Category: Higher Ed News

  • Department of Education Issues Report on Diversity and Opportunity in Higher Education – CUPA-HR

    Department of Education Issues Report on Diversity and Opportunity in Higher Education – CUPA-HR

    by CUPA-HR | October 18, 2023

    On September 28, 2023, the Department of Education released a report titled “Strategies for Increasing Diversity and Opportunity in Higher Education.” The report was issued in response to the Supreme Court’s June 2023 ruling against affirmative action in college admissions and it outlines ways institutions and states can adapt to prioritize improved accessibility to educational opportunities for underserved students.

    The Report

    In an introductory message for the report, Secretary of Education Matthew Cardona emphasized the enduring commitment to equal opportunity and student body diversity in higher education on behalf of his department and the president’s administration. While condemning the Supreme Court’s decision on affirmative action, Cardona pledged the Department of Education’s and the Biden administration’s support in promoting inclusivity and equity and stimulating long-term prosperity.

    The Department of Education’s report centers around four areas that the administration believes institutions should consider when working to promote diversity and opportunity on campus: student recruitment, admissions, financial aid and student retention. The report focuses mostly on promoting diversity, equity and inclusion (DEI) initiatives in these areas to ensure underserved students have an equitable opportunity to be admitted into and succeed in postsecondary programs.

    Relevant to higher education HR, the report discusses the need for improved training of admissions officers and other employees to ensure consistent, equitable evaluations of applicants.

    Moving Forward

    Prior to the release of the Supreme Court’s affirmative action decision, stakeholders also raised concerns regarding the impact such a decision could have on hiring and employment decisions as well as programs or initiatives focused on creating diverse and inclusive workplaces that align with institutional values. The decision to strike down race-based affirmative action in admissions practices could leave employers open to future legal challenges regarding their hiring decisions and other diversity programs.

    CUPA-HR endorses efforts to promote inclusive communities on campuses across the nation. The government relations team continues to track developments impacting these efforts and will inform members of updates as they become available.



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  • Federal Agencies Propose Major Changes to Mental Health Parity Regulations – CUPA-HR

    Federal Agencies Propose Major Changes to Mental Health Parity Regulations – CUPA-HR

    by CUPA-HR | October 11, 2023

    This blog post was contributed by Elena Lynett, JD, senior vice president at Segal, a CUPA-HR Mary Ann Wersch Premier Partner.

    Institutions generally provide comprehensive mental health and substance use disorder (MH/SUD) benefits as part of their commitment to creating a safe and nurturing campus. However, the Mental Health Parity and Addiction Equity Act (MHPAEA) requires that institutions providing MH/SUD benefits ensure parity in coverage between the MH/SUD and medical/surgical benefits. The Department of Health and Human Services, the Department of Labor, and the Department of the Treasury recently proposed major changes to the MHPAEA regulations for group health plan sponsors and insurers.

    The proposed changes address nonquantitative treatment limitations (NQTLs) — a term which references a wide range of medical management strategies and network administrative practices that may impact the scope or duration of MH/SUD benefits. Examples of NQTLs include prior or ongoing authorization requirements, formulary design for prescription drugs, and exclusions of specific treatments for certain conditions.

    If government agencies issue a final rule similar to the proposal, plans will face additional data collection, evaluation, compliance and administrative requirements. The most significant proposed changes are:

    • The “predominant/substantially all” testing that currently applies to financial requirements and quantitative treatment limitations under MHPAEA would apply as a threshold test for any NQTL;
    • New data collection requirements, including denial rates and utilization information;
    • A new “meaningful benefits” standard for MH/SUD benefits;
    • Detailed requirements regarding the documented comparative analysis that plans must have for each applicable NQTL;
    • Introduction of a category of NQTLs related to network composition and new rules aimed at creating parity in medical/surgical and MH/SUD networks;
    • Prohibition on separate NQTLs for MH/SUD;
    • For plans subject to the Employee Retirement Income Security Act of 1974 (ERISA), a requirement that a named fiduciary would have to review and certify documented comparative analysis as complying with MHPAEA; and
    • For non-federal governmental plans, sunset of the ability to opt out of compliance with the MHPAEA rules.

