Quick Hits

• The Minnesota Department of Labor and Industry issued proposed rules stating that employees anticipated to work over 50 percent in Minnesota in an accrual year would accrue earned sick and safe time leave (ESST) for all hours worked despite location.
• The proposed rules would allow employers to “advance” ESST hours.
• The proposed rules also clarify that employees have a choice to use paid ESST or take unpaid and “unprotected” leave, and that employers may not require employees to use ESST.
• The proposed rules are open for public comment through April 2, 2025.

Definitions

The proposed rules define “Accrual Year,” “Qualifying Purpose,” and “Work Day.” Namely, a “work day” means a consecutive period of time not greater than twenty-four hours.

Accrual Year

The Minnesota ESST law requires employers to designate and notify employees of the accrual year. Under the proposed rules, “[i]f an employer fails to designate and clearly communicate the accrual year to each employee … the accrual year is a calendar year.” The proposed rules would require employers to “provide a revised written notice” to affected employees if the accrual year changes before the change takes effect and “[i]f an employee has not received timely revised written notice … then the employee’s designated accrual year remains unchanged, unless the employee agrees otherwise.”

Hours Worked

Location of hours worked: The proposed rules would allow employees to accrue ESST as follows:

• If the employer anticipates that an employee will work more than 50 percent of his or her hours for that employer in Minnesota in an accrual year, then all hours worked would count toward accrual of ESST regardless of the employee’s location.
• If the employer anticipates the employee will work 50 percent or less of his or her hours for that employer in Minnesota in an accrual year, then only the hours worked in Minnesota would count toward the employee’s ESST accrual.
• If there is a change in circumstances during the accrual year (e.g., change in location or duties) and the employee is working more than 50 percent in Minnesota in the accrual year or 50 percent or less in Minnesota in the accrual year, then the employer would be required to apply the applicable accrual when the change occurs.

For this section only, a teleworking employee would be considered working in the state where the employees teleworks.

Indeterminate shifts: Under the proposed rules, an employer would be required to deduct an employee’s ESST for an indeterminate length accordingly:

• If a replacement worker is used to cover the employee’s shift, the hours worked by the replacement worker;
• If no replacement worker, but similarly situated employees, then either:
• the average hours worked of the other similarly situated employees who worked the same shift for which the employee used ESST; or
  • the greatest hours worked by a similarly situated employee who worked the shift for which the employee used ESST.
• If no replacement worker and no similarly situated employees, then the hours worked in the most recent similar shift of an indeterminate length worked by the employee.

Time Credited and Increments of Accrual

Processing and crediting accrual: Under the proposed rules, employers would be required to credit accrued ESST by the end of the pay period. ESST would be “accrued” when the employer processes and credits the time to the employee at the end of each pay period.

Increment of time accrued: The proposed rules clarify that employers would not be “required to credit employees with less than hour-unit increments of [ESST].”

Rehire: The proposed rules also clarify that “[a]n employee rehired by the same employer within 180 days of separation is entitled to a maximum reinstatement of 80 hours of previously accrued but unused” ESST, unless law, policy, contract, or other authority requires a greater amount.

Accrual and Advancing Methods

Advancing hours: The proposed rules would allow employees to “advance” ESST hours. In other words, “[w]hen an employee begins employment, an employer is permitted to advance [ESST] to an employee based on the number of hours the employee is anticipated to work for the remaining portion of the accrual year and calculated at no less than the rate required in” Minn. Stat. § 181.9446(a), provided an employer need not advance over forty-eight ESST hours (unless law, policy, contract, or other authority requires a greater amount). However, if the advanced amount were less than the amount the employee would have accrued based on the actual hours worked for the rest of the accrual year, the employer would be required to provide more ESST to make up the difference within fifteen days of the actual accrued amount surpassing the advanced amount.

Changing methods: The proposed rules clarify that employers can “change methods” (i.e., switch from accrual to frontloading and vice versa) so long as the employer communicates the change to employees in writing and the change does not take effect until the first day of the next accrual year. If an employer fails to provide adequate notice, the prior accrual method remains in effect unless the employee agrees otherwise.

No additional accrual necessary: The proposed rules clarify that if an employer is frontloading ESST, the employee would not also accrue ESST under the accrual method.

Employee Use

The proposed rules would give employees the right to use ESST and prohibit employers from requiring employees to use ESST. However, if an employee chooses not to use ESST, the absence would not be protected by the ESST law.

Employee Misuse of ESST

The proposed rules address ESST misuse by clarifying that an employee’s use of ESST for a non-ESST covered reason would not be protected by the ESST law. The proposed rules would allow employers to “demand reasonable documentation from an employee when there is a pattern of misuse … for a claimed unforeseeable use,” notwithstanding the timeline in Minn. Stat. § 181.9447(3)(a). Misuse is defined to include an employee routinely using ESST the day immediately before or after a weekend, vacation, or holiday; or using increments of ESST in less than thirty minutes at the start of a scheduled shift. The proposed rules further specify that employers would be barred from denying an employee ESST based on earlier misuse or the employer’s suspicion that the employee may misuse ESST.

More Generous Sick and Safe Time Policies

The Minnesota ESST law requires paid time off and other paid leave provided to employees over the minimum amount required under the ESST law for absences from work due to personal illness or injury (but not including short-term or long-term disability or other salary continuation benefits) to meet or exceed the minimum standards and requirements under the ESST law other than Minn. Stat. § 181.9446 (i.e., ESST accrual). The proposed rules clarify this would only apply “when the leave is being used for a qualifying purpose.”