School administrators today are challenged in creating policies and responding to an array of issues that few people would have anticipated as little as five years ago. Consider the challenge of dealing with transgender students.

Transgender is the term that legally describes students whose current gender identities are different from their assigned sex at birth. Although the number of cases involving transgender students is still low, our education law team receives a steady stream of inquiries from schools that are faced with an array of sensitive policy-making decisions around this topic.

The highly charged issue is characterized by strong emotions on both sides. Consider the student who was born male but who is now transitioning to become a female. The student and his parents insist he should be able to use the girls’ restroom. Legally, the United States Department of Education’s Office of Civil Rights has opined that this student has equal rights and access to the girls’ restroom and locker room. But imagine the reaction of the other parents who argue that the student, who still has male body parts and is, biologically speaking, still a boy, should, therefore, continue to use the boys’ restrooms and changing facilities.

Such issues are complex enough when encountered in the adult workforce, especially since there is currently no objective legal definition as to when someone has officially transitioned. They are complicated at the high school level by the high emotions that characterize most teens who are exploring sexuality issues.

The transgender debate has received so much attention that it forced the Ohio High School Athletic Association (OHSAA) to adopt a formal policy specific to it this past November. The issue has major implications for sports teams which could benefit from or be accused of cheating by having a transitioned boy on the girls’ team, for example.

The OHSAA policy states that transgender student athletes should have equal opportunity to participate in sports. It further reports that policies governing sports should be based on sound medical knowledge and scientific validity and developed in a way that preserves the medical privacy of transgender students. Under the policy, all requests from parents indicating a transgender student’s desire to participate on a sports team that is inconsistent with that student’s gender at birth must be submitted to the school in writing and approved by the Commissioner’s Office. In order to qualify, students must have completed a minimum period of hormone treatments and be able to prove by way of “sound medical evidence” that their physical characteristics, including muscle mass, do not dramatically differ from other teammates. All medical treatments must be monitored by a physician and regularly reviewed by the Commissioner’s Office. There is also an appeals process parents can follow if they disagree with the school’s decision.

But the headaches caused by the issue of transgender students don’t end on the sports field.

Since the issue is still relatively new, most school districts are handling these types of situations on-the-fly and on a case-by-case basis. Yet, it is important that policies be created and enforced consistently and uniformly so as to minimize negative media publicity and parent outrage, as well as the risk for discrimination or harassment lawsuits. As can be easily imagined, transgender students can often be the target of bullying by other students. As is true of any other case involving bullying, the school needs to respond quickly and consistently as part of its overall zero-tolerance policy.

It is difficult to address all of the potential discrimination issues in this one article. An especially sensitive issue involves uniform policies and dress codes. Consider the case of a boy wearing nail polish to school. Can he be disciplined by the school for such behavior? It depends on what’s written in the student handbook. Many schools have policies that generically “prohibit dress that interferes with or disrupts the educational environment.” But if nail polish is acceptable for some students and is not specifically prohibited by school policy, it would be ill-advised to proceed with any punitive action in this case. Remember that, even if an action appears unconventional and highly controversial, schools need to be careful in applying rules uniformly.

And how should name changes be handled? If a student who was called James all his life now wants to be called Jane, do you allow it or not? Currently, Ohio law does not expressly address this issue for schools. Thus, there is no one simple answer, because it all depends on what has been allowed in the past. If the school has allowed other kids to change their names–first or last name– for any reason, it is risky to deny a similar request from a transgender student. Other tricky name change issues involve students who have graduated and wish to have official student records changed to reflect a new name that matches their gender identity. Whether a district grants or denies these requests hinges on a number of factors, including past practice and whether the former student has legally changed his/her name. If a district elects not to allow a change to the former student’s records, it can still assist a former transgender student by providing a letter or other documentation that the name on the student’s transcript matches the name he/she was using while in high school.

In our constantly evolving world, it’s difficult for school districts to always anticipate the next big challenge. But the one rule you can rely on to help minimize risk is be consistent.

Time magazine’s recent cover, depicting a mother nursing her almost 4-year-old son, brought the subject of breastfeeding into the spotlight as water cooler debate across the globe.

