On June 6, 2022, the Bloomington, Minnesota City Council passed the Earned Sick and Safe Leave (ESSL) Ordinance, mandating paid leave policies similar to those previously passed in Minneapolis, St. Paul, and Duluth. Requirements under the ordinance will take effect July 1, 2023. Previous alerts on local Minnesota paid leave ordinances are copied below for reference.

Coverage and Benefits

• The ordinance covers any employee (including part-time and temporary workers) who performs at least 80 hours of work per year within the city limits of Bloomington.
• Virtually all private employers are covered by the ordinance, although only those with five or more employees, in total regardless of location, are required to provide paid ESSL.
• The ordinance does not apply to unpaid student interns, independent contractors, or participants in the Minnesota extended employment program for persons with severe disabilities/impairment.
• Notably, the ordinance does not allow for ESSL rights to be waived in a collective bargaining agreement.
• Beginning July 1, 2023, ESSL benefits will accrue at the rate of one hour per 30 hours worked within Bloomington, up to a maximum of 48 hours per calendar year.
• Employees who qualify for paid ESSL must be compensated at their regular rate of pay (hourly rate, including payments for shift differentials but not overtime or holiday pay, for hourly employees; hourly-equivalent rate for exempt employees) for the hours they were scheduled to work during the time they use ESSL benefits.

Reasons for Use

Administration

• Employers may choose to designate a 12-month period other than the calendar year as the basis for administering ESSL.
• Employers may record leave accruals in a manner consistent with current payroll practices as defined by employer policy or industry standards, as long as accruals are recorded on a monthly basis at minimum.
• Accrued, unused ESSL carries over year to year, subject to an 80-hour cap (employers may choose to implement a more generous carryover policy). There is no cap on use of accrued ESSL.
• Employers may circumvent the accrual and carryover requirements by “frontloading” ESSL. In order to be exempt from the requirements, employers must provide at least 48 hours of ESSL following an employee’s first 90 days of employment, and then at least 80 hours of ESSL at the start of each subsequent year.
• Employers with a paid time off (PTO) policy that is at least as generous as the ESSL requirements, including allowed reasons for use and satisfaction of the accrual and carryover requirements, may not be required to provide separate ESSL.
• ESSL use must be allowed in increments consistent with current payroll practices. The minimum increment allowed must not be more than four hours.
• Employers may require advance notice (up to seven days, only when need for leave is foreseeable) and reasonable documentation to substantiate the need for ESSL. Documentation may only be requested when:
  • An employee is absent for more than three consecutive days, and
  • the employee is absent for reasons related to their, or a family member’s, health, and
  • the employee is enrolled in health insurance benefits provided by the employer.
• Employers may not disclose any health or medical information regarding an employee/family member, or information regarding sexual assault, stalking, or domestic abuse of an employee/family member, unless the employee gives permission or the employer is required to disclose information per a court, administrative agency, or federal/state law.
• ESSL benefits are not payable upon separation from employment. However, employees rehired within 120 days of separation must have their accrued ESSL benefits reinstated. Additionally, employees who transfer outside of Bloomington retain their accrued ESSL for at least three years from the date of transfer, but can only use ESSL under the ordinance if they return to work in Bloomington.

Notice Requirements and Penalties

• Employers must provide notice of employees’ rights under the ESSL ordinance, in both English and any other language spoken by at least 5% of employees, by publishing in an employee handbook and posting conspicuously in the workplace/job site. A model notice will be provided prior to July 1, 2023.
• Employers must also maintain records of ESSL hours available, ESSL hours used, and total hours worked (last requirement is for non-exempt employees only). Records must be kept for at least three years beyond the current calendar year, and must be provided to the City Attorney’s Office or to the employee for inspection upon request.
• The ESSL ordinance includes standard discrimination and retaliation prohibitions, including a rebuttable presumption that a material change to an employee’s terms and conditions of employment within 90 days of ESSL use constitutes retaliation.
• Employees may report violations to the City Attorney’s Office. Possible relief may include reinstatement, back pay, and damages of at least $250 for a first violation and $1,000 for second and subsequent violations. The ordinance also grants employees a right to file a private action in court.

Duluth, MN Amended PSL Ordinance (originally sent 8/15/21)

On August 19, 2021, amendments to Duluth, Minnesota’s Earned Sick and Safe Time (ESST) Ordinance will take effect, expanding the covered reasons for which employees may use their ESST and amending the ordinance’s notice and enforcement provisions.

• Employees may use ESST to cover lost hours when their place of employment closes for public health reasons. The ordinance previously allowed use of ESST for diagnosis, treatment, or care for illness, injury, or health conditions, preventive medical care, or domestic abuse, sexual assault, or stalking.
• Employers that maintain an employee handbook must include a copy of their ESST policy (or a copy of a substantially equivalent paid leave policy that complies with the ordinance).
• The original ordinance required employers to display or provide notice of employees’ ESST rights using either the city’s model notice poster or a company-created notice that contains the same information. The new amendments specifically require employers to provide individual notice to each new employee. Notice of ESST (or employer’s substantially equivalent paid leave policy) must include the following information:
  • ESST (or other leave) rights
  • Amount of leave
  • Terms of use of leave
  • Prohibition against retaliation
  • Employees’ right to file written complaint
• The city of Duluth may order employers to provide employees with written notice of a violation, along with the corrective action taken.
• Employers with Duluth, MN employees should review their paid time off policies to ensure that they adhere to the ordinance’s requirements, particularly if they use an employee handbook.

Minneapolis Sick and Safe Time Ordinance Upheld (originally sent 6/22/20)

On June 10, 2020, the Minnesota Supreme Court upheld the Minneapolis Sick and Safe Time Ordinance, which had been the subject of a legal challenge by the Minneapolis Chamber of Commerce. The court’s decision has implications for employers with covered Minneapolis employees as well as employers with covered employees in the cities of Duluth and St. Paul, which have enacted similar ordinances.

History

• The Minneapolis Sick and Safe Time Ordinance took effect July 1, 2017. It requires employers to provide one hour of sick and safe time per 30 hours worked to any employee who works at least 80 hours per year in Minneapolis, even if the employer is based elsewhere.
• The ordinance requires up to 48 hours of earned sick and safe time per year and up to 80 hours of accrual, although employers can elect to provide more. Employers with six or more employees must provide paid sick and safe time. For employers with five or fewer employees, sick and safe time may be unpaid.

Minnesota Supreme Court Ruling

• The Minnesota Supreme Court rejected the Chamber of Commerce’s challenge to the ordinance in its entirety. Key takeaways from the court’s ruling include:
  • The ordinance does not conflict with, and in fact complements, the state’s law requiring that any employer provided sick leave may be used for care of a family member or for “safety leave” in response to situations such as sexual assault or domestic abuse.
  • Because the ordinance only applies to hours worked within Minneapolis, and cities have “wide discretion” to regulate matters of public health, the terms of the ordinance can be applied to employers who are based elsewhere but have employees who work within the city limits.
• Employers with any employees who work in Minneapolis should take the following steps:
  • review and make any necessary revisions to their policies and practices to ensure that they are complying with the time off and posting requirements of the Sick and Safe Time ordinance.
  • consider training managerial, HR, and payroll personnel in the availability of Sick and Safe Time and the tracking, record-keeping, and reporting required to ensure compliance with the Minneapolis ordinance.
  • ensure compliance with Minneapolis and Minnesota Wage Theft statutes when providing employees with information about Sick and Safe Time.