Action Steps for Employers in Light of the Women’s Economic Security Act

06/11/2014 / Phyllis Karasov

On Mother’s Day 2014, Governor Mark Dayton signed the Women’s Economic Security Act (“WESA”). WESA makes significant changes to existing law and also creates new law on several subjects. This article will focus on steps employers should take to comply with WESA.

Revise Policy for Pregnancy and Parenting Leave
Employee handbooks and written policies must be changed to provide that the unpaid leave of absence required under state law covers both pregnancy and parenting leave, and has been increased from 6 to 12 weeks. Specifically, the leave can be used by a female employee for pre-natal care, or incapacity due to pregnancy, child birth or related health conditions. If an employer is covered by FMLA and an employee takes FMLA leave for pregnancy or parenting, the Minnesota required leave of absence will run concurrently. On the other hand, if an employee uses FMLA leave for his or her own serious health condition or the serious health condition of a child, parent or spouse, and later requires a leave of absence within the same 12-month period for pregnancy or parenting, the employee is entitled to both the leave allowed under FMLA and leave required by state law.

This change applies to employers who employ 21 or more employees at least one job site. Covered employees are those who have worked at least 12 months preceding the request for leave and who have worked for an average number of hours per week equal to one-half the full-time equivalent in the employee’s job classification during the 12-month period immediately preceding the leave.

This amendment is effective on July 1, 2014.

Revise Policy for Sick Leave Benefits
Employee handbooks and written policies must be revised to allow for additional uses of paid sick leave benefits.

Minnesota law already requires that an employer that provides personal sick leave benefits must allow an employee to use those benefits for absences due to an illness of or an injury to the employee’s child (under 18 years of age or an individual under 20 who is still attending secondary school), adult child, spouse, sibling, parent, grandparent or step-parent. WESA has expanded the relatives for whom an employee can use sick leave benefits to mother-in-law, father-in-law and grandchild. “Grandchild” is defined to include a step-grandchild and a biological, adopted and foster grandchild.

In addition, WESA allows an employee to use sick leave for safety leave. “Safety leave” is leave for the purpose of providing or receiving assistance because of sexual assault, domestic abuse or stalking. Safety leave can be used for assistance to the employee or assistance to the relatives described in the previous paragraph.

The policy should also state that an employer will not retaliate against an employee for requesting or obtaining a leave of absence under this provision.

This amendment applies to employers of 21 or more employees who work at at least one site.  This amendment is effective July 1, 2014.

Expand Reasonable Accommodation Policy to Pregnancy Accommodations
Employers must change their policies and practices for reasonable accommodation to include reasonable accommodation to an employee for health conditions related to pregnancy or child birth if the employee so requests, with the advice of her licensed health care provider or certified doula, unless the employer demonstrates that the accommodation would impose an undue hardship on the operation of the employer’s business.

Medical advice is not required, nor may an employer claim undue hardship, for the following accommodations:

  1. more frequent restroom, food and water breaks;
  2. seating; and
  3. limits on lifting over 20 pounds.
Employer’s policies and practices should be modified to provide that the employee and employer will engage in an interactive process with respect to an employee’s request for a reasonable accommodation. “Reasonable accommodation” may include, but is not limited to, temporary transfer to a less strenuous or hazardous position, seating, frequent restroom breaks, and limits to heavy lifting.  An employer is not required to create a new or additional position in order to accommodate an employee nor is an employer required to discharge any employee, transfer any other employee with greater seniority, or promote any employee. The policy should state that the employer will not retaliate against an employee for requesting an accommodation.

This section became effective on May 12, 2014.

Add to Nursing Mothers Policy
Minnesota law already requires employers to provide reasonable unpaid break time each day to an employee who needs to express breast milk for her infant child. The employer must make reasonable efforts to provide a room or other location in close proximity to the work area, other than a toilet stall, where the employee can express her milk in privacy.

In light of WESA, written policies and practices regarding nursing mothers must be revised to provide that the location must be other than a bathroom, that is shielded from view and free from intrusion from co-workers and the public and that includes access to an electric outlet. The policy should also state that the employer will not retaliate against an employee for asserting rights under this provision.

This section becomes effective July 1, 2014.

Add Familial Status as a Protected Class
Employer nondiscrimination and EEO policies must be revised to include familial status as a protected class.  Familial status had been previously defined under Minnesota law 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.” WESA amended the Minnesota Human Rights Act to include this definition as a protected class under Minnesota employment law.

Familial status was designated as a protected class effective May 12, 2014 and applies to all employers with one or more employees.

Add Wage Disclosure Protection to Employee Handbook
Any employer that provides an employee handbook to its employees must include in the handbook notice of employee rights and remedies under the new wage disclosure protection statute. The employee handbook policy should contain a statement notifying employees of this new statute. Briefly, this new law prohibits an employer from:

  • requiring an employee to sign a waiver or other document which purports to deny an employee the right to disclose the employee’s wages,
  • requiring an employee to sign a waiver or other document which purports to deny an employee with right to disclose the employee’s wages; or
  • taking any adverse employment action against an employee for disclosing the employee’s own wages or discussing another employee’s wages which have been disclosed voluntarily.
The policy should state that the employer will not retaliate against an employee for asserting rights or remedies under this provision.

This new law applies to all employers in the state of Minnesota and is effective on July 1, 2014.

Employers who would like assistance in making the necessary changes to their policies and practices or employee handbooks, or have other questions concerning WESA, should contact Phyllis Karasov or one of Larkin Hoffman’s other employment attorneys.