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FAQs about earned sick and safe time rules

Contents

General

What are the earned sick and safe time (ESST) administrative rules, and why did the Minnesota Department of Labor and Industry (DLI) adopt them?

Minnesota Statutes, section 177.50, subd. 6 allows the Department of Labor and Industry to adopt rules to carry out the purposes of the ESST law (Minnesota Statutes, sections 177.50 and 181.9445 to 181.9448). DLI adopted rules to provide clarification and specificity about the ESST law. They were created through a statutory process that involves review by an administrative law judge and input from the public. The rules set standards for employers and employees to follow regarding the application of the ESST law. They address only certain parts of the ESST law and are in addition to the statutory provisions. The rules take effect July 6, 2026.

Interaction with local ESST ordinances

How do the ESST rules interact with local paid sick leave ordinances?

Minnesota’s ESST rules do not override local ESST ordinances. Employers must follow whichever standard provides employees with the greatest protection or benefit. 

Accrual year (Minnesota Rules 5200.1201)

What is an accrual year for ESST purposes? 

An accrual year for ESST purposes is a regular, consecutive 12-month period selected by the employer and clearly communicated to employees. The rule specifies that if an employer does not designate and clearly communicate the accrual year to each employee, the accrual year is a calendar year (Jan. 1 through Dec. 31). 

How should an employer communicate the accrual year to employees? 

An employer must communicate the accrual year to an employee at the start of their employment in the required ESST notice. 

Can an employer change its accrual year?

The rule clarifies that an employer may change the accrual year if it provides employees with written notice of the new start and end dates of the accrual year before the change takes effect, and the notice must be given as part of the written notice of changes to employment terms required by Minn. Stat. § 181.032(f). In addition, the change must not negatively impact an employee's ability to accrue ESST in accordance with Minn. Stat. § 181.9446.

Hours worked (Minn. R. 5200.1202)

How should an employer determine, in good faith, whether an employee is anticipated to work at least 80 hours in a year for the employer in Minnesota?

With limited exceptions, Minn. Stat. § 181.9445, subd. 5 defines an ESST-eligible “employee” as “any person who is employed by an employer . . .  who is anticipated by the employer to perform work for at least 80 hours in a year for that employer in Minnesota.” The rule clarifies that the employer must make this determination in “good faith” by, at a minimum, evaluating the employee's anticipated work schedule and location of hours worked in a manner that is not knowingly false or in reckless disregard of the truth. In addition, the rule provides that employees anticipated to work or who actually work at least 80 hours in a year for the employer in Minnesota must receive ESST in accordance with Minn. Stat. § 181.9446. 

Sample scenarios

  • Elizabeth is a temporary summer employee helping at events such as concerts and games in Minnesota. Last year an employee in the same temporary summer position worked more than 120 hours. Taking the anticipated work schedule into consideration, the employer anticipates in good faith that Elizabeth will work at least 80 hours for the employer and will be an ESST-eligible employee.

  • Maria works as a lifeguard at a Minnesota lake during the summer on Sunday afternoons from 1 to 4 p.m. Given her limited work schedule, her employer determines in good faith that she will not work at least 80 hours and therefore is not ESST eligible.  However, throughout the summer Maria picks up shifts and has worked over 80 hours by July. Because she actually worked at least 80 hours a year for the employer, she is now ESST-eligible and must be provided the rights and benefits under the ESST law.

What hours count toward ESST accrual?

The ESST law requires that eligible employees accrue a minimum of one hour of ESST for every 30 “hours worked,” unless they receive ESST for the year via frontloading. The rule clarifies that, in determining what time counts as “hours worked” under the ESST law, employers must apply the same “hours worked” rules as codified in Minnesota Administrative Rules 5200.0120 and 5200.0121. 

How does ESST accrual and use work for employees who are exempt from overtime?

Minn. Stat. § 181.9446(c) provides that for employees exempt from federal overtime requirements, employers must credit 40 hours per week for ESST accrual purposes, unless the employee’s normal workweek is less than 40 hours. The rule clarifies that when an exempt employee uses ESST for a full workday, more ESST hours cannot be deducted than the number of hours for which the employee is deemed to work for the purpose of accruing ESST each workday. 

