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Employment: The Changing Workplace | Bench & Bar of Minnesota | October 2023
New and Revised 2023 Laws Affecting Employers and Employees
The 2023 Minnesota legislative session was a pivotal one for laws impacting Minnesota’s workplaces. In particular, the session saw a wave of laws affecting employees’ rights and well-being. At the close of the session, Minnesota chose to join the ranks of other states with paid medical leave and sick and safe time requirements. Existing protections for pregnant and lactating employees were expanded. And while the law related to protections for pregnant and lactating mothers is not new, the paid medical leave law and sick and safe time law have thrust many employers into uncharted waters.
Employers, including law firms, must apprise themselves of the 2023 legislative changes. Those who do not adjust existing policies and procedures may be caught up in a net of administrative enforcement and litigation. This article provides a high-level summary of the three most impactful 2023 legislative changes affecting employee well-being in the workplace. (Nothing in this article should be relied upon as legal advice from Bassford Remele, P.A. In addition, nothing herein creates an attorney-client relationship between Bassford Remele, P.A. and any reader of these materials.)
Expanded Protections for lactating and pregnant employees
When Minn. Stat. § 181.939 was promulgated in 1998, it provided limited protections to lactating mothers and did not contemplate protections for pregnant employees. (Minn. Stat. § 181.939 (1998).) The statute remained largely unchanged until 2021, when the Legislature added a provision requiring accommodations for pregnant employees. (Minn. Stat. § 181.939, subd. 2 (2022).) This year, additional substantive changes were made. The amendments went into effect on July 1, 2023.
The 2023 amendments to section 181.939 retained the requirement that every employer, even those with only one employee, provide reasonable break times and a private space for lactating employees to express breast milk. The space must be shielded from view and free from intrusions but cannot be a bathroom or toilet stall. Employers may be relieved of their obligations to provide a space so long as they have made a reasonable effort to provide a private room or location.
One of the most significant changes to section 181.939 is the expansion of to whom the statute applies, and for how long. Specifically, every employee expressing breast milk must be given breaks, regardless of whether they are expressing breast milk for their own child or another. Additionally, the employee can continue to do so beyond the first year of a child’s life. Equally significant is the deletion of language that previously exempted an employer from providing break time if it unduly disrupted business operations. Now breaks must be granted even if they might unduly disrupt business operations.
As of January 1, 2022, section 181.939 required reasonable accommodations for health conditions related to pregnancy or childbirth. When it was first effective, the pregnancy-related accommodations requirement only applied to employers with 15 or more employees. The 2023 amendment to section 181.939 expands the requirement to all employers with one or more employees—in other words, to nearly every employer.
Because the pregnancy-related accommodations provision is relatively new, it is worth recapping. When an employee makes a pregnancy-related accommodation request, the employer and employee must engage in an interactive process akin to the one required for disability-related accommodation requests. Generally, accommodations should be made unless an accommodation would create an undue hardship. However, a claim of undue hardship is not permitted if an accommodation request is for “(1) more frequent or longer restroom, food, and water breaks; (2) seating; and (3) limits on lifting over 20 pounds.” (Id.) Importantly, an employee may not be entitled to the accommodation of their choosing. Notably, the law does not require an employer to create a position for the requesting employee or promote the requesting employee. Additionally, an employer is not required to discharge or transfer another employee in order to place the requesting employee in their preferred accommodation.
NOTICE AND ANTI-RETALIATION
An entirely new subdivision added to section 181.939 requires employers to provide employees notice of their rights related to expressing breast milk and pregnancy accommodations. (Minn. Stat. § 181.939, subd. 3.) Notice must be provided when an employee is hired and anytime an employee asks about or requests parental leave. The notice must be provided in English and the language the employee identifies as their primary language. Additionally, if an employer provides employee handbooks to its employees, the handbook must include information regarding the rights and remedies provided under section 181.939.
The amendment to section 181.939 also expanded the anti-retaliation provision to include a prohibition on discharging, disciplining, penalizing, interfering with, threatening, coercing, or discriminating against employees invoking their rights under section 181.939.
