Minnesota Legislature Proposes Paid Sick Leave and Paid Family Medical Leave

By Thomas Revnew - Peters Revnew Kappenman & Anderson

January 24, 2023

While it is early in the 2023 Minnesota legislative process, the Democrats who control both the Minnesota House and Minnesota Senate have introduced two workplace mandates that have already been heard in committee hearings.  The first mandate will require employers to provide up to a total of 24 weeks of paid family medical leave to employees, while the second mandate will require employers to provide up to an additional 80 hours of paid sick leave to employees.  Democrats claim they plan to pass both of these mandates into law this session, which will have a significant impact upon businesses.  The following is a summary of the current legislation:
 
Paid Family Medical Leave:

Under the paid family medical leave bill, employees would be eligible to receive up to 12 weeks of paid leave for their own serious health condition or pregnancy and up to an additional 12 weeks of paid leave to care for a newborn, adopted or foster child, for safety leave or to care for a family member who has a serious health condition.  In other words, under the current bill, the two leaves could be stacked to allow up to 24 weeks of paid leave in a year.  “Family member” is very broadly defined under the current bill, including not only immediate family members, but extended family members such as foster grandchildren, nieces, nephews, and step grandchildren, among others.

Other significant items in the bill include:

Employer Coverage:  All employers regardless of the number of employees would be mandated to participate in this program.

Employee Eligibility:  After 90 days of employment, employees would be eligible to participate in this program.

Determination of Leave:  This program would be run by the State of Minnesota and State employees would determine who is eligible for leave benefits under the program.

Benefits Available:  The amount of benefits available will be based upon a progression scale with lower income workers receiving 90% of their wages while on leave and a decreasing level of benefits for higher income workers.  Additionally, after completing their leave, employees would be entitled to reinstatement to their prior jobs.

Funding:  Employers will fund the program through a payroll tax that is estimated to be about .7%.  Employers would be able to require fifty-percent of the payroll tax to be deducted from an employee’s paycheck.

Effective Date:  If passed, the law would take effect immediately with benefits becoming available in 2025.

Paid Sick Leave:

Under the paid sick leave bill, employees would accrue one hour of earned sick and safe time for every 30 hours worked up to a maximum of 48 hours of earned sick and safe time in a year.  Employees would not be able to accrue more time unless the employer allowed for additional accruals.  While employees would be permitted to carry over unused accruals, generally, they would not be able to carry over annually more than 80 hours of accrued and unused sick and safe time (hereinafter referred to collectively as “sick time”).  Additional provisions of this bill include the following:

Employer Coverage:  All employers regardless of the number of employees would be mandated to participate in this program.

Eligible Employees:  Employees who work at least 80 hours in a year would be eligible for paid sick leave benefits, but accruals for sick time commence upon employment.

Reasons for Sick Leave:  In summary, employees would be eligible to take paid sick leave for, among other reasons:
•  their own mental or physical illness or for medical appointments;
•  care of a family member who is sick or needs to attend a doctors’ appointment;
•  absences due to domestic abuse, sexual assault, or stalking, provided the absences is due to:

   o  seeking medical attention;
   o  obtaining services from a victim’s right organization;
   o  counseling;
   o  relocating due to the abuse, assault or stalking; or
   o  seeking legal advice or taking legal action;

•  closure of the employer’s business due to weather or public emergency or to take care of a family member whose school or place of care has been closed due to weather or public emergency;
•  the employee’s inability to work or telework due to health concerns related to:

   o  potential transmission of a communicable illness related to a public emergency; or
   o  seeking or waiting for a diagnostic test of a communicable disease that is a public emergency; or
•    when the health care provider has determined the employee’s presence would jeopardize the health of others because of a communicable disease.

Notice Requirements:  If leave is foreseeable, employers may require employees to provide up to seven days advance notice of the intention to use sick leave.  If leave is not foreseeable, employers may require an employee to give leave notice as soon as practical.  A written policy must be developed if an employer requires advance notice of the need to use paid sick leave and the procedure for providing such notice.  If the policy has not been provided to the employee, the employer cannot deny the use of sick leave.

Documentation:  Employers may request some forms of reasonable documentation when an employee is absent from work depending upon the circumstances for the leave.

Increment of Time Used:  Employees will be permitted to use the smallest increment of time tracked by an employer’s payroll system, provided such increment is not more than four hours.

Non-Retaliation:  Employers will be prohibited from retaliating against employees for using the paid sick leave and it cannot be counted against them through the use of a point system or absent control system.

Notice and Posting by Employers:  Employers will be required to notify employees of their entitlement to paid sick leave, the amount of earned sick time they have, the accrual year, a copy of the written policy requiring employee notice of the need for leave, a notice that they will not be retaliated against for using or requesting sick time and the employees right to bring civil action if leave is denied or they are retaliated against.  This notice must be provided in English as well as the primary language identified by the employee.

Required Statement to Employees:  Employers will be required to provide employees with a statement of their earned sick time available as well as the amount that has been used.  Employers could comply with this requirement by listing the information on each paystub.

Confidentiality:  All of the information that the employer receives pertaining to the employee’s use of paid sick time will be considered confidential medical information that must be maintained in a file separate from the personnel file.

Paid Time Off Policies:  As the bill is currently written, employers may use a paid time off policy to provide earned sick time to employees provided it meets or exceeds and does not otherwise conflict with the minimum standards of the proposed law.

Paying Out Sick Leave at Termination:  While employees are not required to pay out earned paid sick time upon an employee’s termination, if the employee is rehired within 180 days, he/she is entitled to use all of the earned sick time previously accrued.

Remedies:  Employees who are denied sick pay or retaliated against are entitled to recover all damages suffered as well as reasonable attorneys’ fees.

While it is not absolutely certain the legislature will ultimately adopt any or all of the paid family medical and paid sick leave provisions, a strong likelihood exists.  Currently, managing leaves of absences can lead to some difficult legal scenarios for employers to address and the addition of the above-mandates will lead to additional difficulties.  Employers should begin to proactively consider the ramifications of these bills to their business and consult with an employment attorney as part of any planning.

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