Quick Hits

• On February 6, 2026, the Fourth Circuit held that the plaintiffs’ facial challenges in National Association of Diversity Officers in Higher Education v. Trump to President Trump’s anti-DEI executive orders (EOs) were unlikely to succeed, but the court did not validate the administration’s enforcement practices, did not endorse its interpretation of anti-discrimination law, and did not define what constitutes “unlawful DEI.”
• The certification provision in EO 14173 applicable to federal contractors and grant recipients targets only programs that “violate any applicable Federal anti-discrimination laws,” not DEI programming generally.
• The court expressly preserved the right of employers and other affected parties to challenge specific agency enforcement actions.

The plaintiffs, including the National Association of Diversity Officers in Higher Education, the American Association of University Professors, and the City of Baltimore, had argued that the executive orders were unconstitutionally vague and violated the First Amendment of the U.S. Constitution. The Fourth Circuit disagreed, finding that the plaintiffs’ facial challenges were unlikely to succeed. The court’s narrow ruling, however, did not validate the administration’s enforcement practices, does not clarify what the administration considers “unlawful DEI,” and expressly preserved the right of employers and other affected parties to bring as-applied challenges to specific federal agency actions taken to enforce these executive orders.

The court’s decision focused narrowly on whether the text of two provisions, the termination provision in EO 14151 and the certification provision in EO 14173, is facially unconstitutional.

The termination provision directs all federal agencies to “terminate, to the maximum extent allowed by law, all DEI, DEIA, and ‘environmental justice’ offices and positions,” as well as “all ‘equity action plans,’ ‘equity’ actions, initiatives, or programs, ‘equity-related’ grants or contracts.”

The certification provision requires agencies to include in every contract or grant award term requiring the recipient to (1) certify compliance with all federal anti-discrimination laws, and (2) “certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.” Noncompliance with these certifications could expose recipients to potential False Claims Act liability and other results, such as loss of funding.

The Fourth Circuit concluded that both provisions, as written, survive constitutional scrutiny. Regarding the termination provision, the court characterized it as an internal executive matter—a policy directive from the president to his subordinates to terminate DEI-related grants and contracts. The court held that a more lenient vagueness standard applies in funding contexts than in criminal or regulatory schemes. Because the government is acting as a “patron” distributing funds rather than as a “sovereign” imposing penalties, courts afford greater latitude for imprecision. Regarding the certification provision, the court found that it requires only that grant recipients and contractors certify compliance with existing federal anti-discrimination laws and not any new legal standard. Because the First Amendment does not confer a right to violate anti-discrimination laws, the court held that the certification provision does not facially violate the Constitution.

The court’s ruling turned on the distinction between facial and as-applied constitutional challenges. A facial challenge asks whether a provision is unconstitutional in all or a substantial number of its applications—a high bar. An as-applied challenge targets how a provision is enforced in specific circumstances. Here, the court addressed only the former.

Notably, the court took no position on whether the administration’s interpretation of anti-discrimination law is correct, did not validate any specific enforcement actions as lawful, and did not find what DEI programs are lawful versus unlawful. The court made clear that if the administration or agency actors misinterpret federal anti-discrimination law, for example, by treating lawful DEI programming as illegal, affected parties can challenge those decisions “in a specific enforcement action.” As-applied challenges remain fully available. Notably, Chief Judge Albert Diaz wrote separately to underscore this point, expressing concern that “the evidence cited by plaintiffs, their amici, and the district court suggests a more sinister story: important programs terminated by keyword; valuable grants gutted in the dark.” His message: “Follow the law. Continue your critical work. Keep the faith. And depend on the Constitution.”

Next Steps

This decision is not judicial endorsement of the administration’s enforcement practices or a signal that aggressive anti-DEI enforcement has been “greenlit.” The court addressed only whether the text of the executive orders is facially unconstitutional. It did not validate the administration’s interpretation of anti-discrimination law, did not approve any specific enforcement actions, and did not define what constitutes “unlawful DEI.” Employers that have been uncertain about the status of their DEI programs are in largely the same position they were before this ruling.

Employers may want to evaluate whether their DEI programs comply with existing federal anti-discrimination statutes laws and document that compliance. Because the certification provision requires certification of compliance with existing law, employers with federal contracts or grants may be called upon to demonstrate that their programs do not discriminate on the basis of race, color, religion, sex, national origin, or other characteristics protected by federal anti-discrimination laws.

The Fourth Circuit’s decision is not the final word on challenges to the administration’s anti-DEI executive orders. Other courts are considering similar challenges, and as-applied challenges to specific agency enforcement actions are likely to follow. Employers may want to monitor how federal agencies are interpreting and enforcing the executive orders.

For more information on DEI enforcement, please join us for our upcoming webinar, “DEI Programs and Enforcement: What Employers Can Expect in 2026,” which will take place on February 24, 2026, from 2:00 p.m. to 3:00 p.m. EST. The speakers, T. Scott Kelly and Nonnie L. Shivers, will discuss the latest updates from the U.S. Equal Employment Opportunity Commission (EEOC), among other things. Register here.

Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance Practice Group, Governmental Affairs Practice Group, Government Contracting and Reporting Practice Group, and Workforce Analytics and Compliance Practice Group will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Employment Law, Governmental Affairs, Government Contracting and Reporting, Higher Education, and Workforce Analytics and Compliance blogs as additional information becomes available.

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

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Quick Hits

• Federal contractors must distinguish between contracts entered into before January 30, 2022 (subject to Executive Order (EO) 13658 and DOL’s annual indexed increases), and those entered into on or after that date, which were governed by EO 14026 prior to its revocation.
• Even though DOL is no longer enforcing EO 14026, contractors remain bound by existing contract clauses unless modified by the contracting officer and must comply with other applicable federal, state, and prevailing wage laws.
• The January 30, 2022, compliance date continues to determine which wage framework applies, whether DOL’s latest increase is triggered, and how legacy clauses and option exercises should be analyzed.

