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Focus on New Laws: Earned Sick and Safe Time
NOTE: Updates to the Earned Sick and Safe Time (ESST) law were made in the 2024 legislative session. View these ESST FAQs for the latest information.
A new law passed during the 2023 legislative session, Chapter 53, that will require employers to provide employees with earned sick and safe leave.
All Minnesota cities will want to begin preparing for the new paid leave benefit for their employees beginning Jan. 1, 2024. The new law applies to any employer with one or more employees, so there is no small city exemption, and all Minnesota cities will be covered. In addition, this new law covers all employees, including part-time and temporary employees.
Cities that provide earned sick and safe time (ESST) to employees under a paid time off policy are not required to provide additional earned sick and safe time, as long as the policy meets the same conditions or exceeds the minimum standard of the law.
Thus, cities with an existing sick and safe leave policy or ordinance may find it helpful to use the League’s model personnel policy (doc) to make a side-by-side comparison of their existing leave policy with the new earned sick and safe leave language. This can help to more readily discern where enhancements to city policies are required, and where city policies may be richer than Minnesota law.
With 2024 budgeting processes under way in many cities, cities will want to be sure to factor in any additional paid time off accrual for employees. Contact your payroll system vendor to add a pay code for earned sick and safe leave and make necessary adjustments to meet needed wage statement requirements.
Earned sick and safe leave requirements
Under the new law, an employee earns, at a minimum, up to one hour of time off for every 30 hours worked, up to 48 hours each year. Again, this threshold is a “floor” rather than a “ceiling,” so if a city wishes to provide a maximum exceeding 48 hours they may certainly do so. The hourly rate of earned sick and safe time is the same hourly rate an employee earns from employment with the city.
A “year” is a regular and consecutive 12-month period as determined by the city, and some examples could include a calendar year, a fiscal year, or 12 months based on an employee’s work anniversary. Cities will need to notify employees in writing, at the start of employment or on Jan. 1, 2024, whichever is later, of their earned sick and safe leave rights. The Minnesota Department of Labor’s website states a sample employee notice is forthcoming. In the employee notification and personnel policies, cities will want to be sure to define:
- How their 12-month period is calculated.
- Employee earned safe and sick leave rights.
- Amount of leave available.
- How employees may use the leave.
- Requirements for reasonable notification procedures.
- List the prohibitions on retaliation.
Employees earnings statements will need to be updated to reflect an employee’s earned sick and safe leave hours accrued and used per paycheck. Refer to LMC’s Paychecks information memo for updated earning statement requirements.
View the League’s “Paychecks” information memo.
If a copy of the city’s written policy is not provided to an employee, a city may not deny the use of earned sick and safe leave to the employee on that basis.
As previously noted, while many cities already offer sick or paid time off leaves to employees, the new law provides these leave benefits to all employees, including part-time and temporary employees, who work at least 80 hours for the city. The law allows for eligible employees to begin accruing paid sick and safe leave when they begin employment and requires use of the leave in the smallest increment of time tracked by the city’s payroll system, but not more than four hours. Thus, the minimum increment of accrued earned sick and safe leave employees may use will need to be defined in city policy and shared with city employees.
Use of earned sick and safe leave
Employees may use accrued paid sick and safe time in the following circumstances:
- An employee’s own:
- Mental or physical illness, injury, or other health condition.
- Need for medical diagnosis, care, or treatment of a mental or physical illness.
- Injury or health condition.
- Need for preventive care.
- Closure of place of business due to weather or other public emergency.
- Inability to work or telework because the employee is prohibited from working by the city due to health concerns related to the potential transmission of a communicable illness related to a public emergency. Or, if the employee is seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, a communicable disease related to a public emergency and the employee has been exposed to a communicable disease or the city has requested a test or diagnosis.
- Absence due to domestic abuse, sexual assault, or stalking of the employee provided the absence is 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.
- 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.
- Care of a family member:
- With mental or physical illness, injury, or other health condition.
- Who needs medical diagnosis, care, or treatment of a mental or physical illness, injury, or other health condition.
- Who needs preventive medical or health care.
- Whose school or place of care has been closed due to weather or other public emergency.
