Notable Compliance Requirements for Employers in 2023

Federal workplace protections for pregnant workers and nursing mothers; the continued evolution of paid leave laws; a new salary history ban, and increased minimum wage requirements are some of the changes in state and federal laws that employers will see in 2023.

Federal laws on pregnancy accommodation and workplace lactation

The omnibus spending bill that cleared Congress and the president’s desk contains 2 amendments aimed at increasing workplace protections for expectant and nursing mothers.

• Pregnant Workers Fairness Act (PWFA)
• Providing Urgent Maternal Protections for Nursing Mothers (PUMP Act)

Many states and cities, however, already have such laws on the books.

Pregnant Workers Fairness Act

The Pregnant Workers Fairness Act requires employers to provide reasonable accommodations for medical conditions arising from pregnancy and childbirth.

The PWFA is modeled upon the Americans with Disabilities Act. It requires that employers make reasonable accommodations to pregnant workers that would allow them to continue working by providing accommodations such as lighter work responsibilities or additional bathroom breaks.

Currently, federal law only requires such accommodations if employers provide them to workers with injuries or medical conditions.

The PWFA applies to employers with 15 or more employees.

However, covered employers don’t have to comply if they can show that the accommodation would impose an undue hardship on the organization’s operations.

The PWFA’s requirements go into effect in about 6 months.

The PWFA has wide backing. The measure passed with bipartisan support in both the U.S. House and the U.S. Senate.

President Joe Biden signaled his support of the PWFA in 2021. The U.S. Chamber of Commerce and other business groups also noted their support. They said the measure benefits pregnant workers while establishing a clear legal standard for employers.

The PWFA was introduced in Congress in 2012. The Democrat-controlled House passed the bill several times. The proposal, however, stalled in the U.S. Senate, never going to a vote.

PUMP Act

The PUMP Act expands federal breastfeeding time and space protections to a larger group of nursing workers. Employers must provide accommodations for workers who need to express milk to those not covered under existing law such as salaried employees.

In addition, the time spent expressing breast milk must be considered hours worked.

The measure amends the FLSA.

There is an exemption for small employers. Employers with fewer than 50 employees do not have to comply if the requirement imposes an undue hardship by causing the employer “significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”

Federal law already requires that covered employers provide reasonable time to express breast milk and provide a place for pumping, other than a bathroom, that is private and shielded from view.

However, salaried employees were excluded from that requirement. The PUMP Act extends those rights to all breastfeeding employees for the 1st year of the baby’s life.

The measure goes into effect 4 months after the President signs the bill.

Salary history ban

The Rhode Island salary history ban and equal pay requirement goes into effect on Jan. 1, 2023.

Similar to other such bans, the state law forbids employer inquiries about salary history. As a result, job candidates don’t have to disclose salary history. The law also bans reliance on prior salary history.

The equal pay requirement means that employers cannot pay an employee less than others for comparable work based on a number of legally protected characteristics. Those characteristics include race, gender, sexual orientation, age, or national origin.

Employers have a “safe harbor.” Legal liability will not result if an employer has evaluated its pay practices and eliminated disparate pay in the 2 years before a complaint has been made.

Paid leave laws expand employer leave requirements

Paid leave laws continue to be tweaked with changes going into place at the beginning of the new year. For the most part, the changes expand employer leave requirements.

Definition of family member extended

California lawmakers have updated the definition of family member under “California’s Healthy Workplaces Healthy Family Act” and the “California Family Rights Act.”

A family member, starting Jan. 1, 2023, can include a “designated person.” Employees may designate an individual for whom they may use time off under the 2 laws.

A “designated person” is “any individual related by blood or whose association with the employee is the equivalent of a family relationship.”

Siblings included as family members

New York state lawmakers also expanded the definition of family members under New York’s paid leave law.

The definition of family members under New York’s State Paid Family Leave will include siblings beginning Jan. 1, 2023. Siblings includes biological, adopted, half-, and step-siblings.

Bereavement leave

California employers with 5 or more employees must provide their workers up to 5 days of unpaid leave upon the death of a family member.

The time off doesn’t have to be taken consecutively. The leave must be taken within 3 months of the death.

Leave protection law

In addition to adopting and expanding paid leave requirements, many state lawmakers offer protections for those who take advantage of leave with anti-retaliation prohibitions. New York state lawmakers recently beefed-up legal protections for those who take leave whether under local, state, or federal law.

Employers can’t assess points or demerits against workers who take leave.

Employers can’t assess points or demerits against workers who take leave. The law is aimed at restricting employer attendance policies.

The new law prohibits employers from taking adverse employment actions against workers who use their leave under various laws. Forbidden employer actions include assessing points or demerits against employees who take leave.

The prohibition goes into effect in February 2023.

Premiums due under leave law

Employers must submit premiums under Colorado’s “Paid Family and Medical Leave Insurance Act” beginning Jan. 1, 2023. Benefits are not available until 2024, however. Employees will be able to take up to 16 weeks of paid family and medical leave starting January 1, 2024.

Paying accrued vacation

Some Maine employers will be required to pay all unused, accrued vacation to separated employees starting Jan. 1, 2023. The law applies to businesses with 11 or more employees.

Pay data reporting and pay transparency

California employers with more than 15 employees must include the pay scale in job postings starting Jan. 1, 2023, The law also imposes more detailed reporting requirements on large private employers.

Reproductive health decision-making for employees

Starting Jan. 1, 2023, California employers cannot discriminate against a job applicant or an employee based on “reproductive health decision-making.”

Privacy laws pertaining to employees

The definition of consumer under California privacy laws will include employees and job applicants starting Jan. 1, 2023. This means they will have the same rights to their personal data as consumers.

Employers will have to disclose a variety of privacy rights to employees, including the right to access, correct, limit, or eliminate the use of personal information.

Minimum wage is increasing in many states

The federal minimum wage has been the same since 2009. It sits as $7.25 an hour. Lacking movement at the national level, many states and localities have raised employers’ minimum wage requirements. At least 25 states are increasing the minimum wage in 2023.

Among the states, Washington employers must pay the highest minimum wage. The hourly wage increases from $14.49 to $15.74 an hour in 2023.

California employers must pay $15.50 in 2023, boosting the minimum wage from $15. Minimum wage in Massachusetts increases to $15, up from $14.25.

Some municipalities have set an even higher minimum wage requirement. For example, Seattle requires a minimum wage of $18.69 an hour for large employers, those that employ more than 500 people.

Employers should become familiar with new requirements

Employers, especially those who operate in more than 1 location, should become familiar with relevant new legal requirements, update their employee handbooks, and train their managers and supervisors on how best to comply with the expansion of responsibilities under the new laws.