President Trump’s administration has prioritized holding employers accountable for failure to provide reasonable religious accommodations as required by Title VII of the Civil Rights Act of 1964. Nominated by President Trump in 2020 as Acting Chair of the Equal Employment Opportunity Commission (“EEOC”), Andrea Lucas has also made this a priority.
In Augustine V. v. Department of Veteran Affairs, the EEOC found that the Department unlawfully failed to provide the complainant with reasonable accommodations for her religion. The accommodations offered were deemed unreasonable where they imposed a substantial burden on the employee’s employment. A reasonable accommodation should not substantially burden the employee nor impose undue hardship on the employer.
In Andy B. v. Jerome H. Powell, the EEOC reversed the final order of the Federal Reserve (“Agency”), finding that it had not established that there would be an undue hardship imposed by granting the complainant’s request for an exemption from a vaccine mandate. The Agency had the burden of proof to provide evidence that reasonable accommodation would cause an undue hardship.
The EEOC has stated that it is prioritizing “full inclusion” for employees of all religions. Employers should expect a more aggressive approach from the EEOC regarding charges of religious discrimination.
Employers should consider these recent decisions when evaluating religious accommodations, and ensure their policies are consistent with current EEOC decisions.
Implications of HB 160 in Employment Law
Earlier this year, Ohio House Bill 160 was introduced by State Representative Brian Stewart, proposing many changes to current state marijuana law.
Notably, Section 3796.04 establishes a definition of “adult-use marijuana” and sets limitations on its use, such as a limit of 12 plants per household and 6 plants per individual of legal age. It further clarifies that driving under the influence of marijuana is strictly prohibited. Additionally, Section 3796.05 limits the maximum number of licensed dispensaries to 350. Perhaps the most controversial is Section 5739.27, which establishes a 10% tax on all marijuana products in addition to other imposed taxes.
Arguably most important is Section 3796.06. Section 3796.06 would lower the permitted percentage of THC for extracts to 70%. It also limits the transportation of marijuana. If the Bill passes, an individual may not transport marijuana unless it is in its original, unopened packaging or if it is stored in the trunk or behind an upright seat in the vehicle. Section 3796.06 further provides limitations for where marijuana may be consumed, prohibiting use in public places or places of employment, and limiting use to privately owned real property. Further, Section 3796.24 permits landlords to prohibit use of marijuana on their property if previously identified as prohibited in the applicable lease agreement.
These proposed changes have resulted in opposition, specifically regarding higher taxation, caps on THC levels and number of dispensaries, and prohibiting public use of marijuana. Further, there are concerns regarding limiting sales to only licensed dispensaries, which could result in consumers lacking access to marijuana.
For employers, Section 3796.06 of the Bill could have implications for workplace drug policies. With the passing of Issue 2 in 2023, recreational marijuana became legalized in Ohio. However, employers have always retained the right to maintain a drug-free workplace by prohibiting use of drugs – including marijuana – and by administering drug tests. If HB 160 passes, use of marijuana specifically at the workplace would be prohibited.
Increase in EEOC Charges
The Equal Employment Opportunity Commission (“EEOC”) has issued a report on the agency’s performance for the 2024 fiscal year, from October 1, 2023, to September 30, 2024. The report shows that in 2024, there was a 9% increase in discrimination charges, amounting to 88,531 charges total in 2024. Among the increase in discrimination charges were charges of discrimination based on sex, race, disability, color, age, and pregnancy. The only notable decreases in discrimination charges regarded religious discrimination and retaliation.
Additionally, the EEOC reports that $700 million, nearly a 5% increase since 2023, has been “secured” for employees who pursued charges in the 2024 fiscal year. Further, the EEOC notes that it reached an achievement in litigation by obtaining a “favorable result” in 97% of district court resolutions and 100% in systemic case resolutions. An increase in charges is likely to result in an increase in employment discrimination litigation and an increase in costs for employers.
Employers should ensure that their handbooks are up to date regarding discrimination policy and they are conducting thorough investigations when such claims are made. This is especially important considering new developments, such as the Pregnancy Workers Fairness Act (PWFA) and the recent Supreme Court determination that a plaintiff alleging reverse discrimination need not show background circumstances to establish discrimination.
Substitution Provision of FMLA does not apply to paid family leave programs
On January 14, 2025, the Department of Labor, Wage and Hour Division (“WHD”), issued an opinion letter (click here for opinion letter) regarding whether the Family and Medical Leave Act of 1993’s (FMLA) substitution provision applies to paid family leave programs provided by state or local governments in the same manner as leave in relation to paid disability plans. The opinion letter states that it is the position of the WHD that employers cannot require employees to take accrued paid leave under an employer leave policy concurrently with their unpaid FMLA leave when the employee also receives paid leave pursuant to a state or local program.
The FMLA allows for up to 12 weeks of unpaid leave per 12-month period for specified reasons. The principles of 29 CFR § 825.207(d) and (e) require that leave must be designated as FMLA leave with notice given to the employee, including the amount of time counted against the employee’s leave entitlement. In cases where an employee is receiving local or state paid leave for a situation not covered by the FMLA, the employer may not count that leave against the employee’s FMLA leave entitlement.
The substitution provision of the FMLA allows for the employee to unilaterally elect, or the employer to unilaterally require, accrued employer-provided paid leave to run concurrently with unpaid FMLA leave. Specifically pertaining to an employee receiving workers’ compensation or disability benefits, any accrued employer-provided paid leave may be used to supplement the benefits only if mutually agreed upon by the employer and employee. Supplementation of disability or workers’ compensation benefits may not be unilaterally elected or required.
The opinion letter clarifies that the substitution provision of the FMLA does not apply to substitute paid leave. Therefore, if an employee is receiving paid leave from a state or local government program, the substitution provision does not apply to the portion of leave which is paid, meaning that an employee may not unilaterally elect, and an employer may not unilaterally require concurrent use of accrued employer-provided paid leave. However, if an employee is receiving paid leave through a state or local government that does not fully compensate for the period of FMLA leave, accrued employer-provided paid leave may be used to supplement the payments, if agreed upon by the employer and employee, and if permitted by the applicable state law.
Further, where an employee’s state or local paid leave terminates prior to the termination of the employee’s entitlement to FMLA leave, the employee is still entitled to unpaid leave under the FMLA. In this circumstance, an employee would then be subject to the substitution provision of the FMLA since the leave is now unpaid. At that time, the employee may elect, or the employer may require substitution of accrued employer-provided paid leave to mitigate the financial impact of wage loss due to leave.
Employers should ensure that their workplace policies adhere to the provisions of the FMLA as clarified by the WHD.
Nomination of Panuccio for the EEOC
President Donald Trump has nominated Republican Brittany Panuccio, a U.S. attorney in Florida, to serve as a commissioner for the Equal Employment Opportunity Commission (“EEOC”). Two of the Democratic commissioners were previously fired by President Trump, leaving three vacancies on The Commission. If Panuccio is confirmed in the upcoming months, Republicans would then have a majority in the EEOC with two sitting Republicans and one sitting Democrat.
Since the EEOC tends to align more with the views of the sitting President, this could result in a trend towards more conservative policies. However, it is important to note that a reversal of an existing rule or guidance would require a vote by at least three commissioners.
Employers should stay informed on any updates from the EEOC regarding policies that may need implemented into their workplace procedures.