On February 19, 2023, San Francisco’s Private Sector Military Leave Pay Protection Act took effect.  The ordinance requires covered employers to provide supplemental pay to an employee while on leave for military duty for up to 30 days in a calendar year.

San Francisco’s Office of Labor Standards Enforcement has issued Implementation Guidance to assist employers with compliance. The guidance provides answers to frequently asked questions (FAQ) regarding the ordinances, such as which employers are covered by the ordinance, which employees are covered, and how to calculate supplemental pay.  Learn more here.

Less than a year after its enactment, a federal district court has declared null and void Puerto Rico Act 41-2022, a law that rolled back parts of the 2017 employment law reform. Financial Oversight and Management Board for Puerto Rico v. Pierluisi Urrutia, No. 17 BK 3283-LTS (D. P.R. March 3, 2023). Accordingly, the 2017 Puerto Rico employment law reform is back in full force.

Learn more here.

Responding to increased attention to worker protections promoting public health and safety, both Bloomington’s and St. Paul’s City Councils recently unanimously approved amendments to their Earned Sick and Safe Time (ESST) Ordinances. The ESST Ordinances obligate an employer to pay their employees when they take time off for reasons related to the employee’s or the employee’s family member’s health and safety needs. St. Paul’s amendments took effect on February 18, 2023. Bloomington’s entire ordinance, including these amendments, will take effect for the first time on July 1, 2023.

Important Changes to Bloomington’s Earned Sick and Safe Time Ordinance

Bloomington’s Ordinance previously specified employees earn one hour of ESST for every thirty hours worked. Though this hour-unit did not change, the amendments added language granting employers discretion to permit accrual of ESST in fractions of an hour instead of block hour-units. Out of the four Minnesota cities with ESST ordinances, Duluth is the only other city to also give employers discretion to permit employees to accrue ESST in fractions of hours. Unlike Duluth, however, Bloomington does not clarify whether employers must allow employees to use ESST in fractions of an hour.

Under the amended ordinance, covered employers will be required to provide employees with available and used ESST hours on each pay stub. The required statement is here. In contrast, Duluth, Minneapolis, and St. Paul ordinances merely require employers to provide this information upon employee request.

Bloomington’s amendments also provide additional detail regarding administrative penalties for violations of the ordinance.

Important Changes to St. Paul’s Earned Sick and Safe Time Ordinance

St. Paul’s revisions to its ESST Ordinance focus on providing ESST for every employee working within the geographic boundaries of St. Paul, regardless of the physical location of the employer. Before these amendments, the ESST Ordinance only applied to businesses with a brick-and-mortar location in St. Paul. The revision was in part triggered by a 2020 Minnesota Supreme Court ruling that interpreted Minneapolis’ Sick and Safe Time Ordinance as applying to employees working within the city whose employers had brick and mortar locations outside city limits. The Court’s ruling gave cities in Minnesota wide discretion to regulate all work performed in their city limits.

Another key change includes aligning the ESST Ordinance with the city’s Minimum Wage Ordinance. To create consistency, the ESST Ordinance now adheres to the same investigation and appeals process used for reported minimum wage payment violations.

St. Paul also added affirmative statements encouraging employers to enact more generous sick and safe time policies. The ESST Ordinance does not prevent employers from allowing workers to voluntarily switch shifts, donate ESST to a coworker, or receive ESST in advance before accrual. Employers may allow workers to use their accrued sick and safe time when they are scheduled to work outside city limits.

In response to Bloomington and St. Paul’s updated ESST Ordinances, affected employers should consider taking these steps: (1) review current paid time off and sick leave policies to determine compliance with the amendments, (2) update employee handbooks if necessary, and (3) continue to monitor for further paid leave law developments in Minnesota and around the country.

For more information about how these paid leave laws may impact your organization, please contact a Jackson Lewis attorney.

The U.S. Department of Labor (DOL) has issued guidance on the application of the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) to employees who telework from home or from another location away from the employer’s facility.

The Field Assistance Bulletin (FAB) 2023-1, released on February 9, 2023, is directed to agency officials responsible for enforcement and provides employers a glimpse into how the DOL applies existing law and regulations to common remote-work scenarios. FAB 2023-1 addresses FLSA regulations governing “hours worked,” rules related to break time and privacy for nursing employees, and FMLA eligibility factors.

