Although several cities already have enacted sick and safe time ordinances, the Minnesota legislature has made earned sick and safe time (ESST) a state requirement. The statute becomes effective on January 1, 2024.
All Minnesota employers must provide employees who perform services for at least 80 hours per year, up to 48 hours of ESST per year. The paid time off would accrue at a rate of 1 hour for every 30 hours worked, up to a maximum of 48 hours in a year. The bill defines an employer as any person who has one or more employees and includes both public entities and private businesses.
Eligible Use of ESST
An employee may use accrued ESST for:
- An 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.
- The care of a family member:
- Suffering from with a mental or physical illness, injury, or other health condition;
- Needing a medical diagnosis, care, or treatment of a mental or physical illness, injury, or other health condition; or
- Needing preventive medical or health care.
- An absence due to domestic abuse, sexual assault, or stalking of the employee or employee’s family member, provided the absence is to:
- Seek medical attention related to physical or psychological injury or disability caused 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 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.
- 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 emergency.
- The employee’s inability to work or telework because the employee is: (i) Prohibited from working by the employer due to health concerns related to the potential transmission of a communicable illness related to a public emergency; or (ii) Seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, a communicable disease related to a public emergency and such employee has been exposed to a communicable disease or the employee’s employer has requested a test or diagnosis; and
- When it has been determined by the health authorities having jurisdiction or by a health care professional that the presence of the employee or family member of the employee in the community would jeopardize the health of others because of the exposure of the employee or family member of the employee to a communicable disease, whether or not the employee or family member has actually contracted the communicable disease.
Definition of Family Member
“Family member” refers to:
- An employee’s:
- Child, foster child, adult child, legal ward, child for whom the employee is 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 step grandchild;
- Grandparent or step grandparent;
- A child of a sibling of the employee;
- A sibling of the parents of the employee; or
- A child-in-law or sibling in law.
- Any family members listed in clause (1) of a spouse or registered domestic partner.
- Any other individual related by blood or whose close association with the employee is the equivalent of a family relationship.
- Up to one individual annually designated by the employee.
An employer must permit an employee to carry over accrued but unused ESST to the following year. At no time can the employee have more than 80 hours of unused ESST unless allowed by the employer. In lieu of permitting the carryover of accrued but unused ESST into th following year, an employer can provide an employee with ESST for the year that meets or exceeds the 48 hour minimum that is available for the employee’s immediate use at the beginning of the subsequent year as follows:
- 48 hours, if an employer pays an employee for accrued but unused ESST at the end of a year; or
- 80 hours, if an employer does not pay an employee for accrued but unused ESST at the end of a year.
Notice of Intent to Use ESST
An employer can require notice of the need for use of ESST. If the need for use is foreseeable, an employer can require advance notice of the intention to use ESST but must not require more than seven (7) days advance notice. If the need is unforeseeable, an employer may require an employee to give notice of the need for ESST as soon as practicable. An employer that requires notice of the need to use ESST must have a written policy containing reasonable procedures for employees to provide notice of the need to use ESST.
When an employee uses ESST for more than three (3) consecutive days, an employer may require reasonable documentation that the ESST is covered by the statute. The type of document that can be requested varies, depending on the reason for using ESST.
PTO Policy Can Replace ESST
An employer can fulfill the obligation to provide ESST with a paid time off (PTO) policy, provided the accrual and use of PTO complies with the ESST statute. Nothing in the statute is to be construed to limit the right of parties to a collective bargaining agreement to bargain and agree with respect to ESST policies or to diminish the employer’s obligation to comply with any contract, collective bargaining agreement, or any employment benefit program or plan that meets or exceeds, and does not otherwise conflict with, the minimum standards in the statute.
Collective Bargaining Agreements
The provisions of the statute may be waived by a collective bargaining agreement with a bona fide building and construction trades labor organization that represents the affected building and construction industry employees. However, for such a waiver to be valid, it must explicitly reference the statute and clearly and unambiguously waive application of the statute to the employees.
Other Local Paid Sick and Safe Time Ordinances
The statute is not to be interpreted to preempt, limit, or otherwise affect the applicability of any other law, regulation, requirement, policy or standard that provided for a greater amount, accrual, or use by employees of paid sick and safe time or that extends other protections to employees. As a result, employers continue to be covered by a local paid sick and safe time ordinance or regulation as well as the new ESST legislation.
Employees of a business that has been acquired or merged retains any sick and safe time accrued during their employment if they are retained by the new employer.
The Commissioner of Labor and Industry enforces this policy, and it will be effective on January 1, 2024. The statute contains requirements for a posted notice, to be developed by the Minnesota Department of Labor and Industry, and information about accrued ESST which must be reflected on earning statements. Employers who provide an employee handbook must include notice of employee rights and remedies under the statute.
This summary covers only a portion of the ESST statute. Employers with questions should seek advice from a labor and employment law attorney at Larkin Hoffman.