This alert has been updated to include additional information about resources recently published by MN DLI.

The Minnesota Department of Labor and Industry (MN DLI) has published several resources to assist employers in complying with the state’s Earned Sick and Safe Time (ESST) law, which takes effect January 1, 2024. A previous alert on MN ESST is copied below for reference.

FAQ and Fact Sheet

• Employers and employees can access a fact sheet that summarizes benefits, eligibility requirements, allowed reasons for leave, and other key points of the ESST law.
• The fact sheet is available in numerous languages. Additionally, a video overview and other resources are available on the ESST page of the MN DLI website.
• An extensive FAQ has also been published that clarifies several points in the ESST law.
  • ESST hours only accrue when employees are working. In other words, ESST hours do not accrue when employees are using ESST paid time off. Additionally, only hours worked within Minnesota count toward ESST accrual.
  • Employees are not required to specify that they want to use “sick and safe time” in order to access their ESST benefits.
  • ESST may be used in increments of four hours or the smallest increment tracked by the employer’s payroll system, whichever is smaller.
  • ESST may be used concurrently with other protected leave under state or federal laws.
  • Where local laws or ordinances apply, employers must follow the requirements that are most favorable to their employees. In some cases this seems to require employers to follow a combination of state and local ESST requirements when administering leave for employees covered under both state and local ESST law.
  • Employers may meet their ESST obligations with an equally generous paid time off policy that does not otherwise conflict with the ESST law. Employee handbooks must still include notice of employees’ ESST rights even if the employer’s PTO policy meets or exceeds the ESST law’s requirements.
  • Employers may handle ESST differently for different employee groups, as long as they do not discriminate based on a protected characteristic. For example, employers may front-load ESST for full time workers while allowing ESST to accrue for those who work part time.

Sample Notice

• MN DLI has published a sample notice for employers to use to comply with ESST notice requirements.
• Employers are not required to use the sample notice; however, if they choose to satisfy the ESST law’s notice requirement in another way, they must include all information required in the ESST law. The employer’s notice must be at least as effective as one of three options:
  • Posting notice at each work site, ensuring that it is readily observed and easily reviewed by employees
  • Providing individual notice to employees, on paper or electronically
  • Conspicuously posting notice in a web- or app-based platform through which employees perform work
• Notice of ESST rights must be provided, in English and in each employee’s self-reported primary language, upon hire (and as of January 1, 2024 for current employees).
• Employers must include notice of employee rights under the ESST law in any employee handbook they provide to employees. Local ordinances in Bloomington, Minneapolis, and St. Paul also require notice to be provided in employee handbooks.
• If using the sample notice, employers must customize certain details before providing the notice to employees, including the accrual or benefit year, employer’s policies regarding employee notice of need for ESST leave, and whether leave accrual/frontloading is more generous than the baseline established in the ESST law.

MN Earned Sick and Safe Time (originally sent May 2023)

On May 16, 2023, the Minnesota State Legislature passed a package of jobs and labor legislation that included a statewide earned sick and safe time (ESST) requirement. The legislation, which is expected to be signed by Minnesota Governor Tim Walz, would require employers to begin providing ESST effective January 1, 2024.

Coverage

• The ESST law broadly defines “employer” to include almost any entity that has one or more employees.
• Employees are covered under the ESST law if they work for their employer for at least 80 hours in a year.
• Temporary and part-time employees are included, but independent contractors as well as employees in certain industries (e.g., airlines) are excluded from coverage under the law.
• Employers with time off policies that are equally or more generous than the ESST law are not required to provide additional ESST.
• The ESST law does not apply to employees working under a collective bargaining agreement (CBA) with a bona fide building and construction trades labor organization. It does apply to any other employees working under a CBA unless the CBA meets or exceeds, and does not conflict with, the law’s requirements.

Accrual and Carryover

• ESST will accrue at a rate of 1 hour per 30 hours worked, up to a maximum of 48 hours per year and 80 hours “point-in-time” accrual cap. The law does not specify a maximum number of hours of ESST employees can use in a year.
• Accrual will begin on the later of January 1, 2024 or commencement of employment.
• There is no waiting period for employees to access their ESST benefits. Benefits may be used as soon as they accrue.
• Employers appear to have two options to avoid year-end ESST carryover:
  • Frontload 48 hours of ESST for immediate use at the start of each year, with a payout of each employee’s balance of earned, unused ESST from the previous year; or
  • Frontload 80 hours of ESST for immediate use at the start of each year (the law is not completely clear, but suggests that no payout of the previous year’s unused ESST is required with this option)
• Employers are not required to pay out accrued, unused ESST upon termination from employment, but must reinstate previously accrued, unused ESST if a terminated employee is rehired within 180 days.

Reasons for Use, Increments, and Pay

• Employees may use ESST for the following reasons:
  • Employee’s or family member’s illness, treatment, or preventive care
  • Specified reasons related to domestic abuse, sexual assault, or stalking of employee or family member
  • Closure of employee’s workplace for weather or other public emergency; or, employee’s need to care for a family member due to closure of the family member’s school or place of care due to weather or other public emergency
  • Specified reasons related to a public health emergency (e.g., employee is diagnosed with a communicable disease that is a public health concern)
  • Official health authority order of quarantine or isolation
• The law broadly defines “family member” to include virtually anyone with whom the employee has a family bond or family-like relationship, including the ability for employees to annually designate one individual who does not otherwise fall under the “family member” definition.
• The maximum increment for ESST use is four hours, although employers may allow ESST use in increments down to the smallest time periods tracked by their payroll systems.
• ESST must be paid at employees’ normal rate of pay, but may not be paid at rates less than the applicable state or local minimum wage.

Notice and Documentation

• Employers may require up to seven days’ notice when the need for ESST is foreseeable, or as soon as practicable in the case of an unforeseeable need for leave.
• If notice of ESST use is required, an employer’s written policies must include reasonable procedures for employees to provide notice. Employees must be provided with a written copy of the leave notice policy.
• When more than three consecutive days of ESST are used, employers may require reasonable documentation that leave was used for a covered reason.
• The ESST law includes a mandate for employers to provide notice of employees’ rights under the law, in English and in the primary language spoken by the employee; such notice must be provided by January 1, 2024 or at commencement of employment, whichever is later.
• Notice may be provided by
  • prominently posting a copy of the notice at each work location
  • providing the notice individually to employees via paper or electronic communication
  • posting the notice in a conspicuous place on a web- or app-based platform used by employees to perform work
• Employers must include notice of ESST rights in any handbook they provide to employees.
• The state’s Department of Labor and Industry will provide employers with a model notice for meeting the ESST law’s notice and posting requirements.
• Employers must provide employees with an accounting of ESST hours accrued and used at the end of each pay period. The law also includes a requirement for employers to retain records, for at least three years in addition to the current calendar year, of hours worked and ESST used by employees.