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By: Scott Prange

Seyfarth Synopsis: Washington’s health care employers have spent years navigating tighter and tighter restrictions on noncompetes—but under HB 1155, the state has decided to largely eliminate them altogether. Beginning June 30, 2027, physician and provider noncompetes will be largely void, and the law may extend far beyond traditional restrictive covenants to scrutinize compensation terms that penalize employee mobility. The real challenge for health care organizations is no longer how to enforce a noncompete—it’s how to retain physicians, protect competitive interests, and manage patient transitions in a world where provider mobility is the rule, not the exception.

Washington health care employers have spent years living in an increasingly restrictive noncompete environment. First came salary thresholds. Then disclosure requirements. Then additional restrictions on nonsolicitation agreements. Then the courts got involved.

Apparently, after years of tinkering with noncompete regulations, the legislature concluded the experiment had failed—not because the restrictions were insufficient, but because employers continued to have noncompetes at all.

Beginning June 30, 2027, Washington’s new noncompete law will effectively eliminate nearly all employment-related noncompetition agreements, including for physicians, and advanced practice providers.

Olympia’s message could not be much clearer: employers should retain physicians by giving them reasons to stay, not by making it harder to leave.

And while 2027 may sound comfortably far away, health care organizations should start preparing now. Because when the law takes effect, physician noncompetes won’t merely become harder to enforce. They’ll become illegal.

The Noncompete Era Is Ending

For years, Washington treated noncompetes like an aging treatment protocol—still technically available, but subject to so many warnings, limitations, and second thoughts that its long-term prognosis was never particularly encouraging.

HB 1155 takes a different approach.

Instead of asking whether a noncompete is reasonable, adequately disclosed, properly limited in scope, tied to sufficient compensation, and supported by a legitimate business interest, the legislature decided to skip the analysis entirely.

The legislature’s new approach can be summarized in a single, legally sophisticated word: No.

Existing noncompetes? Void.

Future noncompetes? Void.

Threatening to enforce one? Problematic.

Telling a physician or a provider they are still bound by one? Also problematic.

Beginning June 30, 2027:

  • Existing and future noncompetition covenants will be void.
  • Employers may not enforce or attempt to enforce noncompetes.
  • Employers may not threaten to enforce noncompetes.
  • Employers may not represent that a worker remains bound by a noncompete.
  • Violations may trigger statutory penalties, attorney fees, and enforcement actions by both private parties and the Washington Attorney General.

The law doesn’t merely regulate restrictive covenants. It largely prohibits their use all together.

Why Health care Have the Most to Lose

Let’s be honest: health care employers did not maintain physician and provider noncompetes because they enjoyed paying lawyers to litigate them or relished the occasional courtroom battle. They maintained them because the prospect of enforcement often kept physicians from testing the market in the first place and helped protect the substantial investments employers make in recruiting, onboarding, and integrating providers into their organizations.

Recruiting providers is expensive. Very expensive. By the time a physician or a provider is recruited, licensed, credentialed, onboarded, marketed to the community, integrated into referral networks, and finally seeing patients at full volume, the organization has often made a substantial investment.

Yet the concern was never just about recovering recruiting costs. A departing physician or physician can affect far more than a balance sheet. Health care employers have long worried about disruptions to continuity of care, erosion of referral relationships, coverage and call-schedule gaps, competition for scarce specialties, and the loss of patient relationships that take years to develop.

Historically, a restrictive covenant helped protect at least all if not some of those interests.

Beginning in 2027, the response to “We’re concerned that Dr. Bailey may join the practice across the street” can no longer be, “Let’s look at the noncompete.”

The better question becomes:

“Why would Dr. Bailey stay in the first place?”

That may sound like the sort of thing someone posts on LinkedIn immediately before announcing a leadership retreat. But health care employers that continue relying on contractual restrictions as their primary retention strategy may find themselves operating with a playbook that no longer exists.

The Most Consequential Part of the Law May Not Be the Noncompete Ban

If all HB 1155 did was eliminate geographic noncompetes, health care employers would have a fairly straightforward drafting exercise ahead of them.

Unfortunately, the statute appears to have bigger ambitions.

One of the more interesting features of the new law is that it may reach provisions that aren’t labeled “noncompetes” at all. The statute’s definition of a noncompetition covenant includes provisions requiring a worker to repay, return, or forfeit compensation as a consequence of engaging in lawful competitive employment (whatever that means).

This may place portions of physician and provider compensation arrangements under increased scrutiny. Health care employers should pay particular attention to compensation structures that were historically designed to protect recruiting and onboarding investments but may act as a constraint on mobility.

Certain repayment obligations, forfeiture provisions, retention incentives, equity arrangements, and compensation structures may face scrutiny if they effectively penalize a provider for leaving and joining a competitor.

In other words, calling something a “retention incentive” does not necessarily make it a retention incentive. Much like calling a donut a wellness program does not make it healthy.

Health care employers should take a close look at:

  • Sign-on bonuses.
  • Retention bonuses.
  • Forgivable loans.
  • Equity programs.
  • Deferred compensation arrangements.
  • Clawback provisions.
  • Physician recruiting packages.

Because the question regulators and courts may ask is not, “What did you call this provision?” The question may be, “What does it actually do?” As every health care compliance officer knows, regulators tend to be stubbornly interested in substance over labels.

The Biggest Wild Card? Patients Have a Vote.

Many physician and provider agreements historically assumed that when a physician leaves, the patients stay.

Patients do not always cooperate. Patients have a habit of making their own decisions.

The new law continues to permit carefully drafted patient nonsolicitation provisions. But health care employers should pay close attention to the distinction between soliciting patients and treating patients. Many physician agreements go beyond prohibiting active solicitation and instead prohibit treatment of former patients altogether.

Those are not necessarily the same thing.

The new law expressly distinguishes between soliciting a patient and accepting business from a patient. Restrictions that directly or indirectly prevent a provider from accepting or treating a patient who independently seeks out the provider may be vulnerable if they function as restraints on competition rather than true nonsolicitation provisions.

A restriction that prevents Dr. Bailey from actively raiding a patient panel may survive.

A restriction that effectively prevents patients from continuing to see Dr. Bailey after they independently decide to follow her may face a much tougher road.

The law’s underlying theme is that employee mobility matters. But so does patient choice.

In a World Without Noncompete, Confidentiality Agreements May Become the Strongest Medicine Available.

If noncompetes were your first line of defense, confidentiality agreements and trade secret protections are about to get promoted from the waiting room to the operating room. Provider mobility is the new reality. Information mobility does not have to be

Patient-facing businesses often possess valuable proprietary information, including referral data, strategic planning materials, payer contracting information, compensation models, operational metrics, and business development strategies. In a post-noncompete world, that information may become one of the organization’s most important vital signs.

The practical question is not whether confidential information exists. It almost certainly does. The real question is whether the organization has taken the steps necessary to diagnose, document, and protect it as confidential information. Think less about who walks out the door and more about what walks out with them

Employers should evaluate whether they have:

  • Updated confidentiality agreements.
  • Appropriate trade secret protections.
  • Role-based access controls.
  • Electronic monitoring and auditing capabilities.
  • Secure offboarding procedures.
  • Effective documentation of proprietary business information.

In other words, health care employers may need to spend less time writing restrictive covenants and more time strengthening their information hygiene. After all, courts are far more likely to prescribe relief when an employer can clearly identify and protect a trade secret than when it simply complains that valuable employees changed practices.

Confidentiality agreements and trade secret protections remain fully enforceable under the amended statute and will likely become among the most important tools available to health care employers after 2027. As noncompetes are discharged from active duty, trade secret protections may find themselves serving as the new chief resident of the employer-protection ward.

Seven Things to Do Before June 2027

The clock is ticking. The period before June 30, 2027 is for thorough preparation, not procrastination.

1. Identify Every Restrictive Covenant—Especially the Ones Hiding in Plain Sight

    Review:

    • Physician employment agreements.
    • APP agreements.
    • Medical director agreements.
    • Independent contractor agreements.
    • Equity and incentive plans.
    • Practice acquisition agreements.
    • Compensation and retention programs.

