On May 11, 2014, the governor of Minnesota signed the Women’s Economic Security Act (WESA), a bill that will require Minnesota employers to make dramatic changes to their employment policies and practices.
While WESA directly impacts employers who conduct business in Minnesota, the changes follow plans by federal and local governments to expand legal protections for women and other employees. For this reason, employers in other jurisdictions should pay close attention to these national and state law trends.
Let’s take a look at some of the key changes to Minnesota law as a result of WESA along with examples of similar initiatives by other state and government agencies.
One of the most dramatic changes resulting from WESA relates to pregnancy accommodations. Effective May 12, 2014, Minnesota employers with 21 or more employees at a single worksite must provide reasonable accommodations to employees for health conditions related to pregnancy or childbirth.
Eligible employees are those who have worked for the employer for 12 months (need not be consecutive) and who have worked an average number of hours per week equal to one-half the employer’s full-time equivalent.
This obligation is triggered once an employee requests an accommodation, with the advice of her licensed healthcare provider or certified doula (childbirth professional) unless the employer can prove the accommodation would cause an undue hardship on the business.
In addition, the law specifically requires accommodations for the following limitations:
With respect to the above-referenced limitations, a pregnant employee need only claim she has such limitations in order to trigger an employer’s obligation to accommodate. In other words, employers cannot claim undue hardship nor require pregnant employees (claiming they have these specific limitations) to obtain the advice of their healthcare provider or doula.
These new employer obligations will present a conundrum for positions where lifting over 20 pounds is an essential function of the job (e.g., a home health worker who works one-on-one with a disabled client).
The law also contains a provision prohibiting employers from forcing an employee to take a leave or accept an accommodation. The intent of this provision is to prevent employers from making assumptions about a pregnant employee’s capabilities.
With the exception of the three specific limitations outlined above, the new law models reasonable accommodations under the Americans with Disabilities Act (ADA). With the passage of this provision, Minnesota now follows states such as California, which requires accommodations for pregnant employees.
Although Minnesota’s law specifically states employers are not required to create a new position to accommodate a pregnant employee, the Minnesota Department of Labor and Industry will likely evaluate what is reasonable based upon what an employer has done for other employees (e.g., creating light duty positions for work-related injuries). Such analysis would comport with the Equal Employment Opportunity Commission’s (EEOC’s) assessment when evaluating reasonable accommodations under the ADA.
Significantly, the EEOC and other enforcement agencies have been working to broaden what is considered pregnancy-related disabilities or high-risk pregnancies under the ADA since it was amended. Consequently, though many states do not have a specific pregnancy accommodation law on the books, employers should carefully evaluate whether a pregnant employee is entitled to an accommodation or a leave of absence under the ADA or another state law.
Several changes to the Minnesota Parental Leave Act (MPLA) went into effect on July 1, 2014. For example, in another sweeping reform to state law, the MPLA was amended to extend leaves of absence from six to 12 weeks for childbirth, adoption and now, incapacity due to pregnancy. This change tracks laws in states like California and Washington, which offer more generous pregnancy and parental leave.
While only women may take pre-birth leave for pregnancy-related conditions in Minnesota, any eligible employee may take post-birth or adoption bonding leave — which is now 12 weeks. Another change to the law allows bonding leave to be taken at any time within 12 months after the birth or adoption. Previously, bonding time had to begin within six weeks following the birth or adoption.
Under the MPLA, employers may:
For the vast majority of employers already subject to the Family Medical Leave Act (FMLA), the additional six weeks granted under the MPLA will have no discernable impact since these leaves, in most cases, will run concurrently. However, the expansion of the MPLA will have a more significant impact on medium-sized employers.
In most cases, the MPLA covers employers with at least 21 employees at a single worksite, and the FMLA applies to employers with 50 or more employees.