Since President Donald Trump revoked Executive Order 14026, which established a $15 per hour federal contractor minimum wage, contractors have faced uncertainty about minimum wage obligations. DOL’s recent annual minimum wage increase affecting certain federal contracts may add to the confusion. The key to understanding the current minimum wage landscape is recognizing that different rules apply depending on when a federal contract was entered into.

There have been two distinct federal contractor minimum wage regimes that affect contractors depending on the dates of their contracts: (1) an Obama-era contractor minimum wage rule, which remains in effect and is subject to annual inflation-based increases issued by DOL; and (2) the now-revoked Biden-era $15 minimum wage rule, which applied to contracts entered into on or after January 30, 2022.

Contracts Entered Into Before January 30, 2022

The federal contractor minimum wage did not originate with the Biden administration. An earlier executive order issued during the Obama administration (EO 13658) established a minimum wage for certain covered federal contracts and directed DOL to adjust that wage annually based on inflation. That executive order remains in effect today. Consistent with that directive, DOL recently issued its annual notice increasing the contractor minimum wage applicable to covered contracts entered into or extended via options before January 30, 2022. The DOL notice takes the position that post revocation of EO 14026, EO 13658 does not apply to contracts awarded, renewed, or extended after January 29, 2022. The increase took effect at the beginning of the calendar year and applies for the duration of covered contract performance. For contractors performing long-term or legacy federal contracts, this means the newly increased DOL minimum wage may still be mandatory, even though the Biden-era $15 rule has been revoked.

Contracts Entered Into on or After January 30, 2022

For contracts entered into on or after January 30, 2022, President Joe Biden’s Executive Order 14026 established a $15 per hour minimum wage for covered contractor employees, with annual indexing above that level. Importantly, EO 14026 provided that Executive Order 13658 “is superseded, as of January 30, 2022, to the extent it is inconsistent with this order.” For several years, EO 14026 was the controlling rule for new federal contracts and exercised options. But because EO 14026 has been revoked, it no longer establishes a federal contractor minimum wage for new contracts and the automatic $15-plus, inflation-indexed wage floor no longer applies by default to contracts entered into after January 30, 2022. However, the revocation does not mean that no minimum wage requirements apply to those contracts.

DOL has yet to issue clear guidance for contractors that are performing contracts subject to EO 14026 and whether they are no longer required to apply the $15-plus, inflation-indexed federal contractor minimum wage. Because the executive order was the sole legal authority for that wage floor, its revocation eliminates the policy basis for continued enforcement. The DOL’s website states that it “is no longer enforcing Executive Order 14026 or the implementing rule (29 CFR part 23) and will take steps, including rescinding 29 CFR part 23, to implement and effectuate the revocation of Executive Order 14026.” However, federal contractors generally must comply with the terms of their contracts, which may contain references to “FAR 52.222-55 Minimum Wages for Contractor Workers Under Executive Order 14026,” until those terms are modified by the contracting officer. Contractors may want to confirm with the contracting officer whether their agency has issued a class deviation or contract modification before making any wage adjustments from what is contractually required.

Remaining Minimum Wage Obligations

For contracts entered into on or after January 30, 2022, following the revocation of EO 14026, minimum wage obligations are determined by the express terms of the contract until modification by the contracting officer, and then existing federal labor statutes and applicable state law, rather than by a standalone executive order. In practice, this means contractors must look to the following sources:

• Fair Labor Standards Act (FLSA). At baseline, contractors must comply with the federal minimum wage under the FLSA, which currently remains $7.25 per hour, unless a higher wage is required by another law.
• Service Contract Labor Standards. For covered federal service contracts, the Service Contract Act (SCA) typically governs wages. Under the SCA employees must be paid at least the wage rates and fringe benefits specified in the applicable DOL wage determination. Those rates vary by locality and labor category and often exceed the EO 13658 minimum wage.
• Davis-Bacon Act. For covered construction contracts, the Davis-Bacon Act requires payment of prevailing wages set forth in DOL wage determinations, which are generally well above EO 13658 minimum wages.
• State and Local Wage Laws. Contractors must also comply with applicable state and local minimum wage laws, which frequently establish wage floors higher than the federal minimum and apply independently of federal contracting rules.

Why the January 30, 2022, Date Still Matters

Although the Biden-era $15 minimum wage rule has been revoked, January 30, 2022, remains a critical compliance marker because it determines whether DOL’s most recent annual contractor minimum wage increase applies (it applies only to contracts entered into before that date); and whether a contract was ever subject to Executive Order 14026, which may affect legacy clauses, option exercises, and agency enforcement positions.

As a result, many contractors continue to operate under multiple wage frameworks simultaneously, depending on contract vintage, contract type, and place of performance. For contractors with mixed portfolios, this remains a compliance and risk-management issue, not just a payroll issue. Careful contract-by-contract analysis remains critical to ensuring compliance and minimizing exposure under wage-and-hour laws and related enforcement regimes.

Ogletree Deakins’ Government Contracting and Reporting Practice Group will continue to monitor developments and will post updates on the Construction, Government Contracting and Reporting, and Wage and Hour blogs as additional information becomes available.

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Quick Hits

• The EEOC issued FAQs to assist federal agencies in implementing President Trump’s return-to-office order in compliance with the Rehabilitation Act of 1973, the federal sector analog to the ADA.
• As private employers implement return-to-office policies, the EEOC’s FAQs provide useful guidance for managing telework accommodation requests under the ADA.
• Employers may re-evaluate existing telework arrangements for individual employees and modify or rescind them, depending on the availability and effectiveness of alternative in-office accommodations.

