Quick Hits

• The ADA’s broad definition of “disability” expressly encompasses mental health conditions, which may include major depressive disorder, panic disorder, anxiety disorder, post-traumatic stress disorder (PTSD), attention deficit disorder, and autism spectrum disorder, among others.
• Employers have an obligation to provide reasonable accommodation(s) that enable employees with mental health disabilities to perform their essential job functions or enjoy the equal privileges and benefits of employment.
• Employees are not entitled to dictate a preferred accommodation; employers may explore and choose among effective alternatives.

How Mental Health Conditions Qualify Under the ADA

The ADA protects qualified individuals with a “disability,” defined as a “physical or mental impairment that substantially limits one or more major life activities,” a “record of such an impairment,” or “being regarded as having such an impairment.” (Emphasis added.) Through the ADA Amendments Act of 2008 (ADAAA), Congress made it unmistakably clear that this definition must be construed broadly in favor of coverage—a mandate that the U.S. Equal Employment Opportunity Commission (EEOC) and the courts have firmly embraced.

The ADA regulations define “mental impairment” to include “[a]ny mental or psychological disorder such as intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disability.” The regulations expressly exclude “disorders resulting from current illegal use of drugs,” “sexual behavior disorders,” and certain compulsive behaviors.

As noted above, a mental impairment must substantially limit a major life activity to constitute a disability. The regulations provide a non-exhaustive list of such activities, which, as relevant to mental impairments, include “learning, reading, concentrating, thinking, writing, communicating, interacting with others, and working.” The regulations further provide that mental impairments may “substantially limit [the major life activity of] brain function.”

Conditions need not be permanent or severe to qualify as a disability. Moreover, whether a condition constitutes a disability is determined “without regard to the ameliorative effects of mitigating measures,” such as medication, therapy, or coping strategies. Notably, however, the negative side effects of medication may themselves substantially limit a major life activity and support the finding of a disability. The use or nonuse of mitigating measures may nonetheless be relevant in assessing whether an employee is qualified for a position, poses a direct threat to the safety of himself or herself or others, or requires reasonable accommodation.

The EEOC provided additional guidance on mental disabilities in its 1997 Enforcement Guidance on the ADA and Psychiatric Disabilities. (Although still in effect, the guidance was issued prior to the ADA Amendments Act and contains some information that is no longer applicable; however, other parts continue to offer helpful information.) That guidance offers wide-ranging and non-exhaustive examples of covered conditions such as major depression, bipolar disorder, anxiety disorders (including panic disorder, obsessive-compulsive disorder, and PTSD), schizophrenia, and personality disorders. The guidance clarifies that mental impairments do not include stress or common personality traits, such as poor judgment or a quick temper, standing alone.

Guidance for Employers

Mental Health Awareness Month offers a timely opportunity to review disability-related policies, procedures, and practices, and to remember that situations potentially involving mental impairments/disabilities often call for careful navigation. Below are areas of focus and consideration for employers addressing mental impairments/disabilities in the workplace:

• Refraining from disability-related inquiries. Employers generally should refrain from inquiring about whether an employee has a mental impairment/disability. Under the ADA, medical questions are permissible only when they are job-related and consistent with business necessity. The better practice is to focus on the employee’s conduct or performance concerns and to allow the employee to raise any mental health issues voluntarily.
• Confirming a request for accommodation. If an employee discloses a mental disability, employers may wish to confirm whether the employee is requesting an accommodation and what that requested accommodation is. Any such exchange should be documented.
• Manager training. Employers may wish to train their managers to recognize when an accommodation request is being made, even informally, and to involve human resources immediately. An employee need not use the words “ADA,” “reasonable accommodation,” or “disability.” Simply stating that he or she is having difficulty with some job requirement because of a mental health condition may be sufficient to trigger the reasonable accommodation obligation.
• Fitness-for-duty examinations. There may be circumstances when an employee is clearly unable to perform his or her essential job functions or poses a direct threat because of a suspected mental health issue. In those situations, it may be appropriate to send an employee for a fitness-for-duty examination.
• The interactive process. When an employee seeks an accommodation for a mental disability, it may be wise for employers to engage in the interactive process. Through this dialogue, the employer may obtain information from the employee’s treating healthcare provider about the employee’s limitations, the impact on any major life activities, whether mitigating measures are available and being used, and the availability and reasonableness of possible accommodations.
• Alternative accommodations. An employee’s requested accommodation may not be the only, or most appropriate, option. There may be alternative accommodations that would enable the employee to perform his or her essential job functions or to enjoy the equal privileges and benefits of employment. While many employees currently request remote work as an accommodation, the EEOC’s 1997 guidance and its more recent Telework Guidance make clear that other potentially effective accommodations could include things such as, but not limited to, assistive technology, written instructions, modified equipment, environmental modifications (addressing sound, smell, light, etc.), job restructuring, or modified schedules. The government website, AskJAN.org, has additional accommodations that employers may wish to consider.
• Checking on the employee and the accommodation. It may be wise to follow up with the employee to see how the accommodation is working. Reasonable accommodations are not set in stone—if they are not working or if circumstances change, the employer may engage in further discussions with the employee to identify other accommodations.
• Considering the “accommodation of last resort.” If no accommodation would enable the employee to perform his or her essential job functions, the employer may wish to determine whether there are any other available positions for which the employee is qualified, with or without reasonable accommodation. The EEOC treats reassignment as part of the reasonable accommodation obligation (though federal courts are divided on the extent of that obligation), to be considered before moving to termination of employment.
• Maintaining confidentiality. All medical information received must be kept confidential and separate from the employee’s personnel file. In addition, an employer should not share details about an employee’s mental disability or the reason for an accommodation with coworkers. If questions arise, one effective response is to state that the matter is a confidential personnel issue and that the company complies with all applicable laws.

