Minnesota 2024 Legislative Session Update: Earned Sick and Safe Time Amendments

By David E. Goldman - Peters & Kappenman, P.A.

June 20, 2024

After only having been effective since January 1, 2024, the Minnesota legislature has already made numerous significant amendments to the various Earned Sick and Safe Time (“ESST”) statutes. On May 24, House Bill H.F. No. 5247 was signed into law by Governor Walz. Among the numerous statutory revisions and additions, ESST law has been amended in the following ways that employers should be aware of. Unless denoted otherwise, these changes are effective as of May 25, 2024.
 
Covered Employees

ESST has been clarified to apply to all employees anticipated to perform work for at least 80 hours in a year for that employer in Minnesota. Previously, the law had stated that ESST applied to all employees who perform work for at least 80 hours in a year for that employer in Minnesota. This language was contradictory to the requirement that employees may use their ESST as soon as it is earned. This new rule eliminates that contradiction.
 
Earnings Statement

Employers are no longer required to provide information regarding an employee’s ESST hours available for use and ESST hours used during the previous pay period in each pay stub or earnings statement and can now elect to use a “reasonable system for providing this information,” which includes providing access to “an electronic system where employees can access this information.” If the employer chooses to keep this information electronically, they must provide the employee with access to an employer-owned computer during regular working hours to review and print ESST information. In addition, ESST records must kept by employers for three years, and must be readily available for inspection by the commissioner on demand (requiring compliance within 72 hours).
 
Base Rate

The Legislature clarified the ESST law by providing that an employee earns ESST at the same “base rate” as they earn in their employment. This “base rate” is still simply the hourly rate for hourly employees, but 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.” Further, for salaried employees, the base rate is “the same rate guaranteed to the employee as if they had not taken the leave,” and for employees paid solely on commissions or other bases, “a rate no less than the applicable local, state, or federal minimum wage, whichever is greater.” In addition, the Legislature has clarified that 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.”
 
Increment of Time for ESST Use

Previously, employees could use ESST in the “smallest increment of time tracked by the employer’s payroll system,” which presented complications for employers using particularly small timekeeping increments. Now, employees can 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.” However, employers cannot “require use of earned sick and safe time in more than four-hour increments.” There is still ambiguity regarding whether hourly employees who track time by a figure less than 1 hour may be forced to use ESST in 1-hour increments. However, it seems apparent that employers can force salaried employees to use ESST in 4-hour increments.
 
Bereavement Leave Now Included

The legislature has amended the accepted uses of ESST to include the, “need 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.” Employers who already provide paid funeral or bereavement leave may want to consider eliminating that policy now that employees may use their accrued ESST leave for the same reasons.
 
Weather Exception for Certain Employees

Specific employees, including firefighters, police officers, and public employees with Commercial Drivers Licenses cannot use their ESST for the, “closure of the employee's place of business due to weather or other public emergency or an employee's need to care for a family member whose school or place of care has been closed due to weather or other public emergency.” Previously, all employees could use their ESST for weather-related business closures.
 
Remedies for Noncompliance

Employers who do not provide ESST as required, or who do not allow the use of such ESST, 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.” An employer’s failure to maintain adequate ESST records will not help limit liability; the statute now provides that if the employer lacks records sufficient to determine the ESST an employee should have been provided, the employer 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.”
 
ESST and Other Systems of Paid Time Off

Set to be effective January 1, 2025, the legislature added the following language to the statutes, “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 ESST]…” Seemingly, this means that if you provide PTO in excess of the minimum requirements of ESST, you must follow the requirements of ESST for all hours granted, not just the first 48 hours granted. For example, if an employer provides 49 hours of PTO instead of the minimally required 48 hours of ESST, the employer must follow all ESST requirements for all hours, including the extra 1 hour of PTO above the minimum required pursuant to ESST law.

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