Minnesota Earned Sick and Safe Time (ESST) Attorneys

State law requires employers to provide paid leave under certain circumstances. Some local and city-level ordinances, including those in Minneapolis and St. Paul, also provide employees with related and overlapping protections. The scope of these rights, such as which employers are covered, which employees qualify, and how much paid leave must be provided varies according to individual employers.

Which Employers Are Covered?

Any person or legal entity, including the State of Minnesota and local governments, who has one or more employees in Minnesota is an employer under the earned sick and safe time (“ESST”) law and must provide ESST to their employees.

Which Employees Are Eligible?

Who Is Covered?

Employees are eligible for ESST if they are anticipated to perform at least 80 hours of work in a year for their employer in Minnesota. This includes part-time and temporary employees. Certain farm employees only considered employees if they perform work for more than 28 days per year. Employees are eligible upon their first day of employment, no waiting period is required to become eligible.

Who Is Not Covered?

Independent contractors are not eligible for ESST. Likewise, certain volunteer or paid on-call firefighters or ambulance personnel are excluded from the law. Minnesota elected officials, or those appointed to fill a vacancy in an elected office, are similarly excluded.

How Much Protection Is There?

Minnesota law provides that an employee eligible for ESST must accrue a minimum of one hour of ESST for every thirty hours worked up to a maximum of 48 ESST hours in a year. Employers may permit employees to accrue more than 48 hours of ESST per year but are not required to do so. A “year” for the purpose of the law is not necessarily a calendar year but rather any 12-month period as defined by the employer.

While the above establishes the minimum standard for ESST accrual, the law provides for employers to instead follow one of two alternate systems. Some employers may choose to grant employees 48 hours of ESST at the start of the year. ESST will then not accrue based upon employees’ work hours. In those circumstances, an employer must repay an employee for any accrued but unused ESST at the end of the year.

Other employers may choose to instead provide their employees with 80 hours of ESST at the start of the year. When an employer opts to do so, they are not required to repay the employees for accrued but unused ESST at the end of the year.

Any ESST hours which are accrued on an hourly basis but unused at the end of the year must be carried over into the following year, subject to some exceptions. An employee’s total amount of accrued but unused ESST hours must not exceed 80 hours at any time. An employer may, however, choose to permit their employees to accrue a higher amount.

The law assumes that salaried employees who are exempt from federal overtime requirements work 40 hours per week unless their normal work week is shorter. If an exempt employee works less than 40 hours per week, they will accrue ESST based on their actual hours worked.

The ESST law also requires employers to provide certain notices to employees. Employers must notify employees of their ESST rights at the start of their employment and include a statement of available and used ESST hours at the end of each pay period. Employers must provide notifications in English and, when applicable, an employee’s primary language. Employers who maintain an employee handbook must also include an ESST notice in the handbook. Employers must maintain accurate records documenting employees’ hours worked and must allow an employee to inspect such records. If an employer learns of information relating to the reasons for an employee’s ESST leave, they must keep such information confidential and are prohibited from disclosing such information without consent, subject to certain exceptions.

How Can Employees Use ESST?

The ESST law provides exactly what it says: protected paid time off from work for sickness or safety reasons. The law adopts broad, but specific, interpretations of the eligible uses for ESST.

Eligible uses apply equally to both employees and their family members. A family member for the purposes of the law is quite broad, including an employee’s:

• 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 loco parentis;
• spouse or registered domestic partner;
• sibling, stepsibling, 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 stepgrandchild;
• grandparent or stepgrandparent;
• a child of a sibling of the employee;
• a sibling of the parents of the employee;
• a child-in-law or sibling-in-law; or
• any of the family members listed above as related to a spouse or registered domestic partner of the employee.

The law also recognizes the importance of family relationships which are not otherwise formalized by blood or law, including in the definition of a “family member:”

• 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 per year designated by the employee.

Sick Time

The ESST law provides employees paid time off for medical reasons related either to the employee or the employee’s family member. This includes time to treat a mental or physical illness, access preventative care, or otherwise treat or diagnose a health condition. The law also permits employees to take leave to arrange for, or attend, funeral or memorial services, or to address financial or legal matters arising after the death of a family member.