    Do not limit the review to provisions expressly labeled “noncompete.”

    2. Create a Notice Compliance Plan

    The law requires employers to make reasonable efforts to notify current and former workers whose covered restrictions remain in effect that those provisions are void and unenforceable by October 1, 2027.

    Health care employers should begin identifying affected physicians, providers, and contractors now rather than attempting to reconstruct records later.

    3. Reevaluate Compensation Programs

    Assess whether compensation provisions could be characterized as:

    • Forfeiture-for-competition provisions.
    • Stay-or-pay arrangements.
    • Repayment obligations triggered by competitive employment.
    • Competitive-employment clawbacks.

    Particular attention should be paid to physician incentive compensation, equity arrangements, retention bonuses, and recruiting incentives.

    4. Redesign Provider Retention Strategies

    Health care employers that previously relied on restrictive covenants should focus on retention rather than restriction. Because “people stay here because they have to” is not a long-term workforce strategy.

    Instead, try:

    • Leadership opportunities.
    • Partnership pathways.
    • Professional development.
    • Competitive compensation.
    • Scheduling flexibility.
    • Physician engagement initiatives.

    5. Strengthen Existing Alternatives

    As existing physician and provider agreements come up for renewal, health care employers have a natural opportunity to reassess their post-noncompete strategy. Rather than simply recycling legacy restrictive covenants, employers should evaluate whether their agreements appropriately emphasize the protections that remain fully enforceable and are likely to become increasingly important after 2027.

    Ensure agreements contain enforceable:

    • Confidentiality protections.
    • Trade secret protections.
    • Employee nonsolicitation provisions.
    • Patient nonsolicitation provisions tailored to the statute’s narrower requirements.

    6. Develop Patient Transition Protocols

    Organizations that proactively manage provider departures will be better positioned than those attempting to address patient transition issues after a physician has already left.

    Establish lawful procedures governing:

    • Patient communications.
    • Medical record transfers.
    • Continuity-of-care planning.
    • Departing provider announcements.
    • Referral management.

    7. Multi-State Health care Systems Beware

    Health care organizations operating across multiple states should not assume they can solve this problem through a different governing-law clause. Washington continues to take an exceptionally aggressive approach to protecting Washington-based workers from out-of-state noncompete enforcement.

    The Real Takeaway

    The biggest mistake health care employers can make is viewing HB 1155 as simply a noncompete problem.

    It’s a retention problem.

    It’s a recruiting problem.

    It’s a compensation-design problem.

    It’s a patient-transition problem.

    And, for many organizations, it’s a culture problem.

    It will take the village to address.

    For years, restrictive covenants functioned as a safety net. Beginning in 2027, that safety net largely disappears.

    Health care organizations that thrive won’t be the ones finding clever new ways to recreate noncompetes under a different name.

    They’ll be the organizations that become places physicians and providers actually want to stay.

    Which, admittedly, is much harder than drafting a restrictive covenant.

    It is also considerably more enforceable.

    And unlike a noncompete, it doesn’t become void on June 30, 2027.

    The legislature already took care of that for you.

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    By: Linda C. Schoonmaker, Elizabeth L. Humphrey, Julia M. Tape, and Nikki Nobile*

    On April 10, 2026, the Texas Supreme Court issued a closely watched decision in Texas Department of Public Safety v. Callaway, No. 24-0966, addressing when a disability is—and is not—protected under Chapter 21 of the Texas Labor Code. The Court held that an employer may lawfully terminate an employee whose physical or mental condition impairs the employee’s ability to reasonably perform the job, even when that condition qualifies as a disability. The decision provides employers with important guidance, particularly for safety-sensitive roles, while also underscoring the care required when evaluating performance issues tied to mental health conditions.

    Background: The Incident and the Lawsuit

    Robert Christopher Callaway was a longtime Texas Department of Public Safety (“DPS”) officer and Texas Ranger who suffered from post-traumatic stress disorder (“PTSD”). He took medical leave in 2017 to seek treatment for alcoholism and PTSD, and transferred to the Criminal Investigations Division upon his return in 2018. Callaway took additional leave in 2019 to receive inpatient treatment for the same conditions.

    On January 15, 2020, while on leave, Callaway became involved in a volatile off-duty incident at his daughter’s high school after he was notified that his daughter might be detained during a mental health crisis. Callaway arrived with his DPS badge, handcuffs, and his personal firearm (because he was off-duty). Inside a small office, witnesses reported that Callaway loudly confronted counselors, displayed his badge, and threatened to “prove who has got a bigger set of handcuffs” by putting responding officers “in jail for interfering with [his] rights as a parent.” A counselor reported feeling trapped and fearing for her safety and life.

    Although criminal charges were ultimately not pursued, DPS conducted an internal investigation and concluded that Callaway’s PTSD impaired his ability to reasonably perform the duties of a DPS officer, particularly given the risks inherent in law enforcement work. As a result, DPS terminated his employment.

    Callaway sued DPS under Chapter 21, alleging disability discrimination and retaliation. The trial court denied DPS’s motions for summary judgment and plea to the jurisdiction, and the court of appeals allowed the disability discrimination claim to proceed. DPS sought and obtained review from the Texas Supreme Court.

    The Court’s Holding: Disability Protection Ends When Job Performance Fails

    The Texas Supreme Court reversed the appellate court’s decision permitting the disability claim to move forward. Relying on Texas Labor Code § 21.105, the Court emphasized that Chapter 21 prohibits discrimination only with respect to physical or mental conditions that do not impair an individual’s ability to reasonably perform a job.

    Relying on the statute’s plain language, the Court applied an objective standard grounded in the term “reasonable.” Specifically, the Court held that the record conclusively demonstrated Callaway’s PTSD impaired his ability to perform the essential functions of a DPS officer. In evaluating the evidence, the Court focused on the loss of emotional control, misuse of law enforcement authority, and the “grave risk” posed to others—especially fellow officers—if such conduct were to occur in the line of duty. Consistent with the Court’s textual approach, it rejected Callaway’s reliance on federal statutes and judicial opinions, concluding that they “shed no light on the meaning of the statutory text our legislature enacted.”

    Because Callaway’s condition impaired his job performance, the Court concluded that Chapter 21’s disability discrimination protections did not apply and dismissed the claim against DPS.

    A Tight Line: Employer Judgment vs. Disability Discrimination

    The decision walks a careful (and potentially controversial) line. On the one hand, it affirms that employers are not required to retain employees who cannot safely or effectively perform their jobs, particularly in safety-sensitive positions. On the other hand, it places significant weight on an employer’s assessment of when a disability has crossed from a protected condition into a job-disqualifying impairment. As a result, employers should take an individualized approach to ensure all factors have been considered before taking adverse employment action. Importantly, Callaway does not authorize employers to terminate employees simply because they have a disability, or because a disability might hypothetically affect performance. Rather, the Court’s analysis turned on specific, documented conduct demonstrating that the disability actually impaired the employee’s ability to perform the job at issue.

    How Callaway Fits with Existing Disability Law

    While Callaway arises under Texas law, its reasoning parallels key principles in federal disability jurisprudence:

    • Under the ADA, employers may require employees to perform the essential functions of their jobs, with or without reasonable accommodation.
    • Courts have long recognized that individuals who pose a direct threat or cannot safely perform safety-sensitive roles may fall outside statutory protections. See, e.g., Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002).
    • At the same time, federal law cautions against decisions based on stereotypes, assumptions, or generalized fears about mental health conditions—an undercurrent employers should not overlook in applying Callaway.

    What Callaway adds is a clear statement from Texas’s highest court that, under Chapter 21, impairment of reasonable job performance is a threshold issue—not merely part of a burden shifting analysis.

    Key Takeaways for Employers

    1. Focus on Performance, Not Diagnosis

    Employers should ground decisions in observable conduct and job-related performance, not the mere existence of a medical condition.

    2. Document the Nexus Between Condition and Job Duties

    The Court relied heavily on evidence showing how Callaway’s condition manifested in ways incompatible with his role. Documentation matters.

