or sexual orientation; or in reprisal for objecting to, or participating in the investigation or litigation of, alleged discrimination or for associating with a disabled person or persons of a different race, color, creed, religion, sexual orientation or national origin. WESA amends the Human Rights Act to also prohibit discrimination against applicants and employees based on “familial status.” The familial status protection applies to a person who is pregnant or who is in the process of securing legal custody of a minor. Familial status further is defined as “the condition of one or more minors being domiciled with (1) their parent (s) or the minors legal guardian or (2) the designee of the parent (s) or guardian” with written permission. Employers may not use these protected characteristics as a factor in making any employment decision. In rare instances, certain jobs may require persons to be chosen on the basis of one of these characteristics, but there is a strict burden of proof on the employer to show that the discrimination was demanded by the job in that all or virtually all persons excluded on the basis of the protected characteristic could not perform the job or that some other compelling business reason exists that justifies the action. 2023 law amended the Minnesota Human Rights Act by adding new language that defines “race” to include “…traits associated with race, including but not limited to hair texture and hair styles, such as braids, locks, and twists.” Before hiring, an employer may not require or request from applicants, or from any source, information which pertains to a protected characteristic, including on an application form or in an interview. An employer may, however, seek information to determine whether a person can safely and efficiently perform the duties of the position at issue. This may include requiring or requesting a physical examination, if the requirements of the law are met (see the section of this Guide on pre-employment testing). In general, employers also may, with the consent of the employee, after employment has commenced, obtain additional medical information to assess continuing ability to perform the job or to assess employee health insurance eligibility; for purposes mandated by law; for purposes of assessing the need to reasonably accommodate an employee; or pursuant to the state drug testing law; or other legitimate business reasons not otherwise prohibited by law. With limited exceptions, medical documentation must be collected and maintained on separate forms and kept confidential. Under the state law, businesses with 15 or more full-time or part-time employees must provide reasonable accommodation for their employees‘ and job applicants‘ known disabilities, unless the business can demonstrate that the accommodation would impose an undue hardship on the business. This requirement is similar to that required by the federal Americans with Disabilities Act. “Reasonable accommodation“ under the state law generally means making facilities readily accessible to the disabled person, or initiating practices like job restructuring, work schedule modifications, reassignment to a vacant position, acquisition or modification of equipment or devices, or providing aides on a temporary or periodic basis. “Undue hardship“ is determined by evaluating a number of factors, including the size of the business, the type of operation, work force size and composition, the nature and cost of the needed accommodation, the employer’s ability to finance the accommodation, and good faith efforts to explore less restrictive or less expensive alternatives with the employee and individuals or organizations knowledgeable about the needs of disabled persons. The state law provides that whenever health care records or medical information adversely influence any hiring, firing or promotional decision about an applicant or employee, the employer must notify that person of that fact within 10 days of the final decision. There is no requirement in the state law that the employee must first request the information from the employer.
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