‘Faster Labor Contracts Act’ Advances in the House. In recent weeks, the Buzz has reported on the effort by proponents of the Faster Labor Contracts Act to force a floor vote on the bill in the U.S. House of Representatives. This week, that effort—a process called a “discharge petition”—garnered the necessary 218 votes to force a vote on the bill in the House. Seven Republicans joined Democrats in signing the petition. Now the bill must jump through a series of arcane procedures in the House before a vote is scheduled, likely sometime in early June.

EEOC Begins Process to Eliminate EEO-1 Report. The U.S. Equal Employment Opportunity Commission (EEOC) is initiating a rulemaking process to eliminate its Employer Information Report (EEO-1). The EEO-1, which is filed annually, requires private-sector employers with one hundred or more employees to report employee data by job category and by sex, race, and national origin. (Other similar forms are required of public-sector employers.) This week, the EEOC sent to the Office of Information and Regulatory Affairs (OIRA) a proposed rule, titled, “Rescission of EEO-1, EEO-2, EEO-3, EEO-4. EEO-5, And Reporting Requirement Under Title VII, the ADA, GINA, and the PWFA.” While the contents of the proposal are not yet public, its title indicates that the Commission plans to rescind its regulation that compels the production and filing of the EEO-1 and similar reports. After OIRA completes its review, the proposal will be released, and the public will have an opportunity to comment. After reviewing the comments, EEOC will issue a final rule.

The EEOC has not yet opened this year’s EEO-1 portal for employer reporting, though the portal usually opens around this time of year. At this time, we do not know whether the EEOC’s proposal will impact this year’s collection.

USCIS to Move to Mandatory Electronic Filing? On May 19, 2026, U.S. Citizenship and Immigration Services (USCIS) submitted an interim final rule (IFR), “Mandatory Electronic Filing (e-Filing),” to OIRA. It is unclear what the IFR would entail and which aspects of the immigration processing life cycle it would cover. However, the “IFR” designation means that stakeholders will not have an opportunity to comment before the final rule is issued. Instead, the rule will be finalized, and then there will be an opportunity for comment. It also means that the rule will likely shortcut the monthslong comment review process and be issued more quickly. The IFR follows on the heels of another recent policy change—relating to invalid signatures on benefit requests—that was effectuated with an IFR.

Congressional Democrats Introduce Overtime Bill. Senate and House Democrats have introduced the Restoring Overtime Pay Act of 2026 (S.4551). The bill—previous versions of which have been introduced in past Congresses—would prescribe the salary basis threshold for establishing the Fair Labor Standards Act exemption from overtime requirements for bona fide executive, administrative, and professional employees. For 2026, the salary basis would be set at $45,000 per year (the current threshold is $35,568 per year), and it would increase by $10,000 each year. After topping out at $75,000 in 2029, the threshold would then be indexed to at least the 55th percentile of weekly earnings of full-time salaried workers, beginning in 2030. The bill would allow the secretary of labor to establish higher thresholds via notice-and-comment rulemaking. Republicans in the Senate and House are unlikely to move the bill, in part because the Trump administration recently clarified the current threshold as established by the 2019 rule promulgated during the first Trump administration.

Proponents of the SCORE Act Strike Out. Again. As the Buzz discussed last week, the House was scheduled to vote on the SCORE Act this week. However, Republican leaders changed course and removed the bill from consideration after it became clear it would not have the votes to pass. This is the second time a vote on the SCORE Act has been scrapped. Legislating is hard.

Memorial Day. This weekend, the Buzz will reflect on the sacrifice of the courageous men and women who lost their lives serving our nation. Five years ago, we took a closer look at the cultural and legislative history behind Memorial Day here.

Quick Hits

• Colorado, Indiana, New Jersey, and New York have each updated their child labor laws, with effective dates ranging from December 2025 through May 2027.
• The updates affect hazardous-occupation restrictions, recordkeeping, registration requirements, hours of work, and the process for issuing employment certificates to minors under the age of eighteen.

Colorado

Colorado adopted new regulations that took effect on February 1, 2026, implementing the Colorado Youth Employment Opportunity Act (CYEOA), which regulates the employment of minors under the age of eighteen. The regulations clarify restrictions under the CYEOA that prohibit individuals under the age of eighteen from certain hazardous jobs, exemptions, and restrictions on jobs involving the use of certain “power-driven” machines. The regulations further clarify that minors are prohibited from certain jobs, including jobs in liquor stores, marijuana dispensaries, tobacco and nicotine stores, and casinos. The regulations also expand employers’ recordkeeping obligations, requiring employers to keep certain documents related to a minor’s eligibility for employment for three years after the minor’s eighteenth birthday or three years after the termination of employment, whichever is sooner.

Indiana

House Bill (H.B.) 1302 will repeal provisions of the state’s child labor law that required employers that employ at least five minors between the ages of fourteen and seventeen to register certain information with the Indiana Department of Labor. H.B. 1302 takes effect July 1, 2026. The changes come after Indiana, in 2025, expanded the hours that minors can work, allowing sixteen- and seventeen-year-olds to work the same hours and days as adults and allowing fourteen- and fifteen-year-olds to work until 9:00 p.m. on any day during the summer (from June 1 to Labor Day).