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

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts

DHS ‘Duration of Status’ Proposal Nears Finalization. A proposed U.S. Department of Homeland Security (DHS) / U.S. Immigration and Customs Enforcement (ICE) rulemaking, “Establishing a Fixed Time Period of Admission and an Extension of Stay Procedure for Nonimmigrant Academic Students, Exchange Visitors, and Representatives of Foreign Information Media,” took a significant step toward finalization this week. After reviewing the public comments on the proposal for approximately seven months, on May 5, 2026, ICE transmitted a draft final rule to the Office of Information and Regulatory Affairs (OIRA) for review. The OIRA review process can take days or even weeks and is the last step in the regulatory process before a rule is finalized.

The proposal would set a four-year maximum period of stay for students on F-1 and J-1 nonimmigrant visas. In 2020, the first Trump administration proposed a similar rule, but it was later withdrawn by the Biden administration. Larkin Dykstra has additional details.

NLRB GC Reassigns Cases to Address Backlog. According to media reports, the National Labor Relations Board (NLRB) has approximately 17,000 open unfair labor practice cases. To help alleviate this backlog, this week the Board’s general counsel (GC), Crystal Carey, transferred 3,500 unfair labor practice cases from overloaded regional offices to locations with greater capacity to process them in a timely manner. In addition to this week’s action, earlier this year, Carey took steps to streamline case processing by ensuring that pertinent information is collected when an initial charge is filed.

‘Faster Labor Contracts Act’ Update. With the U.S. House of Representatives in recess, progress on the Democrats’ efforts to force a vote on the Faster Labor Contracts Act—a bill that would impose an artificial collective bargaining timeline on employers and labor unions—has understandably stalled. Additionally, the bill would empower government bureaucrats to set the contractual terms if the parties cannot reach an agreement in a prescribed time period. Republican leaders in the House aren’t interested in advancing the bill, so Democrats are hoping to get at least 218 House members to sign a petition that, pursuant to House rules, would trigger a floor vote. So far, 199 members of the House—all Democrats—have signed the petition. Proponents of the discharge petition will need the 13 remaining Democrats to sign, in addition to 6 Republicans, though House membership numbers are often in flux. A companion bill in the U.S. Senate has sixteen cosponsors, including three Republican senators: Josh Hawley (Missouri), Bernie Moreno (Ohio), and Roger Marshall (Kansas).

DOL Drops Defense of Biden-Era Overtime Regulation. This week, the U.S. Department of Labor (DOL) dropped its defense of the Biden-era overtime rule. The rule, which would have increased the Fair Labor Standards Act’s (FLSA) minimum salary threshold overtime exemption to $58,656 per year beginning on January 1, 2025, was vacated by two different federal district courts in Texas in late 2024. In early 2025, the Trump administration actually filed an appeal of one of these decisions, presumably as a placeholder to buy time to figure out how it would eventually address the regulation. Now, with the DOL dropping the appeal and no longer defending the rule, the 2019 regulation remains in place, which sets the salary basis threshold for the overtime exemption at $35,568 per year. Looking ahead, the most recent regulatory agenda (released in September 2025) lists potential changes to the FLSA overtime regulations as a “long-term action.”

USCIS to Resume Benefit Requests for Certain Physicians. U.S. Citizenship and Immigration Services (USCIS) has quietly lifted a hold on the processing of benefit requests—such as visa and work authorization renewals—filed by physicians from certain countries. These holds were the result of USCIS policy memoranda issued in late 2025 and early 2026 that ordered “a comprehensive review of all policies, procedures, and screening and vetting processes for benefit requests for aliens from countries listed” in President Donald Trump’s expanded travel ban of December 2025. Amidst an ongoing physician shortage in the United States, USCIS has now updated its website to state, “Holds have been lifted for … applications associated with medical physicians.”

