Fast Facts About Minnesota’s ESST Law
- Effective Date: Minnesota’s Earned Sick and Safe Time (ESST) law took effect on January 1, 2024. It’s important to know what time it is in MN to ensure compliance and understanding of these new regulations.
- Employee Entitlement: Employers in Minnesota must provide each employee with at least one hour of paid sick and safe time for every 30 hours worked. This accrual is capped at a minimum of 48 hours of ESST per year. An employee is defined as anyone reasonably expected to work at least 80 hours annually for a Minnesota employer, excluding independent contractors.
- Existing Leave Policies: Companies that already have paid time off (PTO) policies or similar leave structures may find that these policies already satisfy some or all of Minnesota’s ESST requirements.
- Local Ordinances: It’s crucial to remember what time it is in MN contextually, as cities like Bloomington, Minneapolis, and St. Paul have their own ESST ordinances. These local rules might differ from the state law. Employers are obligated to adhere to whichever set of requirements is more beneficial for their employees.
- Enforcement: The Minnesota Department of Labor and Industry (DLI) is responsible for enforcing ESST regulations. Employees also have the right to pursue civil lawsuits for ESST violations.
Basic Information About ESST in Minnesota
When Did Minnesota’s ESST Law Become Effective?
Minnesota’s ESST law went into effect on January 1, 2024. This is a key date to remember when considering what time it is in MN concerning employment regulations.
What Exactly is Minnesota’s ESST Law?
Minnesota’s Earned Sick and Safe Time law mandates that employers offer paid leave to employees working within the state. This law applies to anyone whom an employer anticipates will work at least 80 hours a year in Minnesota, with the exception of independent contractors. This includes part-time, seasonal, and temporary workers.
For every 30 hours an employee works, they accrue one hour of ESST, up to a minimum of 48 hours per year. If an employer already has a PTO or similar policy, it might already fulfill these ESST requirements.
What Are Acceptable Uses for ESST?
Employees can use their accrued sick and safe time for various reasons, including:
- Personal or Family Health: For their own or a family member’s mental or physical illness, medical treatment, or preventive care.
- Domestic Abuse, Sexual Assault, or Stalking: Absence related to domestic abuse, sexual assault, or stalking experienced by the employee or a family member.
- Bereavement: To arrange or attend funeral services or memorials, or to handle financial or legal matters following a family member’s death.
- Emergency Closures: When the employee’s workplace or a family member’s school or care facility is closed due to weather or a public emergency.
- Public Health Risk: When a health authority or healthcare professional determines that the employee or a family member poses a risk of infecting others with a communicable disease.
Who Qualifies as a “Family Member” Under ESST?
The definition of “family member” for ESST purposes is broad, encompassing:
- Children: Biological, adopted, foster, stepchildren, legal wards, adult children, or children for whom the employee is a legal guardian or stands in loco parentis.
- Spouse or Domestic Partner: Including registered domestic partners.
- Siblings: Siblings, stepsiblings, and foster siblings.
- Parents: Biological, adoptive, foster parents, stepparents, or individuals who acted as parents in loco parentis during the employee’s childhood.
- Grandchildren: Grandchildren, foster grandchildren, and step-grandchildren.
- Grandparents: Grandparents and step-grandparents.
- Nieces and Nephews: Children of the employee’s siblings.
- Aunts and Uncles: Siblings of the employee’s parents.
- In-laws: Children-in-law and siblings-in-law.
- Spouse’s Family: Any family members (as listed above) of the employee’s spouse or registered domestic partner.
- Equivalent of Family: Individuals related by blood or those with a close association equivalent to a family relationship.
- Designated Individual: Up to one individual annually designated by the employee.
What ESST Obligations Do Employers Have with Existing Leave Policies?
If an employer’s PTO plan or other paid leave policy meets or exceeds Minnesota’s ESST requirements, it can satisfy the law. Employers are also free to offer more generous leave policies than the minimum ESST requirements.
The name of the leave policy is not important; it doesn’t have to be specifically labeled “earned sick and safe time” to comply with the law.
Is State ESST Law Consistent Across Minnesota Cities?
While the state ESST law is in effect across Minnesota, cities like Bloomington, Minneapolis, and St. Paul have their own local ordinances that may differ. Employers must comply with the regulations that are most favorable to their employees, which might mean following a combination of state and local rules.