PARALLEL FEDERAL STATUTES
Another important consideration for employers is recent federal legislation that closely parallels section 181.939. The Providing Urgent Maternal Protections for Lactating Mothers (PUMP) Act has been in effect since December 2022, but enforcement was stayed until April 28, 2023. (28 U.S.C. § 218d.) The PUMP Act expanded existing requirements to provide time and space for lactating mothers to include all employees covered by the Fair Labor Standards Act (FLSA). (The FLSA regulates minimum wage, overtime pay, hours worked, recordkeeping, and child labor. See generally, 29 U.S.C. 201, et seq.) As a result, nearly all employers, even those with fewer than 50 employees, must provide break time and space. The PUMP Act also added a monetary remedy for violations.
Although the PUMP Act and section 181.939 are very similar, there are some important differences. For example, while both apply to essentially all employers, under the PUMP Act, employers with fewer than 50 employees may be exempted from providing break time and space if doing so would result in an undue hardship. As noted above, the 2023 amendment to section 181.939 deleted similar exempting language in relation to the break-time requirement. Additionally, the PUMP Act limits the time and space requirement to one year after giving birth, whereas section 181.939 no longer has a time limit.
The Pregnant Workers Fairness Act (PWFA) went into effect on June 27, 2023. (42 U.S.C. Ch. 21G.) Like section 181.939, the PWFA requires employers to provide reasonable accommodations to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions. The PWFA, like section 181.939, does not require an accommodation if it creates an undue hardship. Unlike section 181.939, which applies to all employees working in Minnesota, the PWFA only applies to employers with 15 or more employees.
Regardless of differences across these laws, employers must comply with the most stringent requirements of all statutes to ensure compliance with all.
Charting a course for the Earned Sick and Safe Leave Law
Minnesota’s Earned Sick and Safe Leave (ESSL) law goes into effect on January 1, 2024. (Minn. Stat. § 181.9445, et seq.) As of that date, nearly every employer is required to provide paid sick and safe time to most full- and part-time employees, including temporary employees, who work at least 80 hours a year in Minnesota. The ESSL does not apply to independent contractors and most airline flight decks and cabin crews.
The ESSL permits an employee to use accrued sick and safe time as soon as it is earned for themselves or for a “family member,” the definition of which is expansive, including more than just parents and children. (Minn. Stat. § 181.9445, subd. 7.) Grandparents, nieces, nephews, aunts, and uncles fall within the definition of “family member;” even individuals who have no genetic relationship to the employee may qualify as family members. Additionally, an employee may designate one individual each year to be a family member.
The permitted uses of sick and safe time fall into three general categories: mental or physical health, safety, and weather or other public emergencies. (Minn. Stat. § 181.9447, subd. 1.) In the mental and physical health category, it may be used for the employee’s or a family member’s mental, physical, or other health condition; the care, diagnosis, or treatment of a mental, physical, or other health condition; or preventative care.
In the safety category, sick and safe time may be used for absences related to the potential transmission of communicable diseases (such as covid) or where the employee or employee’s family members have been the victim of domestic violence, sexual assault, or stalking. In cases involving victims, sick and safe time may be used to seek medical or psychological care, to obtain services from a victim services organization, to relocate/move, or to seek legal advice or take legal action.
In the final category, sick and safe time may be used due to closures caused by weather or other public emergencies, including the employee’s place of business or the employee’s family member’s school or place of care.
While sick and safe time is being used, the employer must maintain the employee’s insurance coverage, and the employee must pay any portion they normally pay. An employee who has used sick and safe time must be paid the same pay, including any pay changes, upon their return and must retain their pre-leave benefits and seniority.
SAFEGUARDS FROM ABUSE
The ESSL provides some safeguards to mitigate the potential for misuse of the new law or disruption to an employer’s operations. First, an employer may require advance notice of an employee’s intent to use sick and safe time. (Minn. Stat. § 181.9447, subd. 2.) However, an employer may only require advance notice if it has a written policy setting forth the procedure for providing notice and a written copy of the policy has been provided to its employees. If the need is foreseeable (a scheduled appointment or surgery, for example), an employer may require up to seven days’ notice. If the need is unforeseeable, notice must be given as soon as practicable.
Second, in cases where an employee has used sick and safe time for more than three consecutive days, an employer may require reasonable documentation to establish that the absence is for a qualifying purpose. (Minn. Stat. § 181.9447, subd. 3.) What constitutes “reasonable documentation” depends on why sick and safe time has been used. Where the purpose is related to mental or physical conditions or the transmission of communicable diseases, reasonable documentation includes a signed statement by a health care professional stating the need for the employee’s or employee’s family member’s use of sick and safe time. A written statement by the employee is sufficient if a health care professional was not seen, or if the employee cannot get a written statement from a health care professional in a timely manner or without added expense.