New Jersey

Senate Bill (S) 4400 amends New Jersey’s child labor laws to add an exemption from the restriction on the number of hours minors may work for minors age fourteen or older who are professional athletes. The change took effect on December 19, 2025. New Jersey restricts the number of hours minors aged fourteen and fifteen may work during school weeks and school days, allowing up to eighteen nonschool hours in any school week and up to eight hours on any nonschool day and up to three nonschool hours on school days. Minors aged thirteen and younger are generally prohibited from work except in certain agricultural jobs, newspaper delivery, and shoe shining.

New York

Under changes made by New York Senate Bill (SB) 3006 that take effect on May 9, 2027, the New York State Department of Labor (NYSDOL), rather than school officials, will issue employment certificates electronically via the state’s new child labor database. Prospective minor employees will need to apply for the certificates using a form prescribed by NYSDOL. SB 3006, which largely took effect in May 2025, revamped the certification process for employing minors, establishing the child labor database and requiring.

Key Takeaways

The updates in Colorado, Indiana, New Jersey, and New York are among the latest changes to state child labor laws in recent years, as many state have sought to refine their restrictions on hiring minors to adapt to labor-market changes. Employers looking to hire minors this year may want to review job duties against updated hazardous-occupation lists, confirm recordkeeping practices meet the longest applicable retention period, register with state child labor databases where required, and monitor effective dates to ensure timely compliance.

Ogletree Deakins will continue to monitor developments and will provide updates on the Multistate Compliance, State Developments, Wage and Hour, Workplace Safety and Health, Colorado, Indiana, New Jersey, and New York blogs as additional information becomes available.

The Ogletree Deakins Client Portal contains additional information and tracks developments on child labor laws. (Full law summaries are available for Premium and Advanced subscribers. Snapshots and Updates are available for all registered clients.) For more information on the Client Portal or a Client Portal subscription, please reach out to clientportal@ogletree.com.

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Quick Hits

• Cal/OSHA bears the burden of proving it cited the correct employer entity, and citations may be dismissed entirely if it cannot independently establish that the named entity is the proper one.
• Successor liability in the workplace safety context turns on whether a new entity has “substantial continuity” with the predecessor’s operations, considering factors such as acquisition of assets, retention of the same workforce, and uninterrupted use of the same facilities and equipment.
• A corporation is a legally distinct person from its shareholders, and even where an individual’s name overlaps with a corporate employer’s name, Cal/OSHA must cite the correct legal entity or risk having the citation reversed on appeal.

The answer lies in the doctrine of “successor liability” and it is not as clear as one might think.

When Cal/OSHA issues a citation, one of the most fundamental requirements is that it names the correct employer. Getting it wrong can mean the difference between a valid citation and a complete dismissal.

What Is Successor Liability in the Workplace Safety Context?

The test for successor liability turns on whether the new entity has “a substantial continuity” with the operations of the predecessor, after considering the “totality of the circumstances.” This standard is articulated by the federal Occupational Safety and Health Administration (OSHA) in a January 11, 2017, letter of interpretation to the National Aeronautics and Space Administration’s (NASA) Kennedy Space Center relying on the Supreme Court of the United States’ decision in Fall River Dyeing and Finishing Corp. v. NLRB. While not necessarily binding on Cal/OSHA, it is persuasive authority on the California Occupational Safety and Health Appeals Board, especially where there are no decisions after reconsideration that directly contradict the federal interpretation. The analysis focuses on two key factors: (1) whether the new company has acquired substantial assets of the predecessor; and (2) whether it continued, without interruption or substantial change, the predecessor’s business operations.

The Division of Occupational Safety and Health Bears the Burden at Trial

Cal/OSHA carries the burden of proof and persuasion in demonstrating that it cited the proper entity. As demonstrated in Capco/Jovian Energy, a 2007 Appeals Board decision after reconsideration, this burden exists regardless of whether the cited entity failed to volunteer the correct information about its employer status.

In other words, Cal/OSHA cannot shift the blame to the employer for not correcting a misidentification. The division must independently establish that it cited the right entity.

Citing the proper entity is an element of a violation—not a matter of jurisdiction. This is important because many employers frequently stipulate to jurisdiction at the outset of the appeal. For example, in Cher Xuechuan Ma dba Paradise Island Spa, a 2015 decision after reconsideration, the Appeals Board referred to this issue as “a potential defense” to be “contested at hearing.”

Lessons From the Field

Several key decisions illustrate how these principles play out in practice.

In Alfredo Annino, Cal/OSHA cited “Alfredo Annino” as the employer, but evidence at the hearing revealed that the actual employing entity was “Alfredo Annino Construction, Inc.” After the hearing, the administrative law judge (ALJ) unilaterally amended the citation to add the corporate name, but the Appeals Board reversed, holding that the ALJ lacked authority to do so without notice to the parties. The Appeals Board emphasized that a corporation is a legal person with an existence separate from its shareholders, and the two entities had significant legal differences notwithstanding the fact that the individual named Alfredo Annino used his own name on the appeal and stationery.

Takeaway: A corporation is a legal person with an existence separate from its shareholders, even in the Cal/OSHA context.

In Capco/Jovian Energy, Cal/OSHA cited “Capco/Jovian Energy” after a fatal accident, but the record could not establish what that entity was—a joint venture, two separate companies, or a single company with a fictitious business name. The Appeals Board found that the division did not meet its burden, and the citations were dismissed and penalties set aside.

Takeaway: While an employer must be honest and forthright throughout the appeals process, the burden is on the division to prove it cited the correct entity, and the employer is not required to elaborate beyond what the division asks.

In the 2017 letter of interpretation to NASA, OSHA addressed successor liability with regard to hearing conservation. NASA had awarded a new contract to new contractors, but contracted employees retained their same work roles, duties, and work environments. Some of the new contractors claimed they were not “successor employers” because they had not purchased the business. OSHA disagreed, relying on Fall River Dyeing and Finishing Corp. v. NLRB. OSHA concluded that because the new contractor used the same facilities and equipment and employed the same workforce performing the same duties, there was no interruption or substantial change in business operations, and the new contractor qualified as a successor employer for purposes of the Occupational Safety and Health (OSH) Act.

Takeaway: A completely new employer could be liable for a prior employer’s workplace safety actions if it uses the same facilities and equipment, employs the same employees performing the same duties, and there is no interruption or substantial change in business operations.

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

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Quick Hits

• In M&K Employee Solutions v. Trustees of the IAM National Pension Fund, the Supreme Court recently concluded that actuaries for multiemployer pension funds can calculate the liability for employers withdrawing from the plan by using the assumptions that are in effect on or after the measurement date.
• Four employers that exited the IAM National Pension Fund sued over the way their unfunded vested benefits were valued.
• The Employee Retirement Income Security Act (ERISA) stipulates that an employer’s share of unfunded vested benefits shall be measured as of the end of the plan year prior to the withdrawal (the “measurement date”).

Employers that contribute to multiemployer pension plans have been monitoring this case because small changes in actuarial assumptions can cause a huge difference in an employer’s financial liability when leaving a pension plan.

Factual Background

In 2018, M&K Employee Solutions withdrew from its multiemployer pension plan with IAM National Pension Fund, which primarily covers unionized machinists and aerospace workers. To calculate the plan’s underfunding, the pension fund’s actuary applied a 6.5 percent interest rate, adopted in January 2018, resulting in an amount exceeding $3 billion for the 2017 plan year. This figure was six times higher than it would have been had the actuary used the 7.5 percent interest rate that was in effect at the end of 2017. Consequently, M&K incurred an additional charge of $4,360,701. Three other employers in a similar situation joined the lawsuit.

M&K argued that the fund should have used the figures effective at the end of the 2017 plan year, not new ones adopted in 2018 after the beginning of the new year, when M&K withdrew from the plan. It contended that Employee Retirement Income Security Act (ERISA) mandates the use of actuarial assumptions in effect on the measurement date, not those adopted later and applied retroactively after that date.

The trustees of the IAM National Pension Fund countered that ERISA imposes only two requirements for actuarial assumptions: they must be “‘reasonable,’” and they must represent the “‘actuary’s best estimate of anticipated experience under the plan.’” The trustees argued that the law does not impose any explicit timing requirement for when assumptions must be selected. They contended that actuaries should be permitted to use the most current and complete information available, even if that means selecting assumptions after the measurement date.

The value of the unfunded vested benefits depends on certain predictions about the future and data about the plan, such as the number of beneficiaries and the value of the plan’s assets.

Supreme Court’s Ruling

Justice Ketanji Brown Jackson, writing for the Supreme Court, found that plan actuaries may select new demographic and economic assumptions adopted after the measurement date, as long as those assumptions are based only on data and conditions that existed on or before the measurement date. The court reasoned that “ … the relevant information about the plan’s performance or macroeconomic conditions, as it stood on the measurement date, may not become available until after the measurement date” and that ERISA did not in fact mandate a hard deadline for adoption of actuarial assumptions.

“The statute requires that actuarial assumptions be ‘reasonable’ and reflect actuaries’ ‘best estimate,’” the Court stated. “ERISA does not require pension plans to assess withdrawal liability based on actuarial assumptions adopted before the measurement date.”

Next Steps

Employers planning to exit a multiemployer pension fund may wish to carefully consider the timing of the withdrawal. The measurement date for withdrawal liability will be the end of the plan’s fiscal year prior to withdrawal, but the actuarial assumptions may be tied to a later date. The timing of the withdrawal certainly may not prevent manipulation and inflated withdrawal liability assessments by the fund due to later adoption of actuarial assumptions, but employers will still have the benefit of knowing the data and conditions that existed before the measurement date.

Ogletree Deakins’ Employee Benefits and Executive Compensation Practice Group and ERISA Litigation Practice Group will continue to monitor developments and will provide updates on the Employee Benefits and Executive Compensation blog as additional information becomes available.

Russell S. Buhite is a shareholder in Ogletree Deakins’ Seattle and Tampa offices.

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

• There are eleven federal holidays in 2026.
• Private employers are not legally obligated to provide paid holidays.
• Work performed by hourly, nonexempt employees on a holiday is compensable.

Although federal law does not require private businesses to provide paid holidays, many companies voluntarily recognize certain federal holidays as paid holidays in order to boost recruiting, retention, and morale. Some companies choose to include paid holidays within their combined paid time off (PTO) policy, so that employees can pick which holidays they prefer to observe.

In 2026, there are eleven federal holidays: New Year’s Day (January 1), Martin Luther King, Jr., Day (January 19), Inauguration Day (January 20), President’s Day (February 16), Memorial Day (May 25), Juneteenth (June 19), Independence Day (July 4), Labor Day (September 7), Columbus Day/Indigenous Peoples’ Day (October 12), Veterans Day (November 11), Thanksgiving Day (November 26), and Christmas Day (December 25).

In addition, some states recognize certain holidays beyond the federally recognized list, although they do not require private employers to provide paid holidays. For example, Louisiana recognized Mardi Gras and Good Friday on February 17 and April 3 this year. Utah will celebrate Pioneer Day on July 24, 2026. Hawaii will celebrate King Kamehameha Day on June 11, 2026, and Hawaii Admission Day on August 21, 2026. In Rhode Island, employees who are required to work on Sundays and certain holidays must be paid 1.5 times the regular rate of pay. Illinois, Maine, and Nevada are also worth noting in that they require paid leave for any reason, so an employee who takes leave on a holiday may be entitled to pay.

Among private-sector workers and state and local government workers, the average number of paid holidays per year is eight, according to the U.S. Bureau of Labor Statistics (BLS).

Federal and state agencies generally are required to be closed on official federal or state holidays. Essential personnel, such as law enforcement officers, air traffic controllers, and medical professionals at Veterans Affairs (VA) hospitals, may be required to work on holidays. They are entitled to holiday premium pay, which is additional pay equal to the employee’s regular pay rate.

Under the Fair Labor Standards Act (FLSA), private companies are required to pay hourly, nonexempt workers for any hours worked on a holiday. Overtime pay is required if working on a holiday puts the nonexempt worker over forty hours for the week. The FLSA does not require that employers pay premium “holiday pay” on worked holidays.

Salaried, exempt employees must be paid their full weekly salaries when they work any portion of a week, with certain limited exceptions. Thus, even if a business is closed for a weekday holiday, the company still must pay exempt employees their full weekly salaries.

Union contracts may stipulate a certain number of annual paid holidays per year or a specific list of holidays that the employer must observe annually. Union contracts also may require holiday premium pay in certain situations.

Next Steps

Private employers may wish to evaluate their paid holidays and PTO policies to determine whether they are achieving the expected business goals, such as attracting and retaining talent. They may wish to track patterns in employee absences by using automated HR software or card swipes for building entry. This data can help employers decide which holidays to designate as paid company holidays.

Employers also may wish to coordinate with their third-party payroll vendors to ensure that hours worked on holidays are calculated correctly and any mandated holiday premium pay is allocated properly.

Ogletree Deakins’ Leaves of Absence/Reasonable Accommodation Practice Group and Wage and Hour Practice Group will continue to monitor developments and will post updates on the Employee Engagement, Leaves of Absence, and Wage and Hour blogs as additional information becomes available.

In addition, the Ogletree Deakins Client Portal provides subscribers with timely updates on federal and state laws related to holidays and wage and hour issues, including overtime rules. Premium-level subscribers have access to comprehensive law summaries; Snapshots and Updates are complimentary for all registered client users. For more information on the Client Portal or a Client Portal subscription, please email clientportal@ogletree.com.

Lucas J. Asper is a shareholder in Ogletree Deakins’ Greenville office.

Charles L. Thompson, IV, is a shareholder in Ogletree Deakins’ San Francisco 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

• SB 26-189, Colorado’s new law “concerning the use of automated decision-making technology in consequential decisions,” mandates that employers disclose the use of “automated decision-making technology” (ADMT) when making adverse employment decisions.
• The law replaces the original Colorado Artificial Intelligence Act with a focus on specific notice and recordkeeping obligations for employers starting January 1, 2027.
• Employers must provide a clear pre-use notice of ADMT’s application and provide a disclosure to employees or job applicants following an adverse outcome.

On May 14, 2026, Governor Jared Polis signed Senate Bill (SB) 26-189 into law, days after the state legislature passed it on May 9, 2026. The law repeals and reenacts provisions of the “Colorado Artificial Intelligence Act” (SB 24-205), which was enacted in May 2024 and was set to take effect on June 30, 2026, after having its initial effective date delayed.

SB 26-189 regulates employers’ use of ADMT in employment-related decisions, starting January 1, 2027, with specific notice, recordkeeping, and obligations with respect to employee/applicant rights when the technology materially influences an adverse employment outcome. Notably, the law directs Colorado’s attorney general to adopt rules on or before January 1, 2027, to clarify and implement the law’s requirements.

SB 26-189’s Multistage Notice Framework

The most significant aspect of the new law for employers is likely to be its two-step notice framework. Effective January 2027, employers using covered technology within the scope of the law must provide staged notices and potentially reconsider certain decisions.

• Stage 1 (Before the Decision), Pre-Use Notice

Before using a covered ADMT to materially influence a “consequential decision”—such as a hiring or promotion decision about an employee or job applicant or a decision that will affect an employee’s compensation—an employer-deployer must “provide a clear and conspicuous notice” that the employer will use a covered ADMT affecting a “consumer” (i.e., an employee or job applicant). In addition, employers must also provide “instructions and a simple-to-follow process to request additional information” about the covered ADMT and the “types, categories, and sources of personal data used” to the extent employers receive the information from ADMT developers.

Employers may comply with the notice obligation by “maintaining a prominent public notice” that is reasonably accessible to employees and applicants close to the interaction in which a consequential decision may be made. Rulemaking from the Colorado attorney general may help clarify this compliance pathway by answering questions such as where the notice needs to appear—for example, whether a career page is sufficient or whether it would also be necessary to post the notice on an intranet to capture internal applicants for lateral roles or promotions.

• Stage 2 (After Adverse Outcome), Post-Use Notice

Within thirty days after making a consequential decision, employers must deliver an additional individualized disclosure to those for whom the ADMT resulted in an adverse outcome. Such “adverse outcome[s]” include a non-selection for an employment opportunity, an employment termination/discharge, or any other decision that “materially reduces or restricts” an employee’s compensation or selection for promotion or other opportunity. In other words, adverse outcome notices are required for more situations than when an employer makes hiring or termination decisions.

