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The Minnesota Omnibus Jobs Bill was recently signed into law and includes a number of employee leave entitlements and protections. Many of the provisions go into effect as early as July 1, 2023, so employers should work to revise their policies and practices immediately.
- Earned Sick and Safe Leave. The Earned Sick and Safe Leave (ESSL) law allows employees to accrue one hour of leave for every 30 hours worked, up to a total of 48 hours per year. Carryover is permitted but may be capped at 80 hours. Employers may also frontload 80 hours of leave as an alternative. Employees are eligible if they have performed work for at least 80 hours in a year in Minnesota. Accruals will begin January 1, 2024 when the law becomes effective. The many qualifying reasons for leave include time off due to the employee’s own medical condition, care for a family member, absences related to domestic violence for the employee or a family member, absences related to communicable diseases, or the closure of a workplace, school, or care facility due to weather or a public emergency. Retaliation for the exercise of rights under the ESSL is prohibited. Employers must also provide notice regarding the ESSL to employees. Employers in Minneapolis, St. Paul, and Bloomington should note the ESSL does not preempt local ordinances although it is very similar to what is required by ordinances in these jurisdictions.
- Non-Competes Prohibited. Non-competes signed after July 1, 2023 are prohibited. The ban does not prohibit agreements that are agreed to (1) during the sale of a business where the agreement prohibits the seller from carrying on a similar business within a reasonable geographic area for a reasonable period of time; or (2) in anticipation of the dissolution of a business in which the dissolving partnership or entity agrees that the partners, members, or shareholders will not carry on a similar business in a reasonable geographical area for a reasonable period of time. Trade secret protection, confidentiality agreements, non-solicit agreements, and nondisclosures are still valid. The ban does not apply retroactively.
- Captive Audience Meetings. Employers are prohibited from holding mandatory meetings on unionization, political, or religious topics. Employers are also prohibited from taking adverse action against employees for failing to attend such meetings. It is likely this provision will face legal challenges since other similar pieces of legislation across the country have been challenged and struck down as violating the Supremacy Clause and the First Amendment of the U.S. Constitution.
- Lactation and Pregnancy Accommodations. Lactating employees are no longer limited to the first 12 months after the birth of a child to receive breaks to express milk. Employers also no longer have the right to deny breaks if doing so would disrupt business operations. Lactation spaces are also clarified to be clean, private, and secure with access to an electrical outlet. Reasonable modifications for pregnant workers now include more frequent or longer restroom, food, or water breaks; temporary leaves of absence; modifications to work schedule or job assignments; and more frequent or longer rest break periods. There is also now a notice requirement at the time of hire and when an employee makes an inquiry about or requests parental leave.
- Parental Leave. The unpaid parental leave law now applies to all employers. All Minnesota employers are required to provide 12 weeks of parental leave to all employees immediately upon the start of employment.
- Reasonable Accommodation Fund. Employers domiciled in and with their principal place of business in Minnesota with 500+ employees will now have access to a grant program to reimburse eligible employers for the cost of expenses incurred in providing reasonable accommodations for individuals with disabilities. Reimbursement is capped at $30,000. The fund will expire in 2025 or whenever the funding providing for its purpose expires.
In addition to the Omnibus Jobs Bill, the Governor signed into law two additional important pieces of legislation.
State-Funded PFML. HF 2 creates a state-funded Paid Family and Medical Leave insurance program effective January 1, 2026. Employees will be entitled to up to 12 weeks of family leave benefits and up to 12 weeks of medical leave benefits (20-week annual limit of combined medical and family leave for more than one qualifying event in a claim year). Qualifying reasons for leave include: 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.
Employers can offer a private plan, with approval from the state, if it includes equal or greater benefits than the state plan. The PFML runs concurrently with the FMLA. An employee may use vacation pay, sick pay, paid time off, or disability insurance in lieu of PFML benefits if the employee is concurrently eligible. Such time off would be protected but the employee could not receive PFML benefits from the state. Employees are also ineligible to receive PFML benefits for any week they are receiving payments related to the separation from employment or Social Security disability benefits. Receipt of workers’ compensation will result in a reduction of the amount of PFML benefits paid by the amount of the employee’s workers’ compensation payment.
An employer may choose to designate certain benefits such as salary continuation, vacation leave, sick leave, or other paid time off as a supplemental benefit payment, which can be used to “top off” the amount of PFML benefits received so that the employee receives their regular wage or salary. Employees may choose – but cannot be required – to use supplemental benefits concurrently with their PFML.
Recreational Marijuana. HF100 legalizes recreational marijuana and provides employee protections for lawful off-duty use. Possession and adult use of marijuana is permitted beginning August 1, 2023. Cannabis would no longer be a “drug” under Drug and Alcohol Testing in the Workplace Act (DATWA) but would allow testing through a new category of “cannabis testing.” This change requires employers to decide whether to test individuals for cannabis, reevaluate the circumstances in which they require cannabis testing, and amend their written policies to address new cannabis testing requirements.
There are two classes of positions for testing. Safety sensitive positions would still be subject to DATWA requirements. All other positions would be prohibited from requiring cannabis testing for the sole purpose of determining the presence or absence of cannabis. That means employers could no longer require pre-employment testing or random testing for cannabis. Employers could conduct reasonable suspicion cannabis testing as defined in the statute. Specifically, the employer could continue to require cannabis testing if it reasonably suspects that the employee: (1) is under the influence of drugs or alcohol; (2) violated the employer’s written rules prohibiting the use, possession, sale or transfer of drugs, alcohol, or cannabis during work; (3) has sustained a personal injury or caused another employee to sustain a personal injury; or (4) has caused a work-related accident or was operating or helping to operate machinery, equipment, or vehicles involved in a work-related accident.
The law clarifies the circumstances under which discipline may be imposed in the workplace for cannabis use. Specifically, the law states that employers may discipline, discharge, or take other adverse personnel action against an employee for cannabis use, impairment, sale or transfer while the employee is working, while the employee is on the employer’s premises, or while the employee is operating the employer’s vehicle, machinery, or equipment if the employer has enacted work rules regarding cannabis and cannabis testing in a DATWA-compliant policy. Employers may also impose discipline if, as the result of consuming cannabis, the employee “does not possess the clearness of intellect and control of self that the employee otherwise would have” or the employee has a confirmed positive result on a cannabis test. Employers are also allowed to take action if authorized under state or federal law or regulations, or if failing to do so would cause the employer to lose a federal monetary or licensing-related benefit.
- Implement policies and procedures for state-required paid sick leave.
- Have non-compete agreements reviewed by legal counsel or otherwise eliminate use.
- Have appropriate personnel trained on prohibited captive audience meetings.
- Review and updated policies and practices as required.
- Implement required parental leave notice.
- Updated payroll processes to reflect deductions and accruals for leave.
- Prepare to implement paid family and medical leave insurance.
- Have substance abuse policies updated for marijuana use.
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Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2023 ManagEase