    For more information on the proposed rules, see Segal’s August 1, 2023 insight.

    The deadline to comment on the proposed rules is October 17, 2023. If interested, your institution may file comments here. CUPA-HR will be filing comments with other associations representing higher education and plan sponsors. As proposed, plans could be expected to comply as early as the first day of any plan year beginning on or after January 1, 2025.



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  • HR and the Courts — October 2023 – CUPA-HR

    HR and the Courts — October 2023 – CUPA-HR

    by CUPA-HR | October 10, 2023

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    Governor Newsom Vetoes Bill That Would Ban Caste Discrimination

    California Governor Gavin Newsom vetoed what would have been the first specific state ban on employment discrimination on the basis of caste. Seattle recently became the first U.S. municipality to ban caste discrimination. The California bill would have added caste to the definition of ancestry, which is already included in state law. The governor stated in his veto declaration that existing law already covers this type of discrimination. Commentators weighed in on both sides of this conclusion, some stating there is no specific case law on this question.

    Caste is defined as a system of rigid social stratification based on a person’s birth and ancestry and primarily affects people of South Asian descent. Allegations of caste discrimination have recently arisen and gained notoriety in California’s tech industry. This proposal has been subject to much controversy in California, including a hunger strike by those supporting the proposal.

    University Trustees May Be Sued for Professor’s Alleged First Amendment Claims

    The 5th U.S. Circuit Court of Appeals (covering Louisiana, Mississippi and Texas) recently rejected a university board of trustees’ motion to dismiss First Amendment lawsuit allegations against them, holding that sovereign immunity did not apply to the board members (Jackson v. Wright (5th Cir., No. 22-40059, 9/15/23)).

    The case involves eight members of the University of North Texas board of regents who were sued by a music professor. The professor lost his position as editor in chief of a university music journal because of alleged “racial statements” contained in an article he published in advance of a 2020 symposium sponsored by the journal.

    In denying the sovereign immunity defense, the court concluded that the trustees had direct authority over university officials who denied the professor his First Amendment rights. The court noted that the trustees had refused to act on a letter the professor had submitted to the trustees raising the issue.

    SEIU Local 560 Files NLRB Petition to Represent the Dartmouth College Men’s Basketball Team

    To address the student-athlete employee status issue encouraged by the existing National Labor Relations Board’s general counsel, Service Employees International Union Local 560 has brought a petition to the NLRB to represent the Dartmouth College men’s basketball team in collective bargaining negotiation with the institution. This is nearly a decade after the NLRB denied jurisdiction over student athletes in the Northwestern case. If the SEIU is successful, it would be the first case involving potential unionization of college athletes.

    The filing follows on the heels of the favorable Supreme Court decision striking down the NCAA’s ban on compensation of student-athletes for name, image and likeness in the 2021 case NCAA v. Alston. While the Supreme Court did not address the labor organizing question under the National Labor Relations Act for student athletes, it certainly took the first step in recognizing the group as employees.

    This case brings an added mechanism for the NLRB to decide whether student-athletes are protected under the NLRA and able to organize into labor unions. The NLRB’s general counsel already raised the issue in May of this year in the case brought against the University of Southern California, the Pac-12 Conference, and the NCAA, in which they are alleged to have violated the NLRA in failing to recognize student-athletes as employees.

    On the first day of the NLRB hearing, Dartmouth took the position that the athletes involved are students who do not meet any of the common law attributes of employees and, therefore, are not union-eligible employees under the NLRA.

    Undergraduate Student-Employee Union Organizing Is Expanding, Leading the Way to More Organization Drives

    Bloomberg reports that there are now over a dozen colleges in the U.S. with undergraduate student-employee unions. This is up from just two before 2022. Pay, sick leave and insecurity due to the COVID-19 pandemic have been reported as reasons prompting this significant increase in undergraduate employee organizing, which appears to be motivating expanded organizing at the graduate assistant and professor levels.

