The COVID-19 State of Emergency may be over but many employers are still feeling the economic effects of the pandemic.  In 2022, when COVID-19 Supplemental Paid Sick Leave (SPSL) was extended for the final time, the legislation also provided for a grant program for certain businesses to offset the costs of providing SPSL.

Find out more here.

In anticipation of Paid Leave Oregon, a new paid family leave benefit for Oregon employees, the Oregon legislature recently passed a bill that creates new entitlements for Oregon employees and aligns existing law with the forthcoming paid leave benefit.  Senate Bill 999 (2023) revises the Oregon Family Leave Act (OFLA) in two significant ways.  First, the amendments expand the definition of a covered family member to include siblings and stepsiblings, as well as their respective spouse or domestic partner, and any individual with whom an employee has a “close association” that is “equivalent to a family relationship.”  The statutory updates align OFLA entitlements with corresponding paid leave benefits available under Paid Leave Oregon after September 3, 2023, ensuring that OFLA and Paid Leave Oregon will run concurrently in most circumstances.

Second, the amendments provide that employers may define the “leave year” for OFLA purposes as “beginning on the Sunday immediately preceding the date on which family leave commences.”  Under Paid Leave Oregon, the “benefit year” is to be determined rolling forward– beginning on the Sunday immediately preceding the date on which paid benefits commence.  The amendments thus, once again, reflect an effort to maximize the time periods during which OFLA and Paid Leave Oregon will run concurrently.  Under the bill, while employers may continue to define the OFLA leave year as any consecutive 12-month period, employers are required to migrate to a rolling-forward leave year no later than July 1, 2024.

The expanded OFLA entitlements are scheduled to become effective on September 3, 2023, the same day Paid Leave Oregon benefits become available.  The amendments mandating a rolling-forward leave year become effective on July 1, 2024.  In light of the statutory revisions, Oregon employers should review their leave policies to ensure compliance with the new rules.  Employers that are also covered by the federal Family Medical Leave Act (FMLA) will want to consider whether changes to FMLA policies are warranted.

If you have any questions regarding this or other legislation affecting the workplace, please reach out to any Jackson Lewis attorney.

New Florida legislation seeks to protect individuals from discrimination “based on health care choices” and bars COVID-19 mandates. The new law took effect on June 1, 2023. 

The law’s restrictions on vaccine mandates and facial coverings also apply in educational settings, in addition to employers and businesses. Florida schools, both public and private, from preschool through college cannot mandate the COVID-19 vaccine, testing, or face masks or other facial coverings.

Learn more here.

Soap Operas are known for drama.  Nothing has caused more drama in the last two years than vaccine mandates.  Last week, a California court determined that a plaintiff’s request for religious accommodation at General Hospital could not be accommodated.  The court concluded defendant had advanced sufficient evidence that unvaccinated employees threatened the health and safety of others during the relevant period and that “testing by itself was not sufficient to address the health and safety concerns associated with the global pandemic during the relevant time period.” Rademacher v. American Broadcasting Companies, Inc.

The drama caused by the vaccine mandates is not limited to television sets.  Over 2,000 lawsuits have been filed across the country challenging employer vaccine mandates.  Many have been subject to motions to dismiss. Others are still making their way through the courts.

Many of the cases involve healthcare employers.  Healthcare employers were among the first to require vaccines and in many places federal or state law compelled them to mandate vaccines for staff.  Initial challenges to vaccine mandates alleged a wide variety of creative, but largely meritless, claims that were quickly disposed of by the courts.  The most prevalent current challenge to the various vaccine mandates are claims for denied religious accommodation.  Rademacher is one of the first cases to make it to summary judgment on this claim.  In addition to granting summary judgment on the religious accommodation claim, the court also granted summary judgment on the privacy, breach of contract, retaliation and disability discrimination claims.  The court rejected the plaintiff’s claim that being unvaccinated was a physical/medical condition or a disability and rejected plaintiff’s claim that he was regarded as disabled.