Coverage of Minnesota’s ESST Law
Who is Exempt from Minnesota’s ESST Law?
Certain categories of workers are not covered by Minnesota’s ESST law:
- Federal employees
- Independent contractors
- Volunteer and paid-on-call firefighters
- Volunteer ambulance attendants and ambulance service personnel in paid on-call positions
- Elected officials and individuals appointed to fill elected office vacancies
- Farm laborers working 28 days or less per year for a farmer, family farm, or family farm corporation
- Building and construction industry employees covered by a collective bargaining agreement that specifically waives ESST requirements
- Certain family caregivers who have waived their ESST rights
Do Employees Need to Reside in Minnesota to be Covered?
No, employees do not need to live in Minnesota to be eligible for ESST. ESST accrues for hours worked within Minnesota. However, employees working outside of Minnesota for a Minnesota-based employer are not covered for those out-of-state hours.
Are Volunteer or Paid-on-Call Emergency Responders Covered?
Local governments are not required to provide ESST to volunteer firefighters, paid-on-call firefighters, volunteer ambulance attendants, or ambulance service personnel in paid on-call positions.
Do Elected Officials Receive ESST?
Elected officials and appointees filling elected position vacancies are not considered employees under the ESST law.
Does ESST Apply to the Construction Industry?
Yes, ESST generally applies to the building and construction industry. However, these requirements can be waived through a valid collective bargaining agreement with a building and construction trades labor organization, provided the waiver specifically references the ESST law.
Can Non-Construction Employers Negotiate ESST Waivers?
No, ESST waivers through collective bargaining are specifically allowed only for building and construction industry employees.
Earning ESST Hours: Accrual, Carryover, and Front-Loading
When Does ESST Accrual Begin for Employees?
Employees start accruing ESST from their very first day of employment. From the moment they begin working, time starts counting towards their earned leave in MN.
Does ESST Accrual Wait Until 80 Hours are Worked?
No, ESST accrual begins immediately upon starting employment, not after an employee has worked 80 hours.
What Does “Accrual of Hours” Mean?
Accrual means accumulating ESST hours that employees can use as paid leave. For every 30 hours worked in Minnesota, employees earn one hour of ESST, up to at least 48 hours annually.
Examples:
- Manny works 30 hours/week for 28 weeks: 840 hours worked / 30 = 28 ESST hours accrued.
- Sara works 40 hours/week for 3 weeks: 120 hours worked / 30 = 4 ESST hours accrued.
Defining a “Year” for ESST Purposes
A “year” is any consistent 12-month period the employer defines and clearly communicates to employees. Common options include calendar year, tax year, fiscal year, or the employee’s anniversary year. Regardless of the chosen year, all employees must begin accruing ESST by January 1, 2024, or have at least 48 hours front-loaded by this date.
Can Employers Cap ESST Accrual?
Yes, employers can set limits on ESST accrual. However, employees must be allowed to accrue at least 48 hours per year, with carryover allowed, up to a maximum accrual of 80 hours. Employers can choose to set higher limits but not lower.
Example:
- Michelle’s company caps ESST at 80 hours. She carries over 30 hours from year one, accrues 48 more in year two, reaching 78. In year three, she accrues 2 more hours, reaching the 80-hour cap. To accrue more, she must use some of her existing ESST.
How Do Salaried/Exempt Employees Accrue ESST?
Exempt employees (professional, administrative, executive) are presumed to work 40 hours per week for ESST accrual unless there’s clear evidence their regular week is shorter. In that case, accrual is based on their actual regular work week.
Do Overtime Hours Count Towards ESST Accrual?
Yes, ESST accrues on all hours worked, including overtime, unless the employee is exempt from overtime pay.
Does ESST Accrue During Non-Working Time?
No, ESST law does not require accrual during time off (vacation, sick leave, etc.).
How Often Are ESST Hours Calculated?
Employers can calculate and record ESST hours at the same frequency as their regular payroll practices (weekly, bi-weekly, monthly, etc.).
Are Partial ESST Hours Accrued?
While not mandated, employers can choose to credit partial ESST hours. The minimum requirement is one hour of ESST for every 30 hours worked. Employers can credit in 30-hour blocks or in partial increments as long as the rate is at least 1 hour per 30 hours worked.