    A union-organizing campaign appears to be proceeding across campus lines at the California State University System, where a union is organizing as many as 20,000 undergraduate workers at 23 campuses, Bloomberg reports. Separately, 4,000 University of Oregon student employees are set to vote next month on union representation.

    Fired Football Coach Sues University, Seeks $130 Million in Damages

    A former Northwestern University football coach has sued the university and its president for wrongful discharge and defamation and is seeking a minimum of $130 million in damages. The lawsuit alleges that the coach was fired for “no reason whatsoever.”

    The coach was placed on a two-week unpaid suspension after a six-month investigation revealed incidents of hazing within the football program. The report was allegedly inconclusive as to whether the coaches were aware of the hazing. Details of the actual termination will be the subject of the trial. We will follow developments as they unfold.



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  • Keys to Retaining Supervisors in a Time of Turnover – CUPA-HR

    Keys to Retaining Supervisors in a Time of Turnover – CUPA-HR

    by CUPA-HR | October 3, 2023

    While the ongoing turnover crisis impacts all of higher ed, supervisors are among the hardest hit. In our recent study, The CUPA-HR 2023 Higher Education Employee Retention Survey, supervisors say they’re grappling with overwork and added responsibilities (especially when their staff members take other jobs), while struggling to maintain morale.

    Supervisor retention is especially critical in a time of turnover, as these are the employees we rely on most to preserve institutional knowledge and provide continuity amid transition. But our research shows that many supervisors are not getting the kinds of institutional support they need. By empowering managers to make decisions on behalf of their staff, institutions make it less likely that their supervisors will seek employment opportunities elsewhere.

    The Supervisor’s Perspective

    Taking a closer look at the data, it’s clear that supervisors are overworked and under-resourced. Seven in ten work more hours than what is expected of full-time employees at their institution. Nearly double the percentage of supervisors versus non-supervisors agree that it is normal to work weekends and that they cannot complete their job duties working only their institution’s normal full-time hours.

    Supervisors are also facing challenges unique to their leadership roles. Filling vacant positions and maintaining the morale of their staff are their chief worries:

    Strategies for Supervisor Retention

    Given the pressures supervisors are under, what can institutions do to ensure that their top talent won’t seek other employment? While common retention incentives like increased pay and recognition are crucial, supervisors need improved institutional support.

    Our data show that supervisors are in need of the following:

    When supervisors are empowered in these ways, they are less likely to be among the 56 percent of employees who say they’re at least somewhat likely to search for a new job in the coming year.

    Additional Resources

    Managing Stress and Self-Care: “No” Is a Complete Sentence (On-Demand Webinar, August 2023)

    Ready to Crack: Solutions for HR Managers Dealing With Burnout (Spring 2022)

    Health and Well-Being Toolkit

    Management and Supervisor Training Toolkit



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  • Hybrid, Remote and Flexible Work: The Secret Sauce for Employee Retention? – CUPA-HR

    Hybrid, Remote and Flexible Work: The Secret Sauce for Employee Retention? – CUPA-HR

    by CUPA-HR | September 19, 2023

    Given the number of employees who successfully executed their work remotely at the height of the pandemic, it may come as no surprise that a substantial gap exists between the work arrangements that higher ed employees want and what institutions offer. According to the new CUPA-HR 2023 Higher Education Employee Retention Survey, although two-thirds of employees state that most of their duties could be performed remotely and two-thirds would prefer hybrid or remote work arrangements, two-thirds of employees are working completely or mostly on-site.

    Inflexibility in work arrangements could be costly to institutions and contribute to ongoing turnover in higher ed. Flexible work is a significant predictor of employee retention: Employees who have flexible work arrangements that better align with their preferences are less likely to look for other job opportunities.

    Flexible Work Benefits: A No-Brainer for Retention

    While more than three-fourths of employees are satisfied with traditional benefits such as paid time off and health insurance, survey respondents were the most dissatisfied with the benefits that promote a healthier work-life balance. These include remote work policies and schedule flexibility, as well as childcare benefits and parental leave policies.