The age-old issue of nursing mothers in the workplace, however, has long presented legal challenges and debate for both employers and employees alike.

Much of this debate, and the ensuing confusion, stems from the fact that very few employment regulations directly address nursing mothers. The increased focus on the benefits of breastfeeding in general, however, has spurred a move toward clearly defining the legal rights and obligations of breastfeeding mothers and their employers, including what accommodations need to be made for nursing mothers so that they can express their breast milk privately when they are at work.

Provisions in federal law

At the federal level, the 2010 Patient Protection and Affordable Care Act (PPACA) contains a provision that requires employers covered by the Fair Labor Standards Act (FLSA) to provide both “reasonable breaks to mothers to express breast milk” and an appropriate, private area for them to do so. The reasonableness of the breaks is a fact specific question that will vary depending on the employer and employment context. As to the location for these breaks, Fact Sheet #73, issued by the U.S. Department of Labor, confirms that a restroom is not a permissible break location.

Instead, the DOL fact sheet notes that employers must provide nursing mothers with a “space temporarily created or converted into a space for expressing milk or made available when needed” and that the space must be sufficiently “…shielded from view and free from any intrusion from co-workers and the public.”

Additionally, as long as the employee has been completely relieved of her employment duties, employers are not required to compensate an employee for these breaks, regardless of the break’s duration. But, if the employee wishes to use a compensated break already available to her and other employees for the purpose of pumping, the employer must compensate her the same way it compensates other employees.

Despite its clearly spelled out protections, the PPACA provision has one glaring omission: Only employees who are not exempt from the FLSA’s overtime pay requirements, typically hourly employees, are legally entitled to breaks to pump. Employers should consider other factors, such as employee morale and retention, when considering extending the same opportunities to pump in the workplace to exempt employees.

The 50 employee hardship exemption

Also note that there is a hardship exemption from this provision for employers with fewer than 50 employees, if the employer can demonstrate that compliance would “impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer’s business.”

Caution is suggested when employers are determining that they are unable to comply with the PPACA’s requirements. A careful analysis as to whether the reasons they believe they cannot comply the requirements will meet the undue hardship standard is recommended before they make any final decision.

Additionally, bear in mind that employees must notify employers of their intent to take a break for the purpose of expressing milk and that there have been cases decided in favor of the employer’s right to terminate workers for taking such a pumping break without notification. The Ohio Supreme Court, for example, has previously upheld an employer’s right to terminate in such a case.

Before deciding to terminate a lactating employee for taking unscheduled breaks, employers need to review their break policy as a whole. Do they permit other employees to take unscheduled breaks? And, if so, for what reasons? A neutral and consistent disciplinary policy should be implemented and enforced company-wide. Employers also generally may require their breastfeeding employees to follow other rules applicable to all employees.

Proposed Breastfeeding Promotion Act

Employers need to be careful, however, and be aware of the laws surrounding lactating employees in their states because the Ohio Supreme Court implied in that case that, if the issue was placed before it, it could find that Ohio law prohibits discrimination against nursing mothers.

In fact, along that same line of thinking, the proposed Breastfeeding Promotion Act of 2011 (BPA), a proposed amendment of the Civil Rights Act of 1964, seeks to protect breastfeeding women from workplace discrimination. It also is designed to provide employees who are exempt from the Fair Labor Standards Act and who are not protected under the PPACA with the right to a have a break to pump breast milk in an appropriate location during working hours.

If passed, the BPA would broaden the category of employees entitled to federal protection for pumping in the workplace and would also broaden the protection afforded employees by specifically prohibiting discrimination, including discharge, based on pumping or otherwise expressing milk in the workplace.

Simply put, both of these federal measures clearly indicate that employers should have clearly defined policies and protocols in place for objectively and fairly dealing with breastfeeding employees. Always check with legal counsel before implementing or enforcing any policies that affect an employee who is breastfeeding or expressing milk during work hours or on work premises.

