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.
Note: Because the COVID-19 situation is dynamic, including with new governmental measures each day, employers should consult with counsel for the latest developments and updated guidance on this topic.
On March 20, 2020, we published an Insight article detailing Minnesota’s swift response to the COVID-19 pandemic and the many resulting impacts on Minnesota employers. Over the last few weeks, Minnesota’s employment laws have continued to change in significant ways, including:
- Statutes of limitations are being extended because of COVID-19;
- The City of St. Paul has issued FAQs addressing the application of its Earned Sick and Safe Time Ordinance with respect to COVID-19;
- Minnesota has continued to relax requirements for obtaining unemployment benefits, including permitting employees to obtain unemployment benefits while they are otherwise receiving PTO, vacation, sick pay, or severance;
- Minnesota has placed new unemployment notice obligations on employers that apply to all separated employees;
- Minnesota has enacted a new law describing how contracting COVID-19 may entitle employees to workers’ compensation benefits; and
- The Minnesota Department of Education has expanded the categories of Minnesota workers who may be eligible for childcare due to COVID-19.
This article reviews each of these developments in greater detail.
Allowing Employees More Time to Sue Their Employers
On April 14, 2020, Governor Tim Walz signed into law a bill that extends the period of time to bring any lawsuit that would otherwise expire during Minnesota’s state of emergency (Governor Walz declared the state of emergency to have begun on March 13, 2020) for 60 days after the state of emergency order is lifted. This is significant for Minnesota employers because some of the employment-related claims that employers face have relatively short limitations periods. For example, the Minnesota Human Rights Act provides that claims must brought within one year of an alleged discriminatory act. That period will now be substantially expanded for some whose claims would otherwise have expired during the state of emergency. Employers should be attentive to this expansion of the limitations periods as they evaluate potential legal claims or those asserted during and following the state of emergency period here in Minnesota.
Update on Sick and Safe Time Obligations in St. Paul
St. Paul was the last city in Minnesota with a municipal Earned Sick and Safe Time (ESST) Ordinance to issue COVID-19-related guidance. St. Paul’s FAQs clarify that employees may use ESST for absences related to: (1) providing care for children whose school or place of care has been closed due to an “official order”; (2) workplace closure by order of a public official to limit exposure to an infectious agent, biological toxin or hazardous material or other public health emergency; or (3) the employee’s preventative care because they are at a greater risk of severe complications from contracting COVID-19. Unlike Minneapolis, St. Paul did not clarify whether ESST may be used for closures when the employee is no longer scheduled to work.
St. Paul further advises employers that requesting a doctor’s note from employees who are sick due to upper respiratory illness may not be “reasonable” given OSHA’s guidance and efforts to relieve strain on the healthcare system.
Navigating the patchwork of ESST ordinances for employers with employees in multiple ESST jurisdictions can be challenging, particularly as the local guidance continues to evolve. Employers should regularly check the city websites for updates as developments are continuing to occur, and consider contacting experienced employment counsel before making a change to their policy or practice or taking another action.
Changes to Unemployment Compensation
Although not all employees have access to sick and safe time, many impacted by the effects of COVID-19 will receive relief from State of Minnesota Executive Order 20-05 (as amended by Executive Order 20-29).
Through Executive Order 20-05, Governor Walz ordered that strict compliance with the state unemployment insurance law be suspended, and expanded the availability of unemployment benefits to reduce the impact of the current crisis on both employees and employers in Minnesota. Those significant impacts of that executive order are discussed in our March 20, 2020 Insight, which is available here.
Executive Order 20-29 has further expanded the ability of individuals impacted by the current economic crisis to receive unemployment benefits, and it also places additional obligations on employers.Among the most significant developments, the statutory section of the unemployment act that delays the payment of unemployment benefits to individuals who have received vacation pay, sick pay, or PTO for a given week has been suspended until the state of emergency is lifted.
Furthermore, Executive Order 20-29 requires that employers notify all “separated” employees that they may apply for unemployment benefits.What it means for an employee to be “separated” is not defined in the executive order or the unemployment statute.Therefore, until further clarity is provided, employers may want to provide such notice to all employees whose employment has been terminated or whose hours have been reduced.
Finally, it is of note that Minnesota began the distribution of the Coronavirus Aid, Relief, and Economic Security (CARES) Act funds to individuals receiving state unemployment benefits on April 8, with payments being made retroactively to the week of March 29, 2020.Beginning with the week starting March 29, 2020, any individual who receives Minnesota unemployment benefits for a given week, regardless of dollar amount received under state law, will also receive an additional $600 per week under the CARES Act, until the end of July.
The rules and regulations surrounding unemployment benefits continue to change rapidly, as the Minnesota Department of Employment and Economic Development (DEED) adjusts its processes to comply with the governor’s executive orders and the CARES Act provisions.We are likely to see additional changes to DEED’s practices as this pandemic continues.
COVID-19-Related Workers’ Compensation
On April 7, 2020, the Legislature passed and Governor Walz signed a bill making it easier for certain employees to make a workers’ compensation claim after contracting COVID-19. The law effectively expands and replaces the governor’s prior executive order and the guidance from the Minnesota Department of Labor issued in March, which provided a presumption of entitlement to workers’ compensation coverage for emergency first responders who contract COVID-19.
