her doctors, but she was unable to obtain a note, and her supervisor never followed up on that request.

The county ultimately authorized a change to a 10:30 a.m. to 7:30 p.m. shift, but the supervisor did not notify the employee of the new schedule until after the start time of the revised shift. Before the employee even began her first scheduled night shift, her supervisor documented complaints about the employee’s alleged tardiness, reluctance to work at the hotel, and failure to follow directives. Within days, the county moved forward with discipline and discharged the employee shortly thereafter, citing attendance problems, insubordination, and alleged falsification of information.

The employee filed suit, alleging that the county failed to accommodate her asthma, discriminated against her based on her night blindness, and retaliated against her for requesting an accommodation. After a two-day trial, the jury found in her favor on all three claims, concluding that both her asthma and her night blindness qualified as disabilities under the ADA.

On appeal, with respect to the night blindness claim, the county argued that the jury erred in finding the employee disabled because night blindness is not a recognized disability under the ADA, night driving is not a major life activity, and the employee’s ability to occasionally drive at night demonstrated that she was not substantially limited in any major life activity. The county also contended that the employee’s request for an accommodation was not made in good faith, asserting that her real concern was crime at the hotel, rather than her ability to safely drive at night.

Sixth Circuit Ruling

The Sixth Circuit rejected the county’s arguments and affirmed the jury’s decision, emphasizing the ADA’s broad, individualized approach to determining whether a condition constitutes a disability. The court explained that, although the Sixth Circuit had not previously ruled on whether night blindness could qualify as an ADA disability, the ADAAA significantly expanded the scope of coverage and lowered the threshold for establishing a substantial limitation.

The court clarified that the relevant inquiry was not whether night driving itself is a major life activity, but whether the employee’s condition substantially limited the major life activity of seeing, which is expressly protected under the ADA. The court further noted that the ADA does not require a person to be completely unable to perform an activity to be substantially limited. Individuals who can perform an activity only with difficulty, pain, or risk may still meet the definition. The employee’s testimony regarding glare, halos from headlights, difficulty reading signs, impaired depth perception, and lingering post-exposure visual strain provided sufficient evidence for the jury to conclude that her night blindness substantially limited her ability to see.

The court also rejected the county’s argument that the employee’s accommodation request was not made in good faith. Although the employee expressed safety concerns about working alone at night, she also specifically raised to the county her night blindness and explained its impact on her ability to drive. Because credibility determinations belong to the jury, the Sixth Circuit declined to disturb the jury’s verdict.

Next Steps

The Sixth Circuit’s ruling highlights several important considerations for employers:

• Difficulty seeing at night or driving in low-light conditions may be treated as a legitimate concern, and therefore worth exploring through the interactive process.
• Employers may want to evaluate disability-related issues on a case-by-case basis since they are often nuanced and fact-specific.  
• Employees with a disability may still occasionally perform a task, but if they do so with greater difficulty, risk, or stress, this still may implicate the ADA.
• Consider providing training for frontline managers regarding how to respond when employees raise disability-related issues and escalate concerns appropriately to remain compliant with the ADA.
• Be mindful of the timing and reaction to accommodation requests. Adverse actions taken shortly after an employee raises a disability concern may be scrutinized more heavily.

Ogletree Deakins will continue to monitor developments and will provide updates on the Employment Law, Kentucky, Leaves of Absence, Michigan, Ohio, and Tennessee blogs as new information becomes available.

Heather G. Ptasznik is a shareholder in Ogletree Deakins’ Detroit office.

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

Quick Hits

• The Illinois Department of Human Rights unveiled draft rules for implementing Illinois’s new ban on AI discrimination in employment, clarifying potential notice and recordkeeping obligations for employers regarding their use of AI.
• The draft rules would apply broadly to all employers under the Illinois antidiscrimination law and would necessitate notice whenever AI is involved in covered employment decisions, regardless of whether it leads to unlawful discrimination.
• Under the draft rules, required notifications would need to include specific information such as the AI product’s name, the employment decisions it affects, its purpose, the data it collects, targeted job positions, and contact details for inquiries.

The draft rules, “Subpart J: Use of Artificial Intelligence in Employment,” implement changes to the Illinois Human Rights Act (IHRA) that were made under Illinois House Bill (HB) 3773, a 2024 law that prohibits the use of AI, including generative AI, in ways that discriminate against employees based on protected characteristics, even if such discrimination is unintentional. HB 3773 takes effect on January 1, 2026, and requires the IDHR to issue rules implementing the substantive requirements of the act.

The new draft rules, which were shared during a stakeholder meeting and have yet to be formally published for public comment, would clarify employers’ notice and recordkeeping requirements regarding their use of AI to make employment decisions.

Covered Entities

The draft rules apply broadly to “employers” under the IHRA and to their agents, including recruiters and other third parties acting on an employer’s behalf. The notice obligations would be triggered when an employer “uses” AI “to influence or facilitate” any “covered employment decision,” which includes recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure, or the terms, privileges, or conditions of employment.

The draft rules define “use” of AI broadly to include “any instance in which the output of an artificial intelligence system influences or facilitates a covered employment decision.” Covered AI is defined under HB 3773 to refer to a “machine-based system that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs” such as predictions, recommendations, or decisions.

Notice Requirements

Under the draft rules, employers would be required to provide notice to employees and prospective employees when AI is used “to influence or facilitate” an employment decision, whether or not the use of AI “has the purpose or effect of subjecting employees to unlawful discrimination.”

The draft rules lay out a broad array of situations where AI is commonly used that would trigger an employer’s notice requirements, including “using computer-based assessments or tests” like puzzles or games to make predictions about an employee or prospective employee or measure the employee’s or prospective employee’s mental or physical skills or abilities or personalities or aptitudes or otherwise “screen, evaluate, categorize, and/or recommend prospective or current employees.”