Susan Keating Anderson is a labor and employment attorney at Walter | Haverfield LLP in Cleveland. She provides general counsel to employers on a variety of workplace matters and HR issues, and has conducted numerous in-services to train employees and employers on best employment practices and procedures. In her practice, Susan has successfully defended employers against charges of discrimination, sexual harassment, wrongful discharge, defamation, and workplace privacy violations. Contact her at sanderson@walterhav.com.

Although Time made breastfeeding a hotly debated issue with its recent cover photo of a mom nursing her almost 4-year-old son, breastfeeding in the workplace has long presented a legal stumbling block for employers and employees alike. The dearth of laws directly applicable to the situation has fueled confusion; however, the increased focus on breastfeeding in general has spurred a move towards defining the legal rights and obligations related to breastfeeding in the workplace.andnbsp;

This is evidenced at the federal level by the 2010 Patient Protection and Affordable Care Act (PPACA), which contains a provision that requires employers covered by the Fair Labor Standards Act (FLSA) to provide both “reasonable breaks to mothers to express breast milk” and an appropriate area for the process. More recently, the proposed Breastfeeding Promotion Act of 2011 (BPA) seeks to protect breastfeeding women from being discriminated against in the workplace and to afford employees exempt from the FLSA, who are not protected under the PPACA, the right to a break and appropriate area to pump in the workplace.

Under the PPACA, breastfeeding employees must be provided “reasonable” breaks to pump. The reasonableness of the breaks is a question that will vary depending on the employer and employment context. As to the location for these breaks, Fact Sheet No. 73, issued by the Department of Labor, confirms that a bathroom is not a permissible break location. Rather, a functional space must be provided for the employee’s use; it need not be dedicated solely for that purpose, but it must be available to the employee when she needs it. According to the fact sheet, “A space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view and free from any intrusion from co-workers and the public.”andnbsp;

As long as the employee has been completely relieved of her employment duties, employers are not required to compensate an employee for these breaks, regardless of the break’s duration. However, if the employee wishes to utilize a compensated break that was already available to her and other employees for the purpose of pumping, the employer must compensate her the same way it compensates other employees.

One glaring omission under the PPACA, however, is that only employees who are not exempt from the FLSA’s overtime pay requirements (typically, hourly employees) are legally entitled to breaks to pump. An employer should consider whether other factors, such as employee morale and retention, might dictate that it extend the same opportunities to pump in the workplace to exempt employees.

It’s important to note that there is a hardship exemption from this provision for employers with fewer than 50 employees, if the employer can demonstrate that compliance would “impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature or structure of the employer’s business.” Employers should be cautious in determining that they are unable to comply with the PPACA’s requirements, however; they need to undertake a careful analysis as to whether the reasons they believe they cannot comply with the requirements will meet the undue hardship standard.andnbsp;

It is also important to note that employees must notify employers of their intent to take a break for the purpose of expressing milk. The Ohio Supreme Court has previously upheld an employer’s right to terminate an employee for taking an unauthorized break to pump because she failed to notify said employer of her intentions. Be careful, however, because the Supreme Court implied in that case that, if the issue was placed before it, it could find that Ohio law prohibits discrimination against lactating employees.andnbsp;

Before deciding to terminate a lactating employee for taking unscheduled breaks, employers should consider whether they permit other employees to take unscheduled breaks and, if so, for what reasons. A neutral and consistent disciplinary policy should be implemented and enforced. In addition, employers generally may require their breastfeeding employees to follow other rules applicable to all employees.

With the number of union workers at an all-time low in this country, it should really come as no surprise that unions have resorted to more drastic, unconventional methods of recruitment. The use of worker centers to help recruit traditionally unorganized sectors of the workforce has caught the attention of not only the media, but also business leaders and even politicians across the country. As a result, the House Subcommittee on Health, Employment, Labor and Pensions has scheduled a hearing titled “The Future of Union Organizing”. The focus of the hearing is to discuss the impact of worker centers on the union movement.