    Most employees are not looking for drastic changes in their work arrangements. Even small changes in remote policies and more flexible work schedules can make a difference. Allowing one day of working from home per week, implementing half-day Fridays, reducing summer hours and allowing employees some say in their schedules are all examples of flexible work arrangements that provide employees some autonomy in achieving a work-life balance that will improve productivity and retention.

    A more flexible work environment could be an effective strategy for institutions looking to retain their top talent, particularly those under the age of 45, who are significantly more likely not only to look for other employment in the coming year, but also more likely to value flexible and remote work as a benefit. Flexible work arrangements could also support efforts to recruit and retain candidates who are often underrepresented: the survey found that women and people of color are more likely to prefer remote or hybrid options.

    Three Things You Can Do

    1. Use Data to Make a Case for Change. The CUPA-HR 2023 Higher Education Employee Retention Survey provides multiple data points that support remote, hybrid and flexible work for the retention and recruitment of top talent.
    1. Explore CUPA-HR Resources. Discover best practices and policy models for navigating the challenges that come with added flexibility, including managing a multi-state workforce:
    1. Remember the Two-Thirds Rule. In reevaluating flexible and remote work policies, remember: Two-thirds of higher ed employees believe most of their duties can be performed remotely and two-thirds would prefer hybrid or remote work arrangements, yet two-thirds are compelled to work mostly or completely on-site.

    You may also be interested in:

     



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  • HR and the Courts — September 2023 – CUPA-HR

    HR and the Courts — September 2023 – CUPA-HR

    by CUPA-HR | September 13, 2023

    Each month, CUPA-HR General Counsel Ira Shepard provides an overview of several labor and employment law cases and regulatory actions with implications for the higher ed workplace. Here’s the latest from Ira.

    Unionization Increases to Record Levels, Largely Driven by Graduate Students and Medical Interns

    Unionization in the first six months of 2023 reached near record levels, surpassing last year’s numbers, which were driven by Starbucks employees’ organization drives. In the first six months of 2023, over 58,000 new workers were unionized, almost 15,000 more than last year’s significant levels. The size of new bargaining units has grown, with new units of 500 or more employees growing by 59% over last year. In the first six months of 2023, unions won 95% of elections in large units of over 500 employees compared to 84% in the first six months of 2022.

    According to a Bloomberg Law report, this increase coincides with a growth in graduate assistant and medical intern organizing. There have been union organization elections in 17 units involving graduate students and medical interns in the first six months of 2023. This is the highest level of activity in the sector since the 1990s.

    Court of Appeals Rejects Religious Discrimination Claim by Fire Chief Who Was Terminated After Attending a Religious Event on “City Time”

    The 9th U.S. Circuit Court of Appeals (covering Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington) rejected a former fire chief’s allegation of religious discrimination after he attended a church-sponsored Christian leadership event in place of attending a non-religious leadership training program he was asked to attend (Hittle v. City of Stockton, California (2023 BL 268076, 9th Cir. 22-15485, 8/4/23)). The court concluded that the fire chief’s supervisors were legitimately concerned about the constitutional implications of a city official attending a church-sponsored event.

    The fire chief claimed, as evidence of religious discrimination, that city supervisors questioned whether his attendance at the event was part of a “Christian Coalition.” He further alleged that the supervisors questioned whether he was part of a “Christian clique.” The court rejected the fire chief’s arguments that this questioning amounted to religious bias against Christians. The court concluded that the questioning was related to the report they received on his attendance at the church-sponsored event. The court noted that the supervisors did not use derogatory terms to express their own views. The case may be appealed to the Supreme Court, and we will follow developments as they unfold.

    University Wins Dismissal of Federal Sex Harassment Lawsuit for Failure of Professor to File a Timely Underlying Charge of Sex Harassment With the EEOC

    Pennsylvania State University won a dismissal of a male ex-professor’s federal sex harassment lawsuit alleging a female professor’s intolerable sex harassment forced him to resign. The Federal Court concluded that the male professor never filed a timely charge with the EEOC (Nassry v. Pennsylvania State University (M.D. Pa. 23-cv-00148, 8/8/23)). The plaintiff professor argued he was entitled to equitable tolling of the statute of limitations because he attempted to resolve the matter internally as opposed to “overburdening the EEOC.”

