Minnesota Legislature Adds “Clarity” to Earned Sick and Safe Time

Minnesota employers spent about a year preparing for the beginning of ESST, and our representatives in the legislature heard the cries for clarity in the law.  Along with clarifying a few things, additional language has been added for everyone to consider in their policies, even though the ink on those policies is barely dry.  The changes can be found in the massive omnibus bill that was approved by the Governor last week.  Here are some highlights:

With regard to “base rate,” the updated ESST law provides that an employee earns ESST at the same “base rate” as they earn in their employment. For employees with multiple hourly rates, it is defined as “the rate the employee would have been paid for the period of time in which the leave was taken.” For salaried employees, the base rate is “the same rate guaranteed to the employee as if they had not taken the leave.”

The concern public safety employers had pertaining to their employees calling in during snow emergencies has been slightly alleviated.  Firefighters, peace officers, 911 telecommunicators, correctional officers, and CDL drivers are now exempt from being eligible to use ESST during weather events.  However, in order for the exception to be effective, represented employees must explicitly waive application of the “weather event” portion of the ESST statute through bargaining.  For those unrepresented public safety employees, there must be a written policy explicitly referencing the statute for which employees have notice.

Employees can now use ESST in the “same increment of time for which employees are paid”, and employers are “not required to provide leave in less than 15-minute increments.” To balance it out, employers cannot “require use of earned sick and safe time in more than four-hour increments.”

Employers are no longer required to provide paper paystubs showing the amount of accrued ESST.  Rather, they can elect to use a “reasonable system for providing this information,” which includes providing access to “an electronic system where employees can access this information.” Employers must hold on to these records for three years, and make them readily available for inspection by the DOLI commissioner.

Now, for the bad news.  Many employers made the decision to allow for the use of already established PTO as ESST for employees’ first 48 hours of leave in a year, and require the employees to revert to their regular PTO policy thereafter.  Well, someone at the legislature caught wind of employers not providing additional leave to their employees and decided to make the following change:

All paid time off and other paid leave made available to an employee by an employer in excess of the minimum amount required…for absences from work due to personal illness or injury, but not including short-term or long-term disability or other salary continuation benefits, must meet or exceed the minimum standards and requirements provided in (the ESST statute).

What does this mean for those who already provided sick leave at a more generous rate than the ESST statute provided?  Employees may now use all of such leave in the same manner as ESST.  The can use it for the same purpose, duration, relatives, and provide as much notice as is required by the ESST statute.  Thanks for your generosity!  This section takes effect on January 1, 2025.

Finally, the legislature updated the consequences for those employers who do not provide ESST as required, or who do not allow the use of such ESST.  Employers can be held liable to employees denied those hours or their use for an amount equal to all ESST “that should have been provided or could have been used, plus an additional equal amount as liquidated damages.” Employers must maintain adequate records of accrued ESST, or hours worked, or can be held liable to that employee for an amount equal to 48 hours of ESST for each year it was not provided, “plus an additional equal amount as liquidated damages.”

We’re guessing that this was not the clarification that many employers were seeking, but it is the hand we’ve been dealt.  All changes take effect upon enactment (except for the really bad section), so it is critical for employers to update their policies as soon as possible.  If you, or your organization, need assistance in updating your ESST or sick leave policies, contact Wiley Reber Law, for legal advice that works.