Examples:
- Michael works 5 hours/week (10 hours bi-weekly): Accrues 1 ESST hour every three pay periods, or proportionally (.33 hours bi-weekly).
- Wanda works 75 hours bi-weekly: Accrues 2.5 ESST hours bi-weekly (partial hour crediting).
Can Employees Accrue ESST with Multiple Employers?
Yes, ESST accrues separately for each employer an employee works for. Accrual is tied to each employment individually.
Does On-Call Time Accrue ESST?
ESST accrues for “hours worked.” Whether on-call time counts as “hours worked” depends on the level of restriction on the employee’s freedom during on-call time. Payment for on-call time alone doesn’t automatically make it “hours worked.” Employers should consult legal counsel for clarity on on-call scenarios.
ESST Accrual for Employees Working Partially in Minnesota
Employees working at least 80 hours a year for a Minnesota employer accrue ESST for hours worked in Minnesota. Out-of-state hours are not subject to Minnesota ESST law.
Do Unused ESST Hours Carry Over?
Yes, unused ESST hours must carry over to the next year, unless the employer uses specific front-loading options (explained below). Total accrual, including carryover, can be capped at 80 hours.
Example:
- Steve accrued 30 ESST hours in year one but didn’t use them. These 30 hours carry over to year two, where he can accrue up to an additional 48 hours.
Front-Loading vs. Accrual: Impact on Carryover
“Front-loading” is an alternative to accrual, allowing employers to grant ESST hours at the start of each year, potentially simplifying record-keeping and eliminating carryover.
Options:
- Accrual and Carryover: Standard accrual of at least 1 hour per 30 hours worked, up to 48 hours/year, with carryover (max 80 hours total).
- Front-Loading with Payout (No Carryover): Provide at least 48 hours upfront each year, pay out unused hours at year-end.
- Front-Loading (No Payout, No Carryover): Provide at least 80 hours upfront each year, no payout of unused hours.
Example:
- Ana front-loads ESST for Omar. Year 1: 48 hours front-loaded, 8 unused hours paid out. Year 2 onwards: 80 hours front-loaded, no payout of unused hours.
Can Employers Front-Load for Part-Time Employees?
Yes, front-loading is allowed for both part-time and full-time employees, as long as the total hours meet the front-loading options (48 hours with payout or 80 hours without payout).
Can Employers Differentiate Between Part-Time and Full-Time Employees?
Yes, employers can treat part-time and full-time employees differently regarding ESST, provided all employees receive at least the minimum ESST benefits required by law, and the differentiation is not discriminatory based on protected characteristics like race or sex.
Front-Loading PTO Before January 1, 2024
If an employer’s accrual year started before January 1, 2024, front-loaded leave time already provided can count towards ESST obligations, as long as the policy covers all ESST-eligible leave types (including safe time) by January 1, 2024.
Example:
- Bonnie’s school district front-loads 80 PTO hours on Sept. 1 each year. The district meets its Jan. 1, 2024 ESST obligation, but must front-load again on Sept. 1, 2024.
Counting Pre-2024 Accrued Hours
For accrual systems, hours accrued before Jan. 1, 2024, can count towards the 48-hour annual maximum. For front-loading, the designated accrual year doesn’t need to start on Jan. 1, 2024, but the required hours must be provided at the start of that year.
Prorating Front-Loaded ESST for Partial-Year or Part-Time Employees
No, the ESST law does not allow prorating front-loaded hours. Employers must provide at least 48 front-loaded hours (or 80 with no payout) annually. However, employers could use accrual for new employees and switch to front-loading at the start of the next accrual year.
Payout or Transfer of ESST Hours
Is Payout of Unused ESST Required Upon Termination?
No, employers are not required to pay out accrued, unused ESST when an employee leaves, although they may choose to do so. Employees transferring within the same employer retain their accrued ESST.
Reinstatement of ESST for Returning Employees
Employees rehired within 180 days by the same employer are entitled to their previously accrued ESST hours (unless already paid out).
Reinstatement After Payout?
If ESST was paid out upon termination, employers do not need to reinstate those hours if the employee returns within 180 days. However, if no payout was made, reinstatement is required.
ESST Hours After Change of Workplace Ownership
Employees retained after a change in workplace ownership keep their accrued ESST. Employees terminated by the old owner but rehired by the new owner within 30 days also retain their ESST.
