Earlier this year, Duluth passed its Earned Sick and Safe Time Ordinance, joining Minneapolis and St. Paul in requiring employers to provide their employees with paid sick and safe time leave, which the employees accrue over time and carry forward from year-to-year. Duluth’s ordinance goes into effect on January 1, 2020. Well before then, Duluth employers will need to understand the ordinance’s requirements and develop written policies implementing them for inclusion in their employee handbooks.
To Which Employers Does the Ordinance Apply?
The ordinance applies to all employers with five or more employees, defined as including any person who:
- “[P]erforms work within the geographic boundaries of the city [of Duluth] for more than 50 percent of the employee’s working time in a 12 month period,” or
- “[I]s based in the city of Duluth and spends a substantial part of his or her time working in the city and does not spend more than 50 percent of their work time in a 12 month period in any other particular place.”
Technically this means that the ordinance applies to employers located outside Duluth’s boundaries who have a sufficient number of employees working within Duluth’s boundaries. However, a decision earlier this year by the Hennepin County District Court held that Minneapolis’s ordinance was limited to employers located within Minneapolis’s boundaries, and this decision could provide guidance for similarly limiting the territoriality of Duluth’s ordinance in the future. Like the Minneapolis and St. Paul ordinances, Duluth’s ordinance does not apply to construction industry employees who are paid the prevailing wage rate.
What is the Rate of Accrual?
Under the ordinance employers must provide their employees with paid sick and safe time earned at a rate of one hour per 50 hours worked, for a maximum of 64 hours earned per year, and allow them to carry forward at least 40 hours from year-to-year. Employees begin accruing sick and safe time on their first day of employment, or once the ordinance goes into effect for existing employees, and after 90-days of employment they may use up to 40 hours of sick and safe time per year. Alternatively, employers can satisfy the ordinance by providing their employees with 40 hours of sick and safe time up-front after 90-days of employment, and an additional 40 hours of sick and safe time up-front at the beginning of each subsequent year. Employers do not need to pay out accrued sick and safe time upon their employees’ separation. Of course, nothing in the ordinance prohibits employers from providing more generous benefits to their employees, and if an employer chooses to provide its employees with paid vacation or paid time off, such benefits may already satisfy the ordinance’s requirements.
For What Purposes Can Employees Use Their Accrued Sick and Safe Time?
Employers must allow their employees to use their sick and safe time for absences resulting from the effects, treatment, care, prevention, or diagnosis of mental or physical illness, injury, or health conditions, as well as domestic abuse, sexual assault, or stalking, and for the care of family members suffering from the same conditions. Employers may require employees to comply with their customary notice and procedural requirements for absences and requesting sick and safe time so long as they do not interfere with the purposes for which the employees need the leave. For absences of more than three days, employers may require reasonable documentation to establish that the sick and safe leave is for a covered purpose.
Employers Must Track Employee Accrual and Use of Sick and Safe Time
The ordinance requires employers to track their employees’ sick and safe time balances and provide them their earned and used sick leave balances upon request. The ordinance further requires employers to provide employees with notice of their right to paid sick and safe leave. Although the ordinance does not specify whether this notice must be posted on employers’ premises, or set forth in their employee handbooks, we recommend that at a minimum employers prepare written policies implementing the ordinance’s requirements and include the policies in their employee handbooks.