Earned Sick and Safe Time Law: What Cities Need to Know

While the state law seems to permit an employer to rename its sick leave bank to ESST, city officials should consider the following before making that decision:

• ESST offers broader eligible uses than most sick leave policies, such as:
  • A more inclusive definition of family members.
  • The ability to use ESST for closure of the employee’s place of business due to weather or other public emergency.
  • An employee’s need to care for a family member whose school or place of care has been closed due to weather or another public emergency (Minn. Stat. § 181.9447, subd. 1(4)).
• Unlike most sick leave policies, the ESST law includes several anti-retaliation provisions prohibiting discipline or interference with an employee’s right to use ESST (Minn. Stat. § 181.9447, subd. 6).

If these aspects are not part of your city’s sick leave or paid time off (PTO) plan, then separating 48 hours each year to ESST as a subpart of your city’s leave policy benefits employees by allowing them more options to use leave time than a traditional sick leave or PTO plan may provide.

Not necessarily. If your city’s sick leave or PTO policy meets the minimum ESST earning threshold of one hour per 30 hours worked, then your city will not be required to offer additional leave hours. ESST requires employers, at a minimum, to allow the use of ESST for events that meet the eligibility criteria.

According to the law, as of Jan. 1, 2024, at a minimum, an employee accrues one hour of ESST for every 30 hours worked, up to a maximum of 48 hours a year. Employers may agree to a higher maximum annual accrual amount if they so choose. (Minn. Stat. § 181.9446 (a)).

One way to think about it is that ESST hours are a subset of a city’s traditional sick leave or PTO hours offered to employees. However, those 48 ESST hours each year likely have a broader use for employees than a traditional sick or PTO plan.

Tracking ESST hours is key, since the law under Minn. Statute § 181.032 requires earning statements to reflect ESST hours accrued, used, and available. The Minnesota Department of Labor and Industry emailed a Minnesota Wage and Hour Bulletin at the end of October reiterating employers will be required to include the following additional information on employee earnings statements:

• The total number of sick and safe time hours available for use by the employee.
• The total number of sick and safe time hours used by the employee in the pay period.

Your city may want to talk with its payroll department or payroll software provider about adding an additional pay code as a subset of the traditional sick leave or PTO entry on employee pay stubs. If your city has any unions with collective bargaining agreement language regarding your city’s PTO leave, you should run your proposed pay stub changes by your legal counsel to ensure your communication to unions and employees makes it clear that the ESST allocation is a subcategory of your city’s existing leave language to meet state law requirements for 2024 and there is no loss in hours to employees.

The following graphic illustrates how the ESST could be shown as a subset of a city’s traditional sick leave accrual on employee pay stubs.

Graphic: Example of tracking ESST as a separate pay code

The U.S. Department of Labor guidance on the Fair Labor Standards Act notes that it does not require payment for time not worked, such as vacations, sick leave, or federal or other holidays. The Minnesota Department of Labor and Industry (DOLI) FAQs on ESST also support this.

The ESST statute specifies “hours worked.” At a minimum, your city would calculate actual hours worked, including overtime hours. However, employers have the option to be more generous than the statute requires.

The ESST law does not specifically address this, but Minnesota DOLI FAQs on ESST states, “Yes, an employer may treat part-time and full-time employees differently for purposes of ESST, so long as the employer provides all employees at least what they are entitled to under Minnesota’s ESST law, and as long as the law is applied in a way that does not discriminate against an employee or group of employees based on a protected class, such as race, sex or national origin.”

A city may implement an ESST accrual method for full-time employees based on hours worked, while using a different method (such as front-loading 48 hours with a payout at the end of the year) for another employee group like seasonal workers, for example. While front-loading ESST may be easier from an administrative perspective, there are budgetary impacts to consider and plan for.

As of Nov. 6, 2023, David Skovholt with Minnesota DOLI clarified the state does not consider elected officials as employees under the ESST law. In the State’s ESST FAQs this is also referenced with “Only ‘employees’ as defined in the ESST law must be provided ESST; elected officials are not considered employees under the ESST law …”

View the Minnesota DOLI’s ESST FAQs.

Beyond this recent clarification, the law provides for the following employee eligibility exceptions:

• Those who work less than 80 hours in Minnesota in a year.
• Independent contractors.
• Federal employees.
• Certain airline crew employees.

A conservative approach would be to have paid-on-call firefighters, EMTs, election judges, and other nontraditional employees track their time to secure reliable records to determine whether they have worked 80 hours in a year and, if so, award the minimum accrual rate of one hour for every 30 hours worked.

For cities paying employees at longer intervals than once every 31 days in accordance with the exception for paid-on-call firefighters, first responders, and ambulance drivers and attendants (Minn. Stat. § 181.101), it may be helpful to have these personnel track their hours worked, solely for ESST purposes, and then the city could provide a monthly statement of ESST hours earned, used, and remaining to comport with the new law.