Payout When Transferring Divisions Within the Same Employer?
No, employees retain ESST when transferring divisions within the same employer. Payout is not allowed in this case.
Can Employees Transfer ESST to Coworkers?
The ESST law does not prohibit employers from allowing employees to donate ESST hours to each other.
Using ESST Hours
When Can Employees Start Using Accrued ESST?
Employees can use ESST as soon as it is accrued. There is no waiting period.
Can Employers Require Notice for ESST Use?
Yes, for foreseeable ESST use, employers can require up to 7 days’ advance notice. For unforeseeable needs, notice should be given as soon as practicable. Employers with notice requirements must have a written policy provided to employees. Without a written policy, ESST use cannot be denied for lack of notice.
Examples:
- Victor needs to take his sick child to the doctor with short notice; he is not bound by a 24-hour notice policy and should notify his employer as soon as possible.
- Abdi schedules a check-up for his daughter but notifies his employer only two days before. The employer can deny ESST use if their written policy requires 7 days’ notice for foreseeable absences.
Denying ESST Use for Lack of Foreseeable Notice
If an employee fails to provide up to 7 days’ notice for foreseeable ESST use, and the employer has a written policy, the employer can deny the ESST request.
Can Employers Require Documentation for ESST Use?
Employers can require reasonable documentation only for ESST use exceeding three consecutive scheduled workdays. If documentation is unobtainable, a written employee statement confirming qualifying ESST use is generally acceptable. Statements can be in the employee’s first language and do not need to be notarized.
Example:
- Kyle uses 4 consecutive ESST days due to illness. His employer can request documentation. If Kyle can’t obtain it, a written statement about using ESST for a qualifying purpose is sufficient.
Documentation for Consecutive Calendar Days vs. Workdays
Employers can require documentation if ESST leave is for more than three consecutive scheduled workdays, not just calendar days.
Must Employees Specifically Request “Sick and Safe Time”?
No, employees don’t need to specifically use the phrase “sick and safe time” when requesting leave.
Can Employers Demand Specific Details About ESST Use?
No, employers cannot require detailed reasons for ESST use, including specific medical details. For absences over three consecutive workdays, they can request documentation, but not necessarily detailed explanations.
Must Employees Find Shift Replacements to Use ESST?
No, employers are prohibited from requiring employees to find replacements as a condition for using ESST.
Minimum and Maximum ESST Usage Increments
Employees can use ESST in the same increments their pay is calculated. Employers are not obligated to grant leave in increments smaller than 15 minutes and cannot mandate increments larger than four hours.
Examples:
- Ibrahim, paid in 30-minute increments, can request ESST in 30-minute increments, but the employer is not required to grant increments smaller than 15 minutes. He cannot be forced to take more than 4 hours for a 2-hour appointment.
- Hamda, paid in 15-minute increments, can request ESST in 15-minute increments.
- David, an exempt employee, may be required to use ESST in 4-hour (half-day) increments.
Does a PTO Policy Satisfy ESST if Vacation Can Be Chosen Instead?
Yes, a PTO policy meets ESST requirements if it’s at least as generous as ESST, even if employees can choose to use PTO for vacation instead of sick/safe time.
Can ESST Be Used Concurrently with Other Protected Leave?
Yes, ESST does not limit or affect other state or federal leave protections.
Can Employers Mandate ESST Use for Qualifying Absences?
No, employees are not required to use ESST, but they may choose to use it for eligible reasons.
Can ESST Use Negatively Impact Attendance Policies?
No, employers cannot have policies that negatively impact employees specifically for using ESST. This could be considered retaliation, which is prohibited.
Can ESST Be Used During Non-Scheduled Work Hours?
No, ESST is paid leave from work. If an employee is not scheduled to work, ESST use is not required.
ESST Use for Employer-Initiated Closures (Non-Emergency)
ESST use for employer closures is limited to closures due to weather or declared public emergencies. Closures for other reasons (e.g., business decisions) do not necessitate ESST use under the law.
Definition of “Public Emergency” for ESST
“Public emergency” refers to a declared emergency under Minnesota Statutes section 12.03 or a declared local emergency under section 12.29.
ESST Use by Emergency Personnel During Emergencies
During weather events or public emergencies, most employees can use ESST if their workplace closes. However, essential personnel (firefighters, peace officers, 911 dispatchers, corrections guards, CDL-holding public employees, and those needed for minimum staffing) may be restricted from using ESST during such events, if given sufficient prior notice by the employer.
