By Mary L. Senkbeil
When Minnesota enacted Earned Sick and Safe Time (ESST) for all employees in the state (effective January 1, 2024), four cities – Minneapolis, Saint Paul, Bloomington and Duluth – already had ordinances on the books guaranteeing employees this right. The new state law did not preempt those ordinances, some of which conflicted with or gave more rights to employees working in their jurisdiction. Fortunately, since the state law passed, most conflicts with the ordinances resolved. Recognizing that there was no longer a need to protect employees through ordinances, Duluth repealed its ESST ordinance effective January 17, 2024. Bloomington and Saint Paul, while not repealing their ordinances, amended them to substantially align with the state law. That leaves Minneapolis, which did not amend its ordinance. In many respects the Minnesota law is more generous than the Minneapolis ordinance, so complying with the state law means employers comply with the Minneapolis ordinance as well. Where there is an exception, it is noted below. This is good news for employers with employees in multiple locations trying to navigate the difference between the laws. Just remember, employers must give notice to employees working in Minneapolis, Saint Paul and Bloomington of the specific ordinances applicable to them in addition to Minnesota ESST.
Accrual: ESST accrues at a rate of 1 hour for every 30 hours worked, with a cap of 48 hours accrual per year and a maximum of 80 hours. It is assumed that full-time salaried employees work 40 hours per week for the purposes of this accrual. The accrual must be reflected on the employee’s paystub. Employers can skip accrual if they frontload employees’ entitlement to ESST by giving them 48 hours each year (and paying out any unused ESST at the end of the year) or giving them 80 hours each year (and not paying out unused ESST). However, if frontloaded, employees can use all accrued ESST at the time it is granted.
Usage: Employees can begin using ESST as soon as it accrues. (PTO policies that are meant to comply with Minnesota ESST laws cannot require employees to wait 90 days before usage.) Employers must allow use in increments of time tracked by their payroll practices – i.e., if employers track time in one fourth (1/4th) hour increments, they must allow ESST use in increments of 1/4th hour. However, employers cannot require use in increments of more than 4 hours.
Because ESST is meant to provide pay for employees who miss work due to one of the covered reasons (listed below) employers can require the employee actually be scheduled for the work time they missed before paying out ESST. Reasons for use: ESST may be used:
- For the employee’s own mental or physical illness, injury, health condition, need for medical diagnosis, care, or treatment or need for preventative medical or health care;
- to care for a family member with a mental or physical illness, injury or health condition who needs medical diagnosis, care, including prenatal care, treatment or need for preventative medical or health care;
- due to domestic abuse, sexual assault or stalking of the employee or a family member when necessary to: (a) seek medical attention related to physical or psychological injury or disability caused by the domestic abuse, sexual assault or stalking; (b) obtain services from a victim services organization; (c) seek psychological or other counseling; (d) seek relocation or take steps to secure an existing home; or (e) 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;
- due to the closure of the employee’s place of business due to weather or other public emergency or an employee’s need to care for a family member whose school or place of care has been closed due to weather or other public emergency1;
- in the case of communicable diseases, the employee is prohibited from working either by their employer, health authorities having jurisdiction or if a healthcare official prohibits the employee from working or is awaiting test results related to a communicable disease; or
- when it has been determined by health authorities having jurisdiction or by a health care professional that the employee’s family member would jeopardize the health of others because the employee or their family member has been exposed to a communicable disease.
NOTE: Employees in Minneapolis may also use ESST to care for family members whose place of business has been closed due to loss of power, loss of heating, loss of water or other unexpected reason. See Minneapolis Code Chap. 40.220(b).
Definition of “Family Member” is Very Broad: In addition to the individuals commonly thought of as family members (spouse, children, parents, grandparents and grandchildren), the ESST definition of “family member” includes aunts and uncles, nieces and nephews, and any other individual related by blood or whose close association with the employee is the equivalent of a family relationship and up to one individual annually designated by the employee.