An Ap-peel-ing Bill. This week, the House passed legislation that would make it legal to peel bananas. Well, that is at least how the bill’s champion, Democratic Representative Marie Gluesenkamp Perez of Washington State, describes her bill that was included as an amendment to the Farm, Food and National Security Act of 2026 (H.R. 7567) (colloquially referred to as the “Farm Bill”), which passed the House this week.

The “Cutting Red Tape on Child Care Providers Act of 2025” (H.R. 1889) responds to state regulations that supposedly prevent child care providers from peeling bananas or cutting raw vegetables to serve to children. These regulations classify such actions as “food preparation,” which requires multiple sinks and other public health-related capital investments. According to Representative Gluesenkamp Perez, daycare providers are, therefore, incentivized to provide children with packaged foods rather than fresh fruits and vegetables. The “Cutting Red Tape on Child Care Providers” bill would address this situation by prohibiting states that receive federal childcare grants from enacting “any barriers on the simple preparation of fresh fruits and vegetables for facilities, licensed or licensed exempt.”

Quick Hits

• DHS’s F, J, and I visa program final rule could adopt some or all of the changes outlined in the notice of proposed rulemaking (NPRM).
• The proposed rule would implement fixed periods of admission, require U.S. Citizenship and Immigration Services’ (USCIS) approval for extension-of-status requests, and restrict academic program changes for these individuals.
• The final rule will likely take effect thirty to sixty days after publication.

On August 28, 2025, DHS published the NPRM, which proposed significant changes to the regulatory framework for the F (foreign student), J (exchange visitor), and I (foreign media representatives) visa programs. With the publication of the proposed rule, DHS authorized a thirty-day public notice and comment period, which ended on September 29, 2025.

Following its review of the public comments, DHS is now preparing to publish the final rule, which could adopt some or all of the proposed rule. The OIRA review period can vary in length, ranging from days to months. Once the OIRA completes its review, DHS will typically publish the final rule, with an effective date likely thirty to sixty days after publication. The content of the final rule will not be made public until it is published in the Federal Register.

Impact

If the final rule incorporates the changes from the proposed rule, F and J nonimmigrants would be admitted for a limited period of up to four years, with shorter admission periods for foreign language training students and I visa holders. This marks a significant change from the existing framework, which allows F, J, and I nonimmigrants to be admitted to the United States for the duration of their status.

To extend their stay in the United States, these individuals would be required to submit extension applications to USCIS, provide biometrics, and demonstrate proof of continued eligibility. The rule would restrict foreign students’ ability to change academic programs, and graduates who complete an academic program could only enroll in a new academic program at a higher educational level.

The proposed rule would shorten the grace period for students to leave the country following the completion of their academic program from sixty to thirty days, with unlawful presence accruing immediately after the grace period ends. The proposed rule would eliminate the grace period after a case is denied, with unlawful presence beginning to accrue the day after the denial.

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

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts

Quick Hits

• Employers face challenges regarding employee productivity and efficiency when remote workers choose unconventional work settings, such as sports stadiums, which can be distracting and complicate compliance with labor laws.
• Security risks may arise from using public Wi-Fi networks at sports venues, exposing sensitive company and client information to potential breaches.
• Clear remote-work policies and security measures can help employers manage the complexities of hybrid work arrangements.

Why Employees Are Working Remotely From Stadiums

Baseball, perhaps more than any other professional sport, features matinée games during typical business hours. Employers are probably familiar with employees playing hooky to attend such afternoon games. But with new communication technologies, increased access to Wi-Fi in public areas, and a rise in hybrid and remote-work arrangements since the pandemic, it has become easier for employees to “work” from a variety of locations, including ballparks, which might not be conducive to productive work.

And though some may have declared remote work dead, as employers increasingly issue return-to-office mandates, a large portion of the U.S. workforce continues to work remotely, at least part of the time. According to March 2026 statistics from the U.S. Bureau of Labor Statistics, nearly 36 million workers—22.6 percent of the workforce—“telework” for some or all of their hours worked.

In recent years, multiple fans have been caught by broadcast cameras with laptops in the stands, often during weekday matinée games. Piggybacking on that trend, some teams have even experimented with special “Work From the Ballpark” marketing promotions that encourage remote workers to bring their laptops to the stadium.

As a result, employers face growing concerns about where hybrid and remote employees are actually working and the productivity, wage-and-hour, and other implications that follow.

