With the effective date of Minnesota’s Earned Sick and Safe Time Leave Law (ESST) fast approaching, this blog post is the first part of a two-part series: (1) Frequently Asked Questions; and (2) Strategy, Nuances, and Implementation Issues.
Frequently Asked Questions (addressing the significant provisions of ESST):
- What is ESST and When Do I Need to Comply?
Effective January 1, 2024, Minnesota’s ESST entitles covered employees to earn paid sick leave for a wide variety of personal and family-related purposes every year.
- Who are Covered Employees?
- All employees (including part-time and temporary employees) who work for a Minnesota employer for at least 80 hours, in Minnesota, in a year, are covered. Employees who work out of state for a Minnesota employer are not covered.
- Federal employees and independent contractors are not covered.
- Unless there is a contract stating otherwise, temporary employees supplied by a staffing agency are considered employees of the agency and the agency is responsible for ESST obligations.
- Certain individuals employed by an air carrier as a flight deck or cabin crew member are not covered.
- Building and construction industry employees who are represented by building and construction trades labor organization are not covered if a valid waiver of ESST requirements is provided in a collective bargaining agreement.
- How do Employees Accrue and Carry Over ESST?
Employers must provide each employee working in Minnesota with one hour of ESST for every 30 hours worked, with the ability to accumulate 48 hours each year. Employers may choose to grant more hours. ESST hours accrue on all hours worked, including overtime hours, unless the employee is exempt from earning overtime compensation.
Exempt employees are presumed to work 40 hours a week for the purposes of ESST accrual. If there is clear evidence an exempt employee’s regular work week is less than 40 hours, ESST may accrue based on that employee’s actual regular work week.
Employees may carry over any unused ESST from year to year, but employers may cap the number of hours accrued at 80. Employers can choose to frontload ESST as an alternative to carry over (see below).
ESST hours are calculated and reported based on hours worked. The amounts accrued and available for use, in addition to amounts used each pay period, must be listed on the employee’s earnings statement/paystub.
- How Does an Employer Front Load ESST and How Does it Affect Carryover?
Instead of allowing employees to accrue ESST, employers may adopt a frontloading approach whereby the employer provides an employee with a lump sum of ESST at the beginning of each year or the commencement of employment. Employers who use the frontloading approach are not required to allow employees to carry-over unused ESST at the end of the year. Under this approach, employers have two options:
- Front loading with pay out and no carryover. Employers provide 48 hours of ESST to an employee, and it is available for immediate use at the start of the year. Any unused ESST hours are paid out at the end of the accrual year* at the employee’s hourly rate.
- Front loading with no pay out and no carryover. A minimum of 80 hours of ESST is provided to an employee and made available for immediate use at the start of each year. *The ESST hours the employee did not use are not paid out at the end of the accrual year.
*A “year” means any consecutive 12-month period as determined by an employer and communicated to employees (e.g., calendar year, 12 months based on employee’s work anniversary, or fiscal year).
- How Can Employees Use ESST?
Employees can use ESST for any one of the following reasons:
- To address an employee’s mental or physical illness, treatment, or preventative care;
- To care for a family member’s mental or physical illness, treatment, or preventative care;
- For absences related to domestic abuse, sexual assault, or stalking of the employee or a family member;
- Time needed when an employee’s workplace closes due to weather or other public emergency or when an employee must care for a family member whose school or place of care has been closed due to weather or public emergency;
- When 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 a communicable illness related to a public emergency; because the employee is seeking or awaiting results of a diagnostic test for, or a 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;
- When it has been determined by a health authority or health care professional that the employee or a family member is at risk of infecting others with a communicable disease.
**The definition of “family member” is quite extensive under ESST state law and includes any individual “related by blood or whose close association with the employee is equivalent of a family relationship.” Employees may also designate one individual annually who will be considered a “family member” for purposes of ESST.
- What Notice of Leave and Documentation Must an Employee Give an Employer?
An employer may only require notice of the need to use ESST leave if the employer has a written policy with reasonable procedures for doing so and provides that policy to employees. If the need for ESST leave is foreseeable, an employer may require up to seven days’ advance notice. If the need is unforeseeable, an employer may require notice of the need for leave as soon as practicable.
Employers may require reasonable documentation regarding the need for ESST leave when an employee uses ESST leave for more than three days in a row. Reasonable documentation includes a signed statement from a health care professional or if documentation cannot be obtained in a reasonable time or without added expenses, then the employee may provide a written statement indicating the employee is using ESST leave for a qualifying purpose. The statute also specifies documents related to ESST leave used for other reasons. An employer is specifically restricted from requiring an employee to disclose details related to domestic abuse, sexual assault, or stalking or the details of the employee’s or the employee’s family member’s medical condition.
- What Notice of Leave and Posting Must an Employer Follow?
Minnesota’s ESST law contains many recordkeeping and notification requirements for employers. Employers will need to notify employees in writing, at the start of employment or on January 1, 2024, whichever is later, of their earned sick and safe leave rights. Although the Department of Labor’s website states a sample employee notice is forthcoming, it has not yet been published. (See here).
Under ESST, employers must provide written notice that contains various mandatory elements.
- What Recordkeeping Must an Employer Follow?
In addition to the notice requirements above, there are additional recordkeeping requirements. At the end of each pay period, employers must provide each employee with an earning statement, either in writing or by electronic means, that includes, among other statutorily required content, (a) the total number of ESST hours accrued and available for use, and (b) the total number of ESST hours used during the pay period.
Employers must retain records documenting, among other information, hours worked by employees and hours of ESST taken by employees. It appears that records will need to be maintained for at least three years in addition to the current calendar year.
- How Do ESST’s Anti-Retaliation Provisions Work?
An employer may not discharge, discipline, penalize, interfere with, or otherwise retaliate against an employee for asserting earned sick and safe leave rights, for requesting an earned sick and safe leave absence, or pursuing associated remedies.
Further, employers may not factor in any employee’s use of earned sick and safe leave into any attendance point system. ESST related absences are, therefore, “protected” similar to how employers treat FMLA under federal law.
- Employers that have a paid sick time or PTO policy should review it to ensure it meets the requirements of Minnesota’s new ESST law and includes the mandatory elements and required information.
- Employers that do not have a paid sick time or PTO policy should start planning and adopting written policies.
- Employers should coordinate with their payroll providers to ensure they can provide the necessary information on the statement of earnings.
Preparing for ESST takes time, planning, and careful consideration in light of employers’ existing sick time and/or PTO programs. With the compliance deadline looming, now is the time to get moving. Stay tuned for Part 2 of this series focusing on strategy, nuances under the law, and implementation.