As written, the law also covers demotions, pay cuts, pay increases, bonus determinations, and possibly performance improvement plans that could result in terminations of employment or other unfavorable outcomes. The notice obligation appears to be triggered by the date that the decision is made, but it is possible that future regulations could clarify that the obligation is triggered when the decision is communicated to an applicant or employee.

The post–adverse-outcome disclosure must contain three specific elements: (1) a plain language description of the consequential decision and the role the covered ADMT played in it; (2) instructions for requesting additional information about the ADMT, including the tool’s name, version number if applicable, the developer’s identity, and the types, categories, and sources of personal data used (to the extent the employer received this information from the ADMT developer); and (3) an explanation of the employee’s or applicant’s rights under the law and how to exercise them. The criteria for the “plain language description” of the ADMT’s role is likely to be a primary focus of the Colorado attorney general’s rulemaking, as the statute directs the attorney general to adopt standards for describing the ADMT’s role in a manner “reasonably understandable to a consumer.”

Employee Rights Following an Adverse Outcome

Among the rights that must be explained in the post–adverse-outcome notice is that employees and applicants may also request (1) instructions for accessing and correcting factually incorrect or materially inaccurate personal data used in the decision, and (2) “meaningful human review and reconsideration of the consequential decision, to the extent commercially reasonable.”

Hopefully, guidance from the Colorado attorney general will explain what “commercially reasonable” means, as employers have many unanswered questions about the new law. For example, in circumstances where employers have high-volume hiring needs in the state with hundreds or thousands of rejected applicants, would it be commercially reasonable to implement reconsideration of each and every consequential decision? What about, by contrast, fifteen applicants screened out by a resume-sorting tool—is individualized human review commercially reasonable there? What if employers discipline some employees using a productivity-monitoring algorithm, while others are disciplined using non-automated tools? Can differential levels of review be justified as commercially reasonable?

Next Steps

The enactment of SB 26-189 is a significant development for Colorado’s regulation of employers’ use of AI to make employment decisions and reflects the broader approach of state laws, which are coalescing around transparency obligations. Still, more clarification on post–adverse-outcome disclosure obligations, consumer rights, and responses to requests for human review of ADMT-aided employment decisions is warranted and expected through rulemaking by the attorney general. Employers may wish to monitor these developments and begin evaluating how to modify internal processes to satisfy the notice obligations imposed by SB 26-189.

Further, questions remain about state regulation of AI use, as the Trump administration is pushing to establish federal preemption of state and local AI laws, including through an executive order issued in December 2025.

Ogletree Deakins’ Technology Practice Group will continue to monitor developments and will provide updates on the Colorado, Cybersecurity and Privacy, and Technology blogs as additional information becomes available.

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Quick Hits

• A precise temporal overlap between a denied vacation extension and a sick leave report, combined with a recurrence in the previous year, can undermine the probative value of a certificate of incapacity for work.
• Once the probative value has been undermined, the employee must specifically demonstrate and prove the inability to work, including symptoms, effects on the job, and medical instructions.

Certificates of incapacity for work are typically the primary evidence that an employee was unable to work due to illness and is therefore entitled to continued pay. Under certain circumstances, the employer may raise serious doubts as to the incapacity to work. If the employer succeeds in doing so, the employee must provide concrete proof of their illness and the resulting incapacity to work. If the employee fails to do so, there is no entitlement to continued pay.

The Case—Certificate of Incapacity for Work After Denied Vacation Request

The employee had approved vacation time in the summer of 2025 and, while still on vacation, requested an extension for the following week on multiple occasions. The employer refused. On the morning of the first workday following the approved vacation, the employee reported being unable to work for exactly the previously requested vacation period and submitted a certificate of incapacity for work from the family doctor. The employer refused to continue to pay wages. The previous year, immediately after the employee’s 2024 vacation, the employee had also obtained a certificate of incapacity for work from the same family doctor for one week.

The Decision—Probative Value Undermined, Claim Dismissed

The labor court dismissed the claim. The court first clarified that the employee generally bears the burden of alleging and proving the requirements for the entitlement to continued pay. This includes, in particular, that the employee was unable to work due to illness. While a properly issued certificate of incapacity for work is generally the most important piece of evidence, it neither establishes an irrefutable presumption nor does it result in a complete reversal of the burden of proof in favor of the employee.

The employer is therefore not required to accept a certificate of incapacity for work at face value if there are specific circumstances that give rise to serious doubts as to the certified incapacity for work. A mere denial, however, is not sufficient. Actual evidence is required that undermines the probative value of the certificate.

In the court’s view, such evidence was present in this case. Of particular significance was the fact that the employee had previously made several unsuccessful attempts to have his vacation extended to cover the subsequent period of illness. The subsequent notice of incapacity for work covered exactly the same period. In addition, the court considered the fact that a one-week period of incapacity for work had already occurred the previous year immediately after the vacation as further evidence. Taking all factors into account, the court considered the probative value of the certificate of incapacity for work to have been undermined.

