The news has been full of stories of hugely profitable high profile employers instituting generous new parenting leave policies. There is also considerable national discussion surrounding potential changes to state or federal law to expand the nature and amount of parenting leave. Given the considerable attention to this issue, employers should audit their current parenting leave policies to ensure compliance with current law. Here are some guidelines for employers in Minnesota:
Family Medical and Leave Act (FMLA)
The FMLA is a federal statute that entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken the leave.
Covered Employers and Employees. First, employers are subject to the FMLA if they employ 50 or more employees during each of 20 or more calendar workweeks in the current or preceding year. In determining number of employees, employers with employees at two locations within 75 miles of each other are counted together. In order for an employee to be an eligible employee, the employee must have been employed for one year and worked 1,250 hours for the employer. An eligible employee shall be entitled to a total of 12 workweeks of unpaid leave during any 12 month period for the birth or adoption of a son or daughter of the employee and the care of such son or daughter. If both parents are employed by the employer and within 75 miles of each other, their combined total leave is limited to only 12 workweeks.
Notice Requirements. Employers must post a general notice explaining the FMLA’s provisions and provide information in any employee handbook or other written policies describing employee benefits. Employers can be assessed a civil penalty if they do not comply. Generally employees must notify employers 30 days prior to foreseeable birth. If the date of an unforeseeable birth begins within the 30 days, the notice must be given as soon as practicable. Employees must provide “sufficient information” to make the employer aware of the need for FMLA leave and the anticipated timing and duration of the leave. Employers must notify an employee of whether the employee is eligible to take FMLA leave and whether the requested leave will be designated as FMLA leave within 5 business days of the request.
Substitution of Paid Leave. Employers may require or an employee may elect to substitute certain types of paid leave for unpaid leave under the FMLA. However, this does not change the entitled amount of leave of 12 total workweeks. For example, if an employee has 6 weeks of paid time off, the additional 6 weeks of leave may be provided without pay.
Employment Protections. If FMLA leave is granted, employers are prohibited from interfering or denying the employee’s granted leave. Employers are also prohibited from discharging or discriminating against the employee. The employer must return the employee to the same job that the employee left or one that is equivalent.
Women’s Economic Security Act
On May 11, 2014, Minnesota Governor Mark Dayton signed into law the Women’s Economic Security Act (WESA). The Act imposed significant changes regarding pregnancy and parental leave and pregnancy accommodations.
Covered Employers and Employees. First, employers are subject to the Minnesota parental leave and pregnancy accommodations requirements if they employ 21 or more employees at at least one site in Minnesota. In order to be an eligible employee, the employee must have worked for the employer for 12 months and at least half-time prior to the request. Eligible employees can elect to take up to 12 weeks of unpaid leave for the birth or adoption of a child, and eligible female employees can elect to take up to 12 weeks for prenatal care, or incapacity due to pregnancy, or childbirth. However, eligible employees are limited to a total of 12 weeks. The leave must begin within 12 months of the birth or adoption. If the child stays in the hospital longer than the mother, the leave must begin within in 12 months after the child leaves the hospital.
Pregnancy Accommodations. Minnesota employers must provide reasonable accommodations to an employee for conditions related to pregnancy, childbirth, or related health conditions. The employee must request an accommodation, with the advice of her healthcare provider. A reasonable accommodation could include temporarily transferring the pregnant female employee to a less strenuous or hazardous position for the duration of her pregnancy, if requested. An employee does not need to get advice from her healthcare provider to request accommodations for more frequent restroom breaks, snack or water breaks, seating, or limits on lifting over 20 pounds. The employer also does not have to provide a reasonable accommodation that imposes an “undue hardship” on the operation of the business. An employer may not retaliate against employees for requesting such accommodations.
Required Notice. The employer may adopt reasonable policies governing the timing of requests for unpaid leave. An employer may require an employee to give the reasonable notice of the date the leave shall commence and the estimated duration of leave.
Employment Protections. Minnesota parental leave statutes require the employee to reinstated to the employee former’s position or in a position of comparable duties.
Interaction with Other Types of Leave. Employers can require any paid leave be applied during the period of the parental leave. Parental leave and FMLA for pregnancy run concurrently with each other, so employees cannot get an additional 12 weeks of leave under both. However, employees may be entitled to additional FMLA leave for non-pregnancy related serious health conditions.
Questions surrounding pregnancy and parenting leave, disability accommodations and the coordination of various leave policies and employee benefits are among the most challenging facing any business. If you have questions about this article or if you want to learn more about how these laws might affect your own business, please contact Martin Kappenman at email@example.com or any of the Peters, Revnew, Kappenman & Anderson, P.A. attorneys.