Federal and State Updates

Federal Updates

Department of Labor (DOL)

The DOL released guidance for the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) and enforcement provisions went into effect on April 28, 2023. You can find the FAQs here and an updated fact sheet here. Further, they have released Field Assistance Bulletin (FAB) No. 2023-02 which provides guidance to Wage and Hour Division (WHD) field staff regarding enforcement of pump at work provisions of the Fair Labor Standards Act (FLSA). The FAB discusses break time requirements, compensation, space requirements, privacy, and more.

There is now an updated “Employee Rights Under the Fair Labor Standards Act” poster that all covered employers must display where employees can readily see it (at the worksite or for remote employees, via email or an internet/intranet website.) The poster now includes information regarding the PUMP Act. If you typically purchase an all-in-one workplace poster, you may want to hold off as more changes are on the way. The EEOC will be updating their “Know Your Rights: Workplace Discrimination is Illegal” poster on or around June 27, 2023 when the Pregnant Workers Fairness Act (PWFA) goes into effect.

Equal Employment Opportunity Commission (EEOC)

Do you remember this EEOC document from the COVID pandemic: “What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and other EEO Laws”? Well, even though the federal public health emergency ended May 11, 2023 as declared by Health and Human Services (HHS), the EEOC is addressing some situations that will remain in the fold. You can do a control-F search for 5/15/23 to locate the recently added FAQs. A few of the key updates include:

• Employers should continue to evaluate accommodations that were granted during the public health emergency as well as continue discussions with the employee as far as their continued need for reasonable accommodation.
• Common examples of possible reasonable accommodations for those with Long-COVID.
• Tips for employers as far as awareness of COVID-related harassment for those who may need to continue wearing a mask or are taking other precautions while at work.
• Employers may still inquire if a sick employee has any COVID symptoms and if they have been tested.
• Employers may continue to ask employees entering the workplace if they have any COVID symptoms, if they have been tested (and the results), and if they have been within close proximity of others who have tested positive for COVID or are having symptoms.
• Employers should continue to follow Centers for Disease Control guidance as, “The ADA does not prevent employers from following CDC advice.”

Executive Order 14042

On May 15, 2023, President Biden rescinded COVID-19 safety requirements for federal contractors including vaccination requirements. As you reassess your company policy(ies), be cognizant of any state or local laws that may still be in effect.

State Updates

California

Employment Development Department (EDD)

The EDD recently sent a reminder email to employers who have a Voluntary Plan (VP) in place of State Disability Insurance (SDI). The email was regarding the Administrative Contact Forms that are required to be submitted to the EDD on an annual basis. Larkin will prepare the DE 2520BV-A and DE 2520BV-C (we will complete DE 2520BV-B with our contact information) and will send them to you for review and signature. The forms will be on their way to you in the coming weeks (the submission deadline is June 15, 2023). We will then submit all three documents to the EDD on your behalf.

Colorado

With the end of the COVID-19 public health emergency, comes the end of the requirement for Colorado employers to provide Public Health Emergency (PHE) Leave under the state’s Healthy Families and Workplaces Act. PHE Leave is in effect until June 8, 2023 (four weeks after the COVID-19 Public Health Emergency ended). Employees may still take any remaining PHE leave through June 8, 2023. Remember that the law does not strictly apply to COVID so other PHEs could impact employers and require pay under law. A disaster emergency can be declared by the governor, or by a federal, state, or local public health agency.

Minnesota

Governor Waltz is expected to sign the omnibus jobs bill that is headed to his desk. The bill will bring significant changes to The North Star State. Here are some of the changes:

Earned Sick and Safe Leave (ESSL)

State-wide ESSL will be effective January 1, 2024 and will cover all employees (including part-time and temporary employees) who work at least 80 hours in a year in Minnesota. Employees will be able to utilize ESSL after they have worked at least 80 hours in Minnesota, in a year. Employers with at least one employee are required to provide ESSL.

Other details:

• Employees may accrue up to 48 hours per year (one hour for every 30 hours worked) and unused hours may be carried over from year to year (accrued hours may be capped at 80).
• Rather than allow carry over of unused hours, employers have two options:
  • Grant 48 hours at the start of the year if the employer pays out accrued but unused sick and safe time at the end of the previous year, or
  • Grant 80 hours of sick and safe time at the start of the year if the employer does not pay out accrued and unused sick and safe time at the end of the year.