If you haven’t already read one of the more than dozens of national newspaper stories focused on the latest union escapades, it’s good to start with an explanation: Worker centers are non-profit organizations that “provide” services for workers in construction, restaurants, retail, food processing, agricultural, landscaping and domestic professions. Although these worker centers are not officially affiliated with unions and, on the surface, appear to not have a lot in common with them, they have been in the spotlight recently and are credited with focusing attention on workers’ rights through such tactics as the highly publicized national one-day strike in the fast food industry in mid-September.

A primary advantage of worker centers is that they fall outside the scope of the National Labor Relations Act’s provisions that regulate, among other things, how and when unions can picket and can interact with employees and management. Clearly, the move by organized unions to work with worker centers signifies a willingness on the part of unions to utilize bold, new and strategic tactics to re-energize the union movement. However, by reaching out to such non-organized groups, it can also be seen as a last-ditch effort to breathe life into a languishing ideology.

Whether or not the “partnership” of unions and worker centers can truly be successful relies largely on economic realities. Traditionally, worker centers represent the bottom rung of the American labor force—the unskilled and minimum wage earners. Therefore, it is unrealistic to expect that their employers can absorb the type of wage increases being sought. Take the fast food industry, for example. While it is true that it is difficult, if not impossible, to support a family while making minimum wage, the companies employing these workers do not have the type of margins to support a major wage increase. In response to worker demands to make more money, these companies are more likely to automate their operations which, in the end, will actually decrease the number of workers employed.andnbsp;

Nevertheless, the work center approach is not intended to be just a labor union issue. Rather, it is part of a grander strategy to highlight perceived economic and social inequities in the American work force. The backdrop to this strategy is “raising” social awareness and, therefore, general worker disenchantment with their current working conditions—hence, call your local union organizer for help.

It is worth noting, however, that the union movement first got its start with a group of employees who had issues with their employers and continued to grow until they forced political and business leaders to focus on an underserved population. This, in many ways, is how and why worker centers operate.

Up until this point, however, the impact of the worker centers and their one-day strikes appears to have been minimal (although somewhat disruptive, as is typical for any group trying to start a “revolution”). But it is still very early to try to predict any end results. It is very likely, however, that tactics and initiatives will become less peaceful as time goes on.

While most legal and labor professionals are currently taking a wait-and-see approach, this is a good time to revisit hiring and employment practices and procedures. The best way for keeping the union away from your doors is to hire the right people, treat them fairly, allow them to move forward and, overall, give them dignity.andnbsp;

Without a doubt, these are certainly interesting and unprecedented times for labor.

The Obama administration, after having basically ignored its labor constituency for five years, is now in a position to implement some broader pro-union strategies.

While the administration is using a multi-pronged approach in its attack on business, I want to concentrate on the more controversial initiatives that are being pursued by the U.S. Department of Labor (DOL) and the National Labor Relations Board (NLRB).

Let’s start with the DOL’s increased focus on and investigation of “inequality of wages based on sex in the workplace” by the Office of Federal Contract Compliance Programs (OFCCP). While such alleged inequality bears investigation, it appears that the DOL has reached a predetermined conclusion, which, if successfully applied, will cost employers untold billions of dollars.

The second area of interest is the DOL’s rulemaking as it relates to two timely issues.

On the one hand, the DOL has signaled its intention to implement the controversial “persuader” rule in March. If this draconian rule is implemented in its current form, it will significantly diminish the types of union resistance activities by employers that normally occur during NLRB- sponsored union elections. Any pro-employer activity by lawyers in a union representation campaign would trigger DOL reporting requirements, which lawyers and their clients are loathe to follow and would amount to a “game changer” during union resistance campaigns.

Similarly, the DOL is refusing to issue any guidance regarding union-sponsored “work centers,” finding that they are not governed under current applicable National Labor Relations Act guidelines since a work center does not constitute a labor union because it is not “the employees’ bargaining representative and does not negotiate employment terms with employers.”andnbsp;

Finally, the third leg of the administration’s attack on business is found at the NLRB, which has recently taken a number of strongly pro-labor, anti-business actions. A case in point is its recent complaint against Wal-Mart for disciplining employees who are members of work centers for engaging in “partial” strike activity.andnbsp;

The case of national homebuilder D.R. Horton is another great example, as the NLRB is trying to come to grips with the rights of companies to enforce non-union employee arbitration agreements. Generally, the courts of appeal believe such activity by non-union companies is permitted but the NLRB believes that such clauses act to inhibit permitted union activity. The Fifth Circuit Court found against the NLRB’s position regarding its stand on non-union arbitration agreements. Nevertheless, the court granted the NLRB an additional time to decide if it wants to pursue this matter further. It seems likely that the current NLRB will try to get the Horton decision in front of the Supreme Court.