    The court commented that while the plaintiff’s conduct was “commendable,” the court was unable to locate any case where a plaintiff was bold enough to offer such a reason to support equitable tolling. The court dismissed the federal case, holding that there was no way to conclude the plaintiff professor was precluded from filing in a timely manner with the EEOC due to inequitable circumstances. The court dismissed the related state claims without prejudice as there was no requirement that the state claims be filed with the EEOC.

    Professor’s First Amendment Retaliatory-Discharge Case Over Refusal to Comply With COVID-19 Health Regulations Allowed to Move to Discovery

    A former University of Maine marketing professor who was discharged and lost tenure after refusing to comply with COVID-19 health regulations on the ground that they lacked sufficient scientific evidentiary support is allowed to move forward with discovery. The university’s motion to dismiss was denied (Griffin V. University of Maine System (D. Me. No. 2:22-cv-00212, 8/16/23)).

    The court held “for now” the professor is allowed to conduct discovery to flush out evidence of whether or not the actions which led to the termination were actually protected free speech. The court concluded that the actual free speech question will be decided after more facts are unearthed.

    U.S. Court of Appeals Reverses Employer-Friendly “Ultimate Employment Decision” Restriction on Actionable Title VII Complaints

    The 5th U.S. Circuit Court of Appeals (covering Louisiana, Mississippi and Texas) reversed the long standing, 27-year-old precedent restricting Title VII complaints to those only affecting an “ultimate employment decision.” The employer-friendly precedent allowed the courts to dismiss Title VII complaints not rising to the level of promotion, hiring, firing and the like. The 5th Circuit now joins the 6th Circuit (covering Kentucky, Michigan, Ohio and Tennessee) and the D.C. Circuit (covering Washington, D.C.) in holding that a broader range of employment decisions involving discrimination are subject to Title VII jurisdiction.

    The 5th Circuit case involved a Texas detention center which had a policy of allowing only male employees to have the weekend off. The 5th Circuit reversed its prior ruling dismissing the case and allowed the case to proceed. This reversed the old “ultimate employment decision” precedent from being the standard as to whether a discrimination case is subject to Title VII jurisdiction.

    Union Reps Can Join OSHA Inspectors Under Newly Revised Regulations

    The U.S. Department of Labor has proposed revised regulations that would allow union representatives to accompany OSHA inspectors on inspections. The regulations, which were first proposed during the Obama administration, were stalled by an adverse court order and then dropped during the Trump administration.

    The proposed rule would drop OSHA’s current reference to safety engineers and industrial hygienists as approved employee reps who could accompany the inspector. The new rule would allow the OSHA inspector to approve any person “reasonably necessary” to the conduct of a site visit. Among the professions that could be approved are attorneys, translators and worker advocacy group reps. The public comment period on these proposed regulations will run through October 30, 2023.



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  • The Top Predictor of Higher Ed Employee Retention May Surprise You – CUPA-HR

    The Top Predictor of Higher Ed Employee Retention May Surprise You – CUPA-HR

    by CUPA-HR | September 12, 2023

    In 2022-23, turnover of higher ed employees was the highest in five years. A new report from CUPA-HR explores the issue of higher ed employee retention and the factors that impact retention.

    The CUPA-HR 2023 Higher Education Employee Retention Survey analyzed data from 4,782 higher ed employees — administrators, professionals and non-exempt staff, with faculty excluded — from 529 institutions. It found that 33% of higher ed employees surveyed answered they were “very likely” or “likely” to look for new employment opportunities in the next year. More than half (56%) of employees are at least somewhat likely to search for a new job in the coming year.