Key Points From the FAQs

The FAQs cover a wide range of topics related to telework as a reasonable accommodation for employees with mental and physical disabilities. They offer an illuminating roadmap of the EEOC’s position on a number of complicated issues that employers face. Below is a summary of some of the more significant points.

Employers should recognize when telework qualifies as a reasonable accommodation—and when it does not. Under the ADA, reasonable accommodations, including telework, must enable an individual to accomplish one of the following: (1) participation in the application process, (2) performance of essential functions, or (3) access to equal benefits and privileges of employment.

The EEOC explains that telework requested primarily for personal benefit, without serving one of these purposes, is not a reasonable accommodation. Furthermore, the EEOC states that “[w]hat the law does not require … is accommodations that only mitigate symptoms without also enabling the performance of essential functions.” (Emphasis in original). The EEOC goes on to explain:

“Some employees who request full-time or recurring telework assert that telework would help them manage their condition, mitigate their symptoms, or improve their quality of life. But these employees often do not explain how telework would also enable them to perform essential functions of their jobs. Possible symptom mitigation does not, by itself, establish an entitlement to telework as a reasonable accommodation.”

Employers may implement other effective accommodations instead of telework. As the EEOC also notes, when several effective accommodations are available, the employer has the discretion to choose which accommodation to provide, even if it is not the employee’s preference. In lieu of telework, other effective in-office accommodations may include assistive technology, modified equipment, environmental modifications (sound, smell, light, etc.), job restructuring, or modified schedules.

Employers may reevaluate telework accommodations. Employers need not continue an accommodation, including a telework accommodation, in perpetuity. Instead, employers may reevaluate and/or adjust an existing accommodation on a periodic or situational basis. Such reevaluation may be warranted in light of changes to the employee’s condition, job duties, the employer’s operational needs, or applicable law. If the reevaluation reveals that the employee no longer requires telework, or perhaps never did, the employer may rescind the accommodation.

The EEOC emphasizes that an employer that granted an accommodation that exceeded its obligations under the law may choose to discontinue such accommodation at any time. As the EEOC notes, “To hold otherwise would see an [employer] ‘punished for its generosity.’”

Employers may need updated medical information to reevaluate telework accommodations. Whether such information is required may depend on the circumstances. If the employee initially provided sufficient medical information, the employer may need only to confirm that the information still is accurate. However, the employer may have approved telework accommodations without sufficient information or the employee’s condition may have changed such that updated medical information is necessary. The EEOC notes that an employer that previously accepted insufficient documentation “does not forfeit its option to revisit the issue and make a new decision.”

Employers may take mitigating measures into account. Employers may ask healthcare providers about mitigating measures or self-accommodations that could enable in-office work. The concept of “reasonableness” in the accommodations process may involve a comparison of relative cost between the employer and employee; it may be unreasonable to provide a telework accommodation that is less than optimal for an employer’s operations when reasonable and effective self-accommodation measures are available.

Employers may consider conflicting or contradictory evidence. Employers may consider reliable evidence that conflicts with an employee’s asserted need for telework, including social media activity or other observations of employee conduct inconsistent with the reported limitations). In addition, if the employee and/or the healthcare provider provide insufficient information, an employer may require that a healthcare provider of its choice examine the employee in order to assess a telework accommodation’s necessity.

Employers need not remove essential functions. While employers temporarily may have excused employees from performing essential functions such as in-office attendance or enabled telework during the pandemic, doing so did not permanently alter a position’s essential functions or establish telework as always feasible. In-person presence may be essential for many jobs—especially interactive roles that require supervision and teamwork. Determining whether in-person attendance is essential for a particular job requires a case-specific assessment.

Consider testing in-office accommodations. If an employee claims that a particular in-office accommodation will be ineffective, employers may want to ask the employee to provide a detailed explanation with supporting evidence. If the employer reasonably believes in—and the available evidence supports—the likely effectiveness of an in-office accommodation instead of telework, the employer may require the employee to try the in-office accommodation. If the in-office measure is ineffective, employers may reconsider full-time or recurring telework, without removing essential functions or incurring undue hardship.

Noncompliance may be subject to discipline. An employee who refuses to report to the office may be considered absent without leave. However, employers first should ensure the employee understands why telework is not or is no longer available and invite suggestions for in-office alternatives. If the employee still refuses to return, the employer may discipline the employee in accordance with the employer’s attendance policy, consistent with its discipline of similarly situated employees.

Telework is not necessarily required to address in-office anxiety. Although employees with mental health impairments may experience workplace-related anxiety, the EEOC explains that the ADA “does not create a general right to free from all discomfort and distress in the workplace, including anxiety.” The relevant issue is whether the symptoms “impose a material barrier” to meeting the essential function of in-office presence or the enjoyment of equal benefits and privileges of employment. The EEOC suggests that anxiety is not a material barrier if employees are able to meet performance standards on-site. Even if anxiety is a material barrier, other in-office accommodations may be effective, and telework is mandated only if they are not.

A difficult or lengthy commute does not warrant a telework accommodation. The EEOC states that “[I]n most cases, an employer has no duty to help an employee with a disability with the methods and means of [their] commute to and from work, assuming the employer does not offer such help to employees without disabilities.” However, the employer may need to provide accommodations such as flexible scheduling to enable the employee to commute effectively. Temporary telework may be reasonable to allow the employee time to relocate closer to the workplace or make alternative commuting arrangements.