These efforts are on top of what the NLRB did last year when it determined that a smaller bargaining unit may be “carved out” from a larger overall employee unit in some instances. For example, employees in a cosmetic department of a large department store may, in fact, be considered a bargaining unit in and of itself to help facilitate organizing efforts.

In an additional move to support the languishing efforts of unions to organize, the NLRB also is expected to re-introduce its “ambush election rule.” The action, which met with resistance in 2013, will likely be resurrected in 2014 to expedite union elections in a manner that will arguably increase union victories by not giving employers sufficient time to present their side of the issue.

The nexus of all these matters is that the Obama administration, through its various departments and agencies, has taken it upon itself to go after some of the most successful companies in the country for purely philosophical reasons — i.e. success brings about inequality, whereas mediocrity does not. This argument, although not as bluntly stated, appeals to the media and the small group of uneducated employees that, for a variety of reasons, has not been able to participate in the tech revolution.andnbsp;

Consequently, it is clear that employers are in for a rough several years, unless the make-up of the Senate and the House changes, in which case there will be some pushback on a congressional level. With a gridlocked Congress unlikely to make much progress, however, it is obvious that the Obama Administration is seeking to accomplish its pro-labor agenda through the various government agencies that will be operating with a clear anti-employer bias.andnbsp;

The purpose of this blog is not to provide advice to employers struggling to deal with the changes or lack of changes in the various employment-related government agencies. Rather, it is to complain that the National Labor Relations Board (NLRB) and the Department of Labor (DOL), specifically, the Fair Labor Standards Act (FLSA), are historic anachronisms.andnbsp;

The world and, more specifically, the workplace have changed so much since these government entities and their various regulations came into being. Consider the FLSA, for example.

Created in 1938, the Act was, at its most basic level, established to provide rules governing overtime pay in an industrial world. Today, this act covers more than 75 million workers who perform jobs that only existed in science fiction in the 1930s.andnbsp;

To say that the FLSA is a bit outdated is a serious understatement.

In March of this year, President Obama proposed changes to the FLSA that, among other things, would require overtime for several million currently exempt employees. While it is commendable that the President recognized the need to update the Act, the proposed changes fall abysmally short of bringing the Act in line with today’s workplace. In order for our nation to be competitive in a global market, we need workplace policies that are flexible and responsive. American businesses would greatly benefit from the elimination of vast segments of the outdated Act. Or, at minimum, numerous sections need to be brought up to 21st century standards and demands.

In contrast to the DOL, which has changed little since its inception, is the NLRB, an agency in search of a mission. Clearly, with unionization at a historic low point, the NLRB’s original mission has been eviscerated. It is beyond debate that private sector unionization has eroded from 35% to around 7% since WWII and that that erosion is a direct result of unions not properly responding to changes in the post-industrial workplace and workforce. Like the DOL, the NLRB mirrors that ostrich-like obliviousness.andnbsp;

On the one hand, management at most companies is much better in responding to employee needs and wants than it was 70-80 years ago. That means fewer disgruntled employees and less need for nanny-agencies like the DOL and NLRB. Adding to this reality is that the union movement and its workplace brethren have, for the most part, been unable to “live up” to expectations of workers. Anyone who expected the DOL and NLRB to have noted the changing workplace, workforce and unionization rates and respond appropriately is sorely disappointed.andnbsp;

Indeed, under the Obama Administration, the NLRB actually strengthened its hold over the workplace through a more expansive reading of workers’ rights as provided under Section 7 of the National Labor Relations Act (NLRA), which permits employees to engage in “protected and concerted” activities. As part of this expansion, the NLRB is now taking some very controversial actions related to employee handbooks and workplace rules — including its recent holdings that an employer has no right to expect its workers to act courteously and with civility.andnbsp;

For example, in a recent case the NLRB found that handbook provisions that prohibited “negativity and gossip” and required employees to act in a “positive and professional manner” were deemed illegal because they were somehow construed to be “limiting” employees’ rights (to act badly and unprofessional, I assume). In another recent case, a handbook provision that prohibited “discourteous or impolite” behavior was also found to violate employee rights.

