During its 2024 session, the Minnesota Legislature expanded and clarified the Earned Sick and Safe Time (“ESST”) Act in significant ways. Many of the changes are now in effect. Employers should update their ESST policies and practice.
Below is a summary of the 2024 ESST amendments.
Definition of Employee
Employee is clarified to mean any person anticipated by the employer to perform at least 80 hours of work in a year for the employer in Minnesota. Employees who are anticipated to work at least 80 hours in Minnesota are entitled to ESST, in addition to those who actually work 80 hours in Minnesota.
Minn. Stat. § 181.9445, subd. 5.
Base Rate
Employers must pay earned sick and safe time at an employee’s "base rate.” The amended statute defines “base rate” as:
(1) for employees paid on an hourly basis, the same rate received per hour of work;
(2) for employees paid on an hourly basis who receive multiple hourly rates, the rate the employee would have been paid for the period of time in which leave was taken;
(3) for employees paid on a salary basis, the same rate guaranteed to the employee as if the employee had not taken the leave; and
(4) for employees paid solely on a commission, piecework, or any basis other than hourly or salary, a rate no less than the applicable local, state, or federal minimum wage, whichever is greater.
Base rate does not include commissions; shift differentials that are in addition to an hourly rate; premium payments for overtime work; premium payments for work on Saturdays, Sundays, holidays, or scheduled days off; bonuses; or gratuities.
Minn. Stat. § 181.9445, subd. 4; § 181.9445, subd. 4a.
Eligible Use – Funeral Leave
Earned sick and safe time may be used to make arrangements for or attend funeral services or a memorial, or address financial or legal matters that arise after the death of a family member.
Minn. Stat. § 181.9447, subd. 1.
Effect On More Generous Sick and Safe Time Policies
While the Earned Sick and Safe Time Act allows employers to adopt more generous policies that meet or exceed the Act’s requirements, the 2024 legislation requires that 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 of the Act.
This means that employers who offer PTO that is more generous than ESST, must offer the PTO on the same terms as required under ESST law. Employers must pay the same base rate for PTO, cannot require additional advance notice, cannot require employees to find a replacement, and cannot require documentation beyond what ESST law allows.
For paid leave accrued prior to January 1, 2024, for absences from work due to personal illness or injury, an employer may require an employee who uses such leave to follow the written notice and documentation requirements in the employer's applicable policy or applicable collective bargaining agreement as of December 31, 2023, in lieu of the ESST requirements, provided that an employer does not require an employee to use leave accrued on or after January 1, 2024, before using leave accrued prior to that date.
The amendment includes exceptions for paid leave offered under a collective bargaining agreement, provided that the collective bargaining agreement explicitly references Minn. Stat. § 181.9447, subd. 3, and clearly and unambiguously waives application of that subdivision to such employees.
This requirement goes into effect January 1, 2025. Minn. Stat. § 181.9448, subd. 1.
Increment of Time Used
The Act is amended to state that an employer is not required to provide earned sick and safe leave in less than 15 minute increments:
Earned sick and safe time may be used in the smallest increment of time tracked by the employer's payroll system, provided such increment is not more than four hours same increment of time for which employees are paid, provided an employer is not required to provide leave in less than 15-minute increments nor can the employer require use of earned sick and safe time in more than four-hour increments.
Minn. Stat. § 181.9447, subd. 5.
Documentation May Be Required After Three Consecutive “Scheduled” Absences
When an employee uses earned sick and safe time for more than three consecutive scheduled work days, an employer may require reasonable documentation that the earned sick and safe time is covered.
Minn. Stat. § 181.9447, subd. 3.
Employer Records and Required Statement to Employee
The amended statute clarifies requirements for employer record keeping and employee statement information:
At the end of each pay period, the employer shall provide, in writing or electronically, information stating the employee's current amount of:
(1) the total number of earned sick and safe time hours available to the employee for use;
(2) the total number of earned sick and safe time hours used during the pay period.
Employers may choose a reasonable system for providing this information, including but not limited to listing information on or attached to each earnings statement or an electronic system where employees can access this information. An employer who chooses to provide this information by electronic means must provide employee access to an employer-owned computer during an employee's regular working hours to review and print.
Records of earned sick and safe time must be kept for three years and must be readily available for inspection by the commissioner upon demand. The records must be either kept at the place where employees are working or kept in a manner that allows the employer to comply with this paragraph within 72 hours.
Minn. Stat. § 181.9447, subd. 10.
Additional Penalties
The amendments include additional penalties for non-compliance:
- If an employer does not provide earned sick and safe time pursuant to section 181.9446, or does not allow the use of earned sick and safe time pursuant to section 181.9447, the employer is liable to all employees who were not provided or not allowed to use earned sick and safe time for an amount equal to all earned sick and safe time that should have been provided or could have been used, plus an additional equal amount as liquidated damages.
- If the employer does not possess records sufficient to determine the earned sick and safe time an employee should have been provided pursuant to paragraph (a), the employer is liable to the employee for an amount equal to 48 hours of earned sick and safe time for each year earned sick and safe time was not provided, plus an additional equal amount as liquidated damages.
Minn. Stat. § 177.50, subd. 7.
Effective Date of Amendments
These amendments are effective immediately, with the exception of the effect on more generous policy provision under Minn. Stat. § 181.9448, subd. 1, which goes into effect January 1, 2025.
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The members of Arthur Chapman’s Employment Law Group are experienced in handling these topics. Contact them with questions.
