Over the summer, the Minnesota State Legislature passed a new earned sick and safe time (ESST) law that goes into effect starting January 1, 2024. Governor Tim Walz signed the new amendments into the current sick and safe time law, as part of an omnibus jobs and economic development bill. The law requires employers to provide paid leave to employees in Minnesota. Minnesota employers will want to review their existing leave policies to ensure compliance by the start of the new year.

Who is covered by the new MN law?

The ESST law applies to any individual or business with one or more employees.  All employees, including part-time and temporary employees, who perform work in Minnesota for at least 80 hours per year are entitled to ESST.  Independent contractors are excluded from the definition of “employee.”  For purposes of ESST, temporary employees supplied by a staffing agency are considered employees of the staffing agency unless a contractual agreement states otherwise.

How is ESST earned, and does ESST carry-over from year to year?

An employer may use either an accrual method or a frontloading method to comply with the new ESST requirements.  Under the accrual method, employees must begin accruing ESST at the commencement of employment and will accrue one hour of ESST for every 30 hours worked, up to a maximum of 48 hours of ESST in a year (unless the employer’s policy is more generous).  For ESST accrual, exempt employees are considered to work 40 hours per workweek.  Employers using the accrual method must permit employees to carry over accrued but unused ESST at the end of the benefit year, but an employer may limit an employee’s total accrued ESST to 80 hours.

For the frontloading method, an employer may provide employees a lump sum of ESST at the beginning of each year or the commencement of employment.  Under the frontloading approach, employers must provide employees with 48 hours of ESST if the employer pays out unused ESST at the end of the year. If the employer does not pay out unused ESST at the end of the year, then an employer using the frontloading method must frontload 80 hours of ESST.

Employers may choose any consecutive 12-month period as the benefit year for purposes of administering employee ESST, as long as the policy year is clearly communicated to each employee.  Employers are not required to pay out unused ESST at termination of employment.  Employees who are transferred to a separate division, entity, or location but remain employed by the same employer retain their ESST. When there is a separation from employment and the employee is rehired within 180 days of separation, previously accrued earned sick and safe time that had not been used must be reinstated.

What can employees use ESST for?

Employees may use ESST as it is accrued—there is no waiting period.  Employees may use ESST:

  1. For the employee’s mental or physical illness, injury, or other health condition or need for preventive care.
  2. To care for a covered family member with a mental or physical illness, injury, or other health condition or who needs preventive care.
  3. For absence due to domestic abuse, sexual assault, or stalking of the employee or the employee’s covered family member; 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 related to domestic abuse, sexual assault, or stalking.
  4. For closure of the employee’s place of business due to weather, public emergency, or the need to care for a covered family member whose school or place of care has been closed due to weather or public emergency.
  5. Because the employee is unable to work or telework because the employer prohibits them from going to work because of health concerns related to the potential transmission of a communicable illness related to a public emergency; because the employee is seeking or awaiting results of a diagnostic test for or medical diagnosis of a communicable disease related to a public emergency when the employee has been exposed to the communicable disease or the employer has requested the test or diagnosis.
  6. Because health authorities or a health care professional said the presence of the employee or family member in the community would jeopardize the health of others due to exposure to a communicable disease, whether or not the employee or family member has actually contracted the disease.

The statute contains an extensive definition of covered family members and includes:

  • an employee’s:

(i) 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;
(ii) spouse or registered domestic partner;
(iii) sibling, stepsibling, or foster sibling;
(iv) biological, adoptive, or foster parent, stepparent, or a person who stood in loco parentis when the employee was a minor child;
(v) grandchild, foster grandchild, or stepgrandchild;
(vi) grandparent or stepgrandparent;
(vii) a child of a sibling of the employee;
(viii) a sibling of the parents of the employee; or
(ix) a child-in-law or sibling-in-law;

  • any of the family members listed above 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; and
  • up to one individual annually designated by the employee.

How do employees use ESST?

Employers may require employees to provide advance notice of the need to use ESST if the need for use is foreseeable, but cannot require more than seven days’ advance notice.  If the need is unforeseeable, an employer may require the employee to give notice of the need to use ESST as soon as practicable.  Any notice requirements must be in an employer’s policy which is distributed to employees.

ESST may be used in the smallest increment of time tracked by the employer’s payroll system, provided that increment is not more than four hours.  An employer may not require that the employee seek or find a replacement worker to cover the hours the employee uses ESST.

Can employers require documentation of the need for ESST?

Employers may require reasonable documentation regarding the need for ESST when an employee uses ESST for more than three days in a row. An employer must not require an employee to disclose details related to domestic abuse, sexual assault, stalking or the details of the employee’s or family member’s medical condition.

Reasonable documentation may include a signed statement from a health care professional if an employee uses ESST for reasons 1, 2, 5, or 6, above (employee/family member illness, injury, preventive care; public health emergency; waiting for test result or diagnosis after exposure; exposure to communicable disease which would jeopardize the health of others).  However, if the employee or family member did not use ESST to obtain services from a health care professional or if documentation cannot be obtained in a reasonable time or without added expense, then the employee may provide a written statement indicating the employee is using ESST for a qualifying purpose.

For ESST use under reason 3 above (domestic violence, sexual assault, stalking), an employer must accept a court record or documentation signed by a volunteer or employee of a victims services organization, an attorney, a police officer, or an antiviolence counselor as reasonable documentation.

Employers must accept as reasonable documentation for use of ESST under reason 4 above (closure of employee’s place of business or family member’s school or place of care due to weather or public emergency), a written statement from the employee indicating that the employee is using or used ESST for a qualifying purpose.

Are there any other restrictions?

An employer is not allowed to discharge, discipline, penalize, interfere, threaten, restrain, coerce, retaliate, or discriminate against someone if they use ESST or request a statement (see next question regarding earnings statements) of their ESST.  Employers are prohibited from counting ESST as an absence that may lead to adverse action under their absence control policy or attendance point system.

Are there notice and posting requirements?

The ESST law requires employers to provide written notice to all employees regarding ESST rights, including the amount of ESST available, the accrual year, the terms of use, requirements for providing notice of use, and prohibition of retaliation. This information must be provided in English and in the employee’s primary language by January 1, 2024, or at the commencement of employment, whichever is later.  The Minnesota Department of Labor and Industry will publish a model notice.  An employer that provides an employee handbook to its employees must include in the handbook notice of employee rights and remedies under the ESST law.

The ESST law also requires information to be provided on employee earnings statements (pay stubs): the total number of ESST hours accrued and available for use; and the total number of ESST hours used during the pay period.

Do employers need to provide ESST on top of existing PTO or vacation time policies?

Employers do not need to provide additional paid time off in the form of ESST if an existing PTO, sick leave, or vacation policy already provides equal to or more leave than would be required under the ESST law.  Employers that want to use their existing policies to meet the ESST requirements must permit employees to use their leave time for all qualifying ESST reasons and must meet all other requirements under the law, such as carry-over and use requirements. Employers may need to modify policies to avoid assessing attendance “points” or other discipline for use of ESST.

What about local sick and safe time ordinances?

The MN ESST law does not preempt local sick and safe time ordinances, such as those in Minneapolis, St. Paul, Bloomington, or Duluth.  Employers subject to both state and local ESST laws will need to comply with whatever law provides the more generous benefit to employees in the event of a conflict.

Winthrop & Weinstine continues to monitor the situation, and we expect the Minnesota Department of Labor and Industry to publish additional FAQs and more specific guidance. For more information about the new ESST law, please feel free to reach out to any member of our Employment Counseling team.

October 24, 2023