Compliance Corner [September 2025]
Here is what is new in September 2025
Employers Must Use Caution in Pursuing FMLA/ADA Cases
New Wrinkle in Indiana
Other State Developments
Indefinite Leave Request Is Not a “Reasonable Accommodation”
Regulatory Proposals from DOL
Discrimination Against Older Workers Reported
Well-Being of Women Declining
Most Employers Ignore 50/75 Rule of FMLA
HR as the Target
Cost of Bias
Reminder: Medicare Part D Notices Are Due Prior to October 15, 2025.
National Benchmark for Veterans Released
Employers Must Use Caution in Pursuing FMLA/ADA Cases
An employer who is experiencing difficulty obtaining sufficient information from an employee’s doctor (for example, when considering an accommodation request) should NOT just pick up the phone and call the practitioner. Both the FMLA and the ADA have restrictions on such activities, as follows:
Employers may communicate directly with the physician only with the employee’s express permission.
The scope of the information sought must specifically relate to the leave of absence or accommodation requested.
Employers are not prohibited from requesting additional or more detailed information, but the request must go through the employee. If the employee assents, he/she must sign a HIPAA-compliant release. (That release is required to protect the doctor, not the employer). Employees who refuse to comply with the request for the form are subject to discipline or termination, per a recent court case.
New Wrinkle in Indiana
Effective this past July 1, employers in Indiana must report detailed data on their new hires within 20 days of hire. Data to be reported to the Indiana New Hire Reporting Center (https://www.in-newhire.com/) are the following:
Name, address, and Social Security number of the employee
Name, address, and federal tax identification number of the employer
Date services for remuneration were first performed by the employee
Current primary standardized occupational classification code of the role the employee performs
Starting compensation of the employee, and
Employees’ rate of pay (offered as three choices: annually, hourly, other)
Given the usual “progression” of such regulations, watch for other states to follow suit, if they do not already have something similar in place.
Other State Developments
Rhode Island: New cybersecurity law, effective immediately, for financial institutions: includes specific cybersecurity controls and mandatory notice to Department of Business Regulation within 3 days of any cybersecurity event.
North Dakota: Effective August 1, requires notice to the state of a cybersecurity incident within 45 days.
Indefinite Leave Request Is Not a “Reasonable Accommodation”
A female employee at a news station was terminated after extended maternity leave (with complications). Her FMLA leave ran out in June 2022; HR contacted her in June and then in July 2022 to ask about her RTW. She stated that she had further surgery pending for which recovery would take 4-6 weeks, after which another surgery would be scheduled sometime in October. The station then terminated her on the basis that holding her position that long would not be a reasonable accommodation. That decision was upheld by both trial and appellate courts.
Regulatory Proposals from DOL
Rescind EO 11246 Regulations: A work in progress; proposals have been drafted that take into account other changes in federal civil rights law.
Amend Section 503 and VEVRAA Rules: Changes eliminate references to EO11246 in both laws, plus remove self-identification requirements.
Eliminate OFCCP: Per the current budget proposal, move OFCCP §503 enforcement to EEOC and move VEVRAA enforcement to the Veterans Employment and Training Service under DOL.
Discrimination Against Older Workers Reported
A “Resume Now” survey of nearly 900 workers conducted in May showed a “major disconnect” between older and younger workers. 83% of older workers said they “occasionally” felt disrespected, and 8% said younger colleagues were patronizing or dismissive. Further, 15% of the older workers said they were passed over for promotion, and 12% said they were pressured to retire or even were “targeted” during layoffs; they also stated they were discriminated against with respect to pay.
Well-Being of Women Declining
A survey by Guardian indicated [statistically] that approximately 76 million women – about half of the whole workforce – believe that their well-being is declining. 93% of women surveyed said that mental health is important, only about 35% rated their own mental health as “very good” or “excellent.” Only about 15% of women in the 18-39 age band gave themselves that rating. The primary drivers are caregiving responsibilities and finances. One key factor is whether or not caregiving is a responsibility. Thirty-eight (38%) of caregivers and 42% of single mothers said they are living paycheck-to-paycheck. The survey also indicated that men tended to have larger “emergency funds” and were more likely to seek medical care than were women. The individual leading the survey also noted that stress, uncertainty and turmoil seemed to affect women more than men.
Most Employers Ignore 50/75 Rule of FMLA
A study has indicated that approximately 80% of employers consciously (or perhaps unconsciously in some cases) waive the FMLA requirement that an employer must have at least 50 employees within a 75-mile radius in order for them to qualify for coverage. Employers with a hybrid workforce and employees otherwise “scattered around” are reluctant to “split hairs” and appear to be discriminating against some employees on the basis of geography – even if it is legal.
HR as the Target
A group of HR professionals in California has sued Tesla, alleging that they were terminated from its plant in Fremont, CA, for reporting and trying to act on race-based discrimination and retaliation. Others who tried to bring the high level of attrition in HR to the attention of management were also terminated, according to the filing; the HR manager of the plant is specifically listed as one of the problems, not the problem-solver he/she should have been. The plant has a history of personnel problems of various types, dating back nearly ten years. In the current spate of suits, the plaintiffs are alleging unlawful retaliation, disability discrimination, wrongful termination and failure to prevent unlawful discrimination in violation of California state law.
Cost of Bias
Mastercard entered into an agreement to settle a proposed class action that alleged it discriminated against African Americans, Hispanic and female employees by underpaying them. The company will pay $26 million to settle the action on the part of approximately 7500 employees. It will also hire a psychologist to evaluate its overall career system for bias to protect against further recurrences. It was noted that this was a settlement without admission of guilt on the part of Mastercard, but the timeframe covered is nearly ten years, and it covers multiple states.
Reminder: Medicare Part D Notices Are Due Prior to October 15, 2025.
Those must be provided to employees eligible for Medicare. The opening date for Medicare enrollment is October 15, and the above notices must be provided before that date.
National Benchmark for Veterans Released
Effective July 30, 2025, the national benchmark provided by OFCCP for contractors to use in their affirmative action programs is 5.1%. Contractors who are required by the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) have a choice: either use the figure above or use five specific data points in the VEVRAA regulations to develop their own benchmark. The five figures that must be used are on the DOL website at https://www.dol.gov/agencies/ofccp/vevraa/hiring-benchmark/method.