Conclusion

Although the EEOC’s FAQs are directed at federal agencies and constitute non-binding technical assistance, private employers implementing return-to-office mandates or dealing with telework requests more generally may treat these FAQs as practical guidance for minimizing risk in handling such requests.

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

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Quick Hits

• On February 13, 2026, Cal/OSHA issued a notice of proposed rulemaking to implement the “walkaround rule,” which would allow additional employee and employer representatives during inspections.
• The proposed regulation introduces a framework for involving employer and employee representatives, including third parties, during inspections, raising concerns about potential contentious and adversarial environments.
• The draft regulation follows the federal OSHA walkaround rule and includes provisions for additional representatives, inspector authority, and minimal trade secret protection, with a public hearing set for April 1, 2026, and written comments due by that date.

This draft regulation follows the federal Occupational Safety and Health Administration’s (OSHA) “walkaround rule” that became effective on May 31, 2024. Because California has an OSHA state plan, the proposed regulation must be “as effective as” the federal OSHA walkaround rule.

The rulemaking intends to enact proposed section 331.8 and seeks to “define” the scope of Labor Code section 6314, which currently provides that “a representative of the employer and a representative authorized by his or her employees shall have an opportunity to accompany him or her on the tour of inspection.”

The stated intent of the rulemaking is to afford non-union workplaces the opportunity to designate an employee representative to assist Cal/OSHA during an inspection, citing, among other things, their familiarity with the workforce, knowledge of the worksite, or for their expertise in other relevant areas. However, the proposed rule would go beyond mere employee participation by authorizing third parties to participate in the inspection, which raises several concerns for employers that could have far-reaching implications. The involvement of third parties and the extensive authority granted during inspections could create an environment where inspections become contentious and adversarial, rather than an administrative inspection for workplace safety.

Key Provisions

The proposed Section 331.8 introduces a structured framework for the involvement of employer and employee representatives during Cal/OSHA inspections and would grant new rights to third parties.

Here are the key provisions:

• During inspections, an additional employee representative can also accompany the employer representative with the inspector. The proposed regulation states that an additional representative can be an employee, a third party, or the collective bargaining representative. Considering that Labor Code section 6314 already permits an employee representative to accompany the inspector, it is unclear who is fully intended by this expanded authorization to participate. It is also unclear how this additional representative is to be selected and how issues of advanced notice to putative employee representatives would be resolved without prejudicing the employer.
• Under this draft regulation, the inspector would be given the authority to determine whether an additional employer representative would be allowed to accompany the inspector. This signals a potential degradation of employer rights in California, as it would appear to limit an employer’s ability to accompany an inspector to a single individual absent Cal/OSHA’s consent.
• The proposed regulation would not limit the designation of employees or collective bargaining representatives. When third parties are involved, it would fall on the inspector to determine, by using a “good cause” standard, whether a third party is necessary to conduct an effective and thorough physical inspection of the workplace.
• Inspectors would have new authority to limit the scope and extent of both the employer and the employee representative during the inspection. Further, inspectors would have the right to deny an employer’s representative the right to accompany them during the inspection, if in their sole judgement, the employer’s representative’s conduct interfered with the fair and orderly inspection.
• The draft regulation also has a minimal trade secret protection section.

California employers may need to adjust pre-existing procedures for handling Cal/OSHA inspection in response to the rulemaking.

Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor this draft regulation and will post updates on the California and Workplace Safety and Health blogs as additional information becomes available.

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Quick Hits

• Governor Abbott has directed Texas public institutions of higher education and state agencies to freeze the initiation or filing of any “new” H-1B petitions for foreign employees until May 31, 2027.
• Governor Abbott has also directed the impacted state agencies and university institutions to provide H-1B sponsorship data to the Texas Workforce Commission.
• This directive appears to impact “new” H-1B visas sought by state government agencies and public universities in Texas. Renewals of existing H-1B status appear not to be impacted, and private-sector employers are not directly impacted.

Discussion

Pursuant to a directive from Governor Abbott, Texas state agencies and public institutions of higher education must refrain from initiating or filing “any new petition to sponsor a nonimmigrant worker under the federal H-1B visa program until the end of the Texas Legislature’s 90th Regular Session on May 31, 2027.”

Governor Abbott’s directive prohibits these agencies and institutions from filing new H-1B petitions during this period of time without the written permission of the Texas Workforce Commission (TWC). In addition, the governor has required the agencies and institutions to provide reports to the TWC with data identifying the number of new and renewal H-1B petitions filed in 2025, the number of currently sponsored H-1B visa holders, the countries of origin of H-1B visa holders, job classifications and descriptions, expiration dates, and documentation demonstrating efforts to provide Texas candidates with opportunities to apply for such positions prior to submitting H-1B petitions. The U.S. Department of Labor (DOL) already publishes much of this information via its Office of Foreign Labor Certification disclosure data, but “country of origin” is not a data point collected by the DOL.

The directive instructs agencies and institutions to submit this data to the TWC by March 27, 2026, and requires the TWC to issue guidance to effectuate the governor’s directives. The letter further states that this data will be used by the Texas Legislature “to establish statutory guardrails for future employment practices regarding federal visa holders in state government” and that the moratorium on filing new H-1B petitions will “provide time” for the U.S. Congress and the Trump administration to implement modifications to federal law and immigration policy.

The directive appears to distinguish between “new” and “renewal” petitions. While the letter does not specifically define the categories, a “new” petition is typically filed on behalf of a worker seeking his or her first H-1B, while a “renewal” petition is commonly filed to extend status for an existing H-1B visa holder. A “renewal” petition could also include an amendment of existing H-1B terms for a current employee or a change of employer for a current H-1B visa holder.

Texas has more than 100 public institutions of higher education and university systems, including medical schools and teaching hospitals, which employ physicians, nurses, pharmacists, and other healthcare workers, as well as more than 150 state agencies and departments, including environmental, natural resources, and family/health agencies. The Texas Department of State Health Services predicts that the state will see a shortage of 10,330 doctors by 2032, and that Texas medical schools cannot make up that shortage.

Many of the public institutions and organizations subject to the governor’s directive are considered “cap-exempt,” meaning they are not subject to the annual H-1B quota and lottery to which private-sector employers are subject. A cap-exempt employer may file a “new” H-1B petition at any time of the year and is not required to go through the annual lottery process. Cap-subject private employers can also partner with cap-exempt entities to benefit from this exemption. For example, private hospitals or organizations may sponsor physicians and other medical staff, utilizing their affiliations with cap-exempt institutions (e.g., university-affiliated hospitals or state health agencies). This may be based on direct sponsorship by the private employer or concurrent sponsorship by both the private employer and the cap-exempt entity. Both scenarios for Texas employers could be impacted by the governor’s directive with regard to petitions for “new” H-1B visa holders.

Key Takeaways

Texas state agencies and universities, including medical schools and teaching hospitals, now face additional restrictions on hiring H-1B workers and will need to seek written permission from the TWC to file “new” H-1B petitions. While the private sector is not directly targeted by the governor’s directive, private employers that partner with Texas state agencies and universities could be impacted. The directive appears to address only “new” H-1B visas sought by state governmental agencies and public universities in Texas; renewals of existing H-1B status appear not to be impacted.

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

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Lawmakers Fail to Reach Agreement on DHS Funding; Agency Shuts Down. The U.S. Department of Homeland Security (DHS) will shut down at 12:00 a.m. EST on February 14, 2026, after the U.S. Senate failed to reach an agreement on both an underlying funding bill and a two-week extension of current funding levels. The disagreement centers around U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) following their recent enforcement activities in Minnesota. The legislative standoff isn’t likely to end soon, as both the Senate and U.S. House of Representatives are already in recess and will be out next week. During the recess, the White House—which is leading the negotiations for the Republicans—will theoretically exchange offers with Senate Democrats. Lawmakers in both the Senate and the House have been notified that they will have forty-eight hours’ notice to return to Washington, D.C., if a deal is reached. Both chambers are scheduled to return to Washington, D.C., on February 23, 2026.

So, what will the DHS shutdown mean for employers? As the Buzz noted last week, the U.S. Department of Labor (DOL), the National Labor Relations Board, the U.S. Equal Employment Opportunity Commission, and the U.S. Department of State are all fully funded through September 30, 2026. As a fee-funded agency within DHS, U.S. Citizenship and Immigration Services will not be significantly impacted. Similarly, the shutdown will have a limited impact on ICE and CBP because the agencies received $75 billion and $65 billion, respectively, in additional funding pursuant to the One Big Beautiful Bill Act in 2025.

Court of Appeals Allows Implementation of Anti-DEI Executive Orders. On February 6, 2026, the U.S. Court of Appeals for the Fourth Circuit vacated a February 2025 decision of the U.S. District Court for the District of Maryland that had enjoined enforcement of several key provisions of President Donald Trump’s Executive Order (EO) 14151 (“Ending Radical and Wasteful Government DEI Programs and Preferencing”) and EO 14173 (“Ending Illegal Discrimination and Restoring Merit-Based Opportunity”).

The court ruled that the plaintiffs did not have standing to challenge the provision of EO 14173 that instructs federal agencies and the attorney general to prepare a report identifying “[a] plan of specific steps or measures to deter DEI programs or principles … that constitute illegal discrimination or preferences.” The court noted that an intragovernmental report was unlikely to result in an imminent threat of injury.

The court further ruled that the plaintiffs did, in fact, have standing to challenge other elements of the executive orders but determined that they were unlikely to succeed in those challenges. According to the court, the termination of equity-related grants is not unconstitutionally vague because it is simply “the President’s directive to his subordinates about how they should allocate federal funding based on the President’s priorities.” Additionally, the court ruled that the requirement for federal grant recipients to certify “compliance in all respects with all applicable Federal anti-discrimination laws” does not restrict their ability to engage in protected speech, and that it is not enough for plaintiffs to challenge “how the Administration and its agency actors interpret antidiscrimination law in relation to plaintiffs’ DEI programming” (emphasis added). The ruling only related to the initial injunction, and the underlying merits of the case will continue to be litigated at the district court level.

Minimum Wage Set to Increase for Certain Fed Contractor Employees. Pursuant to a February 9, 2026, notice issued in the Federal Register by the DOL’s Wage and Hour Division, certain federal contractors will soon be required to increase the minimum wages they pay to employees. The increase applies to contracts covered by Executive Order 13658, issued by President Barack Obama in 2014, that were “entered into between January 1, 2015, and January 29, 2022, that were not renewed or extended … on or after January 30, 2022.” Beginning May 11, 2026, the minimum wage required to be paid to employees performing work under contracts covered by Executive Order 13658 will increase from $13.30 to $13.65 per hour (and from $9.30 to $9.55 per hour for tipped work). On March 14, 2025, President Trump issued an executive order that rescinded a Biden-era executive order that also increased the minimum wage for employees of federal contractors, while leaving President Obama’s order in place.

Bill Introduced to Eliminate H-1B Program. Congressman Gregory W. Steube (R-FL) has introduced the Ending Exploitative Imported Labor Exemptions Act (EXILE Act) (H.R.7451). The bill would amend the Immigration and Nationality Act to eliminate the H-1B nonimmigrant visa program, beginning in fiscal year 2027. At this time, there are no additional cosponsors of the bill in the House, nor has a companion bill been introduced in the Senate. While the bill’s chances of becoming law are slim, it is indicative of the continued scrutiny of the H-1B program by lawmakers and regulators.