    3. Take a Collaborative Approach

    Employers should confer with a variety of resources and personnel when developing a plan of action as to whether reasonable accommodations can be provided.

    4. Exercise Extra Care in Safety-Sensitive Positions

    Courts are more likely to credit employer judgments where public safety, use of force, or high-stress decision-making is central to the job.

    5. Do Not Skip the Accommodation Analysis

    Although DPS ultimately prevailed, employers should still engage in the interactive process where appropriate and consider whether accommodations or alternative roles are viable before concluding an impairment is disqualifying.

    6. Train Decision Makers on Objective Standards

    Managers should understand that Callaway does not give carte blanche to terminate employees with disabilities—it reinforces the need for objective, job-specific analysis.

    Bottom Line

    Texas Department of Public Safety v. Callaway provides employers with meaningful clarity under Chapter 21, but it also underscores the importance of disciplined decision-making when disability and job performance intersect. Employers who rely on evidence, avoid assumptions, and carefully document their reasoning will be best positioned to navigate this evolving area of the law.

    *Nikki Nobile is a law clerk in the Labor and Employment Department. Many thanks for her contribution to this legal update. 

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    By: Samantha L. Brooks, Christopher J. DeGroff, and Andrew L. Scroggins

    Seyfarth Synopsis: In a critical development, the EEOC has officially replaced its Strategic Enforcement Plan (SEP) for Fiscal Years 2024–2028 with a new National Enforcement Plan (NEP) for Fiscal Years 2025–2029, signed by Chair Andrea R. Lucas on June 4, 2026.  The transition represents a fundamental shift of the agency’s enforcement philosophy, priority structure, and relationship to the Trump administration. Here is our detailed breakdown of what changed, what survived, what was scrapped, and importantly, what employers need to know and consider now.

    I. The Big Picture: A Philosophical Overhaul

    The EEOC’s Strategic Enforcement Plan has, for years, served as the agency’s compass.  Commission resources, administrative investigations, and EEOC lawsuits were all measured against the SEP.  The SEP was rooted in a social justice framework, and committed the agency to supporting “lawful and appropriate diversity, equity, inclusion, and accessibility (DEIA) practices.”

    The NEP — supported by EEOC Chair Andrea Lucas and fellow Republican Commissioner Brittany Panuccio[1] — adopts a starkly different posture. It opens by “reaffirm[ing] that [the EEOC] is an executive branch agency” and declares that “the Commission will use its discretion in its deployment of its enforcement authority to advance the Administration’s policy objectives and comply with relevant Executive Orders.”  In place of the racial and economic justice framing, the NEP has a clear law-enforcement-first orientation, with explicit alignment to White House policy directives, including Executive Order 14281, Restoring Equality of Opportunity and Meritocracy.

    What this means for employers: While the SEP positioned the EEOC as an independent civil rights champion, the NEP positions it as an executive branch law enforcement agency taking its marching orders from the Administration.

    II. Structural Changes: Washington Takes the Wheel and Ends Local EEOC Enforcement Priorities

    Under the SEP, the agency operated through a combination of national priorities and District Complement Plans — locally tailored enforcement strategies that allowed individual District offices to identify region-specific vulnerable populations and enforcement targets, while still adapting the agency’s SEP.

    The NEP abruptly withdrew all District Complement Plans and other local enforcement plans or priorities.  In their place, the NEP emphasizes that the EEOC must “function as a national law enforcement agency,” with the Chair directing “collaboration, coordination, and communication” across all offices.  The NEP contemplates nationwide staffing deployments, including reassigning matters across Districts and deploying headquarters personnel to field operations depending on the nature of a particular matter.

    What this means for employers: Multi-state employers should expect more uniform enforcement. The patchwork of District-level priorities that sometimes allowed employers to predict regional enforcement trends is gone. The agency now plans to operate from a single national playbook. This will likely take time, but we expect to observe increased consistency in the coming months.

    III. Disparate Impact: A Doctrinal Sea Change

    One of the NEP’s most consequential provisions is its outright abandonment of disparate impact theory. The now-defunct SEP (and years of prior enforcement announcements) specifically incorporated the disparate impact framework to pursue facially neutral policies with unequal outcomes.  Indeed, the SEP priorities around barriers in recruitment and hiring, AI in decision-making, and background checks all implicated disparate impact analysis.

    Through the NEP, the Commission states that “allegations of intentional discrimination (disparate treatment) by an employer inherently are more egregious forms of discrimination than unintentional disparities between groups of employees which arise from an employer’s neutral policies or practices (disparate impact).”

    Citing Executive Order 14281, the NEP commits the EEOC to:

    • Prioritize disparate treatment theories of liability;
    • Eliminate the use of disparate impact liability theories in investigations “to the maximum degree possible”; and
    • Not commence, develop, or continue to pursue litigation advancing disparate impact claims.

    What this means for employers: Disparate impact remains a valid statutory theory codified in the Civil Rights Act of 1991, as the NEP itself acknowledges. But the EEOC will no longer be the vehicle through which these claims are advanced at the federal level. Private plaintiffs, state attorneys general, and state civil rights agencies remain free to pursue disparate impact theories, and employers should be on the lookout for such claims.

    IV. DEI Squarely in the Crosshairs

    The NEP’s specificity on DEI deserves special mention. The EEOC has identified the following practices as potential enforcement targets:

    • Race- or sex-based quotas, including “aspirational goals” that function as proxies for quotas or that incentivize race- and sex-based decision-making in hiring, staffing, layoffs, and promotions;
    • Diverse slate policies and diverse hiring panel policies;
    • Diversity statements required of candidates;
    • Sharing employee race or sex data with managers, the public, or non-HR personnel;
    • Rubrics or evaluation methods that consider protected characteristics;
    • Executive compensation or bonuses tied to demographic goals or diversity metrics; and
    • Limiting access to training, internships, fellowships, mentorship, sponsorship, apprenticeships, employer-sponsored groups or events, bonuses, or other terms and conditions of employment on the basis of protected characteristics.

    What this means for employers: This is the most detailed roadmap the EEOC has published for DEI-related enforcement. The specificity strongly suggests the agency already has enforcement targets in mind.  In fact, the NEP specifically references DEI programs and practices “often adopted by large corporations, prominent universities, and other elite institutions.”

    V. Substantive Changes: A Priority-by-Priority Comparison

    Below, we walk through each of the NEP’s six subject-matter priorities and compare them against the SEP’s framework.

    Priority 1: Repeated, Overt, and Intentional Discrimination

    The first NEP priority is cases involving repeated or overt discrimination or intentional discrimination.  The EEOC provides numerous examples of this, including:

    • Job advertisements excluding or encouraging certain individuals to apply, including targeting applicants based on race (including encouraging “diverse candidates” to apply) or national origin (including encouraging “guest worker visa holders” or “PERM applicants” to apply, and practices or preferences for guest worker visa holders or PERM applicants[2]), or other practices or policies labeled or framed as diversity, equity, and inclusion (including quotas or aspirational goals, limiting access to any term, condition, or privilege of employment based on protected characteristic, or otherwise using race and sex in any decision, including diverse slate policies, diverse hiring panel policies, and any other candidate evaluation practices and compensation practices tied to a protected characteristic or diversity goals);
    • Staffing agencies that exclude individuals from employment based on protected characteristics;
    • Mass denials of accommodations; and
    • Systematic harassment.

    Of note, while systemic harassment appears alongside other examples of overt discrimination in the NEP, its prominence is dramatically reduced as compared with the previous SEP.  The now-scrapped SEP devoted an entire standalone priority to systemic harassment, backed by detailed statistical data showing over 34% of charges between FY 2018–2022 included a harassment allegation.  By contrast, the NEP’s only direct mention of systemic discrimination is a single line item in an enumerated list.

    Key takeaway: The SEP’s hiring-barrier priority was largely aimed at systemic practices that disproportionately screened out minorities and women. The NEP has flipped this lens: its hiring-related enforcement is focused on protecting American workers from being disadvantaged in favor of visa holders. Chair Lucas has designated “Protecting American workers from anti-American national origin discrimination” as one of four Chair Priorities discussed below.

    Priority 2: Legal Doctrine, Recent Supreme Court Precedent, and Statutory Interpretation

    The second priority emphasizes cases with the potential to promote the development of law interpreting the anti-discrimination statutes the EEOC enforces.  The NEP highlights in particular “the application or scope of recent Supreme Court precedent or presenting unresolved issues of statutory interpretation,” highlighting some specific cases. These include Title VII claims under Ames v. Ohio Department of Youth Services (holding the same standard applies when majority group members allege discrimination); Muldrow v. St. Louis (holding that “some harm” is enough to show an applicant or employee suffered an adverse action); Students for Fair Admissions (holding that protected characteristics cannot be a consideration in admission decisions, which some argue extends to employment decisions as well); Groff v. DeJoy (holding that employers are obligated to provide reasonable accommodations for sincerely held religious beliefs of employees); and Bostock v. Clayton County (holding that discrimination based on sexual orientation can be sex discrimination, but here extending the holding to single-sex intimate spaces, employers’ and employees’ right to express the binary nature of sex, and employees’ rights to religious accommodations). Also described are the scope of liability under the Pregnant Workers Fairness Act; and cases where there is a federal circuit split on an NEP priority or in which the agency is seeking Supreme Court resolution.

    Key takeaway: The SEP’s “emerging issues” priority was forward-looking, oriented toward expanding protections for new categories of workers and new forms of discrimination. The NEP’s emerging-issues equivalent is backward-looking in a sense and is focused on limiting the scope of recent legal developments (like Bostock) and on targeting what it views as overreach by prior EEOC leadership.

    Priority 3: Vulnerable Workers

    The third priority is a focus on vulnerable workers, “including teenage workers, persons with limited literacy or education, individuals employed in low wage jobs, survivors of sexual assault, and workers with developmental or intellectual disabilities.”

    Key takeaway: The NEP’s vulnerable worker category is dramatically narrower than the SEP’s version. Several populations that the SEP previously singled out for “focused attention” no longer make the cut, including LGBTQI+ individuals, immigrants, people with arrest records, and older workers. Employers who relied on the SEP’s expansive vulnerable-worker framework to anticipate enforcement activity should consider recalibration.

    Priority 4: The Commission’s Enforcement Process

    The fourth priority is a focus on cases “involving the integrity or effectiveness of the Commission’s enforcement process, including cases involving: claims of retaliation; cases where a respondent’s “defense is rooted in a challenge to a Commission policy documents;” cases “protecting Commission access to information,” such as subpoena enforcement actions (which we have already seen increase this year); cases involving breaches of Conciliation Agreements or Consent Decrees; and cases involving violations of recordkeeping and reporting requirements.

    Key takeaway: This priority reflects the Commission’s view of itself as a law enforcement agency, and apparent desire to maintain the integrity of the investigative and enforcement process.  Employers should continue to be on the lookout for retaliation claims, which we have already seen increase in popularity over the last several fiscal years. We also expect the EEOC will be paying particular attention to compliance with the terms of settlements with the government; something that in the past was often an afterthought.

    Priority 5: Amicus Briefs in Cases Involving Religious Discrimination

    Interestingly, this priority specifically applies to cases where the EEOC may serve as an amicus.  The EEOC will look at “matters involving religious organizations and religious employers” where it can “clarify the constitutional and statutory limitations regarding liability under the statutes it enforces.”

    Key takeaway: This priority relates to other priorities involving claims of religious discrimination and accommodations for sincerely held religious beliefs of employees, and the Chair’s Priority, discussed below, regarding protecting workers’ religious liberty rights.

    Priority 6: “Evenhanded Enforcement”

    This priority says that the EEOC “should ensure evenhanded enforcement of the civil rights laws enforced by the agency, mindful that as public servants, EEOC staff are working on behalf of all American workers protected by these laws.”

    Key takeaway:  This — alongside the NEP’s citation to Ames v. Ohio Department of Youth Services (which addressed majority-group standing under Title VII) — signals that the EEOC does not view enforcement limited to historically disadvantaged groups, and that the agency will be more willing to bring cases where the charging party is in a majority group (i.e., white employees, men, US-born workers).  Indeed, as detailed elsewhere in the NEP, the EEOC is expected to prioritize claims by majority-group workers and claims related to DEI practices.

    VI. What Else is Missing from the NEP?

    Notably absent from the NEP is a priority related to access to justice.  The SEP’s access-to-justice priority was a major driver of EEOC challenges to broad arbitration agreements and restrictive settlement terms. Its absence from the NEP could signal a meaningful de-escalation on these fronts.

    After years of being an EEOC focus, equal pay has not survived as a named enforcement priority. While the EEOC retains jurisdiction over equal pay claims, the absence of this priority from the NEP likely means fewer proactive systemic investigations in this area.

    Under the SEP, AI and machine learning in hiring were top enforcement concerns, but they are not identified as a standalone priority in the NEP, nor is AI even mentioned in the NEP.

    VII. The Four “Chair Priorities”

    The NEP introduces a new mechanism: “Chair Priorities,” designated by Chair Lucas and subject to change at the Chair’s discretion. The initial four are:

    1. Remedying DEI-related race and sex discrimination;
    2. Protecting American workers from anti-American national origin discrimination;
    3. Defending women’s rights to single-sex spaces at work and workers’ rights to express the binary nature of sex; and
    4. Protecting workers’ religious liberty rights.

    The SEP had no comparable mechanism for individual-Commissioner-designated priorities. Under the SEP, priorities were set by Commission vote and required a majority to modify.  The Chair Priority mechanism appears to give the Chair a more agile tool for directing enforcement focus without a full Commission vote, and subject to change at any time for any reason.

    VIII. What Employers Should Consider Now

    Based on our analysis of both documents, here are the critical action items:

    1. Revisit DEI. The NEP provides a specific enforcement roadmap. If your organization uses diverse slates, demographic-linked compensation, mandatory diversity statements, race- or sex-conscious evaluation rubrics, or restricts access to programs based on protected characteristics, these are squarely in the agency’s sights.  There is significant disagreement on what is lawful in this space, but being aware of this as an enforcement target is an important consideration.

    2. Revisit Religious Accommodation Processes. The NEP and Chair Priorities elevate religious liberty to a top enforcement concern, specifically invoking Groff v. DeJoy. Employers should review their processes in this area to ensure compliance with Title VII.

    3. Review Guest Worker and Visa-Related Hiring Practices. The NEP’s focus on “anti-American national origin discrimination” and preferencing of visa holders is new territory for the EEOC.  Employers should pay attention to job postings, staffing contracts, and hiring workflows in light of this EEOC focus.

    4. Prepare for Centralized, Coordinated Enforcement. The elimination of District Complement Plans and the creation of a national deployment model means enforcement actions may be more strategic and better-resourced.  Employers should not assume that a District office’s historical enforcement posture will predict its future activity.

    5. Monitor Executive Orders. The EEOC has now been clear that it is taking its enforcement cues from the Administration.  Tracking Executive Orders is now, functionally, an EEOC compliance exercise.

    6. Don’t Neglect the Priorities That Survived. Protections for vulnerable workers (particularly teenage workers, low-wage workers, and workers with developmental disabilities) remain in the NEP.  The EEOC will continue to process the hundreds of thousands of charges it receives annually across all bases. The NEP shifts priorities but it does not eliminate the agency’s statutory obligations.

    Implications for Employers

    The transition from the SEP to the NEP is a wholesale reorientation of the government’s primary workplace anti-discrimination enforcement agency. The SEP’s six broad priorities — built around systemic barriers, vulnerable communities, emerging social issues, and access to justice — have been replaced by a leaner, more politically charged set of priorities centered on DEI enforcement, religious liberty, the binary nature of sex, and the protection of American workers over visa holders. Employers should pay close attention to the new priorities we have described above, and batten down the hatches for what could be swift enforcement of these areas.

    We will continue to monitor implementation and will update this space as enforcement actions and litigation emerge under the new framework.

    [1] Democratic commissioner Kalpana Kotagal voted against the NEP.

    [2] In practice, this translates to charges brought by US-born workers involving claims of national origin discrimination where a charging party challenges hiring practices based on a preference for foreign workers or PERM recruitment practices or policies.

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    Recent public debate following the Federal Court’s decision in Giggle v Tickle has prompted a private member’s bill introduced on 25 May 2026 by a National Party MP seeking to amend the Sex Discrimination Act 1984 (Cth) (SDA). The bill seeks to introduce clearer, and in some contexts prioritised, protections based on biological sex—particularly in areas such as single-sex facilities, services and spaces. The Coalition has indicated support for these changes.

    While the bill’s prospects remain uncertain, it raises important questions for employers about how potential legislative change may intersect with existing workplace obligations.

    A shifting legal landscape

    At present, the SDA protects individuals from discrimination on the basis of both sex and gender identity. Employers are therefore required to ensure that workplace policies and practices do not unlawfully discriminate on either ground.

    The proposed amendment signals a potential shift towards giving primacy to biological sex in specific contexts. Even if the legislative change is not enacted in its current form, the broader policy debate reflects increasing scrutiny around how competing protected attributes are balanced in practice.

    For employers, this highlights the importance of remaining agile and informed as the legal landscape evolves.

    Workplace impact: where issues may arise

    Although the proposal is focused on areas such as bathrooms, accommodation and certain services, there are clear overlaps with workplace settings. Employers may need to consider how any changes could affect:

    • Workplace facilities – including access to bathrooms, change rooms or other sex-specific spaces
    • Policies and procedures – particularly diversity, inclusion, anti-discrimination and workplace behaviour policies
    • Dress codes and uniform requirements
    • Participation in workplace programs or initiatives that may be sex- or gender-specific

    In many cases, these issues already require careful navigation. Any legislative amendment may add further complexity rather than providing a simple resolution.

    Managing competing rights and obligations

    A key challenge for employers is balancing potentially competing rights—particularly where the rights of individuals based on sex and gender identity may intersect.

    Employers should be mindful that:

    • Anti-discrimination obligations will continue to apply, even if their scope changes
    • Work health and safety duties require employers to provide safe working environments for all employees
    • Respectful workplace expectations remain critical, regardless of legal developments

    Even if reforms prioritise biological sex in certain contexts, this will not eliminate the need for careful, case-by-case assessment and sound judgement.

    Practical considerations for employers

    In light of this development, employers may wish to proactively consider:

    • Policy review: Are existing policies sufficiently clear, current and adaptable to potential legal change?
    • Consistency: Are workplace decisions being made consistently and in line with documented policies?
    • Training and communication: Are managers equipped to navigate sensitive issues lawfully and appropriately?
    • Escalation processes: Are there clear pathways for handling complaints or conflicts involving competing rights?
    • Documentation: Are decisions well-reasoned and recorded, given the potential for scrutiny?

    Taking a proactive approach can help mitigate risk, regardless of whether legislative reform proceeds.

    The continued role of judgement and expertise

    Importantly, even with increased legislative clarity, these issues are unlikely to become purely rules-based. Many workplace scenarios will still require nuanced judgment, taking into account legal obligations, organisational context and employee wellbeing.

    For employers, this underscores the ongoing importance of seeking legal guidance when navigating complex or sensitive situations.

    Looking ahead

    The proposed amendment is part of a broader and evolving national conversation about the scope and operation of discrimination law. Whether or not this particular bill is passed, it highlights the potential for change and the need for employers to stay informed.

    We will continue to monitor developments and provide insights as the position becomes clearer.

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    Episode 04: How Flashpoint Issues Are Redefining Workplace Investigations

    Hosted by Sam Schwartz-Fenwick with special guest Ann Marie Zaletel

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    As workplaces become increasingly shaped by complex social, political, and cultural dynamics, employers are facing a rising number of investigations tied Flashpoint issues. In this episode, host Sam Schwartz-Fenwick sits down with Ann Marie Zaletel to unpack what distinguishes these investigations from traditional workplace matters – from heightened legal risk and public scrutiny to the intense emotions and reputational stakes involved.

    Drawing on real-world experience, Sam and Ann Marie explore why these matters are more likely to escalate into high-profile disputes and how the investigative process itself can influence outcomes. This conversation underscores why a thoughtful, nuanced approach is essential – not only to mitigate risk, but to maintain trust, workplace stability, and organizational integrity in a polarized environment.

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    By: Linda C. Schoonmaker and Julia M. Tape

    Seyfarth Synopsis: Growth in women’s professional sports, including Houston’s anticipated return of a WNBA team, is drawing renewed focus on pregnancy‑related employment issues. Recent WNBA developments underscore how federal law, labor agreements, and enforcement trends are evolving in tandem. Employers across industries can draw key lessons on managing accommodation obligations and mitigating risk.

    Women’s professional sports are experiencing rapid growth, investment, and visibility. Alongside that momentum has come increased scrutiny of employment practices—particularly those affecting pregnancy, caregiving, and performance expectations. Recent developments in the WNBA, including the ratification of a new collective bargaining agreement, offer a timely case study in how evolving federal law, labor agreements, and enforcement priorities intersect.

    Notably, Houston is poised to regain a WNBA franchise following reports that Houston Rockets owner Tilman Fertitta is in the process of acquiring Connecticut’s team, further expanding women’s professional sports in Texas. That growth brings renewed attention to employment law issues that extend well beyond professional basketball—particularly pregnancy accommodations and regulatory compliance.

    Pregnancy‑Related Protections Under Federal Law

    Federal law has long prohibited discrimination based on pregnancy, childbirth, or related medical conditions. Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, bars adverse employment actions motivated by pregnancy or by stereotypical assumptions about an employee’s commitment, availability, or ability to perform.

    More recently, Congress expanded workplace protections through the Pregnant Workers Fairness Act (“PWFA”), which requires covered employers to provide reasonable accommodations for known limitations related to pregnancy, childbirth, or related medical conditions unless doing so would impose an undue hardship. Unlike the Americans with Disabilities Act, the PWFA does not require an employee to demonstrate that a condition rises to the level of a disability. Instead, it centers on whether the employer engaged in an interactive process with the pregnant employee and reasonably considered the accommodation request.

    For employers, this framework means that decisions affecting job duties, schedules, travel, or assignments of pregnant employees should be carefully documented to demonstrate legitimate business justifications.

    The WNBA’s New CBA as a Case Study in Pregnancy Protections

    The WNBA’s newly ratified seven‑year collective bargaining agreement illustrates how pregnancy protections can be reinforced through collective bargaining. Among its most notable provisions is a rule prohibiting teams from trading a player during pregnancy without the player’s affirmative consent. Commonly referred to as the “Dearica Hamby Rule,” the provision arose from the controversial trade of Dearica Hamby while she was pregnant in 2023. Hamby subsequently filed a discrimination and retaliation lawsuit against the Las Vegas Aces and the WNBA. The WNBA was dismissed by a federal judge, and the remaining claims were ultimately dismissed by mutual agreement between Hamby and the Aces.

    While a “trade” is unique to professional sports, the underlying concern is familiar across employment contexts. In traditional workplaces, similar scrutiny may arise from involuntary transfers, territory reassignments, or reductions in responsibility of pregnant employees. When such actions occur after pregnancy disclosure—or are justified by pregnancy‑related assumptions—they can raise significant discrimination concerns under federal law.

    The broader lesson is that pregnancy‑related protections extend beyond hiring and termination decisions to include other ostensibly neutral “business” decisions that materially affect an employee’s work.

    Collective Bargaining and Statutory Compliance

    The WNBA’s labor structure highlights an important principle for unionized employers more generally: collective bargaining agreements do not displace federal employment statutes. Even where a CBA governs compensation, assignments, or discipline, employers remain subject to Title VII, the PWFA, the Family and Medical Leave Act, other federal anti-discrimination laws, and comparable state laws. Employers negotiating or administering collective bargaining agreements should ensure that negotiated provisions align with evolving statutory requirements and enforcement priorities.

    Developing Law: The Fifth Circuit and the PWFA

    Complicating compliance planning, the Pregnant Workers Fairness Act is currently under review by the United States Court of Appeals for the Fifth Circuit. After initially allowing enforcement, the court vacated its decision and agreed to rehear the case en banc in State of Texas v. Bondi, No. 24‑10386 (5th Cir. Jan. 14, 2026) (per curiam). The litigation focuses on whether Congress validly enacted the statute under the Constitution’s quorum requirements, rather than on the substance of the accommodation obligations themselves. The issue may ultimately reach the United States Supreme Court.

    For now, the PWFA remains enforceable nationwide, including in Fifth Circuit states such as Texas. Employers should not view the pending litigation as a pause on compliance; maintaining policies and practices that align with the PWFA remains the prudent course.

    Enforcement Trends: Increased EEOC Focus on Pregnancy‑Related Claims

    At the same time courts are considering the contours of pregnancy accommodation law, the Equal Employment Opportunity Commission has made clear that pregnancy‑related claims are an enforcement priority. Since the PWFA took effect in 2023, the agency has increased its focus on pregnancy, childbirth, and related medical conditions through outreach, investigations, and early enforcement efforts.

    The EEOC has emphasized that pregnancy‑related claims need not involve termination. Alleged failures to engage in an interactive process, denials of modified duties or schedules, and adverse actions following pregnancy disclosure—including lateral reassignment—may all draw scrutiny.

    For employers in physically demanding, performance‑driven, or highly visible workplaces, this enforcement posture has significant implications. While these characteristics are common in professional sports, they are equally present in healthcare, manufacturing, logistics, and many client‑facing roles throughout Texas and beyond.

    Why This Matters Beyond Women’s Sports

    Women’s professional sports increasingly serve as a high‑visibility testing ground for workplace practices that later reverberate across industries. As leagues expand and gain prominence in markets like Texas, employment decisions that might once have drawn limited attention are now subject to greater scrutiny by regulators, employees, and the public.

    For employers across industries, the takeaway is clear: pregnancy‑related compliance remains a focal point for both the courts and regulators, and missteps—particularly during periods of growth or increased visibility—can carry significant legal and reputational consequences.

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    By: Madeline Remish and Erin Dougherty Foley

    Seyfarth Synopsis: Accommodation is not a free pass from discipline or termination. In Lewis v. Indiana Department of Transportation, No. 25-1776 (7th Cir. April 22, 2026), the Seventh Circuit reaffirmed that employers do not violate federal anti‑discrimination laws when they terminate an employee with a disability, provided they do so for legitimate performance and conduct‑related reasons. Even where an employer approves a requested accommodation, employees remain responsible for performing the essential functions of their jobs and meeting workplace expectations. The court’s decision is especially instructive for employers managing remote‑work accommodations, where flexibility and accountability often collide.

    Background and Remote-Work Accommodation

    Keisha Lewis worked for the Indiana Department of Transportation’s Real Estate Division from 2014 until her termination in December 2022. Her position involved reviewing and approving federal relocation vouchers, which was work that directly affected INDOT’s ability to meet project deadlines and maintain federal funding. Lewis suffers from a kidney condition and, following the agency’s return to in‑office operations after the COVID‑19 pandemic, requested to continue working remotely due to her compromised immune system.

    INDOT granted Lewis a remote‑work accommodation. In addition to allowing her to work from home, the accommodation included flexibility around exchanging physical paperwork, such as permitting Lewis to meet supervisors outside the downtown office to drop off processed checks. At several points, INDOT also worked with Lewis on documentation issues related to her accommodation and ultimately confirmed that she did not need to continually re‑justify her request.

    Put simply, this was not a case where an employer denied an accommodation request or immediately rushed to discipline after one was made. INDOT granted the accommodation and attempted to manage Lewis’s performance within that framework.

    Performance Issues Persist Despite the Accommodation

    Problems arose, however, once Lewis was working remotely. According to the summary judgment record, Lewis began refusing to perform certain aspects of her job, including processing vouchers for the Finance Department, despite being directed to continue that work. At one point, she emailed a manager outside her chain of command to say she would no longer assist with relocation vouchers at all.

    Supervisors also became concerned about Lewis’s productivity and transparency. She developed a significant backlog of unfinished work, initially estimated at 100 to 150 parcels. When supervisors attempted to monitor her workload through regular check‑ins and requested reports detailing her outstanding assignments, Lewis resisted those requests and, in some instances, refused outright to provide the information. She also repeatedly arrived late to meetings or missed them altogether.

    When managers attempted to understand what Lewis was working while working remotely, they discovered that the backlog was far larger than initially believed. A report compiled shortly before the termination of her employment showed the backlog to include more than 400 outstanding parcels, including work tied to some of INDOT’s largest projects. Management determined that the delays were placing federal funding at risk and required significant time and expense to remedy.

    Throughout this period, INDOT documented concerns related to Lewis’s performance, refusal to follow instructions, and workplace conduct. By December 2022, INDOT concluded that her continued employment was no longer sustainable and terminated her for poor performance and insubordination.

    Disability Discrimination Under the Rehabilitation Act

    Lewis alleged that her termination violated Section 504 of the Rehabilitation Act. The Seventh Circuit emphasized that this statute imposes a demanding causation standard. Unlike claims under the ADA, a plaintiff must show that the adverse employment action occurred solely because of the employee’s disability.

    That standard proved fatal to Lewis’ claim. The undisputed record showed multiple legitimate reasons for her termination, including persistent performance deficiencies and insubordinate conduct unrelated to her medical condition. Lewis also did not dispute that the decisionmaker recommended termination based on those issues. Because her disability was not the sole reason for her termination, the Court held no reasonable jury could find in her favor.

    No Evidence of Pretext or Retaliation

    Lewis argued that INDOT’s stated reasons were a pretext and that increased monitoring after she began working remotely showed discriminatory or retaliatory intent. The Seventh Circuit rejected that argument, reiterating that pretext requires evidence that an employer did not honestly believe the reasons it gave. Disagreements about management style or the level of oversight do not suffice to establish pretext.

    Here, INDOT consistently cited specific, documented concerns about Lewis’s productivity, her refusal to complete assigned work, and her resistance to supervision. The court emphasized that it does not second‑guess an employer’s business judgment where there is no evidence the proffered reasons were dishonest.

    Lewis’s retaliation claims under both the Rehabilitation Act and Title VII failed for similar reasons. Although requesting an accommodation and filing internal complaints are protected activities, INDOT articulated legitimate, non‑retaliatory reasons for terminating her employment. The court found no evidence of a causal link between Lewis’s protected activity and her termination, and it noted that poor performance and insubordination are not protected conduct.

    Key Takeaways for Employers

    For employers navigating remote‑work and accommodation requests, the Lewis decision offers a familiar and reassuring message: granting an accommodation does not mean abandoning performance standards or tolerating an employee’s refusal to perform essential duties. Employers may continue to monitor productivity, request reasonable accountability measures, and take corrective action when expectations are not met, even where an employee is working remotely for medical reasons.

    The decision also underscores the value of consistent documentation and clear communication. INDOT’s ability to show that it granted accommodations, addressed concerns as they arose, and relied on well‑documented performance failures was central to its success. Courts will not convert accommodation discussions into immunity from discipline where employers can demonstrate honest, well‑supported reasons for their decisions.

    For questions regarding potential impact or compliance considerations, please contact the authors of this post or your Seyfarth attorney.

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    Episode 03: Immigration as a Workplace Flashpoint: What Employers Should Be Ready For

    Hosted by Dawn Solowey with special guest Leon Rodriguez

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    In Episode 3 of Cultural Flashpoints Vidcast: Conversations That Matter, host Dawn Solowey welcomes Leon Rodriguez, a leading member of the firm’s Immigration Compliance & Enforcement Team, for a timely discussion on immigration enforcement and its growing impact on the workplace.