Rademacher involved actors playing doctors.  General Hospital is the long running soap opera, not an actual hospital caring for the most vulnerable populations.  In Rademacher the actors were required to work in close proximity and the show decided not to write masks into the scripts.  In real hospitals, doctors, nurses and other healthcare professionals regularly worked in close proximity to others, including those most vulnerable to COVID-19, presumably a far greater risk than that on the set of a fictional hospital in Port Charles.

This is likely the first of many more decisions on this issue. 

Signed into law by Governor Inslee on May 9, 2023 and effective January 1, 2024, new legislation allows certain interested parties to have access to information from the Washington Security Department, the state agency who administers the paid family and medical leave program, regarding an employee’s leave including:

  • Type of leave being taken;
  • Requested duration – including the approved dates – of the leave; and
  • Whether the employee was approved for benefits and was paid benefits for any given week.

The law defines “interested parties” as an employee, a current employer, or a current employer’s third-party administrator. The information acquired under this law is to be used for the purpose of administering internal employer leave or benefit practices under established employer policies.

Jackson Lewis attorneys are available to assist employers in administering their leave programs and complying with the myriad of state laws.  Please contact your Jackson Lewis lawyer with any questions.

Employers in New York State are required to comply with new obligations to accommodate nursing employees and to issue a mandatory lactation policy released by the Department of Labor beginning June 7, 2023. The expanded obligations arise from new amendments to New York State’s Nursing Mothers in the Workplace Act (New York Labor Law § 206-c).

Learn more here.

The Biden-Harris Administration announced on May 1, 2023, that the Centers for Medicare and Medicaid Services (CMS) would soon be eliminating COVID-19 vaccination requirements for healthcare providers. On May 31, 2023, CMS issued the awaited Final Rule.

Read more here.

Minnesota is now the 12th state to adopt a statewide program providing compensation to employees during family and medical leaves. It also joined the over 40 state and local jurisdictions mandating employer paid sick leave. Eligible Minnesota employees will be entitled to up to 48 hours of paid sick and safe leave and 20 weeks of family leave benefits. This patchwork of paid leave laws is further complicated in Minnesota where Minneapolis, St. Paul, Duluth,  and Bloomington (July 1, 2023) all have paid sick leave laws already on the books. The new state-wide paid sick leave law does not preempt the local ordinances. Employers with employees in those cities will need to meet the most generous leave provisions and other protections of the applicable laws. New legislation also amends existing law requiring accommodations for pregnant and nursing employees.

FAMILY & MEDICAL LEAVE

Minnesota House Bill 2, signed by Governor Walz on May 25, 2023 will provide eligible employee with up to 12 weeks of family leave benefits and 12 weeks of medical leave benefits, subject to a 20-week annual limit. Eligible workers will be permitted to take family and medical leave and receive compensation through the new state family and medical benefit insurance program beginning January 1, 2026. The program will be funded through employer and employee contributions which also begin on January 1, 2026.

Covered Employers

The law applies to all private businesses (as well as state or local government sector employers and charter schools).

Employers may also apply for approval to meet their obligations under the paid family and medical leave law through the substitution of a private plan that provides the same rights, protections, and benefits as the state program.

Who is Eligible for Paid Family Leave?

To be eligible, an individual must have earned at least 5.3 percent of the state average annual wage in total over the “base period” rounded down to the next lower $100 (currently $3,500 per year). 

Seasonal workers who are employed for no more than 150 days and federal employees are not eligible.  Self-employed individuals may opt-in to coverage. 

Types of Paid Family Leave

A covered individual is eligible for leave benefits if they take leave from work:

  1. To address their own serious health condition, including pregnancy;
  2. To care for a covered family member with a serious health condition;
  3. To bond with a new child;
  4. To address certain needs related to the domestic abuse, sexual assault, or stalking of the worker or the worker’s family member; and
  5. To address certain needs arising from a family member’s military deployment.

Family member is defined broadly and includes among other things, a child, spouse, domestic partner, parent, sibling, grandchild, or grandparent and includes many relationships by marriage.  Covered individuals will also be eligible for leave if they have been selected by an incapacitated person to be their caretaker.

Job and Benefits Protection

Employees who take leave are entitled to continued employee health benefits during leave and to reinstatement to an equivalent position unless the employer can show that the employee would not otherwise have been employed at the time reinstatement is requested.