If the employee uses sick and safe time due to domestic violence, sexual assault, or stalking, “a court record or documentation signed by a volunteer or employee of a victims services organization, an attorney, a police officer, or an antiviolence counselor” is reasonable documentation. (Minn. Stat. § 181.9447, subd. 3.)
An employer’s right to documentation is not unlimited. Specifically, the employer cannot require information regarding the details of the medical condition or the domestic abuse, sexual assault, or stalking that gave rise to the need to use sick and safe time. Finally, an employee’s written statement may be in the employee’s first language and does not need to be notarized.
Accrual begins as soon as employment starts. For every 30 hours worked, an employee is entitled to accrue a minimum of one hour of sick and safe time. An employee can accrue no more than 48 hours per year unless their employer agrees to a higher amount. Employees must be allowed to carry over unused time into the following year, but they cannot exceed 80 hours at any point unless their employer agrees to a higher amount.
In lieu of carrying over unused sick and safe time, an employer may front-load all of an employee’s allotment at the start of the year. It can be front-loaded in two ways. If the employer pays out unused sick and safe time at the end of the year, the employer must front-load at least 48 hours of sick and safe time at the beginning of the next year. If the employer does not pay out unused time, then the employer must front-load 80 hours.
Employees exempt from overtime under the FLSA are deemed to work 40 hours per week for purposes of accruing sick and safe time unless they normally work less than 40 hours. (Within the FLSA, there are exemptions related to minimum wage and overtime pay for certain types of employees, such as executive, administrative, professional, and outside sales employees. See generally, 29 U.S.C. 201, et seq. Whether an employee is exempt is beyond the scope of this article.) In that case, accrual is calculated based on their normal number of hours.
REQUIRED NOTICE AND EARNINGS STATEMENTS
Employers are required to notify their employees that they are entitled to sick and safe time. (Minn. Stat. § 181.9447, subd. 2.) The notice must detail the amount of sick and safe time, the accrual year, the terms of the ESSL, and the form the employees must provide to give notice of their intent to use the benefit. Additionally, the notice must explain that retaliation is prohibited and that an employee can file a complaint or bring a lawsuit if sick and safe time is denied or if the employee is retaliated against for using or requesting it.
The ESSL serves as a good reminder to employers regarding the requirements for earning statements and employee notices found in Minn. Stat. §181.032, which was amended contemporaneously with the promulgation of the ESSL. In addition to the previously required information, earning statements must now also include the total number of sick and safe time hours accrued and available, as well as the hours used during the pay period. The ESSL will also require adjustments to the written employment notice for employers who did not previously provide paid sick and safe time. Since mid-2019, section 181.032 has required employers to provide new employees with a written notice containing specific information and obtain the employee’s signature on the notice. The required information on the written notice includes sick and safe time, its accrual, and terms of its use.
SEPARATION FROM EMPLOYMENT, PREEMPTION, AND ANTI-RETALIATION
An employee is not entitled to payment of unused sick and safe time when they separate from employment, but if the employee is rehired within 180 days, their accrued sick and safe time balance must be reinstated. Accruals also remain unaffected when there is a sale or transfer of the business and the employee remains employed or is rehired within 30 days by the successor employer.
If an employer already provides the equivalent of paid sick and safe time under an existing policy, the employer does not need to provide additional time, so long as the policy meets or exceeds the minimum standards and requirements under the ESSL and does not conflict with the ESSL. (Minn. Stat. § 181.9448, subd 1.) Additionally, the ESSL does not preempt, limit, or otherwise affect other laws, regulations, policies, or standards that exceed the minimum standards and requirements under the ESSL. (Employers with employees who work in Minneapolis, St. Paul, Bloomington, or Duluth should be aware that each city has its own paid sick and safe time ordinance. However, a comparison of the ordinances to the ESSL is beyond the scope of this article.)
The ESSL prohibits employers from retaliating against employees who use or request to use their sick and safe time. This anti-retaliation provision includes a prohibition on the use of absence policies to count sick and safe time as an absence that may result in retaliation or adverse employment action. Additionally, employers cannot retaliate against employees who inform other employees of their ESSL rights, who file a complaint or lawsuit related to sick and safe time, or who participate in an investigation, proceeding, or hearing.