    As immigration has become an increasingly charged political and cultural issue during President Trump’s second term, Leon shares what employers are seeing on the ground, from heightened ICE activity to employee and stakeholder pressures, and how organizations can respond lawfully and thoughtfully. This conversation focuses on practical preparedness, including what to do if ICE appears at the workplace, the importance of clear escalation and communications plans, and how employers can navigate employee concerns without creating additional legal risk.

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    By: Michael Marino and Milo Young

    Seyfarth Synopsis

    On April 3, 2026, President Trump signed “Urgent National Action to Save College Sports,” his most comprehensive executive order on college athletics to date. The Order calls on the NCAA to establish transfer restrictions, eligibility caps, and NIL guardrails by August 1, 2026, backed by the threat of federal funding consequences for noncompliant schools. It is also limited in application to schools with over $20 million in athletics revenue. The NCAA and Power Four commissioners have praised the Order however, there are gaps: it does not address whether college athletes are employees, many of its provisions conflict with existing court rulings, and its long-term viability without Congressional legislation remains doubtful.

    On April 3, 2026, President Trump signed “Urgent National Action to Save College Sports” — the most comprehensive federal intervention into collegiate athletics to date. The executive order (“the Order”) calls on the NCAA to overhaul its rules on transfers, eligibility, NIL, and revenue sharing by August 1, 2026. Noncompliant, covered schools face the potential loss of federal grants and contracts.

    The NCAA and Power Four commissioners quickly expressed support. NCAA President Charlie Baker called it “a significant step forward.”[1] SEC Commissioner Greg Sankey, Big Ten Commissioner Tony Petitti, Big 12 Commissioner Brett Yormark, and ACC Commissioner Jim Phillips all praised the Trump administration, and urged Congress to pass the SCORE Act or other legislation.[2] The coordinated messaging was clear: major institutional stakeholders want legislation as the next step.

    However, the Order has conspicuous gaps and significant legal vulnerabilities. First, it does not address whether college athletes are employees. Second, its own effectiveness depends on whether the NCAA adopts these rules by August 1 and whether those rules survive judicial challenge. Third, no student-athletes were consulted. Not surprisingly, athletes’ representatives are critical: co-lead plaintiff attorney Steve Berman called the order “an affront to the Sherman Act.”[3] The Order will almost certainly generate significant litigation and the Order’s purpose may be less about resolving college sports’ issues than pressuring Congress to act.

    How We Got Here

    This is the second executive order on college sports in less than a year, following the July 2025 “Saving College Sports” order whose practical impact proved limited. It arrives against the backdrop of the June 2025 House v. NCAA settlement (which allowed schools to share up to $20.5 million annually with athletes), two stalled Congressional bills (the SCORE Act and the SAFE Act), and a March 2026 White House roundtable that produced five presidential advisory committees but no legislation.

    For our detailed analysis of the first executive order, the House settlement, and the competing legislative proposals, see our prior coverage: After House v. NCAA: Will Congress or the White House Bring Order to College Sports? (October 2025).

    What the Executive Order Provides

    The Order applies only to institutions generating at least $20 million in total athletics revenue during the preceding academic year, effectively limiting its coverage to Power Four programs and upper-tier Group of Six schools. For those institutions it operates on two tracks: it calls on the NCAA to update its rules by August 1, 2026, and it directs federal agencies to use grant and contract eligibility as the enforcement mechanism.

    The proposed new NCAA rules are as follows:

    1. Eligibility Caps

    Participation in college athletics is limited to a five-year window, with limited exceptions for military service, missionary service, and other absences in the public interest. Athletes who have competed at the professional level cannot return to college athletics. This responds to the wave of eligibility lawsuits that have burdened the NCAA.

    2. Transfer Restrictions

    Student-athletes are permitted one free transfer with immediate playing eligibility during their five-year participation window. A second transfer with immediate eligibility is available only if the athlete has obtained a four-year degree. Notably, since the Order takes effect August 1, the upcoming men’s basketball transfer portal window (which opens this week) will operate under existing rules.

    3. NIL and Pay-for-Play

    The Order prohibits “fraudulent NIL schemes,” which is defined as any arrangement to pay above actual fair market value in connection with an athlete’s participation in college athletics. Two safe harbors are carved out: revenue sharing consistent with NCAA/House settlement rules, and fair market value compensation by an unaffiliated third party for a valid business purpose, at rates comparable to non-athlete endorsers. The Order also defines and prohibits four categories of “improper financial activities,” including tortiously interfering with a student-athlete’s contract at another institution — a provision that targets the widespread issue of poaching in the transfer portal era.

    4. Women’s and Olympic Sports Protections

    Revenue sharing cannot be allocated in a way that reduces scholarships and opportunities in women’s and Olympic sports. The Department of Education is directed to require regular reporting on roster spots by team and total spending on athletic aid, broken out by men’s and women’s teams.

    5. Medical Care for Student-Athletes

    The Order calls for medical care for student-athletes who sustain athletics-related injuries during enrollment and for a reasonable period thereafter. While it does not define “reasonable period,” this provision could expand post-enrollment obligations for athletic departments. This requirement could also impact the ongoing question of employee classification status.

    6. Agent Regulation

    The Order calls for the creation of a national student-athlete agent registry, with protections against excessive commissions. The FTC is designated to enforce the Sports Agent Responsibility and Trust Act (SPARTA) against these agents and related entities.

    7. Challenging State NIL Laws

    The Attorney General is directed to bring legal actions to invalidate state laws that conflict with NCAA rules, invoking the dormant Commerce Clause, the Contracts Clause, and federal preemption. This is a direct attack on the patchwork of state NIL laws that the NCAA has long argued undermines uniform enforcement.

    8. Enforcement: The Suspension and Debarment Framework

    Federal agencies that contract with or provide grants to covered institutions are directed to evaluate whether violations of NCAA rules constitute a cause serious enough to affect the institution’s present responsibility as a federal grant or contract recipient. The Office of Management and Budget is directed to issue guidance reinforcing this suspension and debarment framework, and the General Services Administration is directed to establish regular data collection for compliance monitoring. This is the Order’s most consequential provision: universities that depend on federal research funding will take this threat seriously. Defining and applying enforcement will be a challenge.

    Expect Litigation

    The President himself predicted: “We’re going to put it forward, and we’re going to get sued.”[4] Multiple provisions address areas where courts have already ruled. Transfer restrictions have been struck down as unlawful, eligibility caps have been challenged through state court injunctions, and the antitrust framework from NCAA v. Alston through the House settlement reflects judicial reasoning an executive order cannot override. The Order’s severability clause — providing that if any provision is struck down the remainder survives — confirms the drafters expect parts to be invalidated.

    This creates a dilemma. Schools that comply with the Order’s transfer or eligibility provisions risk running afoul of binding court orders, while schools that follow the courts risk the federal funding consequences the order threatens. The August 1 effective date provides an impossibly brief window for legal challenges to resolve this tension. Significant uncertainty will prevail in the meantime.

    What This Means

    The Order is a call for the NCAA to act, not a direct mandate. Thus, its effectiveness depends on whether the NCAA adopts its rules and whether those rules survive judicial challenge. Nevertheless, covered institutions should understand these rules and monitor related legal challenges to avoid potential cuts to their federal funding.

    Universities and athletic departments face the most acute compliance challenge. The Order’s directives must be weighed against existing court orders, the House settlement, state NIL laws, and Title IX obligations. We recommend documenting compliance analysis carefully, and avoiding programmatic changes until courts weigh in. The women’s and Olympic sports protections carry the most practical teeth given Title IX and the federal funding lever; schools considering cutting non-revenue programs should proceed with extreme caution.

    Coaches and athletic staff should note that the upcoming basketball transfer portal will operate under existing rules. However, if the prescribed rules are implemented by the NCAA and survive legal challenge, after August 1, coaches need to ensure compliance with the new transfer rules, eligibility rules, and tampering prohibitions. 

    NIL collectives and investors should study the Order’s “fraudulent NIL scheme” definition closely. The safe harbor for legitimate deals — fair market value, valid business purpose, rates comparable to non-athlete endorsers — provides a clearer standard to structure against. Compliance documentation is more important than ever.

