All Minnesota employers need to be aware of the new Earned Sick and Safe Time law (ESST) effective January 1st, 2024. For the purposes of this statute, Minnesota defines “employer” as any person or entity that employs one or more persons. Minnesota’s definition of “employee” includes any employee who has worked at least eighty hours in a year except that Minnesota does not include independent contractors and certain air carrier employees as employees under this statute.. That employee in turn earns one hour of ESST for every thirty hours worked in a year, up to forty-eight hours of paid ESST. Also, most employers must allow the employee to accrue up to eighty hours each additional year of employment. However, employers do not have to pay employees for accrued sick and safe time when terminating employment. Employers can still have policies that are more generous than the ESST law requires and that pay a terminated employee all or part of unused paid time off leave. Important is that the new law specifically states employers may adopt or keep current sick and safe time policies similar to the new ESST law. Employers cannot prevent an employee from using PTO for any situation identified in this new law. Employers that provide sick and safe time to employees under a paid time off policy that includes leave that may be used for the same purposes and conditions as defined in the ESST law do not have to provide the additional time set forth in the statute.
Employers should review the new laws even if they have a paid time off policy that includes sick time or if they have separate sick time with a paid time off policy. ESST leave is now much broader than traditional sick leave. The employee no longer has to be sick to use ESST. The new laws include use of such time for an employee’s mental or physical condition, which is not defined in the statute. Employees can also use the time for medical diagnosis or treatment or for preventative medical or health care. These provisions also apply when an employee uses leave to care for a family member, which is broadly defined in the statute. Certain victims of domestic abuse, sexual assault, or stalking of an employee or the employee’s family member can obtain this leave for certain circumstances. The statute also requires employers to allow employees to use ESST if the employer closes due to bad weather or if an employee needs to care for a family member because school or day care is closed due to bad weather. There are also provisions in the event of another public emergency, like the potential risk of transmission of a communicable disease or if the employee has been exposed to such a communicable disease.
The employer can require the employee to provide notice to use ESST, but such notice cannot be less than seven days if the use is “foreseeable.” If use is not “foreseeable,” the law states an employer can ask the employee to provide notice “as soon as practicable.” The employer that requires its employees to provide notice must have a written policy that contains what the statute states are reasonable procedures for employees to provide notice and provide the written copy to the employee. Employers should make sure to update employment handbooks to include these new notice policies. Employers can only require documentation for the need to use ESST if the leave is for more than three consecutive days. The law details the types of documentation that can be provided, and employers are urged to discuss these with their legal counsel. Under some circumstances a written statement from the employee that the employee is using ESST for a qualified purpose may suffice.
Important is the law requires employers to provide earning statements that include the total number of sick and safe time hours accrued and the total number of ESST used during that pay period. ESST time records also must be kept for at least three years.
The law has strong remedies favorable to employees, including injunctive relief, award of costs, and reasonable attorney fees. The statute has detailed requirements for posting notice for employees on their entitlement to use ESST. Retaliation is prohibited.
Please contact Evenson Decker, P.A. to have our experienced attorneys help you update your policies and procedures to become compliant with Minnesota law.