Domestic Abuse, Sexual Assault, or Stalking

An employee may also use ESST for paid time off due to domestic abuse, sexual assault, or stalking of the employee or the employee’s family member. However, some restrictions apply. The absence must be specifically to access services from a victim services organization, obtain related psychological or other counseling, to seek relocation necessary due to domestic abuse, sexual assault, or stalking, or to seek legal advice or take legal action relating to or resulting from the domestic abuse, sexual assault, or stalking.

Inclement Weather

The ESST law also permits employees to use ESST hours when their place of business is closed due to weather or other public emergency. Likewise, an employee may use ESST hours to care for a family member whose school or place of care has been closed due to weather or public emergency.

The weather event provision is subject to several detailed exclusions. In sum, it does not apply if responding to a weather event is part of an employee’s preassigned or foreseeable work responsibilities when the employee is:

• a firefighter;
• a peace officer subject to licensure under Minn. Stat. §§ 626.84 – .863;
• a 911 operator;
• a guard at a correctional facility; or
• a public employee holding a commercial driver’s license.

However, the above employees are only excluded from the ESST weather event provision if they are subject to certain types of collective bargaining agreements or if they are necessary to maintain minimum staffing requirements and their employer has a written policy explaining their exclusion from this provision.

Communicable Diseases

ESST hours may be used if an employer prohibits the employee from working due to health concerns related to the potential transmission of a communicable illness related to a public health emergency. The same is true if an employee is simply seeking or awaiting the results of a diagnostic test for, or diagnosis of, the communicable disease. Similarly, ESST hours may be used if health professionals or health authorities with jurisdiction determine that the employee or their family member’s presence in the community would jeopardize the health of others.

For all types of ESST uses, employers are permitted to request certain types of substantiating documents if an employee uses ESST for three or more consecutive days.

Pay and Benefits

Employees begin to accrue ESST on their first day of employment and may use ESST as it is accrued. Employees may use ESST in any increment of time tracked by the employer, subject to certain limitations. Regardless of the increments of time tracked by an employer, ESST increments may be no smaller than 15 minutes and no larger than four hours. For example, if an employer tracks time in six-minute increments, then the employee could only take ESST leave in 15-minute increments. But even if an employer tracked time only as eight-hour workdays, they must permit an employee to take ESST leave in increments no larger than four hours.

Employers must pay ESST at the same base rate as an employee earns from their regular employment. Employers must maintain coverage under applicable medical benefits for the employee as if the employee were not using ESST; employees must continue to pay their typical share of the cost of any such benefits.

Upon return from any period of ESST leave, an employee is entitled to resume employment with the same terms and conditions as prior to their leave. Any automatic adjustments in the employee’s pay scale which occurred during the leave period must apply, all accrued pre-leave benefits of employment must be retained. A returning employee retains seniority as if they had not taken leave.

Retaliation

The law prohibits employers from retaliating against employees for exercising their right to ESST. Retaliation includes any discharge, discipline, penalty, interference, threats, restraints, coercion, or other forms of retaliation against the employee because they used, or attempted to use, ESST paid leave. The anti-retaliation provisions prohibit the report or threatened report of an employee’s actual or suspected citizenship status for using, or attempting to use, ESST leave. An employer may not consider ESST leave as an absence in any attendance policy or point system.

Remedies

If an employer fails to provide minimum ESST hours or does not allow their employees to use ESST, the employer shall be liable for damages to all employees who were not provided ESST or denied ESST. The law provides for mandatory double damages, meaning that employers will be liable for an amount equivalent to twice the value of any unprovided or denied ESST.

The damages provision applies equally to employers who fail to maintain sufficient records to demonstrate that they provided the required amount of ESST to their employees.

What You Can Do

Navigating Minnesota’s new earned sick and safe time laws can be difficult. Additional nuances apply to more specific circumstances which can further complicate an employee’s eligibility for ESST.

At Nichols Kaster, PLLP, we understand the complexities of employment law and the challenges individuals face when dealing with ESST. Our experienced attorneys are here to advocate for your rights, navigate the legal process on your behalf, and work tirelessly to pursue the best possible outcome for your case. With our expertise and dedication, you can trust that we will stand by you every step of the way, providing the guidance and representation you need to seek justice.