New Federal Protections for Pregnant Employees and Employees Who Are Nursing On December 29, 2022, President Biden signed into law the 2023 Consolidated Appropriations Act which includes two measures that expand the rights of pregnant and nursing workers: the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act). Pregnant Workers Fairness Act (PWFA) Modeled after the Americans with Disabilities Act (ADA), the PWFA expands protections for pregnant employees and applicants by requiring employers with 15 or more employees to make reasonable accommodations to known limitations related to pregnancy, childbirth, or related medical conditions. While an employee may have a pregnancy-related condition that qualifies as a disability under the ADA, pregnancy itself is not considered a disability under the ADA. Under the PWFA, however, employers are now required to treat pregnancy and childbirth-related accommodations under the same framework as the ADA. Like the ADA, the PWFA requires employers to engage in an interactive process to determine the feasibility of reasonable workplace accommodation(s). Although time off may be determined to be an appropriate accommodation, an employer cannot require a pregnancy-related leave of absence without first looking at other potential accommodations as part of the interactive process. As with the ADA, the PWFA includes an undue hardship provision that could be used to justify denying a requested accommodation. However, the hardship threshold is high and difficult to meet, as it is with the ADA. The PWFA also protects employees covered by the PWFA from retaliation, coercion, intimidation, threats, or interference if they request or receive a reasonable accommodation. The PWFA applies to employers with at least 15 employees and becomes effective on June 27, 2023. Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) The PUMP Act expands workplace protections by requiring employers to provide lactating employees with reasonable time (which may be unpaid unless otherwise required by federal, state or local law) and a private space to express breast milk. The PUMP Act expands upon provisions in the Affordable Care Act of 2010 that required employers to provide accommodations to lactating employees who are non-exempt under the Fair Labor Standards Act (FLSA). The PUMP Act expands these rights to all lactating employees covered by the FLSA (both exempt and non-exempt) for one year from the birth of a child. Employers with fewer than 50 employees can continue to rely on the small employer exemption, if compliance with the law would cause undue hardship because of significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business. With some exceptions, the law requires employees to provide notice of an alleged violation to the employer and give the employer a 10-day cure period before filing a lawsuit. What Should Employers Do in Response to these New Laws? Companies will want to ensure their policies are up-to-date and that they are prepared to comply with both of these new laws. In particular, employers should consider the following: Educate the human resources team and managers on these new laws. Without training, managers in particular may unwittingly say or do something in the workplace that is inconsistent with the law or with the employer’s policies and practices. Create a process to follow when employees request an accommodation due to pregnancy-related limitations. The process can and should be similar to the employer’s process for handling reasonable accommodation requests under the ADA. Keep in mind that the federal PWFA and the PUMP Act do not preempt more generous state and local laws. Therefore, any policy, practice, or form may need to be modified depending on where employees are located. Finally, remember that the goals of these laws is for employers to find ways – creative if necessary – to support pregnant and lactating employees in the workplace. Employers should expect that both the Equal Employment Opportunity Commission and the Department of Labor will make enforcement of these new laws a priority. Employers should consult with experienced human resources professionals and/or labor and employment counsel with any questions regarding these new employment laws and any required changes to employer policies and practices. For all MEA Members, the Hotline is available to provide this assistance. For MEA Essential and Premier Members, a Member Legal Services attorney is available for additional consultation. Amy G. McAndrew, Esquire Director of Legal and Compliance Services MidAtlantic Employers' Association 800-662-6238

Can an employee start working without a social security number? 

As of this writing, it can take Social Security offices a few weeks to issue a SSN and card.

It might take a while for foreign nationals arriving in the United States to work to obtain their Social Security number (SSN) for various reasons.

What should you do if you need to onboard a worker without a SSN?

Note that yes you can onboard the person without a SSN. Below are tips to assist you.

Don't Delay Their Start Date

The social security administration allows for the onboarding of an employee without a SSN, as long as that person is otherwise authorized to work. For example, the person has a valid employment authorization document or a work visa.

Guide Them to Apply for a SSN

Advise the new worker that they need to apply for a SSN and card as soon as possible and to provide you with this information once they receive it.

The foreign national may know nothing about obtaining a SSN and card because it's somewhat unique to the United States. So, the employee may need guidance.

There are clear, step-by-step instructions here.

If a worker applied for the SSN but has not yet received it, obtain and record in a memo that the worker has applied for a SSN but has not received it yet and the following information from the worker: full name, address, date of birth, place of birth, father's full name, mother's full maiden name, gender and the date he or she applied for the SSN.

Pay Your New Employee

Employers do not need a SSN to begin paying a foreign national employee. Most payroll and employee benefit plan providers have processes for how to do this. The best way to learn what you need to do is to contact your specific payroll provider because processes vary.