If the probative value is undermined, the employee must specifically allege and prove the incapacity to work. To do so, the employee must then specifically state and, in the event of a dispute, prove what illness was present, what health limitations existed, what effects these had on the employee’s job duties, and what medical measures or rules of conduct were prescribed. In the case at hand, the employee claimed severe back pain, inability to move, and the use of painkillers. The family doctor had reportedly diagnosed severe muscle tension. While the court still considered this statement sufficient to proceed with the hearing of evidence, the plaintiff was unable to provide proof of his incapacity to work. The family doctor, who was heard as a witness, could no longer recall the specific treatment. He could not even say with certainty whether he had personally examined the plaintiff or had merely issued a certificate of incapacity for work following a phone call. The medical records revealed only a diagnosis, but no specific findings. Thus, in the court’s view, there were no reliable supporting facts to confirm the alleged incapacity for work.

Context of the Decision

The decision aligns with labor court case law, which continues to assign high probative value to certificates of incapacity for work but allows employers to mount an effective defense when the overall circumstances are suspicious.

The decision confirms that not only the content of the certificate may be relevant; courts may also consider an employee’s conduct before and after reporting sick. Courts may find the probative value undermined where an employee unsuccessfully seeks to extend vacation and then submits a certificate of incapacity for work covering exactly that period. This is reinforced if such a pattern repeats itself over several years.

Case Law

The labor court’s ruling is consistent with previous case law. The Baden-Württemberg Regional Labor Court (Landesarbeitsgericht (LAG) Baden‑Württemberg) also recently emphasized that the probative value of medical certificates can be undermined if they are tailored precisely to legally significant time periods; the decisive factor is always the overall assessment (Judgment of November 28, 2025, Ref. No. 7 Sa 33/25).

Key Takeaways

The ruling makes it clear that the probative value of a certificate of incapacity for work can be undermined. However, the employer’s subjective belief that the employee is not at all incapacitated for work is not sufficient for this. Rather, in the event of a dispute, the employer may want to present specific circumstances explaining why the incapacity for work is questionable despite the medical certificate. Such circumstances may include a certificate of incapacity for work covering the period of a requested but denied vacation, or a certificate issued immediately after the employee’s termination of employment and lasting through the notice period.

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. Ulrike Conradi is the managing partner of Ogletree Deakins’ Berlin and Munich offices.

Lela Salman, a law clerk in Ogletree Deakins’ Berlin office, contributed to this article.

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Quick Hits

• MSHA’s FY 2027 budget justification seeks nearly a 10 percent funding cut while preserving core inspection duties and shifting resources toward training, regulation, data analytics, and technology.
• The proposal would reduce funded staffing through attrition, eliminate the Brookwood-Sago mine safety grants program, and pursue AI tools for inspectors.
• Mine operators can expect MSHA to maintain regular inspections despite fewer enforcement positions.

Overall, MSHA is requesting nearly a 10 percent cut compared to FY 2026. This is part of the U.S. Department of Labor’s broader request for a 26 percent reduction.

By the Numbers

So, where is MSHA finding these savings? Partly through workforce attrition.

The FY 2027 budget justification requests funding for 1,590 full-time equivalent (FTE) positions, down from 1,635 in FY 2026. That number held steady between FY 2025 and FY 2026.

The proposed reduction reflects a decrease of 228 FTEs through attrition, offset by an increase of 183 FTEs focused on education and training programs, as well as regulatory and data analytics. Regulatory and data analytics is simply a rebranding of a group that combines standards development with program evaluations, data processes, reporting, and analytics.

MSHA also proposes eliminating the Brookwood-Sago mine safety grants program. Named in remembrance of the twenty-five miners who died in the Brookwood, Alabama, and Sago Mine disasters, the program funds educational and training initiatives focused on mine safety. Congress established it as part of the 2006 MINER Act. The budget justification offers no real explanation for the proposed elimination, stating only that it would “improve administrative efficiency.”

Of course, this is not the final budget. Congress controls the purse strings and can pass a budget that reduces, maintains, or even increases MSHA’s funding. As for the Brookwood-Sago grants program, Congress created it—and only Congress can eliminate it.

Stated Priorities

In its overview section, the budget justification echoes the priorities of Wayne Palmer, assistant secretary of labor for MSHA. It emphasizes one of MSHA’s core statutory duties: mine inspections.

With reduced resources, MSHA will continue to try to perform its full complement of statutorily mandated inspections of all surface mines at least twice per year and all active underground mines at least four times per year.

Beyond this core responsibility, the overview reflects Palmer’s goal of modernizing MSHA through technology and updated standards. On the technology front, the budget justification details AI initiatives Palmer mentioned in his previous congressional testimony—including tools to assist inspectors in the field.

One such tool is an AI-powered helmet. The budget justification describes a wearable headset that would give inspectors a heads-up display to “detect non-compliance, equipment wear, and safety hazards” while also creating a digital record of each inspection. It sounds like something out of a sci-fi movie. The assistant secretary has spoken about testing these helmets in a pilot program at metal/nonmetal surface mines.

Conclusion

For mine operators, this budget justification offers clues about MSHA’s priorities for the coming year.

First and foremost, it signals that MSHA wants to continue its core mission: protecting miners through regular inspections. Even with fewer FTE positions in the budget, operators should not expect fewer inspections. But neither should they expect a surge in inspector hiring, as the budget includes a reduction of forty-six FTE positions in enforcement. For now, it would seem that the threat of impact inspections no longer looms over operators.

Still, some of these expectations should be tempered. The budget reflects the number of positions funded—not necessarily the number of positions currently filled. In other words, MSHA may still be hiring inspectors to fill existing vacancies.