Effective on July 1, 2014, leave to care for relatives is expanded pursuant to WESA. Now, employees with accrued sick leave (including, presumably, PTO benefits) may also use such leave to care for a mother-in-law, father-in-law and grandchildren in addition to a minor or adult child, spouse, sibling, parent, grandparent or stepparent.
Employers may establish a 160 hour cap on the use of sick leave to care for relatives within a 12-month period (although any caps could not be applied to leaves taken for minor children).
Some states, like Illinois, require employers to provide unpaid time off to employees who are victims or family members of victims of domestic abuse or sexual assault. Now, Minnesota employees may use their sick leave for “safety leave,” which is leave taken for the purpose of providing or receiving assistance because of sexual assault, domestic abuse or stalking. Employees may use their sick leave both for themselves and for the relatives listed in the previous section.
Although the statutory language is not clear, it appears that use of sick leave for safety leave purposes falls under the same cap as the use of sick time for ill or injured relatives (i.e., employees would not be entitled to two separate caps).
As a reminder, a non-managerial employee’s ability to discuss or complain about his or her wages or working conditions to a co-worker qualifies as protected or concerted activity under the National Labor Relations Act (NLRA), even if the employer doesn’t have a union in place.
Under WESA as of July 1, 2014, Minnesota employers cannot:
Unlike the NLRA, these protections extend to both managerial and non-managerial employees. The new Minnesota law, however, allows employers to prohibit employees from disclosing wage information of other employees to “a competitor” (disclosure to unions or non-competitors is presumably protected) or divulging information that is otherwise protected by law (e.g., trade secrets). And, employers that have employee handbooks “must include in the handbook notice of employee rights and remedies under this section.”
The EEOC has expressed concerns that adverse decisions based on an applicant or employee’s familial status (e.g., single parent, etc.) can be discriminatory. To that end, the EEOC has issued official guidance and legally challenged employers predominately under the theory that stereotyping based on gender violates federal law.
Effective May 12, 2014, Minnesota employers, employment agencies and labor unions are prohibited from discriminating on the basis of familial status. Although it’s not clear, presumably the definition of “familial status” will be the same as used in the housing context and includes protections against discrimination on the basis of family status in employment extend to any person who is pregnant or is in the process of securing legal custody of a minor.
Equal pay efforts continue to be a “hot button” at the federal and state levels (e.g., in 2009, Wisconsin passed the Equal Pay Enforcement Act, which was repealed three years later). Accordingly, the WESA imposes equal pay requirements on organizations that contract with the State of Minnesota. Effective August 1, 2014, businesses with state contracts in excess of $500,000 and who have 40 or more full-time employees were obligated to obtain an Equal Pay Certificate from the Minnesota Department of Human Rights (MDHR). To obtain an Equal Pay Certificate, the CEO or chairperson of the board must certify the following:
The certificate must be renewed every four years. The MDHR is responsible for auditing and enforcing equal pay compliance, and must present a report every two years to the governor and legislature indicating the number of certificates issued, and the number of compliance audits performed by the MDHR, which means that audits are very likely. Contractors who don’t obtain a certificate, or who lose it through non-compliance can be barred from contracting with the state.
In light of efforts by other states and government agencies to expand employees’ rights, all employers should:
Additionally, as the result of the WESA amendments, Minnesota employers should:
During the White House’s Summit on Working Families on June 24, 2014, President Obama indicated he was signing a presidential memorandum requiring every federal agency to address flexible work schedules and give employees the right to request such schedules. Absent what could be a dramatic increase in workplace flexibility for federal employees, it is undeniable that the demand for flexibility and work-life balance is on the rise.
“The only thing that is constant is change.”
Turns out that dusty old Greek philosophers occasionally say profound things (Heraclitus also said that a man’s character is his destiny). And since the Greeks are considered the fathers of democracy and were responsible for no small number of laws themselves, it seems an appropriate departure point to talk about the constantly changing landscape of employment laws.
Send a Message
Find a Location