Where the lack of a SSN might impact an employer is if the worker still doesn't have a SSN by the time the employer has to file wage reports (W-2s) to Social Security. There are a couple of possibilities here.

If the worker is filing by paper and they applied but did not get their number yet:

• In Box A, enter "Applied For"

If the worker is filing electronically and they applied but did not get their number yet:

• In the SSN field, enter all zeros

Should the severe start to flu season lead your workplace to require flu shots? 2 main considerations for employers

In a “post-pandemic” workplace where precautionary measures have become familiar, controversial mandatory inoculations continue to represent a double-edged sword in employers’ efforts to maximize workplace safety.

The Centers for Disease Control and Prevention recently reported the start of the most severe flu season in over a decade, leading employers of all types to decide whether they should mandate flu shots for their workforce. The flu season typically runs between October and May with a peak in January and February, but surprisingly high numbers of infection, hospitalizations, and flu-related deaths sprouting in late August has raised the attention of employers. And despite the threat and the CDC’s strong encouragement to inoculate against influenza for the past few months, the number of flu shots administered across the country is lagging at this stage in the season. Even outside the healthcare industry – where required annual flu shots are standard practice – some employers who are already facing staffing shortages may therefore be tempted to mandate the flu shot to avoid outbreaks and maintain necessary staffing levels. What are the two main legal and practical considerations you should take into account before making this determination?

Setting the Stage: Law is Nuanced

In a “post-pandemic” workplace where precautionary measures have become familiar, controversial mandatory inoculations continue to represent a double-edged sword in employers’ efforts to maximize workplace safety. In fact, the analytical framework for flu shots initially guided the discussion on whether private sector employer could require employees to receive the fast-tracked COVID-19 vaccinations.

Federal law allows most private employers to mandate flu shots. The Occupational Safety and Health Administration (OSHA), for example, allows mandates. After the 2009 Influenza A (H1N1) Pandemic caused concerns of a heightened seasonal flu outbreak, the agency released guidance enabling employers to require flu shots. However, “employees need to be properly informed of the benefits of the vaccinations.”

Meanwhile, the U.S. Equal Employment Opportunity Commission (EEOC) commentary reveals a strong directive to encourage rather than require them. These two approaches set the stage for your workplace decision.

1. Evaluate and Handle Accommodation Requests on an Individualized Basis

The EEOC and courts have repeatedly emphasized that some employees may be legally entitled to accommodations for medical conditions or sincerely held religious beliefs preventing their inoculation. Failure-to-accommodate legal claims are currently numerous, requiring employers to navigate these challenging legal obstacles. The same is true of mandatory flu shots.

In dealing with medical or religious-based accommodation requests from masking, the same analysis applies. You must evaluate all requests individually to determine whether the proposed accommodation would enable the employee to perform all the essential functions of their job without creating an undue risk of harm or imposing an undue hardship on your workplace.

Take note, however, that varying state laws may affect the legal analysis. Although several states have limited (or even prohibited) mandatory COVID-19 vaccinations, state laws restricting mandatory flu shots are far less common.

2. Even Though Mandatory Flu Shots are Legal, They May Not be Right For Your Workplace

As employers continue to bounce back from the havoc of the pandemic, the biggest challenge for many has been finding and retaining qualified workers. This challenge continues. However, experience has shown that a segment of most workforces, varying by industry and location, will oppose any sort of mandatory vaccination. Any employer considering mandates must gauge the potential risk of losing (or disrupting) employees weighed against the benefits of requiring flu vaccinations, especially where flu shots were not previously required.

This issue must be assessed based on each employer’s circumstances and workforce. Even though flu shots have a longer proven track record than COVID-19 vaccines, mandates are almost certain to generate some level of pushback. If you want to avoid such pushback and feel you can get by without a flu shot mandate, consider other alternatives.

• Many employers now have experience in virus outbreaks, and thus have refined their approach in responding to objections and requests for accommodations. You are now well-versed in alternative safety measures to prevent viruses from spreading, and you may want to use this knowledge to good effect when combating the flu this season. You might consider re-introducing measures such as masking, social distancing, and providing antibacterial lotions to the workplace.

• Further, consider a temporary return to the virtual workplace. After all, employers and employees alike are now adept at the work-from-home or hybrid models.

• Our recent experience has also proved that education and incentives to be effective tools in encouraging workers to inoculate.

Conclusion

Nonetheless, there is no one-size-fits-all solution to employee hesitancy. In short, these scenarios can be complicated and will demand individualized attention. Therefore, before implementing flu shot mandates, consider all these variables in light of the risks you wish to mitigate as well as the composition and experiences of your individual workplace.