Over a year after Minnesota’s Earned Sick and Safe Time (ESST) law went into effect in January 2024, Minnesota’s Department of Labor and Industry (DLI) recently published proposed permanent rules (the Proposed Rules) that, if adopted, will regulate the ESST law. Although the rules are not yet final, they offer insights for employers on DLI’s interpretation of the ESST law.
Certain Employees Accrue ESST When Working Outside of Minnesota
As a reminder, under the Minnesota ESST law, employees accrue one hour of ESST for every 30 hours worked, up to 48 hours annually. The Proposed Rules explain that an employee’s hours worked outside of Minnesota count towards accrual as long as the employer anticipates the employee will work more than 50% of their hours for the employer inside of Minnesota per accrual year. If the employer anticipates that the employee will work 50% or less of their hours in Minnesota during the accrual year, then only the employee’s hours worked in Minnesota will count toward accrual of ESST. If the employee begins the accrual year without the expectation of working in Minnesota for more than 50% of their work time, but the expectation of working in Minnesota increases during the year to more than 50% of worked time, then the employer must allow the employee to accrue hours beginning on the date of the change in circumstances. Under the Proposed Rules, an employee who is teleworking is considered to be working in the state from which they telework.
Guidance on Calculating ESST Deductions for Indeterminate Shifts
When an employee takes ESST for a shift scheduled for an indeterminate time, the ESST law does not expressly state how an employer should calculate the hours to deduct from an employee’s ESST bank. The Proposed Rules clarify that an employer can only deduct from an employee’s “accrued” ESST the hours worked by the employee who picked up the ESST-taking employee’s shift. If there is not a replacement worker for that shift, but there are similarly situated employees, then the employer can deduct: either the average hours worked by the similarly situated employees who worked the same shift or the greatest hours worked by a similarly situated employee who worked the same shift. If there is no replacement worker or any similarly situated employees, then the employer may use the hours worked by the ESST-taking employee in their most recent similar shift of an indeterminate length.
Employers Can Demand Documentation from Employees Suspected of ESST Misuse
The Proposed Rules provide guidance on an employer’s ability to address a suspected “pattern of misuse” of ESST. The Proposed Rules define a pattern of misuse for claimed unforeseeable use of ESST as an employee routinely taking ESST (1) before a weekend, vacation, or holiday; or (2) before the start of a scheduled shift for under 30 minutes. The Proposed Rules do not indicate what number of such suspected misuses qualify as “routine.” When an employer observes a pattern of misuse, the Proposed Rules allow the employer to demand reasonable documentation from the employee suspected of ESST misuse. The reasonable documentation is limited to the definition in the ESST statute.
The ESST Law Covers Other Paid Time Off Used for Qualified ESST Purposes
If a covered employer provides paid time off beyond the hours required by the ESST law to an employee for absences from work due to personal illness or injury, then under the Proposed Rules, the excess paid time off is also subject to certain requirements imposed by the ESST law when the employee uses the time off for a reason covered by the ESST law. Such requirements include but are not limited to those related to the ESST requirements on notice, documentation, and anti-retaliation.
Next Steps
The DLI has opened a second comment period on these Proposed Rules. Comments are due by April 2, 2025. We will continue to monitor these developments. In the meantime, if you have questions about Minnesota’s state-wide mandatory leave laws, local leave laws in Minnesota, or the mandatory employee leave laws around the country, please reach out to Jackson Lewis.