Additionally, the draft rules would require notice if AI is used to direct job postings or advertisements to specific groups or populations, screen resumes, analyze facial expressions, word choice, and voice during online or video interviews, or analyze data acquired from third parties.

However, notice would not be required for AI used solely for nonemployment-decision business operations—such as generating marketing copy—or for ordinary software that does not infer or generate outputs affecting employment decisions (e.g., basic word processing, spreadsheets, firewalls, spam filtering), provided those tools are not used to infer or recommend employment outcomes. Likewise, if a system has AI features but the employer does not use those features for covered decisions, no notice would be required.

Content of the Notice

Employers would be required to provide specific and transparent content if notice is required. Employers would be required to disclose:

• the name of the AI product and its developer and vendor;
• the employment decisions the AI influences or facilitates (e.g., recruitment, hiring, discipline);
• the purpose of the AI system and the categories of personal information or employee data it collects or processes, with practical descriptions (e.g., summarizing or scoring resumes; analyzing video interviews; evaluating chat interactions with a recruiting bot);
• the types of job positions for which the AI will be used;
• a point of contact (e.g., Human Resources contact or hiring manager) for questions about the AI and its use;
• the right to request a reasonable accommodation and how to request it; and
• required statutory language.

Notices would need to be written plainly, made available in the languages commonly spoken in the workforce, and reasonably accessible to employees with disabilities.

Timing and Manner of Notice

Employers would need to provide notice to current employees annually or within thirty days of the “adoption of a new or substantially updated” AI system. For prospective employees, the notice of AI use would need to be included in any job posting.

The draft rules would mandate notice in various forms, anticipating modern physical and digital work environments, as well as consistency across typical communication channels with employees and prospective employees. Notices would be required to be posted in (1) employee handbooks or manuals; (2) in a “conspicuous location” on the employer’s physical premises where notices are usually posted; (3) in a “conspicuous location” on the employer’s intranet or external website; and (4) in any job notice or posting.

Recordkeeping Requirements

The draft rules would further extend recordkeeping requirements to the use of AI, requiring employers to preserve notices, postings, and disclosures regarding AI and “records of such use” for a period of four years. The draft regulations would also increase multiple existing retention periods to four years and require employers to preserve all relevant records until a charge is adjudicated, regardless of when it is filed.

Expanding AI Regulation

The IDHR draft rules represent another step in AI regulation in Illinois, which effective January 1, 2026 joins other jurisdictions, such as California, Colorado, and New York City, in implementing protections for employees regarding the growing use of AI technology, though California Governor Gavin Newsom vetoed a bill in October 2025 that would have broadly required employers to provide notice when they use AI. Notably, in addition to the notice provisions of the new law, which are specifically addressed in the draft rules, the Illinois law expressly makes it unlawful for employers to use AI in ways that discriminate against employees or prospective employees, regardless of whether the discrimination was intentional.

Additional state and local regulations on the use and impact of AI technology are anticipated, as the federal government has backed off on regulation. However, President Donald Trump recently signed an executive order restricting states and localities from issuing new laws or regulations related to AI and asserting federal preemption over the space. The order is explicitly aimed at limiting regulation to promote the growth of the industry in the United States.

Next Steps

Depending on feedback the IDHR might receive, it is possible, though unlikely, that the draft rules could be changed significantly before being published in the Illinois Register and opened for a public comment period. Either way, the draft rules provide insight into how the IDHR proposes to address the implementation of the notice provisions of HB 3773.

As such, employers in Illinois may want to take note of the new draft rules and may want to review their use of AI tools and identify whether and how the use of these tools affects employment decisions. While the HB 3773 does not require formal bias or impact assessments, like the New York City and Colorado AI laws, proactive assessments may be useful in revealing whether an employee’s use of AI has the effect of discriminatory outcomes, even if such outcomes are unintentional. Furthermore, employers may want to start preparing for compliance with the notice requirements, including drafting potential notices and implementing procedures for providing the notice in accordance with the new requirements.

Ogletree Deakins’ Chicago office, Cybersecurity and Privacy Practice Group, Technology Practice Group, and Workforce Analytics and Compliance Practice Group will continue to monitor developments and will provide updates on the Cybersecurity and Privacy, Employment Law, Illinois, Technology, and Workforce Analytics and Compliance blogs as additional information becomes available.

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Quick Hits

• Rather than simply amending the Labour Code, the Polish government plans to implement EU Pay Transparency Directive 2023/970 in a standalone piece of legislation.
• Employers will be obliged to go through a process of job evaluation, consisting of four core basic criteria. The plan will also see the introduction of a “Job Evaluation Tool.”
• A failure to comply with the changes may result in a fine of up to PLN 60,000.
• Generally, the draft law is likely to align with the provisions set out in the EU Pay Transparency Directive.

The Polish government has strongly affirmed that employers will be required to undertake job evaluations for the purpose of determining whether employees perform work of equal or comparable value. In this regard, the proposal introduces a new analytical tool for job evaluations, intended to support employers in meeting this obligation. However, employers retain the discretion to adopt an alternative methodology, provided that such methodology is analytical, gender-neutral, and objectively justified.

Importantly, any job evaluation process, whether based on the government’s proposed tool or a method selected by the employer, must address four mandatory criteria: skills, effort, level of responsibility, and working conditions. These criteria must be applied uniformly across all positions. As a result, certain commercial job evaluation models may not align with the prescribed requirements. Employers that intend to rely on such models may be required to modify or replace them to ensure compliance.

The tool accommodates a maximum of eighty-five positions and twenty-six categories, which may present operational challenges for larger employers. It will therefore fall to individual employers to assess whether the proposed tool is adequate for their organisational structure or whether an alternative method is necessary.