Notice Requirements

Employers must post a notice prepared by the Department of Labor providing notice of available benefits and provide written notice to employees.

PAID SICK LEAVE

On May 24, 2023, Minnesota Governor Tim Walz signed an omnibus jobs and economic development bill which, among other things, creates statewide paid sick and safe leave entitlements for eligible employees and expands protections for pregnant and nursing employees.

Starting January 1, 2024, Minnesota employees will be entitled to receive up to 48 hours of earned sick and safe time (ESST) in a year. 

The ESST law applies to all individuals or businesses with one or more employees.  

Who is Eligible for ESST?

Any employee who performs work for at least 80 hours in a year in Minnesota will begin accruing ESST on January 1, 2024.

Independent contractors and certain individuals employed by air carriers as flight deck or cabin crew members are expressly excluded from the definition of “employee” and, therefore, are ineligible for ESST under the new law.

Accrual, Frontloading and Carryover

Under the ESST law, employees begin accruing ESST at the commencement of employment and will accrue a minimum of one hour of ESST for every 30 hours worked up to a maximum of 48 hours of ESST in a year.  

Employees who are exempt from overtime requirements are deemed to work 40 hours in each workweek for purposes of accruing ESST, except that an employee whose normal workweek is less than 40 hours will accrue ESST based on the normal workweek.

Employees must be permitted to carry over accrued but unused paid sick leave benefits, but the total amount of accrued but unused ESST must not exceed 80 hours at any time, unless the employer agrees to a higher amount. Moreover, unless the employer maintains a policy that states otherwise, the ESST law does not require an employer to pay out an employee’s earned but unused ESST upon separation from employment.

Instead of allowing employees to accrue ESST, employers may adopt a frontloading approach whereby the employer provides an employee with a lump sum of ESST at the beginning of each year or the commencement of employment. Employers who use the frontloading approach are not required to allow employees to carry-over unused ESST at the end of the year. Under the frontloading approach, employers must provide employees with 48 hours of ESST if the employer pays employees for unused ESST at the end of the year. If the employer does not pay employees for unused ESST at the end of the year, then the employer must frontload 80 hours of ESST. 

Use of ESST

An eligible employee may use ESST as soon as it accrues for any one of the following reasons:

  1. To address an employee’s own: (i) mental or physical illness, injury, or other health condition; (ii) need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; or (iii) need for preventive medical or health care;
  2. To care for a family member: (i) with a mental or physical illness, injury, or other health condition; (ii) who needs medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; or (iii) who needs preventive medical or health care;
  3. For absences related to domestic abuse, sexual assault, or stalking of the employee or the
    employee’s family member, provided the absence is to: (i) seek medical attention related to physical or psychological injury or disability caused by domestic abuse, sexual assault, or stalking; (ii) obtain services from a victim services organization; (iii) obtain psychological or other counseling; (iv) seek relocation or take steps to secure an existing home due to domestic abuse, sexual assault, or stalking; or (v) seek legal advice or take legal action, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from domestic abuse, sexual assault, or stalking;
  4. Time needed when the employee’s place of business closes due to weather or other public emergency or when an employee must care for a family member whose school or place of care has been closed due to weather or other public emergency;
  5. When an employee cannot work or telework because the employee is: (i) prohibited from working by the employer due to health concerns related to the potential transmission of a communicable illness related to a public emergency; or (ii) seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, a communicable disease related to a public emergency and such employee has been exposed to a communicable disease or the employee’s employer has requested a test or diagnosis; and
  6. When it has been determined by the health authorities having jurisdiction or by a
    health care professional that the presence of the employee or family member of the employee in the community would jeopardize the health of others because of the exposure to a communicable disease, whether or not the individual has actually contracted the communicable disease.

The definition of “family member” is quite extensive and includes any individual “related by blood or whose close association with the employee is the equivalent of a family relationship.” Employees may also designate one individual annually who will be considered a “family member” for purposes of ESST.

Employers must allow employees to use ESST in the smallest increment of time tracked by the employer’s payroll system, so long as the increment is no more than four hours.

Reinstatement

Paid ESST benefits survive transfers, separations followed by a reinstatement within 180 days, and, in some circumstances, acquisitions by successor companies.