The result of all this over-regulation is that employers need to be more careful than before and involve legal counsel to a greater degree when crafting nearly any employee policy or employee handbook, spending money that could be used to grow the business. Does the NLRB really have so little to do these days that it is spending its time and efforts in striking down policies that discourage disruptive employee behavior? And should such disruptive behavior occur, how then would this irrelevant agency deal with it?

Without a doubt, the mid-1930s are long gone. And it’s time that our various government agencies and governing bodies get a grasp on what is needed today to help American businesses thrive instead of crippling them with this sort of nonsense.

On March 26, 2015, the U.S. District Court for the Northern District of Texas preliminarily enjoined the same-sex spouse rule promulgated under the Family and Medical Leave Act (“FMLA”), as a result of Texas, Arkansas, Louisiana, and Nebraska filing a lawsuit to enjoin enforcement of the Department of Labor’s (“DOL”) rule. The rule, effective March 27, 2015, allows legally married couples – including same-sex couples – to enjoy the rights provided by the FMLA, regardless of the laws in the state in which the employee currently resides. These states argued that the DOL exceeded its jurisdiction by forcing employers to look to the law in the state in which the marriage took place, rather than the law of the state in which the employee who is seeking FMLA leave resides.

The Court found that the final rule would require Texas agencies to recognize out-of-state same-sex marriages in violation of state law. The Court’s ruling essentially puts the rule on hold in these four states and, for now, prevents employees in same-sex marriages from receiving the benefits afforded heterosexual married couples under the FMLA. Employers in other states need to comply with the DOL’s rule unless or until a court in their jurisdiction rules likewise. One possible outcome of the Texas court’s ruling is that the DOL may opt not to enforce the new rule in other states until the issue is resolved by the courts. The DOL has requested that the court reconsider its decision. Oral argument is currently scheduled for later this month.

On March 25, 2015, the U.S. Supreme Court issued its decision in the Young v. United Parcel Service, Inc.andnbsp;case. Employers and employees alike were hopeful that the Court would provide much-needed guidance about when and how employers are required to accommodate pregnant workers, particularly with respect to providing light duty. While the Court provided some guidance, it did not resolve the issue directly and employers are still left with a difficult decision.

In theandnbsp;Young v. UPSandnbsp;case, Young, the female plaintiff, was a delivery truck driver for UPS when she became pregnant. Young’s physician placed her on light duty early on in her pregnancy due to a lifting restriction. UPS denied Young’s request to work light duty because the requirement that she be able to lift more than 20 lbs. was an essential function of her job. Young was, therefore, forced to remain on an unpaid leave of absence during her pregnancy. UPS, however, did have a policy that allowed employees who had work-related injuries to work light duty. UPS also provided light duty to other types of employees, such as those who have disabilities. Employees who did not fall into any of the exceptions were not eligible for light duty assignments. The lower courts concluded that UPS’s policy was lawful because the policy treated pregnant workers and non-pregnant workers alike.

Young’s lawyers argued that UPS’s policy providing light duty work for certain employees, but not for pregnant employees, violated the Pregnancy Discrimination Act (“PDA”). UPS argued that an employer may have a facially neutral policy so long as pregnant employees and non-pregnant employees are treated the same.