House Lawmakers Examine AI’s Impacts on Workplace Safety. This week, the House Committee on Education and Workforce continued its exploration of the growing role that artificial intelligence (AI) plays in the workplace. On February 11, 2026, the Subcommittee on Workforce Protections held a hearing, titled, “Building an AI-Ready America: Safer Workplaces Through Smarter Technology.” As the hearing’s title implies, witnesses discussed the benefits of AI-driven technology for workplace safety. Witnesses noted that AI safety technology should be considered when legislators and regulators make policy. In advancing its pending heat injury and illness prevention standard, for example, the Occupational Safety and Health Administration (OSHA) should consider how AI-powered heat sensors and wearable devices can provide real-time, tailored data to help prevent injuries before they occur. Witnesses also noted that the growing patchwork of AI laws in multiple states has created an overly complicated regulatory environment that could impede the adoption of AI-driven workplace safety technology in the private sector. Democrats on the committee used the hearing to promote the Warehouse Worker Protection Act (H.R. 4896).

Semiquincentennial Celebration. On February 9, 2026, the House passed the “Semiquincentennial Congressional Time Capsule Act” to help commemorate the United States’ 250th anniversary. The bill directs the Architect of the Capitol to create a “Semiquincentennial Congressional Time Capsule,” which shall be filled with items jointly agreed upon by the Speaker of the House of Representatives, the Minority Leader of the House of Representatives, the Majority Leader of the Senate, and the Minority Leader of the Senate. The bill further instructs the Architect of the Capitol to seal and bury the time capsule in the Capitol Visitor Center, at his or her preferred location, on or before July 4, 2026. Pursuant to the legislation, the time capsule will be opened on July 4, 2276—the United States’ 500th birthday—and presented to the 244th Congress, which “shall determine how the contents within should be preserved or used.”

Quick Hits

• The Third Circuit explained that challenges to diversity efforts must prove both a discriminatory purpose and impact to trigger strict scrutiny and found sufficient evidence that the district’s policy aimed to alter the racial makeup of its selective high schools.
• The court emphasized that it is unconstitutional for schools to seek specific racial percentages or racial balancing, and that even race-neutral criteria like zip codes can be scrutinized if motivated by racial equity goals.
• The decision deepens a circuit split on impact analysis, potentially inviting Supreme Court review.

In deciding which students would attend the district’s selective high schools, the district considered a variety of factors, including grades, attendance, and zip code. Students in certain zip codes (which were historically underrepresented in the selective high school population) who met other requirements were automatically admitted to the school of their choice. Qualifying students in other zip codes were placed in a lottery for the remaining seats not taken by those in the favored zip codes.

Relying on the 2023 decision of the Supreme Court of the United States in Students for Fair Admissions v. Harvard College (SFFA decision), the court explained that evenhandedly-applied, facially-neutral policies may be unconstitutional when both discriminatory purpose and impact are present. The Third Circuit held that challengers must prove both elements to trigger strict scrutiny.

The court’s proxy analysis turned on three factors: (1) the demographic composition of the preferred zip codes; (2) the determinative nature of the benefit, such as an automatic admission versus a marginal preference; and (3) the connection between the mechanism and the stated racial-proportionality goals. The court reaffirmed that facial neutrality does not protect a classification that functions as a proxy for race.

The decision deepens an existing circuit split on how to measure discriminatory impact. The First Circuit and Fourth Circuit have adopted more restrictive impact frameworks, requiring “success rate” comparisons or holding that a group’s continued “over-representation” negates impact. The Second Circuit, by contrast, recognized that individualized harm can satisfy the impact inquiry. The Third Circuit expressly aligned with the Second Circuit’s approach, holding that discriminatory impact may be established through “before and after” comparisons of admissions data and individualized harm. The court rejected the view that a group’s continued “over-representation” automatically negates a finding of impact. This split may invite Supreme Court review.

Evaluating the evidence in the light most favorable to the parents who challenged the policy, the court identified several categories of evidence supporting an inference of discriminatory intent, including:

• Public statements by district administrators promising to evaluate all policies “through the lens of racial equity” and describing the admissions policy as a “result of” the equity lens review.
• Published goals to “grow” the percentage of qualified African-American and Hispanic students toward being proportional to the population of the district as a whole.
• Evidence that the admissions policy was rolled out on the eve of the application deadlines with little opportunity for comment or input.

For these reasons, the court concluded that the district court’s grant of summary judgment was improper because it was possible for a factfinder to conclude that the district was motivated at least in part by race when choosing to rely on zip codes “to alter the racial makeup” of the district’s four most selective high schools. Judge Hardiman wrote, “Altering the schools’ racial makeup would increase the representation of Black and Hispanic students while decreasing white and Asian students’ representation in a zero-sum admissions game.” Drawing on SFFA, the court treated competitive admissions as an environment in which racial trade-offs that benefit one group necessarily negatively impact another group, making impact easier to establish in selective admissions contexts where spots are limited.

Citing the SFFA decision, the court reasoned that “it is ‘patently unconstitutional’ for a public school to seek ‘some specified percentage of a particular group merely because of its race or ethnic origin.’” Similarly, the court noted that “racial balancing … that ‘approximates the district’s overall demographics’ is an illegitimate objective.”

Importantly, the decision does not hold the admissions policy unconstitutional. Rather, the Third Circuit vacated summary judgment and remanded for further factfinding.

Key Takeaways

The Third Circuit has interpreted SFFA v. Harvard as holding that it is unlawful to try to alter a school’s racial makeup in a “zero-sum game” and also unlawful to seek to achieve a specified percentage of participants of a particular race.