Employer Recordkeeping and Notification

The ESST law contains recordkeeping and notification requirements. Employers must maintain records documenting hours worked and ESST used by employees and make those records available to employees.

Employers must provide notice to employees of their rights to ESST, including the amount of ESST, the accrual year, and how ESST may be used by the employee. The notice must meet other specifications set forth in the law.  The Department of Labor and Industry will publish a sample notice. Employers who intend to require employees to provide notice before using ESST, must also give employees a copy of a written policy with reasonable notice procedures.   This information must also be included in an employee handbook if an employer maintains and distributes one to its employees.

At the end of each pay period, employers must include in employees’ earning statements both the total number of sick and safe time hours accrued and available for use as well as the total number of earned sick and safe time hours used during the pay period.

Job and Benefits Protection

Employees who take ESST are entitled to continued employee health benefits during leave and to reinstatement of employment at the same rate of pay the employee had been receiving when the ESST leave commenced, plus any automatic adjustments in the employee’s pay scale that occurred during the leave period.

PREGNANT AND LACTATING EMPLOYEES

The omnibus bill also includes amendments expanding existing statutory protections for pregnant and lactating employees which will take effect July 1, 2023 and apply to all employers with one or more employees.

Pregnant Employees

Employers must provide reasonable accommodations to employees experiencing health conditions related to pregnancy or childbirth unless the employer can demonstrate the accommodation would impose an undue hardship on the operation of the employer’s business. The employee and employer shall engage in an interactive process with respect to an employee’s request for a reasonable accommodation.

The new amendments did not change the law’s limits on the information employers can request from employees and the limits on undue hardship.  An employer still may not require a pregnant employee to obtain the advice of a licensed health care provider or certified doula or claim an undue hardship for the following accommodations: (1) more frequent or (now) longer restroom, food, and water breaks; (2) seating; and (3) limits on lifting over 20 pounds.

In addition, the bill added temporary leave of absence, modification in work schedule or job assignments, seating and more frequent or longer break periods to the potential reasonable accommodations listed in the law.

Lactating Employees

For lactating employees, employers must continue to provide reasonable break times each day to an employee who needs to express milk for any reason. The break times may (but no longer must) run concurrently with any break times already provided to the employee. The law also removed language (i) stating employers were not required to provide breaks if it would unduly disrupt the business and (ii) limiting the time period an employee can take these breaks to the 12 months following birth. Employers may not reduce an employee’s compensation for time used for the purpose of expressing milk.

Additionally, while employers must still make reasonable efforts to provide a room or other location that meets the statutory specification for employees to express milk, they must also now make reasonable efforts to provide a space that is “clean, private, and secure.”  

Notice Requirements

The bill also includes new notice requirements.  Employers must now inform employees of their rights regarding pregnancy and lactation accommodation at the time of hire and also when an employee makes an inquiry about or requests parental leave. Employers must also include notice of employee rights and remedies in the employee handbook. The Commissioner of the Department of Labor & Industry will publish the required notice.

Covered employers should begin reviewing their policies to ensure compliance with the new leave and accommodation requirements. With regard to pregnancy and lactation accommodation, employers should also review their obligations under the new federal Pregnant Workers Fairness Act and Pump for Nursing Mothers Act.

These Minnesota laws are included in our leave law map database that provides subscribers with a detailed explanation of state and local leave laws around the country. The Leave and Accommodation Suite is developed and updated continually by our Disability, Leave & Health Management attorneys. Register here if you would like to learn about our Leave & Accommodation Suite.

A new Georgia law takes effect on July 1, 2023 (GA S 129), that provides employees time off to advance vote in primaries and elections. This new measure amends existing law and, among other things, provides time off for employees to advance vote and revises provisions related to time off for employees to vote on election day. Georgia employees can take two hours off on election day or one of the days designated for in-person early voting. Likewise, Georgia employees can take two hours off, regardless of whether the polls are open two hours before or after a work shift ends. Time off for voting is not required to be paid; that is up to the employer. From a practical standpoint, employees must give reasonable notice to their employers of the need for time away from work to vote.