The new law, which took effect April 8, 2020 and sunsets on May 1, 2021, expands the definition of “occupational disease” to provide for a presumption of a work-related illness to employees in the following occupations: licensed peace officers, firefighters; paramedics; nurses or health care workers, correctional officers, or security counselor employed by the state or a political subdivision at a corrections, detention, or secure treatment facility; emergency medical technician; a health care provider, nurse, or assistive employee employed in a health care, home care, or long-term care setting, with direct COVID-19 patient care or ancillary work in COVID-19 patient units; and workers required to provide child care to first responders and health care workers under Executive Order 20-02 and Executive Order 20-19.
The law states that the employee’s contraction of COVID-19 must be confirmed by a positive laboratory test or, if a test was not available for the employee, then the employee must provide medical documentation containing a diagnosis that is documented by the employee’s physician, physician’s assistant, or licensed advanced practice registered nurse. The presumption of coverage may be rebutted if the employer or insurer shows that the employment was not a direct cause of the disease.
Employees in other professions not specifically identified as being entitled to a presumption of work-relatedness may bring a claim for workers’ compensation benefits alleging they contracted COVID-19 arising out of and in course and scope of employment. These employees will need to offer “proof” that they contracted COVID-19 at work. In Minnesota, that means the employee would need to prove by a preponderance of the evidence that work caused or substantially contributed to the alleged work injury/illness.
Finally, an employee having to self-quarantine (as a precaution and without an actual diagnosis or positive laboratory test) would not be entitled to payment of workers’ compensation benefits unless the employee is subsequently diagnosed with COVID-19, the quarantine time period is associated with that diagnosis, and the employee qualifies for the presumption of work-related contraction or has proven a work-related injury/illness.
While the new presumption will likely result in coverage of more claims in the specified employment areas than would have been covered without passage of the presumption, the law clarifies and allows employers to better understand what may be covered by workers’ compensation. It also may serve to limit potential exposures and recovery attempts under other tort or personal injury claims outside of the workers’ compensation arena.
School Closures, “Emergency Workers,” and “Critical Sectors”
On April 9, 2020, Governor Walz issued Executive Order No. 20-33, which ordered “all persons currently living within the State of Minnesota . . . to stay at home or in their place of residence” from Thursday, April 9, 2020, through Sunday, May 3, 2020. The order allows workers from identified Critical Sectors who cannot work from home to continue to report to work in order to perform their work duties that cannot be performed at home. The April 9 executive order identifies additional Critical Sectors that were not identified in Order No. 20-02 and provides detailed guidance regarding the types of jobs that are included in these Critical Sectors.
On April 9, 2020, the Minnesota Department of Education (MDE) updated and expanded its guidance regarding which Critical Sector workers are eligible for the onsite care provided for in Executive Order 20-02 (which provided for child care for Critical Sector workers) for their school-age children under age 12. MDE’s guidance identifies two tiers of Critical Sector workers and provides that Minnesota’s public school districts and charter schools are required to care for children of workers in the first tier, and are encouraged to provide care for children of workers in the second tier.
The first tier of workers identified by MDE includes workers in the following Critical Sectors discussed in Governor Walz’s April 9, 2020 executive order:
- Healthcare and public health
- Law enforcement, public safety and first responders
- Food and agriculture
- Judicial Branch (essential services)
- National Guard
- Educators and school staff providing care for critical workers in tier 1 or tier 2
- Childcare providers caring for children of any critical worker in the governor’s executive order
The second tier of workers identified by MDE includes workers in following Critical Sectors discussed in Governor Walz’s April 9, 2020 executive order:
- Water and wastewater
- Transportation and logistics
- Public works and infrastructure support services
- Communications and information technology
- Other community-based government operations and essential functions
- Critical manufacturing
- Hazardous materials
- Financial services
- Defense industrial base
- Charitable and social services organizations
- Residential/shelter facilities and services
- State workers essential to the continuation of Minnesota Unemployment Insurance
MDE’s April 9 guidance also strongly encourages childcare providers to provide care for children of all workers in Critical Sectors, starting with the children ages 0-5 of tier 1 workers, and then expanding, as capacity allows, to any child age 12 and under of workers in all Critical Sectors, including the following additional Critical Sectors that were not included in the two tiers discussed above:
- Tribal governments
- Executive Branch (priority services), including state workers essential to the continuation of Minnesota Unemployment Insurance
- Executive Constitutional Offices (essential personnel)
- Legislative Branch (essential services)
- Federal employees
- Faith leaders and workers
- Construction and critical trades
- Hotels, residential facilities and shelters
- Legal services
- Critical labor union functions
- Laundry and hygiene products and services
- Animal care and veterinarians
- Real estate transactions
- Commercial facilities/essential supply stores
- Minimum basic operations
MDE’s guidance indicates that workers may be required to present a form of identification that confirms they are a worker in a Critical Sector. MDE suggests such identification can come in the form of an identification badge or a letter from the employer. In order to avoid confusion and to help ensure workers’ children receive the care discussed in the executive orders, employers should consider providing each emergency worker with a letter that specifically identifies them as a worker in a specified Critical Sector and identifies the specific category of critical work they perform. Employers can also take the additional proactive step of sending these letters to the school district superintendent to ensure the school district has received the information.
With Minnesota’s state and local employment laws rapidly changing to address COVID-19, it more important than ever for employers to closely monitor employment law developments and to seek the advice of qualified employment law counsel to ensure that they have the benefit of the most recent changes to the law and advice relating to the same before taking action.