As we previously reported, on May 11, 2014, Governor Dayton signed the Women’s Economic Security Act (“WESA”) into law. The law includes some amendments that went into effect immediately, while other amendments will go into effect on July 1, 2014 and August 1, 2014. In order to comply with the newly-enacted changes, Employers need to begin taking steps to update their employment policies and practices.
This provision of WESA, which is already in effect, requires that employers provide: “reasonable accommodations to an employee for health conditions related to pregnancy or childbirth if she so requests . . . unless the employer demonstrates that the accommodation would impose an undue hardship . . . .” These accommodations include may include a temporary transfer to a less strenuous or hazardous position and limits on heavy lifting. WESA does provide that an employer is not “required to create a new or additional position in order to accommodate an employee . . . .”
WESA specifies that certain accommodations are not an “undue hardship.” These accommodations are “(1) more frequent restroom, food, and water breaks; (2) seating; and (3) limits on lifting over 20 pounds.” In fact, employers are prohibited from requiring a doctor’s note with respect to these accommodations.
If you have not already done so, employers should update their workplace accommodation policies to reflect that certain accommodations, namely “(1) more frequent restroom, food, and water breaks; (2) seating; and (3) limits on lifting over 20 pounds,” will be provided to pregnant employees, upon request, without requiring a doctor’s note. Also, employers should seriously consider any pregnant employee’s request to be transferred to “less strenuous or hazardous position,” if such a position is available, or document reasons why such a request is an undue hardship.
“Familial Status” Added as a Protected Status to MHRA
This provision of WESA, which is also already in effect, amends the Minnesota Human Rights Act (“MHRA”) to add “familial status” to the list of protected statuses. “Familial status” is already defined in the MHRA as “the condition of one or more minors being domiciled with (1) their parent or parents or the minor’s legal guardian or (2) the designee of the parent or parents or guardian with the written permission of the parent or parents or guardian.”
Employers should ensure that their Equal Opportunity Statements (and other handbook provisions) include a provision specifying that the employer does not discrimination on the basis of “familial status” as defined by the MHRA.
Increasing Pregnancy Leave to 12 Weeks
This provision of WESA, which is effective July 1, 2014, increases the amount of pregnancy leave available from 6 to 12 weeks. It is unclear from the text of the bill whether an employer would be required to provide an additional 6 weeks of leave if the employer has already provided the employee with 6 weeks of leave. Nevertheless, there is nothing in the bill to suggest that employees are not entitled to a total of 12 weeks of leave simply because they already took leave before July 1.
Another provision of WESA makes clear that leave taken pursuant to the FMLA, as well as paid parental, disability, personal, medical, sick leave, and accrued vacation provided by the employer may be used to reduce the employee’s 12-week leave entitlement under WESA. Again, it is unclear how this provision would affect leave taken prior to the July 1 effective date.
Given the uncertainty in the area, employers should seek the assistance of counsel to ensure that their leave policies are properly updated and properly coordinated with other leave entitlements.
New “Safety Leave”
This provision of WESA, which is effective July 1, 2014, amends Minnesota’s sick leave law to provide that employees may use sick leave provided by their employer for the purpose of “providing or receiving assistance because of sexual assault, domestic abuse, or stalking.”
Employers that provide paid sick leave to their employees should be sure that their policies are updated by July 1 to permit employees to use sick leave for these new purposes.
Wage Disclosure Protections
This provision of WESA, which is effective July 1, 2014, makes it unlawful for an employer to prohibit its employees from disclosing their wages. This law also prohibits an employer from taking “any adverse employment action” against an employee for “disclosing the employee’s own wages or from discussing another employee’s wages which have been disclosed voluntarily.” This provision does not permit employees to disclose other proprietary, trade secret, or other privileged information. WESA provides that violations of this provision may be enforced through a civil action pursuant to Minn. Stat. § 181.944, which makes attorneys’ fees available.
Although much of the conduct prohibited by this provision of WESA is already prohibited by federal labor law, employers should be sure that their policies do not prevent employees from voluntarily discussing or disclosing their wages. Employers also may want to consider defining (with examples) proprietary information, trade secret information and privileged information, so employees understand that this information may not be shared.
Amendments to Nursing Mothers Break Statute
This provision of WESA, which is effective July 1, 2014, amends Minn. Stat. § 181.939 to enlarge the employer’s obligation to provide a separate space for nursing mothers to express milk. Specifically, the new law sets forth that employers must provide nursing mothers with a room or other location, “other than a bathroom or a toilet stall, that is shielded from view and free from intrusion from coworkers and the public and that includes access to an electrical outlet, where the employee can express her milk in privacy.” WESA provides that violations of this provision may be enforced through a civil action pursuant to Minn. Stat. § 181.944, which makes attorneys’ fees available.
Employers should be sure that their policies and practices relating to providing nursing mothers with breaks to express milk are updated by July 1 in order to comply with the specific requirements set forth in WESA.
Equal Pay Certificates for Certain State Contractors
This provision of WESA, which is effective August 1, 2014, provides that, with certain exceptions, businesses with more than 40 employees seeking contracts of at least $500,000 with the state must first obtain an “equal pay certificate of compliance” in order to do business with the state. This provision also provides that the state may audit the business’s pay practices at any time to ensure that they are in compliance with equal pay laws.
Employers with state contracts should begin assessing whether they are covered by this provision and how they will obtain the certificate.
As you can see, employers have to begin taking action now to update their policies and procedures to comply with the provisions of WESA. Employers should not hesitate to contact any of the attorneys in Felhaber Larson’s Labor & Employment Group with compliance-related questions.
We will continue to monitor this issue as is develops.