Can Employers Require Employee Illness Logs for ESST Use?
Yes, ESST limitations on documentation requests do not override requirements under other laws, such as employee illness log requirements in certain industries.
Rates of Pay for ESST
What is the Required Pay Rate for ESST?
Employees using ESST must be paid their “base rate of pay.”
- Hourly Employees: Paid at their regular hourly rate (or the rate they would have earned for the missed shift if rates vary).
- Salaried Employees: Paid at their guaranteed salary rate as if they hadn’t taken leave.
- Commission/Piecework/Non-Hourly/Non-Salary: Paid at least the applicable local, state, or federal minimum wage (whichever is highest).
Base rate excludes: commissions, shift differentials, overtime, extra pay for weekends/holidays, bonuses, and tips.
ESST Pay Rate: Time of Accrual vs. Time of Use
ESST is paid at the base rate applicable to the shift for which the leave is used, not the rate at the time of accrual.
Pay Rate for Employees with Multiple Hourly Rates
For employees with different hourly rates, ESST is paid at the rate they would have earned for the specific period of leave.
Determining Base Rate for Productivity/Commission/Daily Rate Pay
For non-hourly/non-salary pay, the base rate is at least the highest applicable minimum wage (local, state, or federal).
Compensation for Missed Tips During ESST Leave
Employers are not required to compensate for missed tips during ESST leave.
Overtime Pay for ESST Hours
Employers are not required to pay overtime rates for ESST hours, even if working the shift would have resulted in overtime.
Fixed Stipends and ESST Pay
If an employee’s fixed stipend or payment is not reduced for missed work, the employer does not need to pay an additional base rate for ESST-covered absences.
Recordkeeping and Notice to Employees
Employer ESST Recordkeeping Responsibilities
Employers must provide employees with pay period statements showing:
- Total ESST hours available.
- ESST hours used in that pay period.
This information can be provided on earnings statements, electronically (online portals, timekeeping software), provided employees have worksite computer access to review and print.
Required Employee Notice of ESST Rights
Employers must notify all employees of their ESST rights, including:
- Entitlement to ESST
- Accrual rate
- Accrual year
- Terms of ESST use
- Any written notice policy for ESST use
- Prohibition of retaliation for ESST requests/use
- Right to file complaints or civil actions for ESST violations
This notice must be in English and the employee’s primary language. The DLI provides a sample notice, but its use is not mandatory as long as all required information is included.
Methods for Providing ESST Notice
Employers must provide notice effectively, at least as effectively as:
- Posting notices at all work locations
- Providing paper or electronic copies to all employees
- Posting on web-based/app-based work platforms
Employee handbooks must also include ESST information.
Timing for Providing ESST Notice
Notice must be provided at the start of employment or by January 1, 2024 (whichever is later).
Other Employer Obligations
ESST Responsibility for Staffing Agencies
Unless a contract specifies otherwise, staffing agencies are responsible for ESST obligations for temporary employees.
Confidentiality of Employee Medical Information
Employers must keep employee and family member health/safety information obtained due to ESST confidential, unless employee consent or legal requirement mandates disclosure. Medical records must be kept separate from personnel files.
Insurance Coverage During ESST Use
Employers must maintain group insurance coverage during ESST leave as if the employee were working. Employees continue to pay their share of benefit costs.
ESST Record Retention
Employers must keep all required ESST records for three years, readily available for DLI inspection within 72 hours.
Remedies for ESST Violations
Employees can pursue civil court remedies for ESST violations.
Employers failing to provide or allow ESST use are liable for the amount of ESST owed plus an equal amount in liquidated damages. If exact hours are unclear, liability is set at 48 hours per year of non-compliance, plus equal liquidated damages.
Complaints Regarding ESST
Employee Options for ESST Violations or Retaliation
Employees can contact the Minnesota Department of Labor and Industry (DLI) to file a complaint. They may also bring a civil lawsuit.
Filing Complaints with DLI
ESST complaints can be submitted to DLI’s Labor Standards Division at 651-284-5075 or [email protected].
Anonymous Complaints
Anonymous complaints are accepted, but providing contact information can be helpful for DLI follow-up. ESST requirements are statutory.
