Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
UPDATE: On May 24, 2023, Governor Walz signed this bill into law.
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Minnesota will soon join the ranks of states with state-wide earned paid sick and safe leave requirements. The Minnesota legislature passed an Earned Sick and Safe Leave law (ESSL), and Governor Tim Walz has promised to sign the Omnibus Jobs Act which includes the ESSL provisions. The ESSL provisions, effective January 1, 2024, do not preempt other local paid sick and safe time laws but are similar to those in Minneapolis, St. Paul, and Bloomington (going into effect July 1, 2023). All of the ordinances differ slightly, so employers must be conscious of the details. Duluth also has a paid sick and safe leave ordinance, but it differs more significantly from the other cities’ laws.
ESSL covers all employees (including part-time and temporary employees) performing work for their employer in Minnesota for at least 80 hours in a year. It does not cover independent contractors or certain individuals employed by an air carrier as a flight deck or cabin crew member. Employees may use ESSL once they have performed at least 80 hours of work in Minnesota in a year.
ESSL to any individual or business with one or more employees – there is no small employer exemption. Temporary employees supplied by a staffing agency are considered employees of the staffing agency unless a contractual agreement states otherwise.
Accrual and Frontloading
Employees may accrue up to 48 hours of ESSL per year under the statute, though employers may grant more. Employees accrue a minimum of one hour of ESSL for every 30 hours worked. Exempt employees are deemed to work 40 hours in each workweek for purposes of accruing ESSL, unless their normal workweek is less than 40 hours, in which case they will accrue ESSL based on the normal work week.
Employees may carry over any unused ESSL from year to year, but the employer may cap the number of hours accrued at 80. In lieu of carry over, employers may frontload ESSL. Although the law does not expressly address the frontload amount for the first year that the law will exist, given the law’s annual accrual cap, a 48-hour frontload should comply. What happens to unused frontloaded leave at the end of “year 1” of the law depends on how much ESSL an employer will frontload the following year. If it will again frontload 48 hours, it must cash out unused “year 1” ESSL. If, however, it will frontload 80 hours, unused “year 1” need not carry over and need not be cashed out.
For the purposes of ESSL, a “year” is a regular and consecutive 12-month period, as determined by the employer. The employer must clearly communicate to employees how the year is calculated, e.g., calendar year, year based on employee’s work anniversary, or fiscal year. Employees begin accruing sick and safe time when they start employment.
Reasons for Using ESSL
Employees may use protected ESSL:
- For the employee’s mental or physical illness, injury, or other health condition; need for medical diagnosis, care or treatment of a mental or physical illness, injury, or health condition; or need for preventive medical or health care.
- To care for a family member with a mental or physical illness, injury, or other health condition; who needs medical diagnosis, care, or treatment of a mental or physical illness, injury, or other health condition; or who needs preventive medical or health care.
- For absence due to domestic abuse, sexual assault, or stalking of the employee or the employee’s family member; to seek medical attention related to physical or psychological injury or disability cause by domestic abuse, sexual assault, or stalking; obtain services from a victim services organization; obtain psychological or other counseling; seek relocation or take steps to secure an existing home due to domestic abuse, sexual assault, or stalking; or seek legal advice to 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.
- For closure of the employee’s place of business due to weather, public emergency, or the need to care for a family member whose school or place of care has been closed due to weather or public emergency.
- Because the employee is unable to work or telework because the employer prohibits them from going to work because of health concerns related to the potential transmission of a communicable illness related to a public emergency; because the employee is seeking or awaiting results of a diagnostic test for or medical diagnosis of a communicable disease related to a public emergency when the employee has been exposed to the communicable disease or the employer has requested the test or diagnosis.
- Because health authorities or a health care professional said the presence of the employee or family member in the community would jeopardize the health of others due to exposure to a communicable disease, whether or not the employee or family member has actually contracted the disease.
The meaning of “family member” is extensive. It includes an employee’s:
- Child, foster child, adult child, legal ward, child for whom the employee is the legal guardian, or child to whom the employee stands or stood in loco parentis;
- Spouse or registered domestic partner;
- Sibling, stepsibling, or foster sibling;
- Biological, adoptive, or foster parent, stepparent, or a person who stood in loco parentis when the employee was a minor child;
- Grandchild, foster grandchild, or stepgrandchild;
- Grandparent or stepgrandparent;
- Sibling’s child;
- Parent’s sibling;
- Child-in-law or sibling-in-law;
- Family members of a spouse or registered partner;
- Other individuals related by blood or whose close association with the employee is equivalent to a family relationship; and
- Up to one individual annually designated by the employee.
If need for ESSL is foreseeable, an employer may require up to seven days’ advance notice. If the need is unforeseeable, an employer may require notice of need for ESSL as soon as practicable. An employer may only require notice of need to use ESSL if the employer has a written policy with reasonable procedures for doing so and provides that policy to employees.
