FEDERAL UPDATES

PUMP Act (Providing Urgent Maternal Protections for Nursing Mothers). This act is already in effect and enhances the requirements that were contained in the FLSA to require lactation accommodation for exempt as well as nonexempt employees. Also, be aware that many states have different or more generous requirements. For federal law, the DOL recently released Field Assistance Bulletin 2023-02 to assist with compliance. Highlights include:

• The accommodation is required for the 1 year after birth, although some states have more extended time periods.

• Employees are entitled to “reasonable” break time each time they need to express milk, with no maximum breaks or definition of what is reasonable. This may vary, and employers cannot deny the employee a needed break to pump. They can agree on a schedule but can’t necessarily enforce it, and changes may be required as the baby grows. 

• Examples of “reasonable” break time include four 25-minute breaks, two 30-minute breaks, and one 20-minute break, but it will differ for each person. 

• If taken during a regular work break, the break is paid. Otherwise, it is unpaid for non-exempt employees if they are completely relieved of duty for the entire break. (Exempt employees may not have their salary reduced for additional breaks).

• Employers with fewer than 50 employees (nationwide) may be exempt if they can show undue hardship (which is a high standard).

• Employers must provide a “private” area free from intrusion or surveillance, available when needed, and not a bathroom.  Privacy screens, curtains, and signage may be used. 

• The space must be “functional”. There should be a place to sit, a flat surface to place supplies, and a place to store milk (such as an insulated container, or a personal cooler or refrigerator). The DOL recommends that the space should also have access to electricity and a sink with running water.

• Employers cannot require employees to make up any additional break time – that may be considered an adverse action in retaliation for requesting a lactation break.

• To avoid liability, employers should be careful to avoid (and instruct their managers to avoid) statements that discourage employees from exercising their legal rights, such as “How many times do you have to pump”, “Just find an empty room”, or “Don’t take too long”.

• Before filing a lawsuit, employees must provide notice of noncompliance, and employers then have 10 days to remedy the situation. 

As always, states may have additional or more stringent requirements. Employers should update their handbooks if needed, train managers to plan and respond to requests for accommodation appropriately, and make sure the updated DOL FLSA poster is posted onsite.

Pregnant Workers Fairness Act (PWFA). Effective June 27, 2023, the PWFA goes into effect. It is a (kind of) new law that requires employers with 15+ employees to provide reasonable accommodations to employees with known limitations related to pregnancy, childbirth, or related medical conditions. It is nearly identical ADA, but because courts have established that pregnancy is not a disability under the ADA this law treats it as one. 

The PWFA includes the same requirements as the ADA (interactive process, reasonable accommodation, undue hardship, anti-retaliation) and also specifically states that it is discriminatory to require employees to take paid or unpaid leave if another reasonable accommodation can be provided. It differs from the Pregnancy Discrimination Act because that law does not require accommodation – it only protects pregnant employees against discrimination. 

EEOC examples of possible reasonable accommodations include the ability to:

• sit or drink water;

• receive closer parking;

• have flexible hours;

• receive appropriately sized uniforms and safety apparel;

• receive additional break time to use the bathroom, eat, and rest;

• take leave or time off to recover from childbirth;

• be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy. 

Many states and localities already have similar laws, which may be different or more generous. Employers should also keep in mind that it can be discriminatory to treat pregnant workers differently than other employees, so the interactive process and not forcing any accommodations on pregnant workers is also important.

Job Postings & the DOJ:  The Department of Justice recently announced a settlement with Procter & Gamble, Honeywell, and several other employers after allegations that their job postings excluded non-US citizens.  It has also settled multiple claims in the past year in which 30 different employers agreed to pay a collective $1.6 million in civil penalties for similar infractions. This is an easy thing to overlook in job postings and can result in significant liability.

Generally stating that requiring those applicants be authorized to work in the U.S. (or that the company cannot sponsor visas) is acceptable. Still, the DOJ guidance lists the following as specific terms that violate the law:

• Only U.S. Citizens

• Citizenship Required

• Only U.S. Citizens or Green Card Holders

• H-1Bs Only

• H-1Bs and OPT Preferred

• Must have a U.S. Passport

• Must have a Green Card

• Must Present U.S. Birth Certificate

• Native English Speakers Only

Requiring a social security number to apply for or start a job is also prohibited. E-verify permits employers to delay creating the E-Verify case until a worker has received a social security number and allows the employee to work in the meantime as long as the I-9 form has been completed.

 

STATE/LOCAL UPDATES

 

Minnesota: The Minnesota legislature has been especially busy this year – it just adjourned and multiple new employment laws will be going into effect, including:

Noncompete Agreements. On July 1, agreements restricting an employee’s ability to work for another company or start their own similar business are void and unenforceable in Minnesota. 

