Bloomington, Minnesota’s Earned Sick and Safe Leave (ESSL) Ordinance goes into effect on July 1, 2023. The ESSL Ordinance requires employers to provide paid sick and safe leave time for employees performing work for their employer within Bloomington's geographic boundaries for at least 80 hours in a year.
The ESSL Ordinance was unanimously passed by the Bloomington City Council in June 2022, making Bloomington the fourth city in Minnesota (along with Minneapolis, St. Paul, and Duluth) to require paid sick and safe time for employees. The Bloomington City Council recently released initial rules[1] for ESSL in anticipation of the July 1, 2023 effective date, highlights of which are detailed below.
Covered Employers
Employers covered under ESSL include all private employers, regardless of location, employing at least one employee. The City of Bloomington is a covered employer under ESSL while federal, state, and county government employers are not.
Covered Employees
All employees[2], including temporary and part-time employees, who perform work for their employer within Bloomington's geographic boundaries for at least 80 hours in a year are covered under ESSL.
Independent contractors, unpaid student interns, and workers specifically classified as extended employment program workers under certain Minnesota employment programs are not covered employees under ESSL.
Accrual of ESSL
Employees will accrue ESSL time at the rate of one hour for every 30 hours worked, up to a maximum of 48 hours in a calendar year[3]. Exempt employees are deemed to work 40 hours per week unless their regular workweek is less than 40 hours, in which case ESSL time accrues based on their normal workweek.
ESSL time accrues in one-hour increments but employers may permit ESSL time accrual in fractions of an hour. Employees will begin accruing ESSL time on July 1, 2023 or upon their date of hire, if later. Employees may begin using their ESSL time on the 91st day after their date of hire, unless an employer permits earlier use.
ESSL Permitted Uses
A covered employee can use accrued ESSL time for the following purposes:
- An employee’s need to diagnose or treat a mental or physical illness, injury, health condition, or an employee’s need for preventive care, including pre‐natal and post‐natal care.
- An employee’s need to provide care for a family member[4] for the same reasons as detailed in #1 above or the death of a family member.
- The closure of the employee’s place of business by a public official’s order.
- The closure of a family member’s school or place of care by a public official’s order, or due to inclement weather, loss of power, loss of heating, loss of water, or other unexpected closure.
- An absence due to domestic abuse, sexual assault, or stalking of the employee or employee's family member, as long as the absence is to:
- Seek medical attention or psychological or other counseling services related to physical or psychological injury or disability caused by domestic abuse, sexual assault, or stalking;
- Obtain services from a victim services organization;
- Seek relocation due to domestic abuse, sexual assault, or stalking; or
- Seek legal advice or take legal action, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from domestic abuse, sexual assault, or stalking.
Employers may not require employees to search for or find replacement workers to cover for them while taking ESSL time.
Employers may establish their own increments of time for using ESSL time provided it is consistent with their existing business practice and policies and in compliance with the ESSL Ordinance requirements. Employers can set a minimum ESSL use increment of four hours. However, if an employee has an ESSL balance below the minimum time allowed by the employer, the employer must allow the employee to use their remaining ESSL balance.
Rate of Pay & Carryover Rules
A covered employer with five or more employees anywhere (not just in Bloomington) must pay the regular rate of pay to employees using their ESSL time, but not less than the applicable state minimum wage, and only for those hours that an employee is scheduled to perform work.
A covered employer with less than five employees must allow employees to use unpaid ESSL.
Employers may permit employees to carry over accrued, unused ESSL time into the following year up to a maximum of 80 hours, unless an employer agrees to a higher amount.
Employers may choose to frontload 48 hours of ESSL time to employees during their first year and 80 hours a year at the beginning of each subsequent year.
Employee Notice Requirements
Employers may require employees to provide notice of their need to take ESSL time seven days in advance when the need is foreseeable. If the need for ESSL time is not foreseeable, employers may require notice from employees as soon as practicable.
Employers may require an employee to provide reasonable documentation for absences of more than three consecutive days. Reasonable documentation includes the following:
- For sick time: a doctor’s note but only if the employer provides the employee with health benefits.
- For safe time: a police report, a court order, or an employee’s written statement.
All ESSL-related documentation received by an employer must be kept confidential and only disclosed with the employee’s permission or when required under law or by a court/administrative agency.
Termination of Employment & Rehires
Employers are not required to pay out accrued, unused ESSL time to employees upon termination of employment. If a terminated employee is rehired within 120 days by the same employer, then previously accrued, unused ESSL time must be reinstated and available for use at the time of rehire.
Existing Leave Policies
Employers with existing paid leave policies that meet or exceed the ESSL Ordinance requirements under the same terms and conditions are not required to provide additional paid time off.
Employers may permit employees to donate accrued, unused ESSL time to another employee.
Other Employer Requirements
Poster: Employers must post the City Attorney’s standard workplace poster in a conspicuous place (e.g., breakroom or near a punch clock) for employees to access as well as include in employee handbooks or other orientation materials, as applicable. This poster is currently available in English on the Bloomington ESSL webpage but the City Attorney is expected to release the poster in all languages spoken by five percent of the workforce in Bloomington.
Paycheck: Employers must report accurate accrual and usage of ESSL time each pay period by including this information on employees’ paychecks.
Recordkeeping: Employers are required to maintain ESSL records documenting hours worked (for non-exempt employees), ESSL time accrued and used, and remaining ESSL balance for each covered employee for a period of three years plus the current calendar year. An employer may make a reasonable, good faith estimate of an employee’s time spent working in Bloomington for purposes of ESSL coverage, accrual, and use, including use of documentation such as dispatch logs, delivery addresses, and estimated travel times.
Enforcement
The Bloomington City Attorney is responsible for administration and enforcement of the ESSL Ordinance. The City Attorney will conduct investigations and impose administrative penalties against employers for violations along with other damages payable to the affected employees, including reinstatement and back pay.
In certain instances, the City Attorney and employees may bring a civil action in a court of competent jurisdiction against employers for legal and equitable relief to remedy violations.
Employers are prohibited from retaliating or taking any adverse action against employees for requesting or using their ESSL time.
Next Steps for Employers
As the July 1, 2023 effective date for the ESSL Ordinance approaches, covered employers with employees working in Bloomington, MN are advised to:
- Consult with their employment and labor law counsel to create new or update existing paid sick and safe leave policies and employee handbooks to comply with the ESSL Ordinance requirements.
- Post the standard workplace poster in a conspicuous place for employees to access.
- Update their payroll systems to ensure that the required ESSL information is properly reflected in covered employee’s paychecks.
- Periodically check Bloomington’s ESSL webpage for additional guidance and poster updates.
Reach out to your Risk Strategies representative with questions or contact us at benefits@risk-strategies.com.
[1] The release of these “initial rules” suggests that there will be additional rules issued at some point.
[2] Regardless of immigration status.
[3] A calendar year is defined under the ESSL Ordinance as “a regular and consecutive 12-month period as determined by an employer and may be based on an employee's employment anniversary date.”
[4] A family member is defined under the ESSL Ordinance as “an employee's child, step-child, adopted child, foster child, adult child, spouse, sibling, parent, stepparent, mother-in-law, father-in-law, grandchild, grandparent, guardian, ward, or members of the employee's household.”