Hours Worked

In the FAB, the DOL reviews the rules governing compensability of work time, explaining that, regardless of work location, short breaks (typically, 20 minutes or less) generally are counted as compensable hours worked, whereas, longer breaks “during which an employee is completely relieved from duty, and which are long enough to enable [the employee] to use the time effectively for [their] own purposes[,] are not hours worked.” Examples of short breaks, whether at home or in the office, include when an employee takes a bathroom or coffee break or gets up to stretch their legs.

Longer rest breaks and periods of time, when employees are completely relieved from duty and able to use the time for their own purposes, are not considered work time. Just as would be the case when an employee is working in the office, if during remote work an employee’s 30-minute lunch break is interrupted by several work-related phone calls, that 30-minute period would be counted as hours worked. Conversely, if an employee working from home takes a three-hour break to pick up their child or to perform household chores, that time does not count as work time under the FLSA. In short, the FAB reiterates the telework guidance set forth by the DOL in a Q&A series published during the height of the COVID-19 pandemic.

The FAB emphasizes that, regardless of whether an employee performs duties at home, at the worksite, or at some other location, if the employer knows or has reason to believe that work is being performed, the time must be counted as hours worked. Importantly, the FAB notes that an employer may satisfy its obligation to exercise reasonable diligence to acquire knowledge regarding employees’ unscheduled hours of work by providing a reasonable reporting procedure for employees to use when they work non-scheduled time and paying employees for all hours worked. This guidance was addressed in greater detail in FAB 2020-5.

Guidelines for Nursing Employees

The FAB further clarifies that, under the FLSA, an employer’s obligation to provide employees “reasonable break time,” as well as an appropriate place to express breast milk, extends to employees who are teleworking or working at an off-site location. Just as an employer has an obligation to provide an “appropriate place” for an employee to express milk while working at a client site, the employer should ensure a teleworking employee has privacy from a “computer camera, security camera, or web conferencing platform” to express milk.

Employers are not required to pay employees for otherwise unpaid breaks simply because the employee is expressing breast milk during the break, but if an employee is working while pumping (or if the pumping occurs during an otherwise paid break), they must be paid for that time. For example, in most cases, if a remote employee attends a call or videoconference off camera while pumping, that employee would be considered on duty and must be paid for that time.

The recently enacted PUMP Act expanded existing employer obligations under the FLSA to cover exempt employees, as well as non-exempt employees. The DOL has published more guidance on breast milk pumping during work.

Eligibility Under FMLA

The DOL also addresses FMLA eligibility requirements for remote employees both in terms of hours worked (employee must work 1,250 hours in the previously 12 months) and the small worksite exception (employee must work at a worksite with at least 50 employees in a 75-mile radius).

As with the FLSA, it is important for employers to have a system to track their remote workers’ hours. With respect to hours worked, the FAB reiterates that the 1,250 hours determination for remote worker is based on compensable hours of work under FLSA principles.

With respect to the worksite size determination, the FMLA regulations explain that an employee’s personal residence is not a worksite. Instead, whether a remote employee is FMLA-eligible is based on the size of the worksite from which “they report to” or “their assignments are made.” If a remote employee reports into or receives assignments from a site with 50 or more employees working at that site (or reporting to or receiving assignments from that site) or within 75 miles, then that employee would meet that eligibility factor.

The DOL provided two examples of this rule:

  • When both a store employee and their supervisor are working from their homes temporarily due to a weather emergency, for FMLA eligibility purposes, the store remains their worksite.
  • When remote employees are working in various cities more than 75 miles away from the company headquarters but receiving assignments from a manager working at the headquarters, for FMLA-eligibility determination, the company’s headquarters would be considered the workplace for the remote employees.

Employers are reminded to review state and local wage and hour laws, paid and unpaid leave laws, and lactation accommodation laws. If you have any questions about applying the FLSA, the FMLA, or state and local laws to your remote workers or any other questions about remote work considerations, please reach out to any Jackson Lewis attorney.

Governor J.B. Pritzker has indicated he intends to sign the Illinois Paid Leave for All Workers Act that passed both houses of the legislature on January 10, 2023. The Act will entitle covered employees to earn and use up to 40 hours of paid leave in each 12-month period of their employment and go into effect on January 1, 2024.

Read more here.