Failure to conduct job evaluations may expose employers to fines of up to PLN 60,000 (approximately USD $16,400). Such penalties may be imposed where an employer, or a person acting on the employer’s behalf, fails to:

• assess the value of individual job positions or categories of work,
• provide employees with information concerning applicable pay criteria,
• furnish employees with specified pay information upon request,
• prepare a gender pay gap report or conduct a joint pay assessment where required, or
• implement appropriate remedial measures to address any identified gender pay gap.

A full draft bill is expected to be released for public consultation imminently. Current indications are that the draft bill will be adopted by the Council of Ministers and subsequently referred to Parliament in Poland in the second quarter of 2026.

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

For more on the EU’s pay transparency directive, see our previous articles, “EU Pay Transparency Directive: Updates on Implementation Across Member States,” “Preparing for the EU’s Pay Transparency Directive,” “EU Pay Transparency Directive: ‘Equal Pay for Equal Work or Work of Equal Value,” “Implementing the EU Pay Transparency Directive in Malta—New Obligations Effective From 27 August 2025”, “Netherlands Announces Delay in Implementation of the EU Pay Transparency Directive.” and “The June 2026 EU Pay Transparency Directive Implementation Deadline Looms.”

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

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

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

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

Emilia Mobius, a paralegal in the London office of Ogletree Deakins, contributed to this article.

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Quick Hits

• The U.S. Senate confirmed President Trump’s nominations of James D. Murphy and Scott Mayer to the NLRB, and Crystal S. Carey to be the NLRB’s general counsel.
• The confirmations restore a quorum of three members on the NLRB, enabling the Board to function and decide cases. Carey’s appointment is expected to shift enforcement policies at the NLRB in line with the Trump administration.
• Despite having a quorum, the NLRB is unlikely to address any of the employee-friendly cases decided during the Biden administration, as the NLRB’s long-standing tradition commands that there be three votes to overturn established precedent.
• The new NLRB general counsel is expected to shift the enforcement policies of the NLRB, having criticized her predecessor’s approach, which may lead to significant changes in how alleged labor violations are handled.

The Senate voted 53–43 to approve a Senate Resolution confirming a slate of ninety-seven Trump administration nominations en bloc that included NLRB nominations.

• Scott Mayer, an in-house legal counsel and current chief labor counsel at an American multinational corporation, fills the seat last held by Lauren McFerran, a Democratic appointee whose term expired on December 16, 2024. The new term expires on December 16, 2029.
• James Murphy, a career attorney at the NLRB who most recently served as the chief counsel to NLRB Chairman Marvin E. Kaplan, fills the seat vacated by former member John F. Ring, expiring on December 16, 2027.
• Crystal Carey, a partner at a private practice law firm with eight years of experience as an attorney with the NLRB, will serve as the general counsel for a term of four years. She replaces the current acting general counsel, William B. Cowen, who served following President Trump’s removal of Biden-appointed former General Counsel Jennifer Abruzzo.

The Board has lacked a quorum since President Trump removed Democratic member Gwynne Wilcox in his first days in office in January 2025. For months, the NLRB has had only one sitting member: David Prouty, a Democratic member nominated by President Biden in 2021, whose term is set to expire in August 2026.

Mayer’s and Murphy’s confirmations follow a nearly six-month process after President Trump nominated them in July 2025. Their confirmations mean the Board will now have a quorum of three out of five members, with two of the members being Republican appointees.

Carey will replace Acting NLRB General Counsel William B. Cowen, who had served in that capacity after President Trump removed Abruzzo in January. While Cowen took actions to rescind the prior general counsel’s memoranda and align the NLRB with the administration’s policy priorities, Carey’s confirmation will allow the NLRB general counsel’s office to take further action. The general counsel plays a crucial role in overseeing the investigation and prosecution of alleged labor violations, as well as in establishing enforcement policies.

Carey is expected to differ significantly from Abruzzo and align closely with the Trump administration. During committee hearings, Carey criticized her predecessor’s penchant for stretching the bounds, which she believed potentially contributed to a backlog of cases, and she called for an organizational assessment of the agency.

Next Steps

The confirmation of the two Board nominees, which restores a quorum to the Board, together with the confirmation of the new general counsel, will enable the NLRB to return to close-to-normal operations in the coming year and further implement the Trump administration’s policy priorities.

However, that does not mean employers should expect the Board to reconsider some of the employee-friendly NLRB decisions issued during the Biden administration. Long-standing Board tradition requires at least three affirmative votes to reverse extant precedent. That means that with the current makeup of the Board, with two Republican nominees and one Democratic nominee, it is unlikely the Board will address those decisions.

Ogletree Deakins’ Traditional Labor Relations Practice Group will continue to monitor developments and will provide updates on the Governmental Affairs and Traditional Labor Relations 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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Senate Confirms NLRB, DOL Nominees. After clearing an initial procedural hurdle late last week, the U.S. Senate confirmed a slate of ninety-seven presidential nominees this week, prior to heading home for the end-of-year holidays. Included in the package are James Murphy and Scott Mayer, nominated to be members of the National Labor Relations Board (NLRB), as well as Crystal Carey, nominated to be the Board’s general counsel. Upon being sworn in, Murphy and Mayer will provide the Board with a functioning quorum. However, as the Buzz has discussed previously, if they follow Board tradition, Murphy and Mayer will need a third vote—which they are unlikely to get from current Democratic Board Member David Prouty—in order to begin making new policy and reversing Biden-era Board decisions.

Also confirmed as part of the package were Rosario Palmieri, who will serve as assistant secretary of labor for policy in the U.S. Department of Labor (DOL), Henry Mack III, who will serve as assistant secretary of labor and lead the DOL’s Employment and Training Administration, and Anthony D’Esposito, who will serve as the DOL’s inspector general.