ESSL Usage Reasons:

• Due to the employee’s or their family member’s mental or physical illness, injury, or other health condition; need for medical diagnosis, care or treatment; or need for preventive medical or health care.
• Domestic abuse, sexual assault, or stalking of the employee or the employee’s family member (absence, seeking medical attention, obtain services from a victim services organization, obtain counseling, relocation, and/or seek legal advice).
• Due to closure of the employee’s place of business due to weather, public emergency, or the need to care for a family member whose school or place of care has been closed due to weather or public emergency.
• Employee is unable to work (or telework) because of health concerns related to a public emergency due to a communicable disease; the employee is seeking/waiting for results of a diagnostic test or medical diagnosis of a communicable disease related to a public health emergency.
• Health authorities or a health care professional have deemed the employee or family member may expose others to a communicable disease.

Family member includes: child, foster child, adult child, legal ward, child for whom the employee is the legal guardian, or child to whom the employee stands in loco parentis; spouse or register domestic partner; sibling, stepsibling, or foster sibling; biological, adoptive, or foster parent, stepparent, or a person who stood in loco parentis when the employee was a minor child; grandchild, foster grandchild, or step-grandchild; grandparent or step-grandparent; sibling’s child; parent’s sibling; child-in-law or sibling-in-law; family members of a spouse or register partner; other individuals related by blood or whose close association with the employee is equivalent to a family relationship; and, up to one individual annually designated by the employee. Even more details:

• Employers may require up to seven days of notice for foreseeable usage of ESSL, if the employer has written and provided to its employees a policy with procedures for doing so.
• Employers may require reasonable documentation when ESSL is used for more than three days in a row. Employees may provide a written statement regarding ESSL usage in certain circumstances.
• ESSL is protected in that employees must be returned to employment at the same pay (including any adjustment that may have occurred) and with the same benefits and seniority.
• If an employee is terminated, ESSL does not have to be paid out. If an employee is rehired within 120 days, accrued but unused ESSL must be restored.

Employers will be required to give employees notice of ESSL (in English and the employee’s primary language) on January 1, 2024 (or upon hire, if after the law goes into effect). If you have an employee handbook, you’ll need to include the notice there as well. The Minnesota Department of Labor will prepare an employee notice and we will send out once it’s available.

There are a few cities in Minnesota with earned sick leave laws. This law does not preempt a city law that is more generous than ESSL. And finally, you’ll need to note on your employee’s pay statements the number of ESSL hours accrued and available as well as any ESSL used in a given pay period.

Lactation and Pregnancy Accommodations

As of July 1, 2023, there will be more protections in Minnesota for nursing mothers and those in need of pregnancy accommodation. Once signed, the omnibus jobs bill makes the following changes that are effective July 1, 2023:

• Removal of the 12-month limitation for employers to provide breaks to nursing mothers.
• Employers will no longer be able to deny breaks for expressing milk. This is currently permitted if the break would cause disruption to the employer’s operations.
• As with other laws, the space of expressing breast milk must not be a bathroom or toilet stall. In addition, the space must now be a “clean, private, and secure” room close to the work area.
• Employers will not be able to claim undue hardship for an accommodation for more frequent or longer restroom, food, and water breaks.
• Employees must consider temporary leaves of absence and/or modification in work schedule or job assignment as reasonable accommodations.
• The pregnancy accommodation law will now apply to employers with only one employee (previously, covered employers were those with 15 or more employees.
• Employers will be required to provide notice to employees at the time of hire and when they inquire or request parental leave. Notice in your handbook will be required as well. A sample notice is in the works, and we’ll share once it’s available.

Parental Leave

Effective immediately, the definition of a covered employer under the Minnesota Parenting Leave Act has been amended. Previously, the law applied to those with at least 21 employees. Now the law will apply to employers with only one employee. Further, employees had to have worked at least 12 consecutive months with their employer prior to their leave request and for an average number of hours per week equal to half of the full-time equivalent position in the employee’s job classification. These requirements are no longer, which means upon hire, employees will be able to take up to 12 weeks of parental leave.