Challenges to diversity efforts are likely to look to the purpose of such efforts, even if the efforts rely on race-neutral criteria, such as zip codes.

Challenges to diversity efforts will be subject to strict scrutiny if challengers can show that racial equity motivated the decision and that there was a racial impact.

Going forward, when admissions programs are challenged in the Third Circuit, educational institutions should expect that facially-neutral diversity efforts, such as relying on geography, socio-economic factors, or other proxies, will be scrutinized for racial intent. Courts will look beyond the text of a policy to examine the purpose behind it, and if challengers can show both discriminatory purpose and impact, the policy will be subject to strict scrutiny. Organizations that operate in multiple jurisdictions may want to consider working with counsel to understand which impact framework governs their potential exposure, given the existing circuit split.

Institutions may want to consider whether favorable aggregate statistics will insulate them from liability. Evidence that a particular group remains over-represented may not be sufficient to defeat an impact claim at summary judgment, and challengers will likely rely on before-and-after comparisons and individualized harm theories. Institutions may wish to avoid publishing numeric racial targets, to exercise caution in framing policies as responses to racial demographics, and to consider whether internal communications reflect lawful objectives.

Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance Practice Group, Higher Education Practice Group, and Workforce Analytics and Compliance Practice Group will continue to monitor developments and provide updates on the Diversity, Equity, and Inclusion Compliance, Higher Education, State Developments, and Workforce Analytics and Compliance blogs as additional information becomes available.

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Quick Hits

• The rate of workplace violence against healthcare workers has increased sharply in recent years.
• Under federal law and some state laws, employers are obligated to maintain a workplace that is free from foreseeable hazards, including workplace violence.
• Certain administrative and environmental solutions may lower the risk of violence in healthcare settings.

Doctors, nurses, psychiatric aides, and home health aides may suffer assaults or other violence from patients, patients’ family members, or visitors. Incidents of workplace violence increased by 30 percent across all healthcare facility types from 2011 to 2022, according to research from the National Institutes of Health (NIH). Rates of workplace violence tend to be higher in emergency departments, psychiatric facilities, substance abuse facilities, and home healthcare settings, compared to other healthcare workplaces, the study found.

Certain factors can heighten the risk of workplace violence, including exchanging money with the public, working with volatile people, working late at night, and working in locations with high crime rates, according to the U.S. Occupational Safety and Health Administration (OSHA). Those factors are present at many healthcare facilities.

Along with immediate physical harm, workplace violence also leads to psychological distress, decreased job satisfaction, and higher turnover rates for healthcare workers, the NIH research found.

OSHA Rule and State Laws

The general duty clause of the Occupational Health and Safety (OSH) Act of 1970 requires employers provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

OSHA convened a Small Business Advocacy Review panel in March 2023 to consider a potential standard for prevention of workplace violence in healthcare and social assistance settings. The panel issued a report on May 1, 2023. However, in 2025, OSHA listed the date for a notice of proposed rulemaking as “to be determined,” meaning it is a long-term action item and not likely to be finalized in 2026.

In 2015, OSHA released updated guidelines for preventing workplace violence in healthcare settings.

Notably, New York State recently enacted a new law that will require hospitals and nursing homes in the state to establish workplace violence prevention programs and require hospitals to conduct annual workplace safety and security assessments, beginning in 2027. California, Connecticut, Illinois, Maine, Maryland, Minnesota, New Jersey, Oregon, Texas, and Washington have similar state laws.

Preventive Measures

To reduce workplace violence, employers in the healthcare industry can rely on strategies like reporting workplace violence incidents, collecting data to identify trends over time, conducting risk assessments, implementing post-incident response protocols, training staff on violence prevention, and maintaining a culture of workplace safety. Effective communication among healthcare staff may help them take additional safety measures when dealing with a patient with a known history of violence or aggression.

The OSH Act prohibits employers from retaliating against workers for reporting injuries or submitting safety complaints to OSHA.

Security measures like having security guards, cameras, adequate lighting, panic buttons, clear exit routes, bulletproof glass, and metal detectors to identify weapons may help healthcare facilities to prevent or mitigate workplace violence. Securing furniture and other items so they cannot be used as weapons may be helpful in some facilities. Making wait times shorter and waiting rooms more comfortable may alleviate the stress of patients and their family members, according to the OSHA guidelines. Typically, healthcare facilities must balance any security measures with the need to be open and accessible to patients and their family members.

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

In addition, the Ogletree Deakins Client Portal also covers developments in Workplace Violence Prevention, including healthcare-specific requirements. For more information on the Client Portal or a Client Portal subscription, please reach out to clientportal@ogletree.com.

Cynthia A. Bremer is a shareholder in Ogletree Deakins’ Minneapolis office.

Karen F. Tynan is a shareholder in Ogletree Deakins’ Sacramento 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

• As in prior years, DHS and DOL have authorized 64,716 supplemental H-2B visas for FY 2026.
• Supplemental visas are divided into three allocations with different start dates and filing windows.
• Employers must attest to irreparable harm and retain supporting documentation.

Background on the H-2B Program

The H-2B program enables employers to hire foreign workers to fill temporary nonagricultural positions when qualified U.S. workers are not available.

The Immigration and Nationality Act (INA) sets the annual statutory cap for H-2B visas at 66,000, distributed semi-annually with up to 33,000 visas available in each half of the fiscal year. However, demand for H-2B workers has consistently exceeded this cap. During the January 2026 filing period, the DOL’s Office of Foreign Labor Certification published the assignment groups for 10,062 applications requesting more than 162,000 positions—a significant increase from the prior year’s 8,759 applications requesting nearly 150,000 positions.

