Keeping up with legislative changes can be like trying to herd cats—just when you think you’ve got it all under control, another legislative session releases more changes. Staying on top of these changes is necessary to avoid a compliance catastrophe!
This article will provide a comprehensive introduction to the Minnesota Earned Sick and Safe Time (ESST) law as well as the recent changes. With the ink on the original law barely dried and employers still getting acclimated, the Minnesota legislature added some new twists to the law, including the addition of a hefty penalty for violations.
An Intro to ESST
During the 2023 legislative session, the Minnesota legislature approved a state-wide plan that requires all employers with one or more employees to provide their employees with mandatory “earned sick and safe time.” Essentially, this guarantees that employees will receive paid time off for certain qualifying events.
The law went into effect January 1, 2024.
How Employees Earn Earned Sick and Safe Time
Under the law, employees must earn one hour of “earned sick and safe time” for every 30 hours worked. An employee can earn a maximum of 48 hours per year unless the employer permits a higher amount.
Rollover of Unused Earned Sick and Safe Time
It is possible that some employees may not use all their earned sick and safe time in any given year. It is important to know that any accrued and unused sick and safe time must be “rolled over” to the next year, and that employers are permitted to “cap” the number of earned hours at 80 hours.
However, by “frontloading” sick and safe time at the beginning of the year for immediate use by the employee, an employer can avoid “roll over” hours into the following year. If the employer frontloads the minimum 48 hours for safe and sick time, unused time at year-end is not rolled over but must be paid out. If the employer frontloads the maximum 80 hours of sick and safe time, neither rollover nor pay-out of unused time is required.
Because employees often have differing start dates, it will be important to communicate to employees when their hours begin accruing and when their hours will be rolled over to the subsequent year. Consider whether you are operating on a calendar year basis, fiscal year basis, or whether you will keep track of when each employee began working. Regardless of how you choose to calculate the year, it must be a consecutive 12-month period and must be clearly communicated to employees.
What Happens Upon Separation or Termination?
If an employee quits or is terminated, an employer is not required to pay the employee their accrued and unused safe and sick time. However, if an employee is rehired within 180 days, their employer must reinstate the employee’s previously accrued sick and safe time.
Amendments to ESST Law
Following is a review of the amendments made to the Minnesota Earned Sick and Safe Time law since it went into effect. Please review to the chart for an at-a-glance look at the changes.
Noncompliance Will Be Costly
The most significant addition to the ESST law is the liability risk to employers for non-compliance. Employers who violate the ESST law are subject to a liquidated damages penalty in an amount equal to the ESST that should have been provided under the law, effectively imposing a double-damages penalty. An employer is also liable for liquidated damages if it does not maintain the necessary records to determine the amount of ESST accrued and owed. The employer will be liable to employees for the equivalent of 48 hours of ESST plus an equal amount of liquidated damages.
Qualifying Purpose Expanded to Include Bereavement
Bereavement leave now qualifies as a permitted use of ESST. An employee may use ESST “to make arrangements for or attend funeral services or a memorial, or address financial or legal matters that arise after the death of a family member.”
This purposes is added to the below list of appropriate qualifying reasons to use their earned sick and safe time:
- The employee’s physical or mental illness, treatment or preventative care.
- A family member’s physical or mental illness, treatment or preventative care.
- Time off due to domestic assault, sexual assault or stalking of the employee or a member of the employee’s family.
- Closure of the workplace or a family member’s school or care facility due to weather or public emergency.
- Communicable disease of the employee or family members.
Regarding an employee’s ability to elect to use time off to care for a family member, the statute very broadly defines “family member.” The statute’s definition includes family members by blood, family members by marriage, spouses, partners, individuals “whose close association with the employee is the equivalent of a family relationship,” and even the designation of “up to one person annually.”
Qualified Individual Modifications
The initial definition of “employee” was broad, excluding only independent contractors and airline flight deck or cabin crew members. The new definition added three more exclusions: volunteer firefighters, elected officials, and farm employees performing less than 28 days of work each year. Additionally, flight deck and cabin crew members are no longer excluded from the definition of “employee.”
For temporary and part-time employees, if an employer anticipates the employee will perform at least 80 hours of work per year in Minnesota, the employee is eligible for ESST. Unless you are confident that your employee will work less than 80 hours per year in Minnesota, it is safest to err on the side of caution and provide them with ESST.
ESST Tracking via Paystubs or Electronic Means
Paystubs no longer need to include both accrued and used ESST totals. However, if an employer removes the information from paystubs, the employer must provide the information to employees in an alternative means, including access to the information through separate electronic means. Employers are also required to preserve all electronic records of ESST information for three years.
Rate of Pay Clarification
To clarify the rate at which ESST must be paid, the amendment removed references to “hourly” and replaced them with “base rate” which is a newly defined term. The definition of “base rate” clarifies the rate at which ESST must be paid for salaried individuals, individuals who are paid hourly but whose hourly rate varies, and commissioned individuals. Additionally, for employers who use the 48-hour accrual method, unused ESST must be paid at the employee’s base rate of pay.
Increment of Use
ESST must be used in the same increment of time at which an employee is paid. However, the new language permits an employer to require its employees to use ESST in 15-minute increments, even if the employer pays in smaller increments. The cap on the maximum increment an employer can require an employee to use remains at four hours. In other words, an employer cannot require an employee to use more than four hours of ESST if the employee does not need more than four hours. For example, if an employee has an appointment that will last less than an hour, the employer must pay in increments of four hours before it can require the employee to use four hours of ESST for that appointment.
Documentation
The three-day waiting period for requesting documentation has been revised to three consecutive scheduled days. In other words, if an employee working Monday through Friday uses ESST on a Friday, they must also use ESST on the following Monday and Tuesday before an employer can request documentation to support the requested leave, unless the employee is typically scheduled on Saturday and Sunday.
Additionally, an employee using ESST related to domestic violence matters may submit a written statement if they are unable to get other documentation within a reasonable time or without added expense.
Legislative Changes Beyond ESST
In addition to the changes to ESST, the Minnesota legislature passed other employment-related provisions that impact businesses, such as an expanded definition of “disability” and more significant damages and remedies under the Minnesota Human Rights Act; worker classification; pay transparency; standard minimum wages; child labor; oral fluid testing for drugs, alcohol and saliva; captive audience signage; OSHA; continuation of insurance benefits during pregnancy; access to personnel records; and non-solicitation provisions. More information regarding these changes is available on our website.
2024 Employment-Related Legislation Summary Effective Dates
Effective May 25, 2024
- ESST Amendments (Minn. Stat. §§ 177.50 and 181.9445, et seq.)
- Minnesota Paid Leave Law Amendments (Minn. Stat. Ch. 268B) The amendments do not change the date that employers are required to provide paid leave which remains January 1, 2026.
Effective July 1, 2024
- Non-Solicitation in Service Contracts (Minn. Stat. § 181.9881)
- Worker Classification (Minn. Stat. §§ 181.722 and 181.723). The new construction-specific classification criteria will be effective March 1, 2025.
Effective August 1, 2024
- Minnesota Human Rights Act Amendments (Minn. Stat. Ch. 363A)
- Pregnancy Leave and Pregnancy Accommodation Amendments (Minn. Stat. §§ 181.939, 181.941 and 181.943)
- Personnel Records (Minn. Stat. § 181.960, et seq.)
- Credit Card Tips (Minn. Stat. § 177.24)
- Oral Fluid Testing (under DATWA) (Minn. Stat. §§ 181.950 and 181.953)
- OSHA Amendments (Minn. Stat. Ch. 182)
- Child Labor Law Amendments (Minn. Stat. §§ 181A.08 and 181A.12)
Effective October 1, 2024
- Captive Audience Meeting Mandatory Signage (Minn. Stat. § 181.531)
Effective January 1, 2025
- Pay Transparency – Salary Range in Job Posting (Minn. Stat. § 181.173)
- Surgical Smoke Evacuation Systems (Minn. Stat. § 182.678)
- Minimum Wage Regardless of Employer Size (Minn. Stat. § 177.24)
Conclusion
The ramifications of non-compliance with ESST and other employment-related provisions could be dire. Because some of the amendments are already effective, you should not procrastinate reviewing your policies and procedures for compliance or reaching out to our employment law attorneys to help.