President Trump Expands Travel Ban. On December 16, 2025, President Donald Trump issued a new proclamation further restricting the entrance of foreign nationals from certain designated countries into the United States. On June 4, 2025, President Trump issued Proclamation 10949, which established a prohibition on entry for foreign nationals from twelve countries and a partial restriction on seven countries. The latest proclamation builds upon Proclamation 10949 by doing the following:

• The prohibition on entry of foreign nationals from the following original twelve countries will continue: Afghanistan, Burma, Chad, the Republic of the Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Somalia, Sudan, and Yemen.
• Added to that list of countries from which entry is prohibited are Burkina Faso, Laos, Mali, Niger, Sierra Leone, South Sudan, and Syria (Laos and Sierra Leone were elevated from the “partial ban” list set forth in Proclamation 10949). Also fully prohibited from entering the United States are “individuals using travel documents issued or endorsed by the Palestinian Authority (PA).”
• Burundi, Cuba, Togo, and Venezuela remain subject to partial restrictions on entry, while the suspension of entry into the United States of nationals of Turkmenistan on certain nonimmigrant visas has been lifted (though “the entry into the United States of nationals of Turkmenistan as immigrants remains suspended.”)
• Partial restrictions on entry of nationals from the following fifteen countries have also been added: Angola, Antigua and Barbuda, Benin, Cote d’Ivoire, Dominica, Gabon, The Gambia, Malawi, Mauritania, Nigeria, Senegal, Tanzania, Tonga, Zambia, and Zimbabwe.

Exceptions to coverage of the proclamation include lawful permanent residents of the United States, certain foreign athletes, as well as “national interest” determinations made by the attorney general, secretary of state, or secretary of homeland security. The proclamation becomes effective at 12:01 a.m. Eastern Standard Time on January 1, 2026.

H-1B Proclamation Update. The following are updates regarding legal challenges to President Trump’s September 19, 2025, proclamation, “Restriction On Entry Of Certain Nonimmigrant Workers,” on September 19, 2025:

• Hearing in U.S. Chamber of Commerce Case. Two private-sector lawsuits have been filed against the H-1B proclamation: one by the U.S. Chamber of Commerce and another by a coalition of labor unions, nursing organizations, and religious organizations (Global Nurse Force et al. v. Trump). The Chamber’s lawsuit is on a faster track, as a hearing was held on December 19, 2025, in the U.S. District Court for the District of Columbia. A decision in the case is expected in the coming weeks.
• States File Legal Challenge. In addition to the Chamber’s lawsuit and the Global Nurse Force lawsuit, twenty Democratic state attorneys general have also filed their legal challenge against the H-1B proclamation. This lawsuit, filed in the U.S. District Court for the District of Massachusetts, advances similar legal arguments as those contained in the other two lawsuits, though obviously focuses its policy arguments on public sector employment, noting “state and local agencies and public-serving institutions like universities, schools, and hospitals have turned to H-1B workers to provide education, healthcare, and other services.”

House Lawmakers Examine Union Transparency Matters. On December 17, 2025, the House Education and Workforce Committee’s Subcommittee on Health, Employment, Labor, and Pensions (HELP) held a hearing, titled, “Ensuring Union Leaders Represent Members, Not Agendas.” According to Subcommittee Chair Rick Allen’s (R-GA) opening statement, the hearing focused on ways to “strengthen the Labor Management Reporting and Disclosure Act (LMRDA) to better support union members who want to participate in governing their unions.” Witnesses and lawmakers discussed the following bills.

• The Union Members Right to Know Act (H.R. 6139). This bill would require a labor union to provide employees with copies of the union constitution, bylaws, and collective bargaining agreement, and make those documents available on its website. A similar, but not identical, bill with the same name has been introduced in the Senate.
• Protecting Union Representation and Elections Act (PURE Act) (H.R. 6136). This bill would amend the LMRDA to require that elections for union officials be conducted only via secret ballot voting by the members, rather than by a convention of delegates.
• Fair Access to Justice for Union Members Act (H.R. 6141). This bill would amend the LMRDA to eliminate the requirement that union members exhaust internal administrative procedures prior to instituting a legal challenge against their union.
• Ask the Union Members Act (H.R. 6142). This bill would require unions to conduct secret ballot votes to approve a collective bargaining agreement or authorize a strike.
• Endorsement Transparency Act (H.R. 6156). This bill would require unions, prior to endorsing a candidate for the office of President of the United States, to poll their members on the decision and disclose the results of that poll to the members.

These bills likely have little chance of becoming law, but they are indicative of how House Republicans view the current labor-management policy landscape.

It Does a (Legislative) Body Good. Things took a churn for the better this week in Congress, as the U.S. House of Representatives passed the “Whole Milk for Healthy Kids Act of 2025” (S. 222). The bill amends the Richard B. Russell National School Lunch Act to allow public schools to serve “flavored and unflavored organic or nonorganic whole, reduced-fat, low-fat, and fat-free fluid milk and lactose-free fluid milk.” The current, udderly ridiculous, regulations permit schools to serve only low-fat or fat-free milk to students. Previously passed via unanimous consent in the Senate, its full cream ahead for the bill, which now finds its whey to President Trump’s desk.

This is the last Beltway Buzz of 2025. We will return on January 9, 2026.

Quick Hits

• The rapid transformation of healthcare, including advancements in nanomedicine and AI, has significantly increased cyber risks, with PHI breaches escalating from 6 million in 2010 to 170 million in 2024.
• Cybercriminals are increasingly targeting healthcare infrastructure and clinical systems, manipulating patient records and devices, which can compromise patient safety and impose substantial financial and reputational costs on providers.
• Preparedness and disciplined incident response are crucial for healthcare employers to mitigate the impact of cyberattacks, requiring immediate action, thorough documentation, law enforcement engagement, and post-incident security enhancements.

