United States: If Pain, Yes Gain – Part 114: Minnesota Publishes Sample Earned Sick And Safe Time Employee Notice

What You Need To Know:

• Earlier this month, the Minnesota Department of Labor and Industry (DLI) released an Earned Sick and Safe Time (ESST) sample notice.
• Covered employers' ESST notice obligations, as well as general compliance with the law, begin on January 1, 2024.
• Employers can use the sample notice to satisfy the ESST law's notice requirements. One such requirement is that if an employer provides an employee handbook to employees, a notice of employee rights and remedies must be included within the handbook.
• The sample notice contains several areas that must be proactively completed by the employer.

When the Minnesota ESST mandate takes effect at the start of 2024, covered employers will be required to provide eligible Minnesota employees with at least one hour of paid ESST for every 30 hours worked, up to a maximum of 48 hours per year and an overall balance of 80 hours. Minnesota currently has four local paid sick and safe leave mandates in effect. These mandates exist in Bloomington, Duluth, Minneapolis, and Saint Paul. The Minnesota statewide ESST mandate will not preempt these local mandates.

In addition and notably, out of the 18 other states, plus Washington D.C., that have enacted statewide paid sick leave or general paid time off laws,¹ the impending Minnesota ESST law is one of the most favorable to employees. This in turn makes it one of the country's most burdensome paid sick leave laws for employers.

Some of the more challenging aspects of the Minnesota ESST mandate for employers include, but are not limited to: (a) the combination of and interplay between the law's annual and rolling accrual caps; (b) a lack of an express cap on annual ESST usage; (c) no permitted usage waiting period for new hires; (d) expansive reasons for use by employees and a corresponding broad definition of "family member;" (e) potentially small minimum increments of use; (f) the balance notification requirements for employee earnings statements; and (g) the notice and posting requirements. For more information on the Minnesota ESST law, please see our prior Legal Update.

As noted above, the Minnesota DLI recently released a sample notice for employers to use when satisfying the ESST law's notice requirements. The ESST FAQs acknowledge that employers are not required to use the sample notice; however, if employers forego use of the sample, the alternative must include all information mandated by the ESST law.² Employers must supply employees with the required notice in English and the primary language of the employee, as identified by the employee.³ The notice must be provided to employees on their date of hire or January 1, 2024, whichever is later.

The ESST law explains that employers' means of providing notice to employees must be at least as effective as one of the following three options: (1) posting a copy of the notice at each location where employees perform work; (2) providing a paper or electronic copy of the notice to employees; or (3) conspicuously posting in a web-based or app-based platform through which an employee performs work. Employers that select option (1) above must make sure the notice is readily observed and easily reviewed by all employees performing work.

The ESST law contains an additional notice obligation. Specifically, under the mandate, any employer that maintains an employee handbook must include an ESST notice within the handbook. The Bloomington, Minneapolis, and St. Paul local paid sick time ordinances also require notice in employee handbooks.

Unlike most other paid sick leave law jurisdictions, and even the existing Minnesota local paid sick leave ordinances, the Minnesota DLI's ESST sample notice includes several areas that need to be customized by the employer before it is distributed, posted or displayed. This includes details about the employer's accrual or frontloading setup to the extent the setup is more generous than the law's baseline standards, how the employer defines the accrual or benefit year, and the employer's policy for employees to provide notice of their need to use ESST.

We will continue to monitor the Minnesota DLI's activities for further updates on the Minnesota ESST law, including potentially updated FAQs and other administrative materials. In the meantime, as the ESST law's January 1, 2024 effective date approaches, here are some steps to consider:

• Review existing sick leave or PTO policies and practices, including those in a Minnesota locality with a separate local paid sick leave mandate, and either implement new policies and practices or revise existing policies and practices to ensure compliance with the law, while doing the same for any related attendance, conduct, anti-retaliation, and discipline policies and practices.
• Train supervisory and managerial employees, as well as HR, on the new requirements.
• Monitor the Minnesota DLI's website for the release of additional administrative guidance on employers' ESST compliance obligations.

With the paid leave landscape continuing to expand and grow in complexity, we encourage companies to reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with these laws and paid leave requirements more generally. To stay up to date on paid leave developments, please click here to sign up for Seyfarth's Paid Leave mailing list. Companies interested in Seyfarth's paid sick leave laws survey should reach out to sickleave@seyfarth.com.

Footnotes

1. Including Minnesota, the states that have enacted a statewide general non-COVID-19 paid sick leave or paid time off mandate include: (1) Arizona; (2) California; (3) Colorado; (4) Connecticut; (5) Illinois (PTO law) (effective 1/1/2024); (6) Maine (PTO law); (7) Maryland; (8) Massachusetts; (9) Michigan; (10) Minnesota; (11) Nevada (PTO law); (12) New Jersey; (13) New Mexico; (14) New York; (15) Oregon; (16) Rhode Island; (17) Vermont; and (18) Washington. In addition, (19) Virginia has a statewide paid sick leave law that applies only to certain home health workers. There also are non-COVID-19 paid sick leave or paid time off mandates in (20) Washington, D.C. and more than two dozen municipalities.

2. The ESST law states that the notice covered employers must provide to their Minnesota employees must include the following: (1) that employees are entitled to ESST, including the amount of ESST, the accrual year for the employee, the terms of its use under this section, and a copy of the written policy for providing notice as provided; (2) that retaliation against employees who request or use ESST is prohibited; and (3) that each employee has the right to file a complaint or bring a civil action if ESST is denied by the employer or the employee is retaliated against for requesting or using ESST.

3. The current ESST FAQs state that the Minnesota DLI "will also translate the sample notice into Chinese, Hmong, Somali and Spanish, and will translate the notice into additional languages upon request."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.