Minnesota's paid Family Medical Leave Act
The paid family medical leave adopted by the 2023 Legislature is the most expansive change to Minnesota employment law in recent years. Though eligible employees in Minnesota cannot take leave until January 1, 2026, here are some key details to know and plan for. (Minn. Stat. § 268B.01, et seq.)
QUALIFICATIONS FOR LEAVE
Paid family medical leave can be used for serious medical conditions. A serious medical condition is defined as “physical or mental illness, injury, impairment, condition or substance use disorder” that “involves inpatient or outpatient care or continuing treatment or supervision by a health care provider involving various types of incapacity for a specified period of time.” This definition is similar to the one contained in the federal Family Medical Leave Act, but encompasses more circumstances, such as caring for a family member, bonding leave, safety leave, and qualifying exigency leave (military).
The most common type of leave is surrounding the time of a child’s birth, adoption, or foster care. This bonding leave must be used within the first 12 months of that event. Another example is caregiving for a family member’s serious physical or mental illness.
ELIGIBILITY AND LEAVE BENEFITS
For employers, the new law applies to all regardless of size or number of employees located within the state. An employee is eligible for this leave if:
(1) the requested leave time is in the employee’s benefit year;
(2) the employee is unable to perform work due to the type of leave (serious health condition, bonding, caregiving, safety, qualifying exigency leave);
(3) the employee has earned at least 5.3 percent of the state’s average annual wage; and
(4) the employee is able to fulfill the certification requirements.
The paid family and medical leave program provides partial wage replacement for eligible employees for 12 weeks of paid leave for their own serious health conditions and up to 12 weeks paid leave for bonding, caregiving, safety, or qualifying exigency (military) leave. Any single event is capped at 12 weeks of leave, and there is a cap per employee of 20 weeks in aggregate during a 52-week period. However, leave does not have to be taken consecutively. For example, if an eligible employee needs to be away for regular health treatments (such as chemotherapy treatment), leave can be taken intermittently within a 12-month period, but it is still limited in total to 480 hours (the equivalent of 12 weeks).
To receive paid leave, employees will apply to the state and process their claim up to 60 days before leave. The Department of Employment and Economic Development (DEED) is charged with administering the program through its new Family and Medical Insurance Division.
Compensation of eligible employees is based on both the employee’s wage and the state average weekly wage. Eligible employees making less than 50 percent of the state’s average wage will receive 90 percent of their regular pay while on leave. Those who earn more than the state average will receive 55 percent of their regular pay while on leave. Employees who earn more than half of the state average weekly pay but less than the average will receive 66 percent of their regular pay. Employers can “top off” or “round up” wages, but this is not required.
FUNDING THE PROGRAM
The benefits for eligible employees are funded by the state surplus ($670 million) and then the state family and medical benefit insurance fund. The state and employers will share costs. Employers pay quarterly premiums based on the taxable wages paid by the employer to eligible employees. This premium is a payroll tax, beginning at 0.7 percent and capped at 1.2 percent. For companies with fewer than 30 workers, costs are lowered. Of course, any employer could opt out of the program if it offers paid leave benefits that meet or exceed the state program standards. Those who are self-employed or independent contractors can buy into the program.
The infrastructure for this benefits program will ramp up to the effective date of January 1, 2026, when employers begin paying and employees can begin taking paid leave under this statute. Until then, employers can use this time to understand the new requirements, make any needed policy adjustments, and arrange for the implementation of this program. Importantly, the statute provides a private right of action for employees to enforce compliance with the law in either federal or state court. The statute also has an attorneys’-fees-and-costs hook. Violations are subject to a penalty of $1,000 to $10,000 per violation, paid to the employee. Considering these enforcement mechanisms, employers are bracing for the changes now.
Although employers may encounter some rough waters as the recent legislative changes are effectuated and implemented, properly preparing for the changes and adjusting existing policies and procedures will help them steer clear of hazards. Likewise, employees will be navigating their new rights and protections. Employers’ and employees’ awareness and understanding of the legislative changes are important to the well-being of Minnesota’s workforce, and ultimately the retention of healthier, more productive employees.
BETH L. LACANNE is an attorney at Bassford Remele, where she advises clients regarding employment matters, including litigation and investigations, professional liability, and general liability. Beth is licensed in Minnesota and Wisconsin.
SHANNON E. ECKMANis a litigator at Bassford Remele, focusing her practice in the areas of employment litigation/advice, professional liability, and general liability.
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