Minnesota Issues Guidance on Sick and Safe Time Law

​Looking ahead to Jan. 1, 2024, when Minnesota's statewide paid Earned Sick and Safe Time (ESST) law takes effect, the Minnesota Department of Labor and Industry (MNDOLI) recently issued guidance in the form of answers to frequently asked questions, a factsheet, and a video overview of the law to aid employers.

Employers must follow the sick and safe leave requirements most favorable to their employees. This means employers must comply with the specific requirements of the state law and the applicable local ordinances that are most favorable to their employees. There are contradictions, and further guidance is needed from MNDOLI. Employers may have to follow some of the requirements of state law and other requirements of local law.

While employers may be familiar with the frontloading requirements of the Minneapolis, St. Paul, Duluth, and Bloomington ordinances, the state law added an option that so far only the amended Bloomington and St. Paul ordinances (effective Jan. 1, 2024) allow.

The state law provides an alternative procedure that allows an employer to provide 48 hours of earned sick and safe time in the first year of employment, pay out in cash the value of unused hours at the end of the designated year, and not carry over any unused hours into the next year. The other option is to frontload 80 hours with no pay out at the end of the year.

The state law says earned sick and safe time may be used in the smallest increment of time tracked by the employer's payroll system, provided such increment is not more than four hours. The FAQs interpret this to mean employees may use earned sick and safe time in the smallest increment of time tracked by the employer's payroll system or four hours, whichever is smaller. This is a deviation from the local sick and safe leave ordinances, which allow employees to use sick and safe time in increments consistent with business or payroll practices, provided such increment is not more than four hours.

Paid time off plans or other paid leave policies (e.g., sick or vacation time) can satisfy the ESST law, if they meet or exceed the requirements under the law and do not otherwise conflict with the law. A policy or plan does not have to be called earned sick and safe time to meet the requirements of the law, although employers may want to consider referencing ESST usage in such policy.

An employer's PTO policy can meet the requirements under the law, even if an employee chooses to use some or all PTO for vacation leave, instead of ESST leave. Nothing in the law prohibits an employer from providing a more generous leave policy.

Employee handbooks still must include notice of an employee's rights and remedies under the ESST law, even if an employer's PTO policy meets or exceeds the requirements under the new law.

Employees do not have to live in Minnesota to be eligible under the new law, but only time worked in Minnesota will apply to sick and safe time accrual. Employees who work in another state are not covered by the ESST law, even if the employer is based in Minnesota.

If an employer front-loads yearly ESST hours, it may do so for part-time and full-time employees. The employer may treat part-time and full-time employees differently, provided that all employees receive what they are entitled to under the law, and the employer does not apply the law so it discriminates against an employee or group based on a protected characteristic (e.g., race, sex, or national origin).

After more than three consecutive days of ESST are used, an employer may require an employee to provide reasonable documentation. This may include an employee's written statement indicating the employee is using or used ESST for a qualifying purpose when the employee is "unable to secure the requested documentation." The employee's written statement can be in the employee's first language, need not be notarized, and need not be in any particular format.

An employer may not require an employee to provide specific details about the reason for using sick and safe time, including details related to the employee's or their family member's medical condition. Furthermore, an employer must not require disclosure of details relating to domestic abuse, sexual assault, stalking or the details of an employee's or an employee's family member's medical condition.

We expect MNDOLI to continue issuing additional guidance related to the department's interpretation of the new law.

Bruce Douglas, Samantha Bragg, and Colin Hargreaves are attorneys with Ogletree Deakins in Minneapolis. © 2023. All rights reserved. Reprinted with permission.