PFML. Minnesota joined the list of states with a state-managed paid family and medical leave program (PFML), which will begin on January 1, 2026.  All employers are covered regardless of size. Employees are eligible once they have earned at least 5.3% of the state average annual wage in the last four calendar quarters (currently about $3,500). They can aggregate this amount from multiple employers. Employees will be able to take up to 12 weeks of leave for their own serious health condition, or for baby bonding, family care, safe time for domestic violence/sexual assault/stalking, or certain military exigencies. For multiple qualifying reasons, they can take up to a maximum of 20 weeks. Premiums are expected to be 0.7% for employers, and 0.4% for employees, with some lower premiums for small employers with fewer than 30 employees. Minnesota employers (and those with remote workers in Minnesota) should prepare to update their handbooks, register, and provide notices to employees before the end of 2025.

State Sick and Safe Time. Although several Minnesota cities already have similar ordinances, the legislature just passed a statewide paid sick and safe leave statute that will become effective on January 1, 2024. It will not preempt existing local laws, so employers will have to comply with the most generous law (especially in Duluth).  Highlights:

• There is no small employer exemption – it applies to all employers.

• Employees are eligible once they have worked 80 hours in MN in a year.

• Accruals are one hour per 30 worked, up to 48 hours per year.

• Carryovers may be capped at 80 hours.

• ESSL can be used to care for the employee or their family member, absences due to domestic abuse/sexual assault/stalking, closures during weather or public emergencies, to deal with infectious diseases, or public health emergencies similar to Covid.

• Similar to California, the definition of a family member is extremely broad and includes up to one “designated person” annually.

Employers will need to amend their handbooks, integrate any local sick and safe leave laws, provide notices, and update their pay stubs to include hours used and available for each pay period. Additional regulations from the state are forthcoming.

Lactation and Pregnancy.  The Governor just signed legislation that offers additional protections for nursing and pregnant employees. 

Lactation Accommodation (eff 7/1/23)

• The existing 12-month limitation for paid breaks for nursing mothers has been eliminated, allowing paid lactation breaks to extend indefinitely.

• The exception for “undue disruption” to the business has been eliminated.

• In addition to requiring a private space near the work area, employers must now ensure that the space is “clean, private, and secure”.

• Employers must notify employees of their rights at the time of hire and when an employee inquires about or requests parental leave.

Pregnancy Accommodation (eff 7/1/23):

• Covered employers are now those with one or more employees (previously 15 or more).

• Employers must notify employees of their rights at the time of hire and when an employee inquires about or requests parental leave (in English and the employee’s primary language).

• The scope of reasonable accommodations has been expanded to include temporary leaves of absence, modification of work schedules or job assignments, and more frequent or longer break periods (previous accommodations also include temporary transfers, seating, and lifting limits.)

Secure Choice Mandatory Retirement Plan. Like many other states, Minnesota is establishing a state vehicle to encourage retirement savings. It requires employers with 5+ employees that do not have a retirement benefit plan to enroll employees in the state plan, withhold contributions from their pay, and submit them to the state for investment. Employees can opt out. The law establishes a board of directors that is required to begin operations no earlier than January 1, 2025.

New York:

New York City Height and Weight Discrimination. Effective 11/22/23, NYC employers with 4+ employees are prohibited from discrimination based on height or weight, except when:

• Required by federal, state, or local law.

• Situations when height or weight could interfere with essential job duties; and

• Jobs or job categories for which consideration of height or weight criteria is reasonably necessary for the employer’s business operations.

Covid Vaccinations – health care. The NY Department of Health announced that it is beginning the process to repeal vaccination requirements for healthcare workers. Although it still needs approval from the Public Health and Planning Council, the DOH has indicated that it will no longer cite employers for violations.  CMS facilities are still subject to the federal mandate.

Texas.  Effective September 1, 2023, Texas joins 20 other states (and Austin) with a new CROWN Act (Create a Respectful and Open World for Natural Hair). It prohibits discrimination based on an employee’s hair texture or protective hairstyle commonly or historically associated with race, including braids, locks, and twists. Texas employers should update their handbooks to revise EEO, anti-discrimination, anti-harassment, and dress codes, and train managers to avoid this type of discrimination. 

If you’d like to speak to an HR expert about your business, connect with us.

 

Asure Software provides this information for general information purposes only. We are not attorneys, and the information in this update should not be relied upon or regarded as legal advice. This information may not be accurate or complete as it relates to a particular company or situation and does not reflect all developments or laws in all jurisdictions.