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. Refer to the Minnesota Department of Labor and Industry ESST FAQs.
• The ability to use ESST for closure of the employee’s place of business due to weather or other public emergencies (Minnesota Statutes, section 181.9447, subdivision 1(4)). There are limited exceptions in 2024 to reject certain essential service workers from using ESST for inclement weather or public emergency situations. See FAQ #12 for more information.
• New in 2024 — The need to make arrangements for, or attend, a funeral service or memorial, or address financial or legal matters that arise after the death of a family member. See FAQ #12 for more information.

It is likely that many of these aspects are not part of your city’s sick leave or paid time off (PTO) plan. Additionally, there is a new expansion of ESST as of Jan. 1, 2025. With the Jan. 1, 2025, expansion of ESST provisions to all absences due to sickness and injury, it may be helpful to clearly define differing notification and documentation requirements for pre- and post-2024 leave balances to help employees easily discern what documentation and notice rules apply for the leave they are taking.

Effective Jan. 1, 2025, there is a new provision in the law stating “all paid time off and other paid leave made available to an employee by an employer in excess of the minimum amount required in Minnesota Statutes, section 181.9446 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 provided in Minnesota Statutes, sections 181.9445 to 181.9448, except for Minnesota Statues, section 181.9446.” As a result, all paid leave for employees for absences from work due to personal illness or injury in effect prior to Jan. 1, 2024, will need to meet existing and new ESST law provisions. Use of leave accrued prior to Jan. 1, 2024, may follow the employee’s policy or collective bargaining agreement as of Dec. 31, 2023.

Employers may require an employee, using leave accrued prior to Jan. 1, 2024, to follow the written notice and documentation requirements in the city’s applicable policy or applicable union contract as of Dec. 31, 2023, instead of the ESST notice and documentation rules. An employer cannot require an employee to use leave accrued after Jan. 1, 2024, before using leave accrued prior to that date.

The documentation and notice requirements of ESST may be waived for paid leave made available in excess of the 48-hour minimum required in Minnesota Statutes, section 181.9446 through a collective bargaining agreement so long as it explicitly references Minnesota Statues, section 181.9447 subdivision 3 and clearly waives the unambiguously application of that section.

Refer to FAQ #19 for ESST rules regarding advance notice from employees for use of leave and what an employer can request with respect to documentation.

Beyond the notification and documentation requirements, any city leave an employee may use for personal illness or injury as of Jan. 1, 2025, must at least meet the following:

• Eligible employees — ESST rules will apply to all eligible employees and their family members. ESST rules include a more extensive definition of a family member than many traditional leave policies, including up to one individual annually designated by the employee. However, the 2024 changes include some exceptions. For more information, refer to the Minnesota Department of Labor and Industry ESST FAQs and FAQ #9.
• Eligible uses — Effective immediately, there are expanded uses for ESST purposes, so in many cases a city’s sick or PTO policy will need to be updated to reflect those eligible uses as well. See to FAQ #12 for more information.
• Increment of time used — New in 2024, the law changed to limit the increment of time an employee uses to nothing less than 15 minutes or more than four hours. See FAQ #7 for more information.
• Prohibition on requiring an employee using leave to find a replacement worker — The prohibition against requiring an employee using leave to seek or find a replacement worker applies to leave for ESST time and any personal illness and injury time after Jan. 1, 2024. Refer to Minnesota Department of Labor and Industry ESST FAQs.
• Anti-retaliation provisions — The anti-retaliation provisions include protections for employees against discharge, discrimination, discipline, penalization, interference with, threatening, restraining, and coercing as a result of having exercised or attempted to exercise their rights of using leave will now apply to all leave for personal illness or injury as of Jan. 1, 2024.

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, allow the use of ESST leave for personal illness or injury 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. (Minnesota Statutes, section 181.9446 (a)).

With the expansion of ESST protections effective Jan. 1, 2025, to all leave for absences due to sickness and injury, it may be helpful to clearly define the likely differing notification and documentation requirements for pre- and post-2024 leave balances, so employees can discern what documentation and notice rules apply for the leave they are taking.