Minnesota DOLI FAQs on ESST reflect that “Employers may calculate and record earned sick and safe time hours at the same frequency as the employer’s other typical payroll practices (i.e., by pay period, whether that’s weekly, biweekly, monthly, or twice monthly).”

Cities raised numerous questions asking how ESST may be used by paid-on-call fire and ambulance personnel responding to a pager, especially when the staff is not scheduled to work for a specific day or shift. League staff reached out to the Minnesota Department of Labor and Industry (DOLI) for guidance. In early January 2024, DOLI Commissioner Nicole Blissenbach advised ESST provides paid leave from work so if an employee is not scheduled to work, the ESST law does not require an employer to allow employees to use ESST. Thus, this guidance effectively means in the absence of an assigned shift, a city is not required to permit firefighters or ambulance personnel who respond to pager calls to use any accrued ESST for an unassigned shift absence. For cities with “duty crews” (assigned shifts), scheduled trainings, required meetings, and other events, those scheduled events would indeed be absences that could fall under the umbrella of ESST eligible use.

Keep in mind, ESST law permits employers to be more generous, so a city could choose within their policies to allow paid-on-call firefighters and ambulance staff to use ESST to cover unassigned shift absences. If a city chooses to do be more generous and allow paid-on-call firefighters and ambulance personnel to use ESST to cover absences for responding to unassigned shifts like pager call outs, it is important to consult with the city attorney to determine if the leave is protected for pension-related credits under the anti-retaliation provisions of the ESST law.

The statute defines a year as a regular and consecutive 12-month period as determined by an employer and clearly communicated to each employee. Since the ESST law is in effect as of Jan. 1, 2024, your city will, at a minimum, begin counting from that date onward.

All employees, including full-time, part-time, temporary, and seasonal, are eligible for ESST if they work at least 80 hours in a year, and they begin to accrue ESST at the start of employment (Minn. Stat. § 181.9446 (d)). (Refer to Minnesota DOLI FAQs on ESST.)

On Feb. 21, 2024, League staff learned Minnesota DOLI is communicating that if an employer anticipates an employee will work 80 hours in a year, ESST accruals are to begin as of Jan. 1, 2024, or at the start of employment, whichever comes first.

Also, legislative authors have proposed amending the definition of employee from “worked at least 80 hours in year” to “anticipated by the employer to perform” at least 80 hours of work in a year. Therefore, ESST hours are to be made available to an employee as they are earned if an employer anticipates the employee will be working 80 hours in a year. For those roles where it may not be clear that an employee will work at least 80 hours in a year, such as election judges for example, once that employee works 80 hours in a year, then ESST accruals are to be awarded retroactively to the first hour worked.

The law provides for three methods an employer can choose to award ESST (Minn. Stat. § 181.9446 (b)(1-2)):

• Accrue as earned, with no payout required: 
  • One hour of ESST earned and added to the employee’s leave bank for every 30 hours worked; and
  • Employees are permitted to accrue a minimum of up to 48 hours of ESST in a year (more if the employer agrees to a higher amount); and
  • Employees can carry over unused ESST into the next year. However, at no time can an employee’s accrued ESST exceed 80 hours (unless the employer agrees to a higher amount).
• Front-loading 48 hours with payout and no carryover:
  Some employers find front-loading of ESST hours a distinguishing factor when considering employer-of-choice initiatives in a tight labor market, while others may find front -loading easier for payroll recording. However, there are budget implications of front-loading 48 hours of ESST since the law requires any remaining ESST hours each year to be paid out to the employee.
  • Employer provides a minimum of 48 hours of ESST for the year made available for immediate use at the start of each year, and
  • Unused ESST hours are paid out at the end of the accrual year at the employee’s hourly rate.

• Front-loading 80 hours with no payout and no carryover:
  • Employer provides a minimum of 80 hours of ESST and makes it available for immediate use at the start of each year; and
  • No payout of unused ESST  at the end of the accrual year, but cities should check with their city attorney for impacts if there is existing contractual language regarding payout of sick leave or PTO balances.

Under the law, no payout of accrued ESST is required, except in the case of front-loading 48 hours of ESST hours. As indicated in the response on front loading ESST hours, in this situation any unused ESST hours are paid out at the end of the year at the employee’s hourly rate.

Some cities have asked if an employee is not employed at year end (perhaps their work ended at the end of the season earlier in the year), does the employee still need to be paid out? While the spirit of the law seems to align with a payout even before the end of the year, League staff reached out to Minnesota DOLI representatives, and they noted the law does not directly answer this scenario. DOLI representatives are looking into this further and will provide more information when they have an answer.