 The Equal Employment Opportunity Commission (EEOC) issued new technical assistance, “Hearing Disabilities in the Workplace and the Americans with Disabilities Act,” addressing how the Americans with Disabilities Act (ADA) applies to job applicants and employees with hearing disabilities. The series of questions and answers and example workplace scenarios involving individuals with hearing impairments is not binding law but reflects the EEOC’s position on topics informative for all employers navigating their obligations under the ADA related to any disability. The technical assistance highlights the uniqueness of hearing conditions, and how they may trigger ADA obligations. The EEOC identifies potential accommodations for hearing conditions, such as use of a sign language interpreter, assistive technology, assistive listening devices, augmentative communication devices, and translation tools.

The EEOC also addresses important distinctions in permissible inquiries and examinations depending on the individual’s stage of employment (pre-offer, post conditional job offer, and employment). At the pre-offer phase, employers are not permitted to request medical information or conduct a medical exam on job applicants. According to the EEOC, the only exception is if the “applicant has an obvious impairment or has voluntarily disclosed the existence of an impairment and the employer reasonably believes that the applicant will require an accommodation to complete the application process, or to perform the job because of the condition.” In that case, the employer may ask whether the applicant may need an accommodation and what type. Job applicants are not required to disclose hearing or other disabilities unless they will need a reasonable accommodation for the application process.

During the post conditional job offer phase the scope of permissible inquiries and examinations is significantly broader. If the applicant discloses a hearing condition post conditional job offer, an employer may request additional information, including what hearing limitations the applicant experiences and what, if any, reasonable accommodations would allow the individual to perform the job.

After employment begins, additional inquiries are permissible, the EEOC explains. When performance concerns arise, employers may ask questions about an employee’s medical condition or require medical exams only when the employer has reason to believe that the performance issues are related to a medical condition.

 Like when addressing other disabilities, employers can ask about hearing conditions if the information is needed to approve sick leave (if all employees are required to substantiate their use of sick leave), process a reasonable accommodation, or allow participation in a wellness program.  

The EEOC technical assistance also discusses how employers can address safety concerns. The EEOC’s position is that employers may exclude individuals with hearing or other disabilities from a job for safety reasons only when the individual poses a direct threat to the employee, co-workers or others. If an employer reasonably believes the employee cannot safely perform the essential functions of the job (because of a hearing or other impairment), the employer may conduct a direct threat analysis of an individual’s present ability to safely perform the essential functions of the job.  

It is important to also keep in mind any state or local laws that may be more restrictive, such as California. Jackson Lewis attorneys are available to help employers determine what can be asked in the various phases of employment as well as with compliance issues in light of the new technical assistance and any relevant state law.

On January 20, 2023, San Francisco approved the Military Leave Pay Protection Act, which mandates that certain employers must provide paid leave for employees taking leave for military duty.

The ordinance takes effect 30 days after passage on February 19, 2023.

Find out more here.

The Michigan legislature was within its authority to amend two ballot initiatives in 2018, one to significantly raise the minimum wage and the other to greatly expand the availability of paid sick leave to employees, the Michigan Court of Appeals has held. Mothering Justice v. Attorney General, 2023 Mich. App. LEXIS 625 (Mich. Ct. App. Jan. 26, 2023).

Read more here.

Beginning on January 1, 2023, the Washington Paid Family & Medical Leave Program’s “total premium” rate rose to 0.8% from 0.6%.  This rate is recalculated annually in October, based on contributions from premiums and benefits paid during the previous year. 

As was true in previous years, employers must report to the Washington Employment Security Department each Washington employee’s total gross wages, not including tips, and collect premiums up to the Social Security cap ($160,200 in 2023).  Once an employee meets the Social Security cap, employers must stop collecting premiums, but they must continue to report employee wages. 

Employers with 50 or more people employed will pay at least 27.24% of the total premium, which would require their employees to pay 72.76% of the total premium. Employers with fewer than 50 employees are not required to pay the employer portion of the total premium but must collect the employee portion of the premium or pay it on their behalf.  Employers with approved “voluntary plans” under this law should consult with employment counsel about possible modifications to the “voluntary plans.”

For more information about Washington’s Paid Family and Medical Leave program, or other paid leave laws and programs that may affect your organization, please contact a Jackson Lewis attorney.