February 12, 2025

Disability-Related Remote Work Accommodation Requests: First COVID, then the Deluge

Joseph Robertson

Many employers instituted work from home policies during the pandemic that they are now fine-tuning or rethinking. While telework technology advances and return to onsite work initiatives unfold, employers must navigate part-time and full-time remote work requests, including ones lodged under the Americans with Disabilities Act (ADA). This article outlines how to navigate a request for remote work related to a disability with examples of recent decisions that impact employers in Colorado.

Generally, a remote work accommodation request should be processed like any other accommodation request. The ADA requires employers to provide reasonable accommodations to disabled employees that will allow them to perform their essential job functions, so long as such accommodation does not constitute an undue hardship for the employer. An employer’s failure to provide such accommodations, or actions an employer takes against an employee in response to such a request, may result in a claim under the ADA for disability discrimination or retaliation. As a result, each remote work accommodation request must be considered individually even if the employer has a policy that generally prohibits working from home. Read more >>

February 10, 2025

Quick Q&A on Remote Work Policies

Joseph Robertson

by Joseph Robertson

Can remote polices from the pandemic be used against a company trying to bring employees back into the office?

In certain circumstances, yes. Recently, courts have allowed juries to decide if onsite work is essential when the employer could not definitely demonstrate that onsite work was required or when a previous policy allowed substantial remote work.

What if the medical documentation provided by an employee appears untrustworthy?

If the employee has not produced reliable medical documentation, then the employer may require the employee to submit to an independent medical examination (IME) to ascertain the alleged disability and reasonable accommodations, provided that the examination is job-related and consistent with business necessity. Physicians who regularly conduct IMEs often provide concrete accommodations recommendations, which may present reasonable alternatives to remote work. The decision to ask for an IME should not be made lightly. Any decision to terminate or discipline an employee who refuses to submit an IME should be backed up with a valid reason for requiring the IME in the first place. Read more >>

January 24, 2025

Preparing for Worksite Enforcement Investigations

Ann Lee

By Ann Lee

Question: We are worried that there may be an increase in worksite enforcement investigations. What can we do in preparation?

Answer: There was a surge in worksite enforcement investigations in the fiscal year of 2018 by U.S. Immigration and Customs Enforcement (ICE) Homeland Security Investigations (HSI), and they are expected to surge again. ICE uses the I-9 inspection program to promote compliance with the law, part of a comprehensive strategy to address and deter illegal employment. Beyond I-9 compliance, the Department of Labor may perform site visits to investigate wage and hour issues, unfair labor practices, and even examining H-1B sponsoring employers’ Public Access Files. Read more >>

January 22, 2025

Wyoming Legislature Considers Eleven Employment Bills

Brad Cave

by Brad Cave

The Wyoming Legislature convened last week, and our elected representatives have a full agenda of proposed employment laws. From changing the rules for time off for voting to prohibiting mandatory DEI training, the proposed legislation could result in more changes for Wyoming employment law than we have seen in decades. Wyoming employers should pay attention to these proposals.

Anti-Woke Proposals. The growing nationwide “anti-woke” movement and its related resistance to diversity, equity and inclusion programs (DEI) has influenced several bills before the legislature.

What is a Woman Act. House Bill 32 would create statutory definitions of the terms sex, male and female, tied to a person’s biological sex at birth, and would define boy, girl, father and mother in relation to biological sex at birth. The bill would also establish, at least as a matter of Wyoming law, that separate accommodations based on biological sex are not inherently unequal, and that accommodations can be equal with respect to biological sex without being the same or identical. Read more >>

December 19, 2024

Lessons for Employers: Navigating Return-to-Office Policies and ADA Recordkeeping Compliance

Leslie Perkins

by Leslie Perkins

Fresh off the press, the Equal Employment Opportunity Commission (“EEOC”) has issued an important finding this week highlighting key compliance pitfalls for employers under the Americans with Disabilities Act (“ADA”).

On December 18, 2024, the EEOC ordered an Arizona tire company (the “Company”) to pay a former employee $64,500 in damages, in addition to mandating required corrective measures. These steep penalties followed an adverse finding where the EEOC found reasonable cause to believe that the Company retaliated against its former employee and violated the ADA by enforcing a 100% return-to-office policy without engaging in the interactive process for employees requesting a reasonable accommodation. While the EEOC did not publish the details of the reasonable accommodation sought in relation to the return-to-office policy, the EEOC’s order serves as a crucial reminder to employers that their duty to engage in the interactive process remains even when implementing a company-wide policy. Companies should consider, for example, whether a 100% in-office policy will affect employees who may have limited mobility or other conditions that reasonably require them to work from home at least part of the time. Read more >>

December 18, 2024

DHS Finalizes H-1B Modernization Rule Effective January 17, 2025

Ann Lee

By Ann Lee

On December 17, 2024, the Department of Homeland Security (DHS) announced the final implementation of the long-anticipated H-1B modernization rule. This rule, titled “Modernizing H-1B Requirements, Providing Flexibility in the F-1 Program, and Program Improvements Affecting Other Nonimmigrant Workers” will take effect on January 17, 2025.