    Top Reasons Higher Ed Employees Are Looking for a New Job

    According to the findings, respondents say that pay is the number one reason they’re looking for a new job. Other influential reasons are an opportunity to work remotely, desire for a promotion or more responsibility, and the need for a more flexible work schedule.

    But while pay is the top concern mentioned by employees, retention challenges are more complex.

    Strongest Predictors of Retention

    Digging deeper into the data, the strongest predictors of retention are factors related to job satisfaction and well-being. Only 58% of higher ed employees are generally satisfied with their jobs. Of the 16 aspects of job satisfaction and well-being the survey measured, the three that have the most impact on retention are:

    • Recognition for Contributions
    • Being Valued by Others at Work
    • Having a Sense of Belonging

    Only 59% of respondents say they receive regular verbal recognition for doing good work. The good news is that programs, training and policies that increase employee satisfaction in these areas can make a significant impact on retention without necessarily breaking the budget.

    Three Things You Can Do

    Employees are not necessarily planning to flee higher ed. Most job seekers will be looking within higher ed, and nearly half will be looking within their own institution, indicating that it’s not too late to implement retention strategies. Here are three things you can do to assess and address job satisfaction:

    1. Read the Report. The CUPA-HR 2023 Higher Education Employee Retention Survey provides not only data but also a model for understanding higher ed retention. (Looking for an overview of report findings? Check out our press release.)
    2. Explore CUPA-HR Resources. Here are several that focus on aspects of job satisfaction:
    1. Plan Next Steps. Share the report or press release with leaders on your campus. Determine areas where your institution could strengthen career development and implement training to increase job satisfaction.

     



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  • Department of Labor Proposes New Overtime Rule – CUPA-HR

    Department of Labor Proposes New Overtime Rule – CUPA-HR

    On August 30, the Department of Labor (DOL) announced a new proposed update to the salary threshold for the “white collar” exemptions to the Fair Labor Standards Act’s (FLSA) overtime pay requirements.

    DOL proposes raising the minimum salary threshold from its current level of $35,568 annually to $55,068 — a nearly 55% increase. It also raises the salary level for the Highly Compensated Exemption (HCE) to $143,988 from its current level of $107,432 (a 34% increase). The proposal does not make any changes to the duties requirements. DOL does, however, propose automatically updating the threshold every three years by tying the threshold to the 35th percentile of weekly earnings of full-time salaried workers in the lowest-wage Census Region. For more information, DOL issued a FAQ document addressing the changes in the proposed rule.

    DOL first announced their intention to move forward with the proposal in the Fall 2021 Regulatory Agenda and set a target date for its release in April 2022. However, CUPA-HR, along with other higher education organizations and hundreds of concerned stakeholders, expressed concerns with the timing of the rulemaking and encouraged DOL to hold stakeholder meetings prior to releasing the anticipated overtime Notice of Proposed Rulemaking (NPRM). In a recent letter, CUPA-HR joined other associations in calling for the department to postpone or abandon the anticipated overtime rulemaking, citing concerns with supply chain disruptions, workforce shortages, inflation, and shifting workplace dynamics.

    The proposed rule was published in the Federal Register on September 8, allowing the public 60 days to submit comments. CUPA-HR plans to file an extension request with the agency. We will also continue evaluating the current proposal and work with members to prepare comments to submit on behalf of the higher education community. Furthermore, an extended session of the CUPA-HR Washington Update on September 21 will delve into the nuances of these proposed changes and their ramifications on campus.

    Register for the Upcoming Webinar

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  • EEOC Issues Proposed Rule to Implement Pregnant Workers Fairness Act Protections – CUPA-HR

    EEOC Issues Proposed Rule to Implement Pregnant Workers Fairness Act Protections – CUPA-HR

    by CUPA-HR | August 28, 2023

    On August 7, the Equal Employment Opportunity Commission (EEOC) issued a proposed rule to implement the Pregnant Workers Fairness Act (PWFA). The proposed rule provides a framework for how the EEOC plans to enforce protections granted to pregnant workers under the PWFA.