    Agents face new regulatory exposure through the national agent registry and directed FTC enforcement of SPARTA.

    The Bottom Line

    This Order is an effort to address and frame the runaway status of college athletics in the NIL era. It is not a comprehensive long-term solution. Without an antitrust exemption the NCAA needs, it cannot override existing court rulings. The Order also leaves unaddressed the question that will ultimately define the next era of college athletics: are athletes employees? More to come.

    Seyfarth’s Sports & Entertainment team will continue to monitor developments and provide updates as the order’s implications become clearer. For questions about how these changes may affect your institution or organization, please contact any of the authors.

    Related Seyfarth Insights

    [1] https://www.ncaa.org/news/2025/2/5/media-center-ncaa-president-charlie-baker-issues-statement-regarding-trump-administration-executive-order.aspx#:~:text=Today%2C%20NCAA%20President%20Charlie%20Baker,by%20changes%20in%20the%20policy.%22

    [2] https://sports.yahoo.com/articles/greg-sankey-power-four-commissioners-230932706.html

    [3] https://x.com/RossDellenger/status/2040216408043278746

    [4] https://www.espn.com/college-sports/story/_/id/48126931/donald-trump-plans-executive-order-solve-every-problem-raised-college-sports-panel

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    By: Adam R. Young & Brent Clark 

    Seyfarth Synopsis: California and New York will soon be requiring Narcan in some workplace first aid kits. While Narcan provides a meaningful, prompt, and potentially lifesaving response to opioid overdoses, effective implementation of a Narcan program may require employee training and an expanded first aid response structure.

    The Centers for Disease Control and Prevention (CDC) estimated 54,000 to 57,000 opioid‑related deaths nationwide in 2025. Narcan (Naloxone) provides a potentially lifesaving solution to opioid overdoses that is simple to administer and has a very low probability of harming the recipient. No federal or state laws currently require Naloxone (Narcan) for first aid purposes outside of certain health care environments. Litigation exposure associated with offering Narcan remains limited, both because workers’ compensation laws cover most employee claims and because many states extend immunity through Good Samaritan statutes. Recent legislative activity in New York and California, however, signals growing regulatory interest, and employers should understand how these laws operate and consider whether Narcan can help protect employees.

    1. Naloxone Offers Clear Life‑Saving Benefits

    Naloxone (brand name Narcan) is an FDA‑approved, over‑the‑counter nasal spray used to reverse opioid overdoses. Opioid overdose causes:

    • respiratory arrest
    • cardiac arrest
    • and potentially death

    According to 2024 guidance from the CDC, prompt Narcan administration dramatically increases overdose survival rates.

    2. Opioid Risks Remain Prevalent Among Working‑Age Adults

    While opioid positivity rates in employment drug tests have declined over the last five years, they remain elevated compared to historical norms. See https://www.questdiagnostics.com/content/dam/corporate/restricted/documents/drug-testing-index/DTI-2025-Tables.pdf.  Accordingly, risks of opioid use, positivity, and workplace overdose remain elevated in many workplaces.

    3. Narcan Is Safe, Low‑Risk, and Simple to Use

    Per 2024 CDC guidance, the Narcan nasal spray format is straightforward to administer and extremely unlikely to harm a person who is not experiencing an opioid overdose. Emergency medical technicians (EMTs) universally carry naloxone, and their response often follows workplace administration.

    4. No Federal Requirement to Stock Narcan—But NIOSH Provides Helpful Guidance

    There is no federal OSHA standard requiring employers to stock naloxone or maintain opioid‑response programs. However, NIOSH published a non‑mandatory factsheet for employers evaluating the use of Narcan onsite that remains available. See https://www.cdc.gov/niosh/docs/2019-101/pdfs/2019-101.pdf. The guidance highlights considerations such as hazard assessments, responder training, PPE, and integration with existing emergency plans.

    5. New York’s New Narcan Statute — and Its Dependence on Federal OSHA Requirements

    In 2025, New York enacted Labor Law § 27‑f, requiring employers to maintain an “opioid antagonist” (e.g., naloxone) in their first aid supplies, but only when the employer is “federally mandated to have first aid supplies readily available for the treatment of all employees.” N.Y. Labor Law § 27‑f.

    The federal mandate limitation means employers who are required to provide first aid services, normally covering rural facilities. New York’s Senate Bill materials clarify that “federally mandated” refers to workplaces where OSHA requires first aid kits. But OSHA only mandates first aid supplies when medical services are not available in “near proximity.” Under 29 C.F.R. § 1910.151(b), an employer must maintain “adequate first aid supplies” when no hospital, clinic, or infirmary is nearby, and when employees are designated and trained to provide first aid.

    Many employers maintain aid kits and allow self‑care or Good‑Samaritan assistance but do not operate formal first aid response teams. Such employers have a strong argument that New York’s statute does not obligate them to stock Narcan.

    6. California’s Forthcoming Cal/OSHA Regulations

    On September 27, 2024, California Governor Gavin Newsom signed Assembly Bill (AB) 1976, On September 27, 2024, California Governor Gavin Newsom signed Assembly Bill (AB) 1976, requiring Cal/OSHA to implement a standard requiring workplace Narcan. Before December 1, 2027, Cal/OSHA must submit a draft rulemaking proposal to the Standards Board to revise regulations on first aid materials and emergency medical services, to require first aid materials in a workplace to include Narcan (naloxone).  The Standards Board is required to adopt revised standards by December 1, 2028.  While California has not yet issued proposed language, the direction is clear: the state intends to impose some form of Narcan‑related requirement via Cal/OSHA regulation.

    For multistate employers, these emerging state trends warrant careful monitoring—especially given California’s track record of influencing national safety expectations, and the track record of Cal/OSHA officials becoming federal OSHA leadership during Democratic administrations.

    7. Employers Should Review Their Injury and Illness History

    For employers who wish to better understand potential benefits from adding Narcan (Naloxone) to first aid kids, we recommend assessing:

    • known overdoses
    • suspected overdoses
    • EMS calls referencing drug events
    • five‑year trends

    A history of prior incidents may support the addition of Narcan (Naloxone) voluntarily as part of a broader first aid and emergency‑response strategy.

    8. Safety Considerations for Employees Administering Narcan (Naloxone)

    Employers need to protect employees who respond to overdose incidents and attempt to administer Narcan (Naloxone). Responders who administer Narcan (Naloxone) may encounter:

    • powder or liquid opioids
    • unsafe environments
    • respiratory hazards
    • the need for PPE (gloves, masks)
    • the need to perform cardio-pulmonary resuscitation after administration

    If administering Narcan becomes part of responders’ assigned duties, OSHA may require compliance with the Bloodborne Pathogens (BBP) standard. Most employers with designated responders already maintain BBP programs, but others may need to expand training.

    9. Tort Liability Remains Limited

    Individuals who become injured or ill during an administration of Narcan (Naloxone) could bring tort or worker’s compensation claims against the employer. Worker’s compensation claims may be limited by the compensability of drug overdose under state law. Potential negligence claims related to Narcan administration (or failure to administer it) are mitigated by:

    • Workers’ compensation exclusive remedy –> employees generally cannot bring tort claims for workplace injuries.
    • Good Samaritan protections –>Most states provide robust immunity for individuals who respond in good faith to suspected overdoses.

    Contractors and non-employees could theoretically pursue negligence claims, but Good Samaritan statutes and the high threshold for proving causation make such claims unlikely to succeed.

    10. Additional Employer Recommendations

    New York’s Narcan requirement applies only to employers federally mandated under OSHA to maintain first aid supplies—a narrow category that often excludes urban, suburban, and in-town worksites. California is moving toward a similar requirement, but rulemaking may be two years away. Although no federal mandate exists, employers may still find value in voluntarily adding Narcan (Naloxone) to first aid kits, provided they implement appropriate training and hazard‑mitigation measures. Many employers with industry-leading safety programs have adopted Narcan (Naloxone) at their worksites in recent years.

    If you are evaluating whether to implement a Narcan program or need a multi‑state compliance strategy, the Seyfarth Workplace Safety & Environmental team is ready to assist.