In recognition of this ongoing demand, the U.S. Congress has authorized supplemental visas in recent fiscal years. For FY 2026, section 101 of the Continuing Appropriations Act (Public Law 119-37) permits the secretary of DHS to provide up to 64,716 supplemental H-2B visas for employers whose employment needs cannot be met under the statutory cap.

Supplemental Visa Allocations and Timeline

The 64,716 supplemental visas are divided into three allocations based on employment start dates:

• First Allocation (18,490 visas): For start dates between January 1 and March 31, 2026. This allocation is limited to returning workers who were issued H-2B visas or held H-2B status from FY 2023-2025. Petitions must be filed within fourteen days after the second-half statutory cap is reached.
• Second Allocation (27,736 visas, plus any unused visas from the first allocation): For start dates between April 1 and April 30, 2026. This allocation is limited to returning workers who were issued H-2B visas or held H-2B status from FY 2023-2025. Petitions must be filed between fifteen and forty-five days after the second-half cap is reached.
• Third Allocation (18,490 visas, plus any unused from the first and second allocations): For start dates between May 1 and September 30, 2026. No returning worker requirement. Petitions must be filed between forty-five days after the second-half cap is reached and September 15, 2026. 

Irreparable Harm Attestation Required

To access supplemental visas, employers must submit an attestation under penalty of perjury affirming that their business is suffering—or will suffer—irreparable harm without the requested H-2B workers. The DOL defines “irreparable harm” as “permanent and severe financial loss.” Employers can justify irreparable harm based on evidence such as contracts, work orders, payroll records, or other types of evidence. Employers must also prepare a detailed written statement to provide upon request from DHS and/or DOL.

Next Steps

Given the strict filing windows and the speed at which supplemental visas have been exhausted in prior years, early preparation is essential for employers seeking access to these additional H-2B visas. Additionally, documentation of irreparable harm will be critical to withstanding potential government scrutiny.

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

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Quick Hits

• Employers may need to provide religious accommodations to Muslim workers during the month of Ramadan.
• Ramadan is expected to begin on February 18, 2026 (following confirmation of the crescent moon on February 17).
• Ramadan is predicted to end on March 19, 2026 (again, depending on the lunar cycle).
• Eid al-Fitr marks the end of Ramadan with a festival.

Observant Muslims do not eat or drink water in the daylight hours during Ramadan. In some cases, Muslims who are ill, pregnant, or breastfeeding may be exempted from the obligation to fast during the day. It is common practice to eat a meal just before dawn (about ninety minutes before sunrise) and right at sunset during Ramadan. Along with the five daily prayer sessions typically required throughout the year, two additional prayers are recommended during Ramadan, an evening prayer (called “Taraweeh”) and a late night, early morning prayer (called “Qiyam”).

Employers can consider flexible work hours and/or telework to accommodate Muslim employees’ religious fasting needs. The exact timing of the daily fast—from dawn until sunset—varies slightly from day-to-day, and will also vary based on geographic location, so employers may want to speak with observant employees to determine their exact timings for the fast. This year, daylight savings also falls during Ramadan, which will also shift the timings for the fast based on the employee’s specific time zone.

Employers may also want to consider providing quiet, private spaces where observant employees can pray, break their fast, and also wash for prayer, called wudu, which is a mandatory ablution performed before prayer. Some employees may also request time off to celebrate Eid-al-Fitr, the holiday that celebrates the end of Ramadan.

Employees in physically demanding jobs may need certain accommodations, such as rest breaks, while they are fasting, depending on their medical conditions, age, and other factors. And, importantly, as is the situation with most religious beliefs, practices, and membership, not all Muslim employees have the exact same accommodation needs or desires. Practicing a religious faith often involves personal and varying nuances and beliefs that differ among individuals. Having a conversation with each employee who has requested an accommodation is helpful to understand their specific situation and request, and such tailored discussions meet the legal requirement for employers to engage in an “interactive process” regarding any religious accommodation requests.

Legal Obligations

Employers are familiar with Title VII of the Civil Rights Act of 1964’s prohibition against harassing or discriminating against workers based on their religion. But Title VII further requires employers to affirmatively make reasonable accommodations when an employee’s religious beliefs conflict with a work requirement or when the requested assistance better allows the employee to perform his or her job functions. The accommodation requirement can be avoided only if the employee’s request would impose an undue burden on the employer. The undue burden defense must be demonstrated by actual evidence and is a high bar for an employer to meet. In 2023, the Supreme Court of the United States confirmed and held that employers must prove substantial increased costs in relation to the conduct of their businesses in order to qualify for the undue hardship defense. Such burdens can be either financial or nonmonetary (or both) in nature, including significant disruptions to operations, efficiency, scheduling, or safety, so long as those impacts are shown to translate into real burdens on the business rather than mere coworker dislike or bias.

In addition to the federal law, many states have laws that similarly prohibit religious discrimination in the workplace and require reasonable accommodations.

Next Steps

Employers can consider ways to recognize Ramadan and provide education about it in their internal newsletters or social events. Keep in mind, however, that not all Muslims observe Ramadan—or otherwise practice their religion—in the same way.

To avoid violations of state and federal laws, employers may wish to review their written policies, practices, and employee training to prevent harassment and discrimination based on religion.

Employers must provide accommodations for employees’ religious beliefs and practices, unless the accommodation would cause a substantial burden on business operations.

The Ogletree Deakins Client Portal includes state and federal law summaries for Religious Accommodation and Protected Characteristics. For more information on the Client Portal or a Client Portal subscription, please reach out to clientportal@ogletree.com.

Ogletree Deakins’ Employment Law Practice Group and 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 new information becomes available.

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