Cybercriminals no longer aim to simply steal or encrypt data—they increasingly seek to manipulate critical healthcare infrastructure and clinical systems in terrorist-like cyber-attacks. This includes altering patient records—such as medication dosing, and infiltrating or reprogramming devices used in surgical procedures or oncology treatments, placing patient safety and clinical outcomes directly at risk. Cyber incidents can compromise continuity of care, degrade clinical quality, and erode public trust—all while imposing enormous financial and reputational costs on providers.

Ransomware remains the most disruptive and prevalent attack modality. Cybercriminals deploy double extortion techniques—first exfiltrating health data, then encrypting it—to force payment both to restore access and to prevent public disclosure of stolen information. Even when organizations maintain robust backups, cybercriminals increasingly target those backups to eliminate recovery options and to pressure payment. The challenge extends into the future as data stolen today may be stored for later decryption as cybercriminals anticipate leveraging quantum computing capabilities to decode currently secure encryption methods, further amplifying the long-term risk profile of compromised data. Healthcare employers have reported recovery timelines of more than a month, and some providers have elected to pay ransoms to stabilize operations and protect patient care.

Preparedness and disciplined incident response are paramount. When a cyberattack occurs, speed, clarity, and precision in execution can substantially reduce patient risk, regulatory exposure, and operational downtime. The following action framework provides a practical guide for healthcare employers facing an active incident:

• Activating the internal person who has been designated in your organization to stop cyberattacks and mitigate further losses
• Immediately assessing and auditing the situation, which includes identifying the nature of the attack, and the scope of data and systems affected
• Disconnecting impacted systems from the network to prevent further compromise or spread of the attack, while preserving forensic integrity
• Documenting the incident, including recording details including suspected start time, observed behaviors, compromised systems, and initial response steps
• Engaging relevant law enforcement authorities promptly, for example, by reporting attacks to law enforcement, Federal Bureau of Investigation (FBI), and/or other government agencies (e.g., Cybersecurity and Infrastructure Security Agency (CISA)) to assist in investigating, and/or recovering data that has been encrypted
• Timely notifying compromised parties, which includes informing persons whose data may have been accessed,  such as patients, employees, or other partner providers
• Thoroughly sanitizing and restoring data, a step that involves removing malware from infected systems, restoring validated data from backups, and updating software/firmware to latest versions to eliminate known vulnerabilities
• Once stabilized, shifting to enhance security, e.g., conducting a comprehensive post-incident review to identify control gaps and systemic weaknesses/vulnerabilities, then investing in targeted improvements such as multifactor or biometric authentication, stronger encryption, segmented network architecture, and ongoing employee training to reduce susceptibility to credential compromise

Vigilance is essential in an era when threat actors continuously refine their tools, techniques, and access. Healthcare employers cannot afford to be complacent. The convergence of digital healthcare innovation and cybercriminal sophistication demands a proactive approach, which includes testing employer incident response plans, validating backups and restoring procedures, clarifying decision authority for ransom scenarios, mapping critical systems and data flows, and routinely exercising cross-functional coordination with clinical, legal, compliance, and technology stakeholders. With deliberate preparation, and rapid, coordinated action, organizations can protect patients, preserve trust, and recover faster when the next cyberattack occurs.

Ogletree Deakins’ Cybersecurity and Privacy Practice Group and Healthcare Industry Group will continue to monitor developments and will post updates on the Cybersecurity and Privacy and Healthcare blogs as additional information becomes available.

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Quick Hits

• On December 18, 2025, President Trump signed an executive order directing the attorney general to expedite the rescheduling of marijuana from a Schedule I to a Schedule III drug.
• As a Schedule III drug, marijuana researchers would face far fewer barriers, which could impact state or federal efforts to legalize the drug for medicinal or recreational use.
• The legal impact on employers, however, is likely minimal.

According to studies conducted by the U.S. Department of Health and Human Services (DHS), more than 30,000 licensed healthcare practitioners were recommending medical marijuana to more than 6 million registered patients nationwide. The move to Schedule III would place marijuana and its derivative products in the same category as drugs such as ketamine, buprenorphine, anabolic steroids, and Marinol—a synthetic version of THC used to treat nausea, vomiting, and loss of appetite.

While the executive order does not reclassify marijuana as a Schedule III drug, the administration is signaling its support for the move. Furthermore, rescheduling marijuana would not legalize it for recreational or medicinal use, but it would ease restrictions on research of the drug. The move would come over fifty years after the federal government first classified marijuana as a Schedule I drug in the 1970s, and a year after the Biden administration first proposed transferring marijuana to Schedule III. The U.S. Department of Justice accepted public comment through July 2024 and considered the move, but ultimately did not order the rescheduling.

In addition to research impact, rescheduling marijuana to Schedule III would, according to reporting from The Hill, “allow marijuana businesses to deduct expenses or add credits to their annual federal taxes,” which is currently not permitted for businesses that deal with Schedule I and Schedule II substances.

The Schedule System

The Controlled Substances Act (CSA) governs federal drug policy in the United States. The CSA created the drug scheduling system, which places drugs onto five Schedules based on a drug’s potential for abuse, accepted medical uses, and the potential for addiction. Presently, the Drug Enforcement Administration (DEA) and U.S. Food and Drug Administration (FDA) jointly classify drugs on a I through V schedule.

According to the DEA, Schedule V drugs, substances, or chemicals are those with the lowest potential for abuse and contain limited quantities of narcotics. These drugs are typically used to treat common conditions, such as coughing and diarrhea, as well as rarer conditions like seizures. Schedule I drugs, on the other hand, are drugs, substances, or chemicals with no currently accepted medical use and a high potential for abuse. This includes drugs such as LSD, ecstasy, heroin, and—presently—marijuana. In the middle are Schedule III drugs, which the DEA recognizes as having a moderate to low potential for physical and psychological dependence. This schedule includes some pain medications with less than 90 milligrams of codeine per dose, ketamine, and anabolic steroids.