Legal and Compliance Risks of Remote Work in Public Venues

Employee Productivity and FLSA Hours-Worked Compliance

The most immediate concern is whether an employee who logs into work remotely from a stadium is actually working. The distractions inherent in a live sporting event make it difficult for even the most disciplined worker to maintain sustained focus on the work at hand. For nonexempt employees, there are concerns related to the Fair Labor Standards Act (FLSA) about whether hours logged at a ballpark are genuinely hours worked. Exempt workers are treated differently, but a pattern of distracted work may prompt employers to review their work arrangements. At the same time, employers may want to tread carefully with unilaterally reducing hours worked for nonexempt employees based on a perceived lack of productivity, even if work is logged from a ballpark, to avoid wage-and-hour claims.

Network Security and Data Protection Risks on Public Wi-Fi Networks

Using a laptop or other electronic device to conduct work in a public setting raises security concerns, particularly for employers in highly regulated industries and fields such as healthcare, financial services, or law. Public Wi-Fi networks at stadiums may be insecure, potentially exposing confidential company or client information to privacy vulnerabilities. Working in a crowded public environment also increases the risk that others will see confidential information or work products on employees’ screens.

Multistate Income Tax Withholding Implications

A frequently overlooked issue with remote work is the multistate tax impact when employees work from a ballpark or stadium in a state where they do not normally work. Many states impose income taxes on wages earned within their borders, even on nonresidents, and an employee performing work at an out-of-state stadium may trigger state income tax withholding obligations for the employer.

Considerations for Employers Managing Hybrid and Remote Workforces

Adopting Written Remote-Work Policies

Employers may want to consider adopting clear, written remote-work policies and enforcing them consistently. Such policies can define where employees are permitted to work remotely and may expressly prohibit work in public venues such as stadiums. Remote-work policies can also set and communicate an employer’s expectations regarding remote-work arrangements, including requirements that employees work in specific states or localities, disclose their work locations, have work environments conducive to productivity, and access the internet via secure connections. The policies may also set forth when remote work arrangements may be made and under what circumstances such privileges may be revoked.

Implementing Network Security Measures

Employers may want to consider mandating the use of virtual private networks (VPNs) and multifactor authentication, and, potentially, prohibiting the use of public Wi-Fi for work or for conducting certain confidential work. Employers may also consider requiring employees to use privacy screens on laptops and other work devices and conduct regular network security training sessions, especially for employees in industries with heightened data protection obligations.

Using Employee Monitoring and Accountability Tools

Employers may wish to consider reasonable monitoring tools—such as productivity software, regular check-ins, or project management platforms—to ensure remote workers are meeting expectations. However, before implementation, employers may want to consider other potential risks with such monitoring tools, such as privacy implications, the risk of disability discrimination, potential surveillance claims, and the impact on workforce morale.

Key Takeaways

Hybrid and remote work remain widespread, and the legal and compliance issues extend well beyond the novelty of a fan working from the stands at a Tuesday doubleheader. Employers managing distributed workforces face overlapping risks across productivity and FLSA hours-worked compliance, network security and data protection, and multi-state income tax withholding. Employers may want to review and update their written remote-work policies, define permitted work locations, require VPN and multifactor authentication, and set clear expectations for security protocols—whether employees are working from home, a ballpark, or another remote location.

Ogletree Deakins will continue to monitor developments and will provide updates on the Employee Engagement, Employment Law, Employment Tax, Multistate Compliance, Return to Work, Sports and Entertainment, Technology, and Wage and Hour blogs as additional information becomes available.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts

Quick Hits

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

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

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

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

Mitigating Psychological Risks

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

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

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

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts

Quick Hits

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

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

The Case—Termination After Returning From Leave

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

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

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

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

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

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

The Decision—Invalidity of the Termination

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

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

Hearing and Start of the Notice Period

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

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

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

Only the Employee Is on Vacation

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

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

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

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

Attempt to Contact Suspends Notice Period

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

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

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

Inaction Only in Exceptional Cases

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

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

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

Key Takeaways—Implications for Practice

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

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

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

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

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

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

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts

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

Quick Hits

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

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

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

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

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

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

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

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

Maine: LD 54—Pay Range Disclosures and Recordkeeping

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

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

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

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

Next Steps

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

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

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

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

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

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts

Quick Hits

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

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

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

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

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

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

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

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

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

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

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

Next Steps

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

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

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

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

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

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

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts

Quick Hits

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

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

Key Changes Under the Federal Labor Law Amendment

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

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

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

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

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

Minors are prohibited from working overtime.

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

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

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

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

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

What Employers Must Take Into Account

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

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

Preparing for Implementation

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

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

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

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

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

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

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

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

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

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

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts

Quick Hits

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

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

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

The Decision—Primary Obligations Suspended: Vacation Entitlement Lapses

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

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

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

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

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

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

Key Takeaways

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

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

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

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

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts