Brief Summary: Minnesota will soon join the ranks of many other states and local jurisdictions (including 4 cities in Minnesota) with earned paid sick and safe leave requirements, starting on January 1, 2024.
Employers will be required to provide paid sick and safe leave time for employees performing work for their employer within Minnesota for at least 80 hours in a year.
Read on for more information.
Minnesota’s Earned Sick and Safe Time law (MN ESST), signed into law on May 24, 2023 by Minnesota Governor Tim Walz, goes into effect on January 1, 2024. MN ESST requires employers to provide paid sick and safe leave time for employees performing work for their employer within Minnesota for at least 80 hours in a year.
Employers covered under MN ESST include all employers, regardless of location, employing at least one employee, including the state of Minnesota, a county, town, school district, or other governmental subdivision. For purposes of MN ESST, temporary employees of staffing agencies are treated as employees of the staffing unless a contractual agreement states otherwise.
All employees, including temporary and part-time employees, who perform work for their employer within Minnesota for at least 80 hours in a year are covered under MN ESST.
Independent contractors and certain airline carrier employees designated as flight deck or cabin crew members are not covered employees under MN ESST.
Employees will accrue MN ESST at the rate of one hour for every 30 hours worked, up to a maximum of 48 hours in a calendar year. Exempt employees are deemed to work 40 hours per week unless their regular workweek is less than 40 hours, in which case MN ESST accrues based on their normal workweek.
MN ESST time accrues in one-hour increments. Employees will begin accruing MN ESST time on January 1, 2024 or upon their date of hire, if later. Employees may use their MN ESST as soon as it is accrued.
A covered employee can use accrued MN ESST for the following purposes:
Employers may not require employees to search for or find replacement workers to cover for them while taking MN ESST time.
MN ESST may be used in the smallest increment of time tracked by the employer's payroll system, as long as such increment is not more than four hours.
A covered employer must pay the regular rate of pay to employees using MN ESST, but not less than the state or applicable local minimum wage.
Employers may permit employees to carry over accrued, unused MN ESST into the following year up to a maximum of 80 hours, unless an employer agrees to a higher amount.
Rather than complying with the MN ESST carryover rules, employers may also choose to frontload 48 hours of MN ESST time to employees at the beginning of the subject year as long as the employer pays employees for accrued, unused MN ESST at the end of the year. If an employer does not pay employees for unused MN ESST at the end of the year, then the employer is required to frontload 80 hours of MN ESST at the beginning of the subsequent year.
Employers may require employees to provide notice of their need to take MN ESST seven days in advance when the need is foreseeable. If the need for MN ESST is not foreseeable, employers may require notice from employees as soon as practicable.
Employers requiring employees to provide notice of their need to use MN ESST must have a written policy containing reasonable notice procedures, and provide a written copy of such policy to employees. If a copy of the written policy has not been provided to an employee, an employer may not deny the use of MN ESST to the employee on that basis.
Employers may require an employee to provide reasonable documentation for absences of more than three consecutive days. Reasonable documentation includes the following:
Written statements by an employee may be written in the employee's first language and are not required to be notarized.
All MN ESST-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. Medical records related to an employee’s use of MN ESST must be kept separate from employment/personnel files.
Employers are not required to pay out accrued, unused MN ESST to employees upon termination of employment. If a terminated employee is rehired within 180 days by the same employer, then previously accrued, unused MN ESST time must be reinstated and available for use at the time of rehire.
Employers with existing paid leave policies and collective bargaining agreements[2] that meet or exceed MN ESST requirements under the same terms and conditions are not required to provide additional paid time off.
Employers may permit employees to donate accrued, unused MN ESST time to another employee and also may advance MN ESST to an employee before being accrued.
Although MN ESST is a statewide law, four different cities in Minnesota (Minneapolis, St. Paul, Duluth, and Bloomington) mandate paid sick and safe leave for employees. When MN ESST becomes effective on January 1, 2024, employers must comply with the most generous and protective law that applies to their employees, which might be the local ordinance rather than MN ESST.
Employers with employees working in these Minnesota cities should consult with their employment and labor counsel to determine which law will apply to their employees.
Poster and Employee Notice: Employers will be required to post a MN ESST workplace poster, detailing employee rights and protections, in a conspicuous and easily accessible worksite location, or electronically. A model workplace poster is anticipated to be posted by the Minnesota Department of Labor and Industry (MN DLI) before January 1, 2024 in the five most common languages spoken in Minnesota as well as other languages upon employer request.
Employers must also provide employees with a notice by Jan. 1, 2024 — or at the start of employment, whichever is later — in English and in an employee’s primary non-English language, informing them about their rights and protections under MN ESST. Additionally, if an employee has an employee handbook, they must include this MN ESST notice in the employee handbook.
Paycheck: Employers must report accurate accrual and usage of MN ESST each pay period by including this information on employees’ paychecks.
Recordkeeping: Employers are required to maintain MN ESST records documenting hours worked and MN ESST used for at least three years. Employers must permit employees to inspect their MN ESST records at a reasonable time and place.
Maintenance of Heath Benefits: Employers must continue to maintain health benefits for employees using MN ESST and employees will continue to pay for their health benefits at the employee-cost share amount while taking MN ESST.
The MN DLI Commissioner is responsible for administration and enforcement of MN ESST. The Commissioner will conduct investigations and impose administrative penalties against employers for violations along with other damages payable to the affected employees, including back pay, gratuities, and compensatory damages. Repeat or willful violations of MN ESST may be subject to a civil penalty of up to $10,000 for each violation per employee.
In addition to administrative penalties imposed by the MN DLI Commissioner, employees and other individuals may bring a civil action against employers within three years of the alleged MN ESST violation.
Employers are prohibited from retaliating or taking any adverse action against employees for requesting or using their MN ESST, including maintaining an absence control policy or attendance point system that counts MN ESST as an absence that may lead to or result in retaliation or any other adverse action.
Further, employers are prohibited from reporting or threatening to report the actual or suspected citizenship or immigration status of an employee (or their family member) to a federal, state, or local agency for requesting or using their MN ESST.
As the January 1, 2024 effective date for MN ESST compliance approaches, covered employers with employees working in Minnesota are advised to:
As the paid leave landscape around the country continues to rapidly change and evolve, Risk Strategies is committed to keeping employers informed and updated.
Contact us directly at benefits@risk-strategies.com.
[1] A family member is defined under MN ESST expansively, including, but not limited to, an employee’s child, spouse or registered domestic partner; sibling, parent, grandchild, grandparent, niece/nephew; aunt/uncle. Additionally, this family member definition includes 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.
[2] With the exception of a collective bargaining agreement with a bona fide building and construction trades labor organization that may, under certain circumstances, waive MN ESST requirements.