Notice: Employers can request notice for foreseeable circumstances (e.g. medical appointments, court dates). More than 7 days advance notice cannot be required. Employers who require notice must have a written policy containing reasonable procedures for employees to provide notice. Employers can deny the request for ESST if the need was foreseeable and no notice was given, provided they have furnished the written policy to the employee. If the circumstances are not foreseeable, the employee must give notice as soon as practicable. Employers cannot request the employee find their own replacement due to an absence under the ordinance. Similarly, employers cannot deny the request because they are shorthanded. Employers can, however, request (but not require) employees using foreseeable ESST schedule time off in consideration of business conditions.
Documentation: Employers can require reasonable documentation for the need for the leave only if the leave was for 3 or more consecutive days. If the employee is using ESST for their own health or to care for a family member, reasonable documentation may include a signed statement by a healthcare professional. However, if the employee or the employee’s family member did not receive services from a healthcare professional, or could not obtain documentation from the healthcare professional in a reasonable time or without added expense, the employee’s statement that they are using ESST for those purposes must suffice. These signed statements need not be notarized. If the employee is using ESST for safety purposes, the employer must accept a court record, documentation signed by a volunteer or employee of a victim’s services organization, an attorney, a police officer or antiviolence counselor. Employers cannot require disclosure of details of domestic violence, sexual assault or stalking, or details
of an employee’s or an employee’s family member’s medical condition. Moreover, written statements may be written in the employee’s first language. That means if the doctor’s note is in French, and French is the employee’s first language, it must be acceptable to the employer, even if the employer cannot understand what is written.
No Retaliation: Employers cannot retaliate against employees for requesting or using ESST, nor can an employer retaliate against the employee for informing others that the employer allegedly violated the law, or retaliate against the employee for making a complaint or enforcing the employee’s right to ESST.
Notice and Posting: Employers must give notice to all employees that they are entitled to earn sick and safe time, the amount of sick and safe time available, the accrual year and a copy of the written policy for providing notice of using ESST. This notice must be in English and the employee’s primary language. If the employer has a handbook, notice of the employee’s rights and remedies under the ESST must be included. Note that if you have employees working primarily (80+) hours in Minneapolis, Saint Paul and/or Bloomington, you will need to give them notice of those ordinances as well.
Employer Records: In addition to maintaining accurate records of leave, employers must notify their employees of their leave available and used on employee paystubs.
Confidentiality and Nondisclosure: All records submitted or obtained and requests for leave received by the employer for ESST use must be treated as confidential and may only be disclosed if requested or consented to by the employee, where ordered by a court or administrative agency or when otherwise required by federal or state law.
Reinstatement of Leave: Employees who are separated and reinstated within 180 days must be provided their previously accrued ESST that was not paid out upon termination.
Employer Succession: When a different employer succeeds or takes the place of an existing employer, all employees of the original employer who remain employed by the successor employer are entitled to all of their accrued, unused ESST. Employees who are terminated by the original employer and hired within 30 days by the successor employer are entitled to all of the ESST they accrued but did not use as of the date of their termination. Therefore, in these circumstances accrued ESST should be factored into the transactional cost of the business sale.
Enforcement and Penalties: ESST is enforced by the Department of Labor and Industry (DLI). As with the other laws enforced by the DLI (such as minimum wage and child employment laws) the DLI Commissioner has the authority to require records to show enforcement and issue compliance orders. Of note is that the penalty for noncompliance with this section was raised from $1,000 to $10,000 per incident. Additionally, employees can bring suit directly in civil court to recover all their damages, costs and disbursements, reasonable attorney’s fees and injunctive or other equitable relief.
Statute of Limitations: Under ESST, any action to recover damages must be commenced within 3 years of the violation that caused the injury to the employee.
Next Steps: Employers with PTO policies who intend them to also cover ESST laws should review them to ensure they meet the requirements of the new law. Employers who do not have PTO policies should consider a holistic approach to adopt them and comply with ESST. Remember – PTO policies are a matter of contract, so you can set the terms for use and payout as long as the policies comply with the law. Employers should also work with their IT Department and/or payroll provider to ensure proper accruals will be made and represented on employee’s pay stubs. Employers with handbooks should revise them to include their policy addressing ESST and required leave request notices.
1“Public emergency” is not defined under the statute, but includes state and local disasters as declared by the governor or head of local government.