    In December, the PWFA was signed into law through the Consolidated Appropriations Act of 2023. The law establishes employer obligations to provide reasonable accommodations to pregnant employees so long as such accommodations do not cause an undue hardship on the business, and makes it unlawful to take adverse action against a qualified employee requesting or using such reasonable accommodations. The requirements of the law apply only to businesses with 15 or more employees. 

    Purpose and Definitions 

    Under the proposed rule, the EEOC states that employers are required to “provide reasonable accommodations to a qualified employee’s or applicant’s known limitation related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions, unless the accommodation will cause an undue hardship on the operation of the business of the covered entity.” 

    Most definitions included in the EEOC’s proposed regulations follow the definitions provided under the Americans with Disabilities Act (ADA). The proposed rule, however, expands upon the definition of a “qualified employee or applicant” to include an employee or applicant who cannot perform an essential function of the job so long as they meet the following criteria: 

    • Any inability to perform an essential function is for a temporary period 
    • The essential function could be performed in the near future 
    • The inability to perform the essential function can be reasonably accommodated 

    The rule continues by defining “temporary” as the need to suspend one or more essential functions if “lasting for a limited time, not permanent, and may extend beyond ‘in the near future.’” Accordingly, “in the near future” is defined to extend to 40 weeks from the start of the temporary suspension of an essential function.  

    Additionally, the terms “pregnancy, childbirth, or related medical conditions” include a non-exhaustive list of examples of conditions that fall within the statute, including current or past pregnancy, potential pregnancy, lactation, use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, and having or choosing not to have an abortion. The proposed rule specifies that employees and applicants do not have to specify the condition on the list or use medical terms to describe a condition to receive an accommodation.  

    Reasonable Accommodations 

    The proposed rule states that requests for an accommodation should both identify the limitation and indicate the need for an adjustment or change at work. The rule adopts the interactive process for approving and adopting reasonable accommodations for employees or applicants as implemented under the ADA, meaning employers and the qualified employee or applicant can work together to reach an agreement on an appropriate accommodation. 

    The proposed rule also offers a non-exhaustive list of examples of reasonable accommodations that may be agreed upon during the interactive process. These include frequent breaks, schedule changes, paid and unpaid leave, parking accommodations, modifying the work environment to make existing facilities accessible, job restructuring and other examples.  

    Additionally, the proposed rule introduces “simple modifications,” which are presumed to be reasonable accommodations that do not impose an undue burden in almost all cases. The four simple modifications proposed are: 

    • Allowing employees to carry water and drink, as needed, in the work area 
    • Allowing employees additional restroom breaks 
    • Allowing employees to sit or stand when needed 
    • Allowing employees breaks, as needed, to eat and drink 

    Supporting Documentation 

    The proposed rule states that covered employers are not required to seek documentation to prove the medical condition or approve an accommodation, further stating that the employer can only request documentation if it is reasonable in order to determine whether to grant an accommodation for the employee or applicant in question. Under the regulations, “reasonable documentation” is that which describes or confirms the physical condition; that it is related to, affected by, or arising out of pregnancy, childbirth or related medical conditions; and that a change or adjustment at work is needed for that reason. Examples of situations where requesting documentation may be determined to be unreasonable include when the limitation and need for an accommodation are obvious; when the employee has already provided sufficient documentation; when the accommodation is one of the four “simple modifications”; and when the accommodation is needed for lactation. 

    Remedies and Enforcement 

    The proposed rule establishes the applicable enforcement mechanisms and remedies available to employees and others covered by Title VII of the Civil Rights Act of 1964 for qualified employees and applicants covered under the PWFA. The rule also proposes several anti-retaliation and anti-coercion provisions to the list of protections granted to those covered by the PWFA. 

    Next Steps 

    The EEOC’s proposed rule marks the agency’s first step toward finalizing PWFA regulations. Although the timing is uncertain, the EEOC will likely aim to issue the final regulations by December 29 — the deadline Congress gave the agency to finalize a rulemaking to implement the law. Notably, however, the PWFA went into effect on June 27, meaning the EEOC is now accepting violation charges stemming from PWFA violations without having a final rule implemented. 