The law states that an employee who returns to work for the same employer within 180 days of separation is entitled to the previously accrued ESST hours the employee had on the books prior to leaving.

Therefore, your city’s payroll system should include a tracking mechanism to ensure any employees who leave and then return (such as seasonal employees) within the 180-day window receive their accrued ESST and unused leave balance.

A Minnesota DOLI representative confirmed to League staff that an employee only has to qualify once (meaning work at least 80 hours), typically at the time of hire.

For example, if a city has a part-time employee who worked 100 hours in one year (and thus qualified for ESST since they worked at least 80 hours in the city-defined 12-month period year), but worked only 70 hours the next year, the employee would still continue to earn ESST in the second year at the rate of one hour for every 30 hours worked.

Yes, if calculating on an accrual basis, because under the law employees earn ESST based on the number of hours worked. The law states an employee accrues a minimum of one hour of ESST for every 30 hours worked, up to a maximum of 48 hours in a year (Minn. Stat. § 181.9446 (a)).

If a city front-loads ESST hours, there are no prorated adjustments. For additional information, refer to the response on front-loading ESST hours.

According to PERA representatives, ESST hours are eligible for PERA deductions, assuming the hours are used and relate to a certain pay period, similar to how PTO or vacation/sick leave hours are PERA-eligible.

However, for example, if an employer front loads 48 ESST hours at the beginning of the year and then pays out any remaining ESST balance at the end of the year, that lump sum payout would be ineligible for PERA deductions, just like vacation or sick leave lump sum payouts are ineligible for PERA deductions.

While each city should consult with its legal counsel to determine best next steps, labor consultants contacted by the League have noted a city is not obligated to negotiate ESST into its collective bargaining agreements. The ESST statute does not require a city to provide additional paid leave benefits if it already provides PTO that meets or exceeds, and does not conflict with, the minimum standards of the statute.

A potential response to unions is, “The city intends to comply with the law. We do not intend to negotiate statutory provisions into the contract.”

The Minnesota DOLI’s ESST guidance states that in addition to providing their employees with one hour of paid leave for every 30 hours worked, up to at least 48 hours each year, employers are required to:

• Include the total number of earned sick and safe time hours accrued and available for use, as well as the total number of earned sick and safe time hours used, on earnings statements provided to employees at the end of each pay period;
• Provide employees with a notice by Jan. 1, 2024 — or at the start of employment, whichever is later — in English and in an employee’s primary language if that is not English, informing them about earned sick and safe time; and
• Include a sick and safe time notice in the employee handbook, if the employer has an employee handbook.
  • To help cities compare their current paid leave (like sick or PTO) policies, to the ESST requirements, the firm of Madden Galanter & Hansen, PLLC has compiled a document comparing ESST vs. paid leave policy (pdf).
  • As noted in the LMC model personnel policy (doc), cities may find this tool useful to discern where enhancements to city policies are required and where city policies are richer than state law.

The Minnesota DOLI has a uniform employee notice (doc) that employers can use to distribute to employees by Jan. 1, 2024, or at the start of employment, whichever is later, and will translate it to Chinese, Hmong, Somali, Spanish, Vietnamese, and additional languages. Minnesota DOLI has also created an ESST workplace poster: Access the Minnesota DOLI ESST poster for the workplace. An employer may develop its own notices as well, provided it includes all the necessary information.

Yes, if the need for ESST use is foreseeable, an employer may require advance notice of the employee’s intention to use ESST but must not require more than seven days’ advance notice.

If the need for ESST is unforeseeable, an employer may require an employee to give notice as soon as practicable.

An employer requiring notice of the need to use ESST must have a written policy containing reasonable procedures for employees to provide notice and must provide a written copy of the policy to employees. If a copy of the written policy has not been provided to an employee, a city may not deny the use of ESST on that basis. (Minn. Stat. § 181.9447, subd. 2.)

If an employee uses ESST for more than three consecutive days, an employer may require reasonable documentation that the time off meets eligibility requirements. However, if an employee or the employee’s family member did not receive services from a health care professional, or if documentation cannot be obtained from a health care professional in a reasonable time or without added expense, then reasonable documentation may include a written statement from the employee indicating that the employee is using, or used, ESST. A written statement by an employee may be written in the employee’s first language and does not need to be notarized. (Minn. Stat. § 181.9447, subd. 3.)

An employer must accept a court record or documentation signed by a volunteer or employee of a victims’ services organization, an attorney, a police officer, or an antiviolence counselor as reasonable documentation.

Yes. An employee, in agreement with the employer, may return to work part-time during the leave without forfeiting the right to return to employment at the end of the ESST (Minn. Stat. § 181.9447, subd. 8).

Yes, an employer may specify in policy that ESST is to be used first. Minnesota DOLI representatives told League staff that there is nothing in the law that precludes an employer from specifying ESST be used before regular sick leave.