- When it has been determined by a health authority or a health care professional that the presence of the employee’s family member in the community would jeopardize the health of others because of the exposure to a communicable disease, whether or not the family member has actually contracted the communicable disease.
- For an absence due to domestic abuse, sexual assault, or stalking of the employee’s family member provided the absence is 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.
- 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.
For earned sick and safe leave purposes, family member is more expansive than most traditional city leave policies. Under the new law, a family member includes an employee’s:
- Spouse or registered domestic partner.
- 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 local parentis.
- Sibling, step sibling, or foster sibling.
- Biological, adoptive, or foster parent, stepparent, or a person who stood in loco parentis when the employee was a minor child.
- Grandchild, foster grandchild, or step grandchild.
- Grandparent or step grandparent.
- A child of a sibling of the employee.
- A sibling of the parent of the employee.
- A child-in-law or sibling-in-law.
- Any of the above family members 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.
- Up to one individual annually designated by the employee.
During an employee’s use of earned sick and safe leave, an employee will continue to receive the city’s employer insurance contribution as if they were working, and the employee will be responsible for any share of their insurance premiums.
Notice of leave and documentation
The new law permits employers to require up to seven days’ advance notice from employees when using earned sick and safe leave for foreseeable needs of time off. If an employee’s need is unforeseeable, state law allows the employee to provide notice as soon as practicable. However, if the employee or employee’s family member did not receive services from a health care professional, or if documentation cannot be obtained from a health care professional in a reasonable time or without added expense, then reasonable documentation may include a written statement from the employee indicating that the employee is using, or used, earned sick and safe leave for a qualifying purpose.
A city is prohibited 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.
When an employee uses earned sick and safe leave for more than three consecutive days, a city may require appropriate supporting documentation (such as medical documentation supporting medical leave, court records, or related documentation to support safety leave). In accordance with the law, a city cannot require an employee using earned sick and safe leave to find a replacement worker to cover the hours the employee will be absent.
Employers must maintain the confidentiality of earned sick and safe leave records, medical certifications, histories, and documents information pertaining to domestic abuse, sexual assault, or stalking, and any statement from the employee about the need for leave. These records must be kept separate from usual personnel files. Per the statute, employees may request the city to destroy or return records under earned sick and safe leave that are older than three years prior to the current calendar year.
Payout and carryover of earned sick and safe leave
There is no requirement under the law to pay out any accrued sick and safe leave, but there are carry over provisions to establish. Employees can carry over accrued but unused earned sick and safe leave into the following year, but the maximum carry over of earned sick and safe leave for an employee can be limited to 80 hours.
Alternatively, in order to avoid the up to 80 hours of earned sick and safe leave carry over, a city may consider one of these two options:
- 48 hours of “front loaded” earned sick and safe leave for the year, available for the employee’s immediate use and then the city will pay out any accrued but unused earned sick and safe time at the end of the year at the employee’s hourly rate of pay, or
- 80 hours of earned sick and safe leave for the year, available for the employee’s immediate use, without any pay out to the employee for accrued but unused earned sick and safe leave.
When there is a separation from a city’s employment and the employee is rehired within 180 days of separation, previously accrued earned sick and safe leave that had not been used will be reinstated. An employee is entitled to use accrued earned sick and safe time and accrue additional earned sick and safe time at the commencement of re-employment.
Retaliation prohibited
An employee returning from time off using accrued earned sick and safe leave is entitled to return to their employment at the same rate of pay received when the leave began, plus any automatic pay adjustments that may have occurred during the employee’s time off. Seniority during earned sick and safe leave absences will continue to accrue as if the employee has been continually employed.
There are anti-retaliation provisions included within the law. Specifically, an employer may not discharge, discipline, penalize, interfere with, or otherwise retaliate or discriminate 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. Additionally, it is unlawful to report or threaten to report a person or a family member’s immigration status for exercising a right under earned sick and safe leave.
Learn more
The League hosted a webinar on Aug. 3, 2023, that provided an understanding of how cities can prepare for the implications of the new paid family and medical leave law, learn about the role of the state, key dates, and how to begin to communicate with your staff.