Tracking ESST hours is key. Previously, the “paystub earnings statute” (Minnesota Statutes, section 181.032) required earning statements to reflect ESST hours accrued, used, and available. Effective immediately, at the end of each pay period, cities will need to provide the following information to employees in writing or electronically:

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

With the 2024 law change, 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.” If a city provides the information electronically, they must provide employee access to an employer-owned computer during an employee’s regular working hours to view and print.

Cities will want to retain these records for at least three years and be sure the records can be readily available for inspections by the Minnesota Department of Labor and Industry upon 72 hours of a request for the data.

The U.S. Department of Labor’s 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 as the basis for the ESST accrual. However, employers have the option to be more generous than the statute requires.

Effective immediately, employees may use ESST in the same increment of time “for which employees are paid,” provided that is not less than 15-minute increments (typically the minimum time increment used for nonexempt employees). In many cities exempt employees track time off differently. In theory exempt employees are paid on a salary basis for professional services. Employers may require exempt employees to use ESST in four-hour increments.

The ESST law does not specifically address this, but Minnesota Department of Labor and Industry (DOLI) ESST FAQs state, “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. While front-loading ESST may be easier from an administrative perspective, there are budgetary impacts to consider and plan for.

With the 2024 ESST law changes, there are new exclusions from the definition of employee. Effective immediately, the law provides for the following employee eligibility exceptions:

• Those who work less than 80 hours in Minnesota in a year.
• Independent contractors.
• NEW — An elected official or a person who is appointed to fill a vacancy in an elected office as part of a political subdivision.
• NEW — Volunteer and paid-on-call firefighters, for a department charged with prevention or suppression of fires within Minnesota boundaries, as well as volunteer ambulance attendants, or paid-on-call ambulance service personnel. For reference, Minn. Stat. § 299N.03. Subd 7 defines volunteer firefighter, which includes volunteer, part-time and paid-on-call firefighters. Minn. Stat. § 144E.001 Subd 15, defines volunteer ambulance attendant, and Minn. Stat. § 144E.001 Subd 3a defines ambulance service personnel.

Election judges remain eligible for ESST if they work 80 hours in a year.

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 was in effect as of Jan. 1, 2024, your city would, at a minimum, begin counting from that date onward.

Generally, all employees, including full time, part time, temporary, and seasonal are eligible for ESST if they are anticipated to work at least 80 hours in a year, and they begin to accrue ESST at the start of employment (Minnesota Statutes, section 181.9446 (d)). (Refer to the Minnesota Department of Labor and Industry ESST FAQs.) In 2024 there are some new exceptions for paid-on-call and volunteer fire and ambulance personnel. See FAQ #9 for more information.

Effective immediately, the law changed to define an employee as a worker who “is anticipated by the employer to perform work for at least 80 hours in a year …” As a result, ESST accruals were to begin as of Jan. 1, 2024, or at the start of employment, whichever comes first.

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 (Minnesota Statutes, section 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.
  • 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).
  • 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.
  • Unused ESST hours are paid out at the end of the accrual year at the employee’s hourly base 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.
  • 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.

Employees can use their earned sick and safe time for reasons such as:

• The employee’s mental or physical illness, treatment, or preventive care.
• A family member’s mental or physical illness, treatment, or preventive care.
• Absence due to domestic abuse, sexual assault, or stalking of the employee or a family member.
• Closure of the employee’s workplace due to weather or public emergency or closure of a family member’s school or care facility due to weather or public emergency.*

  *Effective immediately there is a new exception prohibiting the use of ESST during a public emergency or weather event for certain workers who are responsible for responding to a public emergency or weather event. This limited exception applies if:

• • The employee’s preassigned or foreseeable work duties requires the employee to respond to the public emergency or weather event.
  • The employee is a firefighter, a police officer, a 911 dispatcher, a guard at a correctional facility, or an employee with a commercial driver’s license (like a public works snowplow driver) and one of the following conditions are met:
    • If the represented employee is covered by a collective bargaining agreement or memorandum of understanding that explicitly references Minnesota Statutes, section 181.9447, subdivision 1 (4) regarding 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 and clearly waives application of that section for the employee’s position.
    • For unrepresented employees, if they are needed by the city to maintain minimum staffing requirements and the city has an ESST policy referencing Minnesota Statutes, section 181.9447, subdivision 1 (4) regarding 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 in accordance with the notice and posting requirements of the ESST law. See Minnesota Statutes, section 181.9447, subdivision 9 regarding notice requirements. The Minnesota Department of Labor and Industry has posted a sample notice for employer use.
• To make arrangements or attend funeral services or a memorial, or address financial or legal matters arising after the death of a family member.
• When determined by a health authority or health care professional that the employee or a family member is at risk of infecting others with a communicable disease.

Under the law, no payout of accrued ESST is required, except in the case of front-loading 48 hours of ESST hours. Any unused ESST hours are paid out at the end of the year at the employee’s base hourly rate.

Some cities have asked if an employee is not employed at year-end (such as a seasonal worker), 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 Department of Labor and Industry (DOLI) representatives, and they noted the law does not directly answer this scenario.

The law states 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. However, effective immediately the ESST hours reinstatement is not required if the returning employee had already exhausted their accumulated ESST balance prior to separation or was already paid out on the balance of their accumulated ESST hours upon the previous separation.

Your city’s payroll system should include a tracking mechanism to ensure any employees who leave and are not already paid out their ESST leave balance, but 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 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 (Minnesota Statutes, section 181.9446 (a)).

If a city front-loads ESST hours, there are no prorated adjustments. For additional information refer to FAQ #11.

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.

Effective immediately, cities will want to ensure that — in addition to providing employees with one hour of paid leave for every 30 hours worked, up to at least 48 hours each year — they:

• 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, in writing or electronically on earnings statements provided to employees at the end of each pay period. Refer to FAQ #4 for more information.
• Provided employees with a notice by Jan. 1, 2024 — or at the start of employment, whichever is later — in English or in an employee’s primary language if that is not English, informing them about earned sick and safe time.
• Include a sick and safe time notice in the employee handbook if the employer has an employee handbook.

The Minnesota Department of Labor and Industry offers a uniform employee notice that employers could 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 Department of Labor and Industry has also created an ESST workplace poster. An employer may develop its own notices as well, provided it includes all the necessary information.

Access the Minnesota Department of Labor and Industry ESST poster for the workplace (doc).

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. Keep in mind, the 2025 effective date of the expansion of ESST, which may impact notice and documentation requirements (refer to FAQ #1 and FAQ #2 for more information). If the need for ESST is unforeseeable, an employer may require an employee to give notice as soon as practical.

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. (Minnesota Statutes, section 181.9447, subdivision 2.)

If an employee uses ESST for more than three consecutive scheduled workdays, 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. (Minnesota Statutes, section 181.9447, subdivision 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. If documentation cannot be obtained in a reasonable time of without added expense, then reasonable documentation may include a written statement from the employee indicating that the employee is using, or used, ESST for a qualified absence due to domestic abuse, sexual assault, or stalking of the employee or employee’s family member.

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 (Minnesota Statutes, section 181.9447, subdivision 8).

Effective Jan. 1, 2025, a city may not require an employee to use ESST or any other leave accrued on or after Jan. 1, 2024 before using leave accrued in 2023 or earlier.

Employees are paid their base rate for ESST hours used. Base rate means:

• For employees paid on an hourly basis, the same rate received per hour of work.
• 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.
• For employees paid on a salary basis, the same rate guaranteed to the employee as if the employee had not taken the leave.
• 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 defined in Minnesota Statutes, section 177.23.

Effective immediately, employers can be held liable to employees who are not provided or not allowed to use ESST hours 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.” Additionally, if an employer does not possess sufficient ESST records the employer is “liable to the employee for an amount equal to 48 hours of earned sick and time for each year ESST was not provided, plus an additional equal amount as liquidated damages.” These consequences are in addition to pre-2024 law including the following:

• Employees have three years to bring a civil lawsuit to address alleged ESST violations and recover damages, costs, reasonable attorney’s fees, and injunctive and other equitable relief.
• The Department of Labor and Industry may issue a cease-and-desist order, require back pay, gratuities, compensatory damages, an equal amount as liquidated damages, and litigation and hearing costs.
• Repeated and willful violations will be subject to a civil penalty of up to $10,000 per violation.
• Recordkeeping violations will be subject to a penalty of up to $10,000 per failure.