And what about those AI helmets? While many are certainly skeptical of rushing to use AI for every problem, there is a great deal of curiosity about what this pilot program will reveal. Based on our experience, MSHA inspectors have no trouble finding violations—even minor ones—during inspections. It seems unlikely that an AI camera would find a missing cover plate that an inspector’s trained eye would overlook.

As for the Brookwood-Sago grants program, history would indicate that it will continue. Congress created this program to honor miners who lost their lives and to find improvements in mine safety. Eliminating it would be a tough vote for any legislator. The budget proposal may call for its elimination, but Congress has the final say. Historically, programs with this kind of symbolic significance tend to endure.

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

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

A version of this article was previously published in Pit & Quarry magazine.

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Quick Hits

• On May 8, 2026, the Fifth Circuit upheld a lower court’s decision to dismiss a disability discrimination claim because the plaintiff could not return to work in person, which was one of the essential functions of the job.
• The employer satisfied its obligation to provide a reasonable accommodation by offering telework two to three days a week, which the employee rejected.
• The employee’s inability to perform the essential job functions defeated causation for purposes of his retaliation claim.

Factual Background

The plaintiff worked for GStek, Inc., a federal contractor, as an IT systems administrator at Fort Polk’s Army Network Enterprise Center. He originally teleworked during the COVID-19 pandemic but was required to return to in-person work in February 2022 when the U.S. Army and GStek transitioned away from remote arrangements. After returning to the office, the plaintiff was diagnosed with autism, major depressive disorder, and social anxiety disorder. He requested full-time remote work as a reasonable accommodation in October 2022, but GStek denied the request because the Army had begun to implement a return-to-work policy that did not authorize certain contractors to telework. Instead, the company agreed to allow the plaintiff to work from home two or three days per week.

The plaintiff missed work due to mental illness and medication adjustments, and GStek discharged him in January 2023 based on absenteeism. In October 2024, the plaintiff sued the company for disability discrimination, failure to accommodate, and retaliation.

Court’s Analysis

Under the Americans with Disabilities Act, an essential predicate to a disability discrimination or failure-to-accommodate claim is that the individual be “qualified,” meaning he can perform the essential job functions despite his disability or that a reasonable accommodation would enable him to perform his essential job duties.

The Fifth Circuit concluded that the plaintiff was not “qualified” because he was unable to satisfy the requirement of in-person attendance, which was an essential function. “The Army determined that allowing full-time teleworking was not in its interests, and as an Army contractor, GStek had a business interest in honoring the Army’s conditions,” the court stated. The court reasoned that in-person attendance is presumed to be an essential function of most jobs, and the pandemic did not change that. The court further reasoned that remote work is not a reasonable accommodation if it interferes with a supervisor’s ability to supervise an employee.

Absent qualification, the plaintiff’s disability discrimination and failure-to-accommodate claims failed as a matter of law. Additionally, the court recognized that GStek satisfied any accommodation obligations it had by offering remote work for two to three days per week. GStek was not required to provide the plaintiff with his preferred accommodation because “it would represent a change to the essential functions of his job.”

As to retaliation, the court rejected the plaintiff’s argument that the three-month period between his accommodation request and his separation sufficed to show causation. Moreover, the court concluded that the plaintiff’s lack of qualification defeated his ability to show causation. “Without being a qualified individual, his request for accommodation was doomed, and that failed request cannot be the basis for a retaliation claim.”

The Fifth Circuit covers Louisiana, Mississippi, and Texas.

Key Takeaways

The Fifth Circuit’s opinion offers several takeaways, including the following:

• Documenting essential functions clearly. The court relied heavily on evidence that in-person attendance was an established requirement—backed by the Army’s contractual authority and the employer’s own judgment. Employers may want to review job descriptions to ensure they clearly articulate which functions are essential, including attendance and on-site presence where applicable.

• COVID-era telework does not set a permanent precedent. The court explicitly stated that temporarily permitting remote work during the pandemic does not mean employers have permanently altered a position’s essential functions or that telework is always a feasible accommodation. Employers that offered telework and have since returned to an in-person requirement might consider documenting the business reasons for that change.

• Engaging in an interactive process and offering alternatives. GStek was not required to grant the plaintiff’s preferred full-time telework accommodation. However, the fact that GStek offered a partial telework schedule (two to three days per week) seemingly strengthened its legal position. Thorough documentation of the interactive process, including any alternative accommodations offered, may be beneficial in defending later claims.

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

Tiffany Stacy is a shareholder in Ogletree Deakins San Antonio 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

• The Fifth Circuit rejected a plaintiff’s argument that the employer’s statement, “[Y]ou’re about to go on leave so … I can’t lose two people when you’re going to be taking leave soon,” constituted direct evidence of discrimination as it was too attenuated.
• The Fifth Circuit analyzed the plaintiff’s pregnancy discrimination claim under both the “but-for” and “mixed-motive” causation standards and found her evidence insufficient under either standard.
• The Fifth Circuit assumed without deciding that the mixed-motive standard applied to the plaintiff’s FMLA retaliation claim, declining to resolve an open question within the circuit regarding the applicable causation standard.

In Moreno v. Dealer Integrated Services, L.L.C., the Fifth Circuit agreed with the district court that Jocelyn Moreno failed to present sufficient evidence that her pregnancy was the reason for her dismissal and that her former employer, Dealer Integrated Services (DIS), met its burden to show it would have dismissed Moreno regardless of her request for leave, due to her disruptive behavior in the office.

Factual Background

Moreno worked as a payroll administrator for DIS, a car dealership services company, for approximately six years. In April 2023, Moreno informed her office manager, Deborah Devine, that she was pregnant and intended to take maternity leave in September. DIS promptly granted her request for two months of leave but did not inform her of her entitlement to a full twelve weeks under the FMLA.

The workplace at DIS was, by all accounts, “strained”—due in large part to Moreno. According to the company’s owner, Chad Roberts, Moreno refused to communicate with her coworkers Valerie De la Cruz and Patricia Mauricio, shut her office door to them, responded only to Devine, resisted taking on additional duties, and was “aggressive and hostile” when asked to train Mauricio to cover her upcoming absence. In late June 2023, Mauricio and De la Cruz told Devine they would resign unless Moreno was fired, citing the unpleasant work environment. Roberts and Devine then met with Moreno and terminated her employment. Roberts explained the decision, stating that “he wouldn’t be able to … lose two employees and have [Moreno] out as well.”

Moreno filed suit in March 2024, alleging pregnancy discrimination under Title VII, as well as FMLA retaliation, interference, and failure to provide individualized notice. The district court granted summary judgment for DIS on all claims, and Moreno appealed.

Analysis by the Fifth Circuit

Title VII Pregnancy Discrimination

The Fifth Circuit examined whether Moreno presented sufficient direct or circumstantial evidence that her pregnancy motivated her termination.

Direct evidence. Moreno relied on a statement Roberts made during the dismissal meeting: “[Y]ou’re about to go on leave so … I can’t lose two people when you’re going to be taking a leave here soon.” Applying the circuit’s four-part test for determining whether comments constitute direct evidence of discrimination, the court held that this statement was “too attenuated” to serve as direct proof. Citing Fifth Circuit precedent, the court reiterated that statements concerning leave require an inference that they are “code language” for pregnancy. Because an inference is required, such statements are not direct evidence of Title VII discrimination.

Indirect evidence. Under the McDonnell Douglas burden-shifting framework, the court assumed Moreno established a prima facie case but found she could not demonstrate pretext. DIS articulated legitimate, nondiscriminatory reasons for the dismissal: Moreno “refused to communicate with her coworkers in a job where communication was essential; she contributed to a ‘toxic’ work environment that led two colleagues to threaten to resign; and she refused to carry out some of the responsibilities of her position.” The court emphasized that Moreno’s evidence attempted to shift blame for the workplace dysfunction to others but reasoned that “the issue is not whether Moreno’s conduct was reasonable; rather, it is whether she was fired for that conduct as opposed to her protected basis.” In applying this rationale, the court reiterated the longstanding principle that “Management does not have to make proper decisions, only non-discriminatory ones.”

Moreno failed to present any evidence that DIS’s stated reasons for her dismissal were false or inconsistent. Finally, the court concluded that Moreno could not demonstrate her pregnancy was a motivating factor. Moreno’s admitted speculation that her coworkers threatened to resign because of her impending maternity leave—and not her conduct—was unsupported by the factual record. Additionally, Roberts’s statement at the dismissal meeting was simply an expression of the choice between Moreno and her coworkers, both of whom had threatened to resign.

FMLA Retaliation

The court applied similar reasoning to Moreno’s FMLA retaliation claim. Even assuming the mixed-motive framework applies—an open question in the Fifth Circuit—the court concluded that DIS met its burden of establishing that it would have fired Moreno regardless of any retaliatory motive. The court was persuaded that the interpersonal dysfunction was so extreme that two employees threatened to quit rather than work with Moreno, and that “the only reasonable conclusion a jury could make” was that DIS would have fired her “with or without retaliatory animus.”

FMLA Interference

The court found that Moreno could not establish the essential element of prejudice required for an interference claim. DIS granted all the leave Moreno requested. Moreover, adopting the reasoning of the U.S. Court of Appeals for the Tenth Circuit in Twigg v. Hawker Beechcraft Corp., the court held that an employee is not prejudiced by interference with forthcoming leave when she is legitimately discharged before that leave commences.

FMLA Notice

Finally, the court disposed of Moreno’s notice claim on the same prejudice grounds: an employee who is lawfully dismissed prior to the start of her entitled leave cannot show prejudice from a lack of individualized FMLA notice.

Practical Takeaways

The Fifth Circuit’s Moreno opinion demonstrates that an employee’s protected status or impending leave of absence may not be enough—standing alone—to result in liability where, as here, DIS had significant evidence of Moreno’s longstanding disruptive conduct. Additionally, this decision reinforces several important principles for employers:

First, references to an employee’s upcoming leave, standing alone, do not constitute direct evidence of pregnancy discrimination in the Fifth Circuit. Courts will not infer that “leave” is code for “pregnancy.”

Second, ideally, employers will be in the practice of documenting legitimate performance and conduct reasons as they occur, but as the court noted here, a “lack of contemporaneous documentation, alone, is not evidence of pretext.”

Third, the Fifth Circuit’s treatment of the FMLA interference and notice claims confirms that prejudice remains an essential element. Where an employee is lawfully dismissed before leave begins, interference and notice violations may not yield relief absent a showing of actual harm.

Finally, the McDonnell Douglas framework for analyzing Title VII claims remains binding law in the Fifth Circuit, despite growing calls from jurists within the circuit to reconsider the doctrine. The court acknowledged the “resounding chorus calling for a reconsideration of McDonnell Douglas” but held that it remained bound by the rule of orderliness.

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

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