In deciding the case, the U.S. Supreme Court did not agree with either party. The Court confined its ruling to the issue of whether UPS’s actions constituted a violation of the PDA, which states in part that “women affected by pregnancy, child birth or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability to work.” The Court then created a new standard. Under the new standard, in order to establish a pregnancy discrimination claim, a pregnant worker needs to offer evidence that: (1) she is in a protected group (pregnant); (2) she requested an accommodation because of her pregnancy; (3) the employer refused the request for accommodation; and (4) the employer provided accommodations for others who are temporarily similarly unable to do their work. If the pregnant worker is able to provide this proof, the employer is obligated to show that it has a legitimate, non-discriminatory reason for denying accommodation. Legitimate reasons do not generally include cost or convenience. If the employer is able to produce such evidence, the employee has the obligation to demonstrate that the employer’s reason was a pretext for discrimination. What’s new is that, in proving pretext, the employee can argue that the workplace policy puts a “significant burden” on pregnant workers and that the employer’s legitimate, non-discriminatory reasons are not “sufficiently strong” to justify the burden. The Court further explained that a pregnant worker can “create a genuine issue of material fact as to whether a significant burden exists by providing evidence that the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers.”

The Court ultimately found that there was a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation could not be reasonably distinguished from Young’s. The Court sent the case back to the lower court to consider the evidence, consistent with the Court’s new standard. And, while the Court did not give employers a definitive answer, the Court did reject the idea that an employer isandnbsp;necessarily requiredandnbsp;to provide light duty to a pregnant employee simply because it provides light duty to one set of employees, such as those injured on the job.

What should employers do now?andnbsp;Employers that have policies allowing for light duty for some employees should consider whether light duty should be made available for pregnant workers in similar circumstances. If an employer is not inclined to go this route, the employer should consider whether its policies impose a “significant burden” on pregnant workers and whether its legitimate, non-discriminatory reasons are sufficient to justify the burden. When making these decisions, employers should consider whether they are willing to litigate these issues to trial, as summary judgment will likely be more difficult to obtain under the Court’s new standard.

Another concern that complicates this issue for employers is the definition of disability under the Americans with Disabilities Act (“ADA”). Employers must be mindful that the definition of disability under the ADA may now be interpreted in many circumstances to include short-term impairments when related to what we otherwise consider healthy pregnancies. Many employers will have a duty toreasonablyandnbsp;accommodate pregnant employees under the ADA (as opposed to the PDA) by providing light duty. The bottom line is that, before employers refuse to provide pregnant employees with an accommodation such as light duty, they should consult with legal counsel.

The United States Department of Labor issued a Final Rule in February, revising the definition of a “spouse” under the Family and Medical Leave Act (“FMLA”), which extended the FMLA’s protections to married, same-sex couples. The rule is designed to implement changes required as a result of the United States Supreme Court decision inandnbsp;United States v. Windsor. In that case, the court struck down the Federal Defense of Marriage Act provision which restricted the definitions of “marriage” and “spouse” to opposite-sex marriages for purposes of federal law.

The new regulation allows legally married couples, opposite-sex and same-sex, to enjoy the rights provided by the FMLAandnbsp;regardless of the laws in the state in which the employee currently resides.andnbsp;Accordingly, as long as the employee is legally married in a location that allows for same-sex or common law marriages, the employee is married for purposes of the FMLA, even if the state in which the employee resides does not recognize same-sex marriages. The Final Rule also includes those employees in lawfully recognized same-sex and common law marriages which were entered into outside of the United States, as long as they could have been entered into in at least one state. The FMLA still does not apply to civil unions or domestic partnerships.

The Rule will become effective on March 27, 2015. Employers will therefore want to update their FMLA policies or at least notify decision-makers regarding this change. The new regulations will not only impact a spouse’s right to take care of his/her spouse, but a spouse’s right to take care of a child or “stepchild.”

Employers may request reasonable documentation of the marriage, which can be a statement from the employee or documentation from a court, but any such request should not interfere with an employee’s exercise of his or her FMLA rights. Generally, employers will already have such information in the personnel file along with an employee’s emergency contact, healthcare benefits or beneficiaries issues with respect to employee benefit plans. Employers should, however, be consistent in requesting documentation for same-sex and opposite-sex marriages.

WHAT EMPLOYERS SHOULD DO NOW: