This post was co-authored by Labor + Employment Group lawyer Christopher Costain.

While employers are typically aware of their obligations to engage in the interactive process in response to reasonable accommodation requests due to disability under federal and state law, employers may not be aware of one specific accommodation request that may be on the rise of late – commuting accommodations. For example, an employee may request to work remotely or under a hybrid schedule based on a medical condition. While such accommodations may be typically associated with remote or hybrid work schedule arrangements, employers may receive other requests such as changes to work schedule or hours among others. Therefore, the question remains – are employers required to accommodate requests related to their daily commute?

Commuting Accommodations Under the ADA and Equivalent State Law

Whether an employer must provide a reasonable accommodation to an employee with a disability in connection with their commute to work under applicable law is a legal issue that has evolved in recent years. Historically, an employee’s length and means of commute were considered outside the employer’s control and therefore, typically, employers were not required to provide reasonable accommodations with regard to employee commutes. However, court decisions in recent years, especially after COVID-19, have held that, in certain circumstances, employers may have an obligation to accommodate an employee in relation to their commute.

Recent Nationwide Court Decisions and Federal Agency Guidance

In 2023, the U.S. Court of Appeals for the Seventh Circuit held, in EEOC v. Charter Communications, 75 F.4th 729 (7th Cir. 2023), that the employer was required to provide a schedule accommodation to an employee who experienced difficulty driving at night due to a vision impairment. The Charter Court found that, because the employee’s disability substantially interfered with his ability to travel to and from work, and because commuting to work was a prerequisite to the essential job function of attendance, the employee was entitled to a work schedule accommodation that would allow him to drive only during the daytime. The court also took note of the fact that the employee experienced difficulty in accessing the workplace because of their work schedule, over which the employer had control as it related to scheduling the employee for shifts throughout the week. The court distinguished the plaintiff’s need for a commute accommodation from other cases in which employees were not entitled to accommodations based on the fact that they lived far from the workplace, a variable that was within the employee’s control.

The federal Equal Employment Opportunity Commission issued guidance in February 2026 reiterating  the Charter Court’s holding, providing that employers may be required to consider flexible work schedules to enable a qualified employee with a disability to effectively accomplish their commute and access the workplace. 

Additionally, in 2025, the U.S. Court of Appeals for the Second Circuit held, in Tudor v. Whitehall Central School District, 132 F.4th242 (2d Cir. 2025), that employees may be entitled to a reasonable accommodation even if they are able to perform their essential job functions without an accommodation. Therefore, the fact that an employee is able to perform their essential job functions once they arrive at the workplace and irrespective of their commute, does not foreclose the possibility that they may be entitled to a commuting accommodation, such as a schedule adjustment so the employee may use public transportation or drive during the daytime, to allow them to get to and from work with less difficulty.

Key Takeaways for Evaluating Requests for Commute Accommodations

In all cases, the employee’s requested commute accommodation must be: 1) reasonable; 2) related to the employee’s ability to perform their essential job functions (as opposed to simply providing a personal benefit to the employee or eliminating a perceived inconvenience to the employee); 3) it cannot eliminate an employee’s essential job function; and 4) it cannot pose an undue hardship on the employer. Manufacturers should also consider the nature of the employee’s difficulty in commuting to work, including whether the employee or the employer have control over the variables that are causing that difficulty.  In addition to engaging in the interactive process with employees who request reasonable accommodations, manufacturers should ensure that requests for reasonable accommodations are reviewed carefully by human resources professionals, that employees are asked to clarify the nature of their request when necessary, and that employees provide sufficient medical documentation to support their request.

Although employees decide where and how far away from the workplace they live, employers decide how to manage the schedule and should be prepared to review employee requests for commuting accommodations with these key legal principles in mind. Manufacturers should also consult competent employment counsel for assistance with ensuring compliance with federal and state anti-discrimination laws and other important employment law issues. 

This post was co-authored by Labor + Employment Group lawyer Christopher Costain.

Flu season, which extends into spring, can be a particularly long season for manufacturers, especially when their workforces and workplaces are significantly impacted by the illness. Below are reminders for manufacturers about the various legal implications related to the flu and its impact on the workplace. 

Paid Sick Leave

Employees who contract the flu without significant medical complications may be able to use accrued paid sick leave under the law and under an employer’s policy to cover time off to seek medical treatment or to rest and recover. Many states and localities have implemented paid sick leave programs in recent years requiring employers to provide paid sick leave to employees in connection with their own illnesses in addition to providing care to family members. In addition to the new paid sick leave laws, existing laws continue to develop, expanding the qualifying reasons for the permitted use of leave and the definitions of family members who are covered by the law. Manufacturers should stay up to date with applicable paid sick leave laws and ensure compliance with changing requirements as employees seek to use their accrued leave to recover during flu season.

Family and Medical Leave

Although the flu generally does not trigger protections under the federal Family and Medical Leave Act (FMLA) or its state equivalents, employees may be entitled to job-protected leave if they, or their covered family member, are suffering from a particularly severe case. Specifically, cases of the flu that involve medical complications may trigger FMLA protections if they constitute a “serious health condition,” meaning they involve either inpatient care or continuing treatment by a healthcare provider. Where the flu and related medical complications incapacitate an employee for more than three calendar days and require a course of continuing treatment, the employee may be entitled to leave under the FMLA.

In reviewing employee requests for leave in connection with the flu, manufacturers should be aware that mere communications between an employee and a healthcare provider, such as communications through a provider messaging portal or by telephone or email, generally do not constitute continuing treatment under the FMLA. Additionally, manufacturers should keep in mind that they may require employees to submit a certification from a healthcare provider supporting the need for FMLA leave. 

Reasonable Accommodations

Generally, short-term illnesses such as the flu and the common cold are not considered disabilities under the Americans with Disabilities Act (ADA) and therefore do not entitle an employee to leave as a reasonable accommodation. However, short-term or temporary conditions that are sufficiently severe or involve complications may meet the definition of “disability” under the Americans with Disabilities Act (ADA) by substantially limiting one or more of the employee’s major life activities. In such rare cases, and to the extent an employee is not otherwise eligible for or has exhausted their available job-protected leave under the federal or state FMLA, employees may be eligible for leave as an accommodation under the ADA. In such cases in which an employee not otherwise eligible for leave under the FMLA requests leave as an accommodation under the ADA, manufacturers should engage in the interactive process to determine whether an accommodation is necessary.

Managing Leave and Time Off During Flu Season

As the 2026 flu season continues to impact business operations throughout winter and into  spring, manufacturers should ensure that managers are managing employee absence and leave consistent with their policies on attendance, absences, leave, and time off, as well as applicable law. Managers should be reminded to confer with Human Resources about these issues before taking action, to ensure such actions are consistent with the law and relevant policies. In addition, employers who suspect that there may be employee abuse of their time-off and leave policies should consult competent legal counsel to address these issues.

Welcome to the last of our three posts with our look ahead to 2026—the environmental edition. If you follow this blog, you have probably sensed a trend: environmental regulation rarely moves in a straight line. This coming year will be no different. Below is a more detailed look at three areas we will be watching this year.

1. PFAS Reporting and Liability

Manufacturers will be spending more time thinking about PFAS in 2026. We have been talking about the Toxic Substances Control Act (TSCA) PFAS reporting rule for years, and it is expected to become final early in 2026. As we previously reported, this rule will require manufacturers to report certain information on PFAS-containing articles going back as far as 2011. The EPA proposed some important changes to the rule at the end of 2025, including exemptions for de minimis concentrations, imported articles and chemicals used in research and development. Once the TSCA rule is finalized, it will require manufacturers to report extensive information about PFAS uses, production volumes, byproducts, exposures, and disposal.

In addition to the federal reporting requirement, states are getting in on the action. If your products travel into Minnesota, Minnesota’s sweeping PFAS‑in‑products statute (Amara’s Law) will require you to report products with intentionally added PFAS. By July 1, 2026, manufacturers will be required to disclose product‑specific PFAS details, including the type and amount of the PFAS in the product as well as its purpose or function.

These federal and state reporting obligations create challenges for manufacturers to dive deep into their supply chains in an attempt to gather the required information. For sectors using PFAS indirectly—such as coatings, plastics, electronics, and molded components—the data‑gathering burden may be significant.

In addition to reporting obligations, investigation and remedial obligations related to PFAS are on the rise. The EPA plans to maintain CERCLA hazardous‑substance designations for PFOA and PFOS, signaling continued expansion of PFAS‑related cost recovery and cleanup obligations. That means manufacturers with current or historical PFAS use—or who acquired property with legacy PFAS contamination—will likely face increased risk of enforcement actions or third‑party claims.

2. Water Law Uncertainty: WOTUS and NPDES Permitting Changes

Water regulation remains a challenge for many manufacturers, and 2026 won’t offer much relief. As my colleagues have previously explained, the continued regulatory back‑and‑forth regarding the definition of Waters of the United States (WOTUS) under the Clean Water Act has left manufacturers guessing as to the activities that will trigger Clean Water Act jurisdiction. This matters because facility expansions, stormwater projects, and wetlands issues all hinge on these key jurisdictional determinations.

At the same time, both EPA and states are tightening oversight of NPDES permitting for indirect discharges. Manufacturers whose wastewater enters complex conveyance systems, such as municipal treatment systems, may face additional pretreatment, sampling, monitoring, and recordkeeping obligations as regulators try to close gaps in indirect discharge oversight. Spoiler alert—PFAS are emerging in this context, too.

3. The Patchwork of State Extended Producer Responsibility (EPR) Laws

For manufacturers selling their products into multiple states, the growing patchwork of packaging EPR laws is quickly becoming a compliance challenge. A number of states, including Colorado, California, and Minnesota, now have packaging EPR programs, each with different definitions of producer, different covered packaging materials, and different registration and reporting deadlines. And many states, including Massachusetts, New Jersey, and New York, are poised to follow.

The variability in these laws makes it difficult for manufacturers looking to develop a one-size-fits-all approach. Manufacturers should stay on top of these laws and their requirements in an attempt to develop as streamlined a strategy as possible for compliance.

In late 2012, we created the Manufacturing Law Blog with the goal of providing our manufacturing clients with a holistic approach to the unique issues they face in their global operations. 

Starting in 2016, we began a tradition of dedicating our first three posts of the year to a yearly outlook from different vantage points.

Here are corporate compliance and litigation issues that manufacturers might expect to face in 2026:

  1. Tariffs are here to stay: We are all waiting to see how the United States Supreme Court rules on the legality of the “reciprocal tariffs.” There is a significant amount of activity regarding the “what ifs” surrounding the ruling, including whether companies will be able to seek refunds. What is more certain, however, is that there is no indication that the administration will return to a “low tariff” environment. The manufacturing industry will continue to be impacted by the steel and aluminum (232 tariffs) as well as other similar tariffs developed over time. We have worked with many manufacturers to mitigate their tariff exposure through various means, which will continue in 2026.
  • M&A Activity will continue to be hot for manufacturers of all sizes: In 2025, our group handled over 15 transactions; some were for corporate buyers and others were for private equity; some were acquisitions and others were sales; and some were very large in terms of transaction size and others were small. The M&A market for small to medium sized manufacturers will remain hot. The key for all businesses is to be prepared and have your advisory team in place—the competition for deals remains fierce.  
  • Business to business disputes are becoming more prevalent: Everyone always talks about lawsuits that make the news. But for many manufacturers, there are disputes that never make the headlines and, frankly, never make it to court. We are always advising companies behind the scenes as they try to enforce contractual rights or defend against them with sensitivity for business issues. Too often, lawyers forget that disputes can be opportunities to keep and expand business—just as much as it may destroy relationships. Further, if you are going to get into a contract dispute with someone, the key is to learn from it and improve the contractual language moving forward. Too many manufacturers are relying on templates and that can burn companies when enforcement is required.   

This post was co-authored by Labor + Employment Group lawyer Christopher Costain.

As we look ahead to 2026, several significant employment law developments and trends are on the horizon, especially with regard to local and state laws. Below are a few key issues likely to impact manufacturers in 2026:

Regulation of the Use of Artificial Intelligence in Employment

Employers, including human resource professionals, are increasingly turning to generative artificial intelligence (AI) to help sort applicant and employee data and make employment decisions, including related to screening and hiring. Although AI has increased efficiency in these processes, employers must ensure compliance with rapidly evolving state laws, some of which require employers to prepare risk assessments related to the use of AI in employment decision-making, provide pre-use notices to affected individuals, and provide opt-out rights. In addition to the burgeoning patchwork of state AI legislation, President Trump signed an Executive Order in December 2025, titled “Ensuring a National Policy Framework for Artificial Intelligence,” which, in part, sets out the Trump administration’s plan to target state AI laws which are deemed to “embed ideological bias within models.” While it remains unclear which state AI laws may run afoul of the executive order, and how the federal government’s enforcement efforts will take shape, manufacturers should stay up to date on applicable state and federal AI laws when using AI.

Expansion of State Anti-Discrimination Protections

In recent years, state anti-discrimination laws have expanded to incorporate more protected classes, including hairstyle or hair texture, immigration status, and status as a victim of family violence or sex trafficking, among others. These expansions are likely to continue at state and local levels, especially as the federal government turns its enforcement focus to unlawful diversity, equity, and inclusion initiatives, among others. 

Expansion of State Family and Medical Leave Programs

State family and medical leave laws and income-replacement programs continue to expand to cover more employees and provide greater benefits for a wider array of qualifying reasons. In recent years, qualifying reasons for the use of state family and medical leave programs have grown, with some providing job-protected leave in connection with prenatal care and certain pregnancy-related complications. Manufacturers should also be vigilant for changes in state income-replacement programs, including whether employees may use their accrued paid time off to supplement state paid leave benefits, and increases to the amount of benefits available and contribution amounts.

Heightened Scrutiny of Non-Compete Agreements at State Level

One of the Trump administration’s top priorities in 2025 was to roll back the Federal Trade Commission’s Biden-era “Final Rule” which would have banned nearly all non-compete agreements in employment. In executing that plan, the federal government withdrew its appeals pending before the Fifth and Eleventh Circuit Courts of Appeal, after District Courts in Texas and Florida struck down the Final Rule on the grounds that the FTC did not have authority to issue it. While the federal government abandoned the non-compete ban, in the months that followed, non-compete legislation continued to percolate at the state level, and more regulation is likely to follow in 2026. A number of state non-compete statutes limit the circumstances under which non-competes can be used by employers such as limitations based on salary thresholds, non-exempt status, job duties and industry type, and geographic and temporal scope, in addition to other criteria. As these restrictions continue to expand at the state level, manufacturers should review their non-compete agreements and avoid using broad restrictions, instead developing and implementing narrowly tailored provisions that protect a specific, articulable business interest and are compliant with applicable state law.

Changes at the National Labor Relations Board

The National Labor Relations Board spent much of 2025 without a quorum until the Senate appointed President Trump’s nominees in December, restoring the Board’s quorum and allowing it to roll out its enforcement and rulemaking agendas in 2026. The Board is expected to swiftly begin reversing or narrowing many of the Biden-era labor protections and issuing its own binding decisions. In addition, the Board will also likely begin to process a substantial backlog of unfair labor practices charges and appeals that were left pending when the Board did not have a quorum. Manufacturers should revisit any pending matters with the NLRB and be prepared for the NLRB to renew its enforcement activities, albeit within a new landscape and focus.

This post was co-authored by Labor + Employment Group lawyer Rauchell Beckford-Anderson.

Holiday celebrations are meaningful ways to recognize employees’ annual contributions to the company; however, such celebrations can introduce safety, compliance, and cultural challenges. So, as you deck the halls and cue up the playlist, remember: a great party is about more than just fun—it is also about ensuring health and safety, an inclusive environment, and alignment with the company’s values and applicable laws.

Workplace Conduct Policies

When the music is playing and the eggnog is flowing, it’s easy for boundaries to blur and issues to arise. Therefore, employers should consider reminding employees before the event, that all company policies apply during such events (including sexual harassment and harassment policies) and that professional and appropriate behavior is expected of all employees and their guests. Employers should consider sending out clear communication before the event, such as an email or memo, that sets expectations and reinforces the importance of maintaining a safe and respectful environment. Employers should also remind supervisors that they are expected to model professional behavior. For example, supervisors and leadership should actively circulate during the event to ensure the celebration remains safe and professional.  

Managing Alcohol and Safety

A little holiday cheer can go a long way; however, in a manufacturing setting, even a small amount of alcohol can spell trouble, and lead to accidents, injuries, or costly mistakes. To minimize risks, consider avoiding alcohol at on-site events or during working hours altogether. For off-site gatherings, employers should consider implementing safeguards such as issuing drink tickets per person; limiting the kind of alcohol served (e.g., beer and wine only); serving a full meal; ensuring the focus of the event is not on the bar or alcohol but on a meal, activity, or theme; and utilizing trained bartenders who can monitor and manage service. Additionally, employers may wish to consider providing ride-share options or designated drivers to help prevent impaired driving after the event.

Participation – Mandatory v. Voluntary

Employers should consider whether to make attendance mandatory or optional and how to communicate this expectation to employees. In determining how to approach attendance, it is important for employers to understand the impact that it may have on employees, including employees who do not celebrate holidays or do not wish to attend such an event. In addition, employers should keep in mind that if attendance is mandatory, injuries and illnesses resulting from the gathering may be covered under their workers’ compensation plan.

Inclusion and Respect

In order to create an event that is inclusive of all employees, employers should consider using neutral themes such as “End of Year Celebration,” or “Holiday Gathering” that do not reference specific religious or cultural holidays. When planning food and refreshments, employers should consider offering a variety of options that accommodate various dietary restrictions, preferences, and cultural backgrounds. In addition, employers should consider the logistics and activities to ensure they are inclusive of employees who have worked at the company for many years as well as newly hired employees who may not be as familiar with their colleagues.

Takeaways

In short, employers should carefully plan their holiday events, including engaging input from stakeholders, so that the event is memorable for all the right reasons.

Below is an excerpt of an article authored by Intellectual Property + Technology member Kayla O’Leary Daly that was published in Industry Today on November 11, 2025.

Focus on negotiating key issues rather than attempting to revise the entire agreement.

Companies of all shapes and sizes, from start-ups to major corporations and across all industries, deal with major tech companies in some capacity. Your company is engaging with big tech to license the rights to use a variety of key solutions, which are critical to the smooth operation of your business. Often the pricing and nature of the solutions give the tech company more control over the agreement terms. As a result, your company will typically have to focus on key issues rather than attempting to significantly revise the entire agreement. This article identifies three key issues to be on the lookout for in these agreements and provides tips on the terms worth fighting for. Read the article.

Below is an excerpt of an article authored by Intellectual Property + Technology partner Jacqueline Pennino Scheib that was published in Corporate Counsel on November 7, 2025.

“Information technology projects frequently fail to deliver on expectations. They routinely fall short of the expected deliverables and take longer and cost more than planned. To the extent there is ‘blame’ to be placed for these failures, it is often shared by both the customer and the vendor. The good news is that a major source of these problems is miscommunication and that is an area where spending time to implement a detailed agreement can save you future heartache.”

Many manufacturers have to address technology contracts as part of their automation efforts. Read eight of the most critical clauses where Jackie recommends focusing attention here.

Below is an excerpt of an article authored by Manufacturing Law industry team partner Jennifer L. Shanley and M. Carmen Ruiz, both Immigration group members, that was published in Industry Today on October 28, 2025.

The current administration has ushered in an era of increasing immigration complexity, especially in the area of Temporary Protected Status.

What is TPS?

Temporary Protected Status (TPS) is a country-specific humanitarian program impacting thousands of workers across industries, including manufacturing. In fact, according to a March 2025 report, an estimated 570,000 TPS beneficiaries are working in the U.S. labor force; 70,000 of which are in the manufacturing industry.

TPS is an immigration status for foreign nationals whose home countries the Department of Homeland Security (DHS) has determined to be unsafe due to conditions such as environmental disasters, armed conflicts, epidemics, or other extraordinary conditions.  Not only does TPS temporarily protect eligible individuals from deportation but also allows beneficiaries to work legally in the U.S. throughout the duration of their designated status, which is defined through a TPS-based Employment Authorization Document (EAD).

As of October 10, 2025, there are currently 12 countries designated for TPS: Burma, El Salvador, Ethiopia, Haiti, Lebanon, Somalia, South Sudan, Sudan, Syria, Ukraine, Venezuela, and Yemen. Several of these designations are the subjects of active and ongoing federal litigation, the basis of which is largely the Trump administration’s efforts to terminate various TPS designations.

In recent months, DHS has issued key updates regarding TPS extensions, redesignations, and EAD validity – all of which impact how employers complete and update Form I-9, DHS’s Employment Eligibility Verification form. Understanding how to best navigate these changes is critical for employers to ensure compliant employment practices, avoid potential penalties, and maintain workforce stability. Read the article.

This post was co-authored by Labor + Employment Group lawyer Bryce Simmons.

In a landmark move, Rhode Island has become the first state in the United States to mandate workplace accommodations for employees and applicants experiencing menopause and related medical conditions. The law became effective on June 24, 2025, amending the Rhode Island Fair Employment Practices Act, to explicitly include menopause as a protected condition. This requires employers to provide reasonable accommodations for menopause, joining pregnancy, childbirth, and related medical conditions.

What the Law Requires

The new law applies to employers with four or more employees, and requires such employers to engage in a timely, interactive process to identify reasonable accommodations for individuals experiencing menopause or related conditions, such as vasomotor symptoms, commonly referred to as hot flashes and night sweats. Under the law, employers are prohibited from: (1) denying employment opportunities based on the need for menopause-related accommodations; and (2) requiring employees to take leave if another reasonable accommodation can be provided.

While the law does not yet define specific accommodations for menopause, it builds on the existing framework for pregnancy-related accommodations, which may include flexible scheduling, modified work environments, or additional breaks.

Notice and Posting Obligations

Employers subject to this new law must update their workplace postings and written notices to reflect these new rights. Specifically, they are required to:

  • Post a notice in a conspicuous location accessible to employees;
  • Provide written notice to new hires at the start of employment;
  • Notify existing employees by October 22, 2025, by providing the notice referenced below; and
  • Provide notice within 10 days of an employee reporting menopause symptoms.

The Rhode Island Commission of Human Rights has posted the updated notice requirement on their website which can be accessed here.

Implications for Employers

For manufacturers, where physical demands and environmental conditions can exacerbate menopause symptoms, this law presents both a compliance obligation and an opportunity to lead on workplace inclusivity. In the wake of this new law, Rhode Island employers should review and revise their current accommodation policies and procedures. They should also prepare to engage in individualized assessments of accommodation requests, particularly in roles involving heat exposure, shift work, or physically strenuous tasks.

This legislation reflects a growing recognition that menopause is not merely a personal health issue but a workplace equity issue. Other legislatures around the country are considering similar laws so there may be a flurry of similar state laws. Employers should review their current policies and procedures to ensure that they are in compliance with this new law.