The Georgia legislature, with sign off from Governor Brian Kemp, also recently voted to repeal the sunset provision relating to use of sick leave for care of immediate family members (including a spouse, child, parent, grandparent, and grandchild or any dependents as shown in the employee’s most recent tax return), effective May 1, 2023. (GA S 61) This limited sick leave law measure was initially enacted in 2017, providing that if a private-sector employer elects to provide its employees paid sick leave, the employer must permit employees to use up to five days of the sick leave for the care of family members. This provision does not obligate employers to offer sick leave or require an employer to allow an employee to use more than five days of earned sick leave per calendar year for the care of an immediate family member.     

Please contact Emily Borna or the Jackson Lewis attorney with whom you usually work if you have questions.

The U.S. Department of Labor Wage and Hour Division (WHD) published Field Assistance Bulletin No. 2023-02 providing guidance to agency officials responsible for enforcement of the “pump at work” provisions of the Fair Labor Standards Act (FLSA)  including those recently enacted under the 2022 PUMP Act.

The PUMP Act was adopted along with the Pregnant Workers Fairness Act when President Biden signed the Consolidated Appropriations Act, 2023 in December 2022.

This guidance provides employers a glimpse into how the WHD understands and will enforce the rights now available to most employees under the Fair Labor Standards Act for reasonable break time and a place to express breast milk at work for a year after a child’s birth.

Here are a few highlights from the WHD’s bulletin.

  • Frequency and Duration of Breaks. The WHD emphasizes that employees are entitled to breaks every time they need to pump and the length and frequency of breaks will vary by employee. Employers and employees may agree to a certain schedule based on the employee’s need to pump, but the WHD advises that employers cannot require employees to comply with a fixed schedule. The WHD also reminds employers that an employee’s needs and break schedule may need to be adjusted over time.
  • Compensation. Time for pump breaks may be unpaid unless otherwise required by federal, state, or local law. Employers should pay careful attention to the FLSA’s standard requirements for counting and compensating hours worked. Employees must be paid for any time spent pumping when they are not fully relieved from duty or when pumping during an otherwise paid break.
  • Privacy Requirements. The FLSA requires that employees have access to a place to pump at work that is (1) shielded from view; (2) free from intrusion from coworkers and the public; (3) available each time it is needed by the employee; and (4) not a bathroom. To ensure privacy, the WHD advises that an employer could display a sign when the space is in use or a lock on the door. Teleworking employees must also be free from observation from a computer camera or other similar device while pumping.
  • Functional Space Requirements. The WHD advises that the location must be “functional” for pumping: “A space must contain a place for the nursing employee to sit, and a flat surface, other than the floor, on which to place the pump. Employees must be able to safely store milk while at work, such as in an insulated food container, personal cooler, or refrigerator. Ideally, spaces to pump breast milk should also include access to electricity, allowing a nursing employee to plug in an electric pump rather than use a pump with battery power, which may require more time for pumping. Access to sinks near to the space provided to pump so that an employee can wash their hands and clean pump attachments also improves the functionality of the space and may reduce the amount of time needed by nursing employees to pump breast milk at work.”
  • Small Employer Exemption. In limited circumstances, employers with less than 50 employees nationwide may be exempt from the pump time requirements if they can demonstrate that compliance with the pump at work provisions for a particular employee would cause an undue hardship. The burden of proving this hardship is on the employer. “To assert the exemption, an employer must be able to demonstrate that the employee’s specific needs for pumping at work is an undue hardship due to the difficulty or expense of compliance in light of the size, financial resources, nature, and structure of the employer’s business.”
  • Anti-Retaliation Provisions. Like most employment laws, the FLSA prohibits retaliation against anyone who has engaged in protected activity, including requesting break time or space to pump or requesting payment of wages. As an example, the WHD states that employers cannot hold time the employee took for pump breaks against them for quotas or require employees to work additional hours to make up for the time missed due to pump breaks.
  • Poster. Employers should post the WHD’s updated FLSA poster.

The WHD also provides additional resources for employers on its Pump At Work webpage.

Employers are reminded to review state and local wage and hour laws and lactation accommodation laws. If you have any questions about applying the FLSA or state and local laws to your workforce, please reach out to any Jackson Lewis attorney.