Written by Rebecca Tipton, SHRM-SCP

HR Advisory Services
Putting the “Resource” in Human Resource Consulting

One of the unexpected challenges of the HR industry is keeping up with compliance updates considering there are many different agencies that regulate employment considerations, including all of the various agencies and regulations that fall under the US Department of Labor, any applicable state labor departments, and industry-specific regulations, such as FARS or legislation specific to government contractors, CMS requirements for health organizations, or even health departments for the food and beverage industry. This struggle is further complicated when legal updates occur unexpectedly mid-year, which has certainly been the case this past year. Therefore, to help you ensure compliance for your organization, we wanted to provide a brief summary of some of the changes we have seen so far in 2023.

Poster Updates

While the required federal posters don’t change often, there have been three major updates this year, so make sure to scan your bulletin board and intranet postings to make sure you are up to date for the following:

  • Know Your Rights Poster– EEOC: While this poster was already updated in late 2022, it was subjected to further changes in order to accommodate the Pregnant Workers’ Fairness Act, which became effective on June 27, 2023. If you need an updated copy, you can access it here.
  • Family and Medical Leave Act (FMLA) Poster – US DOL: The FMLA poster was updated in April 2023 to provide additional clarification on employee rights, including what defines a “covered employer”. If you need an updated copy, you can access it here.
  • Employee Rights Under the Fair Labor Standards Act – US DOL WHD: The FLSA poster was also updated in April 2023 in order to include updated information about the PUMP Act, which became effective in the same month. If you need an updated copy, you can access it here.

Additionally, if you have employees outside of Alabama, you should be aware that many states have updated certain required posters as well, such as California, Colorado, District of Columbia, and Maryland, just to name a few.

Form Updates

Certain forms, besides the more obvious tax forms that often update annually, are provided by the applicable agency and are also subject to periodic changes and updates. For 2023, such updates have included the following:

  • Form I-9 – Employment Eligibility Verification: While we have all been anticipating an updated form since the current one in use displays an expiration date of 10/31/2022, the I-9 update actually has nothing to do with the form itself. Instead, the update relates to the temporary flexibility issued during the pandemic to allow for the remote inspection of the new hire’s ID documents for any employees hired to be 100% remote. As the pandemic is ending, the US Citizenship and Immigration Services (USCIS) has announced an impending end to this flexibility later this month on 7/31/23. This means that, not only do employers need to return to inspecting the ID documents in person but also that employers must review the I-9s completed during the flexibility period to identify any completed using remote inspections, inspect the IDs of those employees in person, and make the appropriate notation to the form I-9 by August 30, 2023. A proposed rule was issued in late 2022 to amend the physical inspection requirements. However, this rule has not finalized (and is therefore not effective) and is not anticipated to be revisited until August 2023 at the earliest.
  • FMLA Forms – US DOL: The FMLA forms were actually last updated in 2020, but the expiration date displayed reads June 30, 2023, so it is important to know that employers covered by the FMLA are actually not required to use the forms produced by the DOL for documentation purposes as long as the employer uses a form that requests or relays the same information in a substantially similar manner. Therefore, you are perfectly fine to continue using the 2020 forms, or even earlier forms if you rather. However, the goal in updating these forms is to make the process easier for everyone with better instructions and explanations, so it might be wise to update once the new forms are eventually rolled out.
  • Form cc-305 – OFCCP: Form cc-305 is a form that applies to government contractors covered by the OFCCP’s regulations, specifically those covered under Section 503 of the Rehabilitation Act. It is a form for Self-Identification of any disabilities that is to be provided to candidates pre-offer, newly hired employees post-offer, and existing employees at least every 5 years. While it is not the only self-identification form required by the OFCCP, it is the only one that requires that the specific format and verbiage of the provided form be used. The updated version of the form was released earlier this year in April 2023 and is required to be in effect as of later this month on July 25, 2023. If you need an updated copy, you can access it here.

New Legislation for Employee Protections

2023 has also seen a considerable amount of new legislation to provide employees additional protections, both on the federal and state levels. At the federal level, these include:

  • SECURE 2.0 Act: While this act was actually signed into law at the tail end of 2022 on December 29th, there are multiple effective dates for the extensive provisions. For 2023 alone, this includes increasing the age for Required Minimum Distributions (RMDs) and increasing the limitations on catch-up contributions for participants aged 50 or older. If you have not yet considered how SECURE 2.0 affects your organization’s retirement plan, it may be a good idea to discuss the implications and any needed changes with your broker as soon as possible.
  • Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act): The PUMP Act became effect in April 2023 and provides protections for employees who are nursing following a childbirth up to 12 months prior by requiring that such employees are provide a private location free from intrusion and breaks as needed for the purpose of expressing milk. Employers should consider updating their employee handbooks to accommodate these protections if a similar policy is not already in place.
  • Pregnant Workers’ Fairness Act (PWFA): The PWFA Act recently became effective on June 27, 2023 and requires covered employers to provide reasonable accommodations to an employee’s known limitations resulting from pregnancy, childbirth, or related conditions. The act also emphasizes the need for the interactive process that should occur between the employer and the affected employee to identify the limitations and identify a suitable accommodation specifically prohibiting the employer from requiring a specific accommodation without discussing it with the employee first. For example, employers are prohibited from requiring the employee to take leave without prior discussion when alternative accommodation could be available that would not require the employee to miss work. Employers should consider updating their employee handbooks to advise of the accommodation request process if a similar policy is not in place that specifically references pregnancy, childbirth, and related medical conditions.

It should also be noted that employment laws introduced in 2023 were not limited to the federal level. A slew of new employment laws, that would be far too numerous to list here, have been introduced at the state level across the United States, particularly for pay transparency requirements, minimum wage increases, CROWN Act discrimination protections, and mandatory leave protections. There have also been somewhat smaller changes as well, such as the recently announced delay to the EEO-1 Data Collection Window, which was previously announced to open in mid-July but has now been delayed to the Fall of 2023. With all of these changes, it can be challenging to feel assured that your employment practices are compliant, but if you need guidance or help with any other personnel projects, BMSS HR Advisory Services is here to support you, please reach out to us at (256) 964-9788 or rtipton@bmss.com.

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