Consequences of the Move

Historically, it has been a cumbersome process to study the effects of Schedule I drugs. Under the CSA, researchers who wish to conduct research on Schedule I drugs must register with the DEA and provide the agency with information about their qualifications, research protocol, and the institutions where the research takes place. As a result, as of December 2019, fewer than 600 researchers were registered with the DEA to study any Schedule I substance. In 2018, the DEA streamlined the process by moving it online and into a web portal. The hurdles for research do not stop there. Even researchers who are registered with the DEA to research Schedule I drugs are barred from using certain sources of funding (such as any National Institute of Health grant) to fund research that requires purchasing cannabis.

As a Schedule III drug, researchers would face far fewer barriers to entering the marijuana space. This could, in turn, impact state or federal efforts to legalize the drug for medicinal or recreational use. Currently, most states have legalized marijuana in some capacity for medicinal use, with a smaller subset legalizing marijuana for recreational use. While technically still illegal at the federal level, the federal government has historically not interfered with the state-level programs. Rescheduling in and of itself would have little to no impact on existing laws that regulate workplace drug testing and safety, although again, future impacts on state or federal efforts to legalize the drug remain to be seen.

Importantly, rescheduling would not override existing state legalization laws and related employment protections. Employers must continue to navigate the complex landscape of state laws, including those concerning disability discrimination and lawful off-duty conduct, when addressing issues related to marijuana testing and adverse employment actions. Employers should remain mindful of the continued challenges in handling state-specific laws and issues arising from testing for marijuana or taking adverse employment action based on a positive test result.

Ogletree Deakins’ Drug Testing Practice Group will continue to monitor developments and will provide updates on the Drug Testing blog 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

• The California Court of Appeal held that an employee’s reasonable, good-faith belief that an employer violated the law may support a whistleblower retaliation claim under California Labor Code section 1102.5(b), even if the employee’s legal interpretation is ultimately mistaken.
• The court emphasized that section 1102.5(b)’s “objective reasonableness” of the employee’s belief is a question of fact for the jury, not a matter of law for the court.
• The decision underscores that section 1102.5(b) is intended to encourage employees to report suspected legal violations without fear of retaliation, even if they lack legal training.

Background

The plaintiff, Manuel Contreras, a sanitation department employee, believed his employer was violating the California Equal Pay Act (EPA) by paying him less than coworkers performing similar duties. Contreras did not contend that his unequal wages were based on his sex, race, or ethnicity. After consulting with a deputy labor commissioner who mistakenly advised that there was a “potential violation” and reviewing a California Labor Commissioner’s Office frequently-asked-question (FAQ) guidance document—which was itself incomplete and ambiguous, stating that the EPA was strengthened by “[r]equiring equal pay for employees who perform ‘substantially similar work,’ when viewed as a composite of skill, effort, and responsibility”—Contreras (a layperson without formal legal training) concluded, mistakenly, that the EPA required equal pay for substantially similar work, regardless of protected class status. He raised his concerns with management, presenting the FAQ document and requesting a raise. Shortly thereafter, his employment was terminated.

Contreras filed suit, alleging, among other claims, whistleblower retaliation under section 1102.5(b). At trial, the jury found in his favor on all claims, awarding economic and non-economic damages, as well as statutory penalties. The employer moved for JNOV on the whistleblower claim, arguing that the employee’s mistaken understanding of the EPA—specifically, his failure to allege pay disparity based on sex, race, or ethnicity—precluded liability under section 1102.5(b). The trial court granted the motion, finding the employee could not claim whistleblower protection based on a nonexistent or inapplicable legal violation.

Key Holdings

Reasonable but Mistaken Legal Belief Sufficient for Whistleblower Protection. The Court of Appeal reversed the trial court’s entry of JNOV, holding that section 1102.5(b) does not require an employee to be legally correct, only that the employee have “reasonable cause to believe” a violation occurred. The court distinguished between claims based on a “nonexistent law” and those based on a reasonable misinterpretation of an existing statute, finding that the latter might support a whistleblower claim.

Jury’s Role in Assessing Reasonableness. The court found substantial evidence supported the jury’s determination that the employee’s belief had been reasonable, given the ambiguous language in the Labor Commissioner’s FAQ document and the deputy labor commissioner’s statements. The court noted that the FAQs’ omission of protected class language in several sections could have reasonably misled a layperson.

Legislative Purpose and Public Policy. The decision reaffirms the broad remedial purpose of section 1102.5(b), which is to encourage employees to report suspected violations of the law without fear of retaliation, even if their legal analysis is imperfect. The court cautioned that requiring legal accuracy would undermine the statute’s protective intent.

Key Takeaways

• Employers in California may be liable for whistleblower retaliation under section 1102.5(b), even where an employee’s belief that a violation of the law has occurred is mistaken, so long as the belief is objectively reasonable.
• An employee’s reliance on guidance by enforcing agencies, even where such guidance is legally incorrect, may be relied upon in determining whether the employee’s belief is objectively reasonable.
• Nevertheless, as the court noted, “Section 1102.5 requires ‘objective reasonableness,’ and it ‘does not protect employees who do not believe or who unreasonably believe that the information they are disclosing shows a violation of the law.’” (Internal citations omitted.)
• Employers should be careful when responding to employee complaints about potential legal violations, even if an employee’s legal theory appears flawed.
• The decision highlights the importance of clear communication and training regarding wage and hour laws and the need for careful handling of employee complaints to avoid potential retaliation claims.

The Contreras decision serves as a reminder that California’s whistleblower protections are broadly construed and that employee complaints based on a mistaken understanding of the law may still provide a basis for a retaliation claim. The decision may lead enforcement agencies, such as the Labor Commissioner’s Office, which are charged with protecting employee rights, to provide more vague and less precise guidance, as the court system will ultimately determine whether the law was violated. Employers may want to review their internal complaint procedures and train managers to respond appropriately to employee concerns regarding potential legal violations.

Ogletree Deakins’ California offices, Pay Equity Practice Group, Wage and Hour Practice Group, and Whistleblower and Compliance Practice Group will continue to monitor developments and will provide updates on the California, Ethics / Whistleblower, Pay Equity, and Wage and Hour blogs as additional information becomes available.

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Quick Hits

• The D.C. Circuit upheld President Trump’s power to remove NLRB member Gwynne Wilcox and MSPB member Cathy Harris without cause.
• The court ruled that statutory “for-cause” removal protections for officials at federal agencies that wield substantial executive power are unconstitutional.
• The decision addresses constitutional questions about the extent of presidential authority over independent agencies, particularly concerning the removal of officers at agencies established by Congress.

In Wilcox v. Trump and Harris v. Bessent, a D.C. Circuit panel majority reversed a district court ruling that had reinstated both Wilcox and Harris, both Democratic appointees, to their respective agencies after President Trump had removed them without citing cause earlier this year. Instead, the D.C. Circuit panel held that statutory “for-cause” removal protections for members of the NLRB and MSPB are unconstitutional.

The ruling comes as the Supreme Court of the United States is considering a similar case, Trump v. Slaughter, concerning President Trump’s removal of Rebecca Slaughter from the Federal Trade Commission (FTC) and whether Humphrey’s Executor v. United States—a 1935 Supreme Court decision upholding restrictions on the president’s authority to remove officers of certain types of independent agencies—should be overruled.

The D.C. Circuit read Humphrey’s Executor narrowly:

“[T]he NLRB and MSPB wield substantial powers that are both executive in nature and different from the powers that Humphrey’s Executor deemed to be merely quasi-legislative or quasi-judicial,” the D.C. Circuit majority wrote. “So, Congress cannot restrict the President’s ability to remove NLRB or MSPB members.”

‘Substantial Executive Power’

The D.C. Circuit panel based its ruling on the Supreme Court’s 2020 decision in Seila Law LLC v. Consumer Financial Protection Bureau, which declined to extend Humphrey’s Executor and instead applied the rule under the 1926 Myers v. United States case, which held that Congress could not restrict the president’s ability to remove government officers who wield significant executive power.

The court found that the NLRB, a five-member board created by the National Labor Relations Act (NLRA) that enforces federal labor law through representation and unfair labor practice cases, and the MSPB, a three-member bipartisan board that adjudicates personnel and merit systems issues involving federal employees, exercise powers beyond quasi‑legislative (i.e., investigatory/reporting) and quasi‑judicial (i.e., judge‑like, non‑policymaking adjudication) functions.

Specifically, the panel pointed out that the NLRB wields substantial executive power in ways that distinguish the agency from the FTC as it functioned in 1935, which was at issue in Humphrey’s Executor. The D.C. Circuit pointed out that the NLRB exercises:

• broad rulemaking authority with the power to issue binding rules necessary to carry out the NLRA, including industry-wide rules, such as those defining appropriate bargaining units;
• policymaking authority through administrative adjudications, changing labor policy on a case-by-case basis;
• remedial power to issue cease-and-desist orders and order reinstatement, backpay, and other affirmative relief sometimes akin to compensatory damages;
• independent litigating authority to seek to enforce its orders in federal court; and
• administrative authority to oversee union elections and bargaining units.

The D.C. Circuit panel likewise stated that the MSPB had “more executive powers” than those deemed to be quasi-legislative or quasi-judicial, including substantial rulemaking authority to issue binding regulations necessary to perform its functions and adjudicatory authority—even if “less aggressive than the NLRB in naked appeals to shifting policy preferences.”

Separation of Powers

The Trump v. Slaughter case, as well as Wilcox’s and Harris’s cases regarding their removals, have raised significant constitutional questions about the president’s authority to remove officers of independent, multimember agencies for whom the U.S. Congress imposed statutory “for-cause” removal protections.

Under the NLRA, members of the NLRB may be removed by the president only “upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” MSPB members are protected from at-will removal absent “inefficiency, neglect of duty, or malfeasance in office.”

The Trump administration has argued that such statutory removal protections violate the separation of powers doctrine by unconstitutionally limiting the president’s executive authority. President Trump’s removal of Wilcox and Harris earlier this year left both the NLRB and MSPB without quorums.

The D.C. Circuit panel’s decision, while falling short of granting the president absolute authority to remove federal agency officers, severely limits for-cause protections for officers at independent agencies. The panel’s majority suggested that the Humphrey’s Executor protection standard survives only for multimember expert bodies that do not wield substantial executive power, or “only agencies with purely advisory functions—like, say, the United States Commission on Civil Rights.”

However, writing in a separate dissenting opinion, D.C. Circuit Judge Florence Y. Pan criticized the panel majority’s decision to “strike down the independence of a traditional multimember expert agency.” She stated that the Trump administration’s position urged an “unprecedented interpretation of the Constitution that would lead to the full politicization of our government and a massive transfer of power to the President.”

Next Steps

The D.C. Circuit panel’s ruling upholds President Trump’s removal of Wilcox and Harris from their respective appointed positions at the NLRB and MSPB, but the litigation could continue. Harris has already petitioned for en banc review by the full D.C. Circuit Court of Appeals. Still, the likelihood of either Harris or Wilcox being reinstated is at best unclear. While the D.C. Circuit sitting en banc ruled in their favor earlier in the litigation, the Supreme Court later blocked their reinstatement. In that ruling, which was on an emergency basis and not on the merits, a majority of the justices agreed that the Trump administration had likely shown that members of the NLRB and MSPB “exercise considerable executive power.”

The Supreme Court’s forthcoming ruling in the Slaughter case could also have a significant influence. A decision overturning Humphrey’s Executor and holding that restrictions on the president’s power to remove officers of independent agencies that wield executive power are unconstitutional would support the D.C. Circuit panel’s ruling in the Wilcox and Harris case.

Furthermore, questions remain about the practical implications of reinstating members to agency boards after they have been out of the agency for months, and whether this would impact the legitimacy of actions taken by the agencies in their absence. In the meantime, President Trump’s two NLRB nominees, whose appointments would restore a Board quorum, are nearing confirmation by the full U.S. Senate.

Ogletree Deakins’ Traditional Labor Relations Practice Group will continue to monitor developments and will provide updates on the Governmental Affairs and Traditional Labor Relations 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

• New York Governor Hochul signed a law that requires healthcare facilities, defined as general hospitals and nursing homes, to develop workplace violence prevention programs.
• General hospitals will additionally be required to conduct safety assessments, develop specific violence prevention plans for preventing and dealing with workplace violence incidents, and maintain trained security personnel for emergency rooms.
• The New York workplace safety requirements come as the federal Occupational Health and Safety Administration (OSHA) halted plans for a nationwide workplace violence prevention standard that had been in the works under the Biden administration.

Senate Bill (S) 5294-B, which was initially passed by the state legislature on June 11, 2025, creates new workplace violence prevention obligations for healthcare “facility[ies]” defined as general hospitals or nursing homes. The law requires facilities to establish prevention programs by September 2027.

The law adds additional workplace safety obligations on healthcare facilities in New York as workplace violence incidents in healthcare settings continue to rise across the country, creating particularized hazards for such workplaces.

The new state standard follows OSHA’s delay of a nationwide workplace violence safety standard for healthcare settings that had been under development during the Biden administration. Meanwhile, a bill that would require OSHA to issue a specific standard for healthcare was introduced in the U.S. Congress in April 2025, but it has not gained traction.

Workplace Violation Prevention Programs

S5294-B requires all general hospitals and nursing homes to establish workplace violence prevention programs within twelve months of the effective date of the law, which is set for 280 days after its enactment.

General hospitals are required to establish programs consistent with the federal Centers for Medicare and Medicaid Services (CMS) Hospital Conditions of Participation regulations for safe settings and emergency preparedness, 42 CFR Section 482.13(c)(2) and Section 482.15(a) and (d)(1), and with the workplace standards of the hospital’s CMS-deemed accreditor.

Those federal CMS regulations set forth requirements for an “emergency preparedness plan,” which must be reviewed and updated at least every two years. Those plans must:

• be based on a facility and community risk assessments;
• provide strategies for specific emergency events;
• address patient populations, the types of operations the facility can provide during an emergency, and plans for continuity of operations; and
• include a process for coordination with federal, state, and local authorities.

Additionally, those federal regulations outline hospital violence training programs, including new training each time the emergency preparedness plans are updated. 

Nursing homes will be deemed compliant if they follow federal regulations for facility risk assessments and long-term care (LTC) emergency preparedness plans outlined in 42 CFR 483.71(a)(3), (b)(1), and 483.73(a)(1), “provided that such assessments and plans address workplace violence threats and hazards.”

Assessments and Security Plans for General Hospitals

Beginning on January 1, 2027, general hospitals must conduct on an annual basis, “a workplace safety and security assessment and develop a safety and security plan that addresses identified workplace violence threats or hazards.”

The safety and security plans must include security measures and policies, including “personnel training policies designed to prevent or minimize identified workplace violence threats or hazards.” In developing those plans, general hospitals must “ensure the active involvement of employees,” including their collective bargaining representatives.

General hospitals must also tailor their plans to the “size, complexity, and local geographical factors” and consider “relevant threats and hazards,” such as workplace violence incidents and complaints or concerns raised by employees, patients, or visitors, as well as specific problems related to the general hospital’s layout.

Implementing Security Plans for General Hospitals

General hospitals must implement their safety and security plan based on the assessments and any findings from those assessments, and update plans as necessary. The plan must include methods to reduce identified risks, such as employee training, increased staffing, security measures, and hospital modifications. Further, they must provide a written summary of the plan to employees and collective bargaining representatives and inform them about reporting incidents of workplace violence.

Security Personnel for Emergency Rooms

Additionally, S5294-B will require hospitals with emergency rooms to maintain trained security personnel. Hospitals in jurisdictions with a population of 1 million or more must have “at least one off-duty law enforcement officer or trained security personnel” present, at all times, in the emergency departments, subject to “emergent circumstance[s].”

Small jurisdictions of less than 1 million must have “at least one off-duty law enforcement officer or trained security personnel” somewhere on the premises, at all times, though in “a manner that prioritizes physical presence near, or within close proximity to, the emergency department” and with direct responsibility to the emergency department.

The above smaller-jurisdiction requirement does not apply to critical access hospitals, sole community hospitals, or rural emergency hospitals. However, if any such exempt hospital experiences increased rates of violence or abuse of emergency department personnel (as determined by the New York State commissioner of health or evidenced by internal program reporting or reports to law enforcement), the commissioner will work with the hospital to bring it into compliance with the “on‑premises at all times” staffing requirement over a reasonable period of time.

Next Steps

Overall, the New York law aims to enhance the safety and security of healthcare environments and their employees by requiring comprehensive violence prevention programs and ensuring adequate security measures, particularly in emergency departments. Healthcare facilities in New York may want to assess their workplace violence risks and begin preparations to comply with the law’s workplace violence prevention programs and develop emergency plans.

Ogletree Deakins’ Workplace Violence Prevention Practice Group and New York offices will continue to monitor developments and will provide updates on the Healthcare, New York, Workplace Safety and Health, and Workplace Violence Prevention blogs as additional information becomes available.

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