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.
On March 31, 2023, Bloomington, Minnesota published “initial” rules implementing its Earned Sick and Safe Leave (ESSL) Ordinance, which will take effect on July 1, 2023. It also published the mandatory Notice of Employee Rights in English, noting that posters will be made available in other languages later this month.
The ordinance will generally require employers to provide certain employees working in Bloomington with up to 48 hours of ESSL per year. As we previously outlined, the Bloomington ordinance is a near replica of the Minneapolis Sick and Safe Time Ordinance, which has been in effect since July 1, 2017. However, the rules emphasize some of the particular nuances of the Bloomington ordinance and how we anticipate it will be enforced by the City. Below we highlight the more notable rules.
The ordinance covers all employees (including part-time and temporary employees) performing work in Bloomington for at least 80 hours in a year for their employer. The rules explain that once an employee performs work in Bloomington for at least 80 hours in a year, the employee is entitled to accrue ESSL for all hours they perform work for that employer during the remainder of that year in Bloomington. However, for accrual purposes, the employee must be credited the initial 80 hours they worked in Bloomington (i.e., the employee retroactively begins accruing ESSL from the first hour worked in Bloomington).
The rules also address how employers are to track hours worked for employees who might only occasionally work in Bloomington. Specifically, they allow employers to reasonably estimate how much time an employee works in Bloomington using supporting documentation that could include “dispatch logs, employee logs, delivery addresses and estimated travel times, or historical averages.”
When businesses use temporary agencies for staffing purposes, questions arise about which party is responsible for providing ESSL to a worker. The rules provide that, for ESSL purposes, the temporary agency is considered the worker’s employer (and is responsible for ESSL compliance) unless the agency and client-business have a different agreement.
The Bloomington ordinance states that employees can use accrued ESSL “beginning 90 calendar days following commencement of their employment.” The rules clarify that employees may begin using their accrued ESSL on the 91st day of employment.
The ordinance indicates that employers can set a minimum increment of use of four hours of ESSL. However, if an employee’s ESSL balance is less than the designated minimum increment, the rules require an employer to allow the employee to use whatever amount of leave they have. What they do not make clear, however, is whether employers can require employees to use leave in four-hour blocks or, instead, whether for any portion of an absence that exceeds four hours the employee can use whatever additional amount of leave they have or need, even it if it is less than four hours.
While the ordinance permits employers to require “reasonable documentation” to verify an employee’s need for ESSL, the restrictions on requiring documentation are unique in that the employer must provide health insurance benefits to be able to require medical documentation of the need for leave. The rules, however, appear to walk this back a bit. While the employer must provide health insurance in order to ask an employee to provide a doctor’s note to support a “sick leave” absence of more than three consecutive days, the rules do not mention health insurance when requesting documentation to support various “safe leave” absences. Instead, they simply state that reasonable documentation for such absences could include a police report, court order, or an employee’s written statement. Additionally, the rules explain that if an employee anticipates that any documentation requirement will result in an unreasonable burden or expense, the employee may instead be permitted to provide an oral or written explanation of the need for leave. Unlike similar standards elsewhere, however, the rules do not detail what proof, if any, an employee must provide to explain why they think the employer’s request for documentation poses an unreasonable burden or expense.
Under the ordinance, if an employee separates from employment but is rehired within 120 days of separation, the employer must reinstate any ESSL previously unused or that was not paid out upon separation from employment. While the rules confirm that employers generally do not have to reinstate ESSL for employees rehired more than 120 days from separation, they create a new exception if an employee is rehired outside the “normal hiring process.” In that event, regardless of how long it has been since the employee last worked for the employer, they would be entitled to reinstatement of previously unused ESSL hours and will be considered to have been continuously employed. Because this interpretation deviates from the plain language of the ordinance, we hope that the City will provide further clarification surrounding the extent of this obligation.
Other Requirements and Restrictions
Like the Minneapolis and St. Paul ordinances, the Bloomington ordinance requires employers that have an employee handbook to include in the handbook a notice of employee rights and remedies under the law. The rules clarify that, in Bloomington, this requirement also applies if the employer provides any type of “orientation material” in lieu of a handbook. They do not, however, provide further information on what qualifies as “orientation material.”
The rules include a robust definition of what constitutes an unlawful “adverse action” under the law, which includes denying use of or denying payment for ESSL, reducing an employee’s work hours or otherwise altering their schedule, reducing an employee’s rate of pay or benefits, terminating, suspending, or demoting an employee, denying a promotion, and counting ESSL as an unexcused absence from work. However, they also explain that it is not retaliation for an employer to investigate an employee’s suspected misuse of ESSL, such as using ESSL for vacation rather than one of the covered sick or safe leave reasons, so long as the employer’s investigation does not interfere with the employee’s ability to use their ESSL.
With the issuance of these rules, employers will want to start planning for adoption or revision of written policies prior to the July 1, 2023 effective date of the ordinance. Employers should monitor Bloomington’s Earned Sick and Safe Leave webpage, where it says FAQs will be available this month - April 2023. Additionally, employers should keep an eye out for any new, or expanded, rules Bloomington might release before July 1, 2023, given these rules were adopted without public comment. Once Bloomington starts receiving input concerning the rules, it might decide to revise or add to these “initial” rules.