Published in the Federal Register on December 18, 2024, this regulation builds upon earlier modernization efforts initiated in October 2023. The first phase of the H-1B overhaul, focusing on revising the H-1B lottery, “Improving the H-1B registration Selection Process and Program Integrity ”, was implemented on February 2, 2024. Read more >>

December 17, 2024

California Labor and Employment Law Updates for 2025

Adam Bouka

by Adam Bouka, Dora Lane, and Greg Saylin

As we move into 2025, California continues its trend of enacting progressive and comprehensive labor and employment laws. The new legislative updates span a range of critical issues, including whistleblowing, discrimination, workplace safety, artificial intelligence, and paid leave. Employers across the state must act swiftly to update their workplace policies and practices to comply with these changes, which take effect January 1, 2025. Below, we outline the most significant updates and what employers need to know.

Whistleblower Protections

California has expanded protections for whistleblowers with two significant updates:

AB 2299 requires employers to prominently display a list of employees’ rights and responsibilities under whistleblower laws, including the whistleblower hotline number. Notices must use lettering larger than 14-point type. To assist employers, the Labor Commissioner will provide a model list.
AB 2455 extends whistleblower protections to contractors reporting improper governmental activity while providing services to local governments.

Greg Saylin

Sexual Harassment Training

Under AB 2364, employers must pay increased fees under the Property Service Worker Protection Act to fund sexual violence and harassment prevention training. This change emphasizes California’s ongoing commitment to workplace safety and education. Read more >>

December 10, 2024

New Rule Permanently Extends the Automatic EAD Extension Period to 540 Days

Samantha Wolfe

By Samantha Wolfe

The Department of Homeland Security (DHS) is finalizing a critical regulatory change to permanently increase the automatic extension period for Employment Authorization Documents (EADs) from 180 days to 540 days for certain eligible renewal applicants. Scheduled to be published in the Federal Register on December 13, 2024, this rule represents a significant shift in employment authorization policy aimed at mitigating the risks associated with USCIS processing delays.

This change builds on temporary rules issued in 2022 and 2024, which successfully alleviated employment disruptions for thousands of workers and their employers. Here’s what we know so far, based on the unpublished version of the rule. Read more >>

December 6, 2024

Revised Exchange Visitor Skills List: A Game-Changer for J-1 Visa Holders from China, India, and Beyond

By Samantha Wolfe

Samantha Wolfe

The U.S. Department of State has announced a major update to the Exchange Visitor Skills List, effective December 9, 2024. This is the first significant revision in 15 years and removes the two-year home-residency requirement for J-1 visa holders from 34 countries, including China, India, South Korea, Saudi Arabia, and the UAE. These changes have profound implications for individuals, employers, and U.S. innovation.

What Is the Skills List?

The Exchange Visitor Skills List identifies countries and fields of expertise deemed essential for a country’s development. Nationals of these countries who hold J-1 visas have historically been required to return home for at least two years after completing their programs. The revised list eliminates this requirement for 34 nations, marking a significant policy shift toward talent retention in the U.S. Read more >>

November 19, 2024

Federal Court Strikes Down DOL’s 2024 Overtime Rule

Adam Bouka

By Adam Bouka and Brit Merrill

On November 15, 2024, the U.S. District Court for the Eastern District of Texas invalidated the Department of Labor’s (DOL) 2024 Final Rule, which increased salary thresholds for overtime exemptions under the Fair Labor Standards Act (FLSA). This decision in State of Texas v. Dep’t of Labor, Case No. 24-cv-468-SDJ, vacates the rule nationwide, halting its implementation and restoring the salary level in effect prior to July 1, 2024 ($35,586 per year, $684 per week) for executive, administrative, and professional (EAP) exemptions and ($107,432 per year) for the highly compensated employee exemption.

Brit Merrill

Key Takeaways:

Executive, Administrative, and Professional (EAP) Exemptions
- The planned salary threshold increase to $844 per week (or $43,888 annually), effective July 1, 2024, is no longer valid.
- Future staged increases, including the January 1, 2025 threshold of $1,218 per week and automatic updates starting July 1, 2027, are also void.
- Employers must revert to the prior salary threshold of $684 per week ($35,568 annually) for EAP exemptions.
Highly Compensated Employee Exemption
- The planned salary threshold increase to $132,964 effective July 1, 2024 is no longer valid.
- Future staged increases, including the January 1, 2025 threshold increase to $151,164, is now void.
- Employers must revert to the prior salary threshold of $107,432 per year for highly compensated employee exemptions.