    The EEOC invites interested stakeholders to submit comments in response to the proposed rule by October 11. Comments will be considered by the agency before issuing its final rule for the PWFA.  

    CUPA-HR will keep members apprised of any activity relating to the PWFA regulations.



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  • NATA Provides Insights Into the Collegiate Athletic Trainer Labor Crisis – CUPA-HR

    NATA Provides Insights Into the Collegiate Athletic Trainer Labor Crisis – CUPA-HR

    by CUPA-HR | August 23, 2023

    Editor’s note: The information in this post came from the National Athletic Trainers’ Association’s white paper “The Collegiate Athletic Trainer Labor Crisis,” which includes a checklist and a library of resources to assist collegiate ATs and leaders in evaluating recruitment, hiring, retention and advancement practices.


    Like much of higher ed, collegiate athletics is struggling with a labor crisis due to the post-pandemic “Great Resignation.” Particularly in the area of athletic training, colleges and universities are finding it more and more difficult to attract and retain talent. Given the role and value ATs and their sports medicine departments have in reducing risk for their athletic department and institution, it is critical for leaders to understand and address the current labor crisis.

    To identify some reasons for this labor challenge, the National Athletic Trainers’ Association (NATA) Intercollegiate Council for Sports Medicine (ICSM) in collaboration with the NATA Compensation Task Force surveyed more than 1,120 collegiate athletic trainers (ATs) across the country. Pay, organizational culture, burnout and increased work responsibilities were the themes that emerged.

    Findings

    Salary remains the most important factor for collegiate ATs as they evaluate employment options.
    As the AT profession continues to see increasing employment opportunities within hospitals, sports medicine clinics, industrial settings, physician offices, and military and municipality services, the market is becoming more competitive. The collegiate AT average salary of $54,000 remains below the overall athletic trainer average salary of $61,000.

    Workload is a cause for concern. More than half of the survey respondents indicated they were caring for more than 100 student-athletes, and 65 percent said they had received additional responsibilities from their supervisor without an increase in compensation. Due to workload, respondents expressed concerns around being able to provide student-athletes with the attention they deserve, being able to devote time to preventative care and/or corrective exercise, and an inability to provide one-on-one rehab time to student-athletes. Research suggests that ATs with very high patient loads perceive an inability to meet the demands of their athletic administrators and coaches, which leads to increased emotional exhaustion and burnout. The survey found that only 12 percent of respondents have been employed in collegiate athletics beyond 10 years.

    Organizational culture plays a large role in attracting and retaining ATs. The survey found that collegiate ATs expect a positive work culture that promotes student-athlete health and safety, an understanding of ATs responsibilities, appropriate time demands, independent medical care and a  collaborative team environment. Additionally, respondents indicated a desire for formal onboarding and mentorship programs specific to the AT position — while 60 percent of respondents indicated such a program would be favorable, only a third had any formal onboarding with their current position.

    How Can Institutions Respond?

    Institutions that are slow to respond to the athletic trainer labor crisis will continue to have challenges hiring and retaining ATs. To this end, NATA has outlined several steps institutions can take to address the challenges around attracting and retaining talent in the athletic trainer field:

    • Conduct a salary and benefits review of your institution’s ATs, with particular attention to different AT employment opportunities within your local area; additional provisions that could be offered (sign-on bonuses and/or retention bonuses); market rates and compa-ratios; and compensation for increased roles, responsibilities and job duties.
    • Audit your institution’s AT job descriptions to ensure they are reflective of AT duties and responsibilities.
    • Offer more work flexibility, support services and work-life balance resources for ATs.
    • Create AT-specific mentorship and onboarding programs.

    For more on the collegiate athletic trainer labor shortage and strategies leaders can use to attract, recruit and retain these employees in an increasingly competitive environment, read NATA’s white paper, The Collegiate Athletic Trainer Labor Crisis: A Data-Driven Guide Outlining the Current Collegiate Workplace Environment and Strategies to Improve Workplace Engagement.



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