Employers may require reasonable documentation regarding the need for ESSL when an employee uses ESSL for more than three days in a row. Reasonable documentation includes a signed statement from a health care professional indicating the need for ESSL. If the employee or family member did not receive services from a health care professional or if documentation cannot be obtained in a reasonable time or without added expense, then the employee may provide a written statement indicating the employee is using ESSL for a qualifying purpose. The statute also specifies documents related to ESSL used for other reasons. An employer must not require an employee to disclose details related to domestic abuse, sexual assault, or stalking or the details of the employee’s or the employee’s family member’s medical condition.
ESSL may be used in the smallest increment of time the employer’s payroll system tracks, but not more than four hours.
Pay and Benefits
The employer must maintain employees’ insurance coverage during use of ESSL, as if the employee was working. The employee must continue to pay any employee portion of such benefits.
When an employee returns from ESSL, the employee is entitled to return to employment at the same pay, plus any automatic adjustments that occurred during the leave, and to retain all accrued pre-leave benefits and seniority.
Termination and Rehire
Employers need not pay out unused ESSL at termination of employment for any reason. Employees who are transferred to a separate division, entity, or location but remain employed by the same employer retain their ESSL. When a new employer succeeds or takes the place of an existing employer, employees who remain employed will retain unused ESSL. If an employee is terminated by the original employer and rehired within 30 days by a successor employer, the employee retains the right to unused ESSL.
If an employee separates from employment but is rehired within 120 days of separation, the employer must reinstate any previously accrued but unused ESSL or that was not paid out on separation from employment.
Notice, Posting, Policies, and Records
If an employer provides an employee handbook to its employees, it must include notice of employee rights and remedies regarding ESSL. The Minnesota Department of Labor is to prepare a uniform employee notice form.
Other Requirements and Restrictions
Employers must not retaliate or discriminate against employees because they request ESSL, use ESSL, request a statement of accrued ESSL, inform a person of their rights regarding ESSL, make a complaint or file an action to enforce rights to ESSL, or participate in an investigation, proceeding or hearing regarding ESSL. Employers must not count ESSL as an absence that may lead to adverse action under their absence control policy or attendance point system.
Employers must not require employees to find their own replacement for hours covered by ESSL.
It is unlawful to report or threaten to report the actual or suspected citizenship or immigration status or a person or their family member to a government agency because that person attempts to or did exercise ESSL-related rights.
Employers must maintain the confidentiality of employee and family member information regarding health and medical treatment; domestic abuse, sexual assault, or stalking; the request for ESSL; and any statement from the employee about the need for leave. Medical records should be maintained confidentially and apart from personnel files.
Required Statement Earnings
The law also amends Minnesota Statutes Section 181.032, regarding earnings statement requirements. Under that law, at the end of each pay period, an employer must provide each employee with an earnings statement covering that pay period. That section is amended to specify that the earnings statement must include 1) the total number of ESSL hours accrued and available for use, and 2) the total number of earned sick and safe time hours used during the pay period.
Effect on Other Laws and Current Policies
The state law will not preempt city ordinances that provide more generous benefits. Therefore, where the city ordinances and state law conflict, employers must grant the more generous benefits.
If an employer already offers sick and safe time under a paid time off policy that is as or more generous than the Minnesota law, the employer need not offer additional time off. However, the employer must satisfy all of the requirements of the law. For example, if an employer has a sick time policy that does not apply to time off in connection with incidents of domestic violence or school closures, it must extend the policy to cover such time off. Similarly, the employer cannot assess “attendance points” against an employee for using sick and safe time for designated purposes. Employers may also allow employees to donate unused ESSL to another employee and may advance ESSL to employees.
The ESSL provisions may be waived by a collective bargaining agreement with a bona fide building and construction trades labor organization. Such waiver must reference the ESSL law and clearly and unambiguously waive application of the relevant sections.
The Commissioner of the Department of Labor and Industry (DLI) may enforce the ESSL statute. Employers may be fined up to $10,000 for each failure to submit or deliver records required by the DLI. The DLI Commissioner may order compliance with the ESSL statute, including damages to an individual.
The statute also creates an individual right to recover damages, including costs, disbursements, and attorneys’ fees. An action must be commenced within three years of the violation.
- Employers that have a paid sick time or PTO policy should review it to ensure it meets the requirements of the new Minnesota law and includes the required information.
- Employers that do not have a paid sick time or PTO policy should start planning for adoption of written policies.
- Employers should work with their payroll providers to ensure they provide a complete statement of earnings.
Regulations and FAQs are expected from the DLI, and we will update you accordingly. Stay tuned!