Sample scenarios

  • Miguel is an exempt employee under federal overtime requirements, and his employer credits him with 40 work hours per week for ESST accrual purposes. Because Miguel is absent for a full workday because he is sick, his employer can only deduct eight hours of ESST from his ESST accrual bank. 

What is an indeterminate shift?

The rule clarifies that an indeterminate shift includes a work shift defined by business needs rather than a specific number of hours. 

How much ESST may an employer deduct when an employee uses ESST for an indeterminate shift?

The rule clarifies that when an employee misses an entire shift of an indeterminate length, the employer must estimate the number of ESST hours to deduct using one of the following options: (1) the hours worked by the replacement worker, if any; (2) the hours the employee worked during the most recent similar shift of an indeterminate length; or (3) the greatest number of hours worked by a similarly situated employee, if any, who worked that shift.

Sample scenario

  • Linda works at a bar and is scheduled to work on Thursday from 4 p.m. until relieved from her shift when the bar is less busy. Linda gets sick and calls out sick for her shift. The person who covers Linda’s shift works until 11 p.m. Therefore, as the replacement worker worked seven hours, the employer may deduct seven ESST hours for Linda’s missed shift unless the employer elects to use another allowable option to determine the length of the indeterminant shift for ESST purposes.

How much ESST may an employer deduct when an employee uses ESST partway through an indeterminate shift?

The rule clarifies that if an employee begins an indeterminate shift and then uses ESST partway through the shift, the employer must first determine the number of hours associated with the shift using one of the allowed options mentioned above. The employer then must subtract the hours the employee already worked and deduct only the remaining hours from the employee’s ESST balance.

Sample scenario

  • Linda works at a bar and is scheduled to work on Thursday from 4 p.m. until relieved from her shift when the bar is less busy. Linda starts her shift but feels sick and leaves her shift early at 6 p.m. Last Thursday Linda worked from 4 p.m. until 11 p.m. The employer decides to determine the length of Linda’s indeterminate shift by looking at the hours Linda worked last Thursday, which was seven hours. Taking into consideration that Linda worked for two hours before leaving work, the employer will deduct five ESST hours for the remainder of Linda’s indeterminate shift that she missed. 

Time credited and increments of accrual (Minn. R. 5200.1203)

When must employers credit ESST to employees?

The rule clarifies that for employees who accrue ESST rather than receive ESST for the year by frontloading, ESST must be credited to an employee for each pay period based on all hours worked no later than the regular payday after the end of each corresponding pay period. In addition, ESST is considered accrued when the employer credits the time to the employee. Furthermore, under Minn. Stat. § 181.9446(e), employees may use ESST as it is accrued. 

Sample scenario

  • Michael is paid every two weeks on Friday. Michael’s pay period ends on Monday, which is four days before the payday. The ESST hours that Michael accrues during each pay period are credited and available for use on the corresponding Friday he is paid for that same pay period. 

Must employers credit ESST in fractions of an hour?

The rule clarifies that employers do not have to credit ESST to employees in less than hour-unit increments. However, the uncredited ESST must carry forward into the subsequent pay period to ensure that the employee receives at least “one hour of earned sick and safe time for every 30 hours worked up to a maximum of 48 hours of earned sick and safe time in a year” in accordance with Minn. Stat. § 181.9446(a).

Sample scenario

  • Elizabeth worked 80 hours during the pay period and is credited with two hours of ESST on her regular payday. The remaining 20 hours worked are carried into the next pay period and she will be credited with another ESST hour when she works 10 more hours. 

What happens to ESST if an employee is rehired within 180 days?

Minn. Stat. § 181.9448, subd. 2 provides that ESST an employee neither used nor was otherwise disbursed upon separation from employment must be reinstated to the employee if rehired within 180 days by the same employer. The rule clarifies that the amount of ESST reinstated to the employee may be capped at 80 hours, unless the employer agrees to a higher amount or an applicable statute, regulation, rule, ordinance, policy, contract, or other legal authority requires a greater amount of accrued but unused time off to be reinstated.

Sample scenario 

  • Laurie worked for her employer for many years and had accrued 200 hours of unused sick leave, which the employer treated as ESST. She left her job on March 1 and did not receive compensation or other disbursement for her unused sick leave hours. Laurie later returned to work for the same employer on July 1. Because Laurie was rehired within 180 days, the employer must restore at least 80 hours of her sick leave, unless the employer agrees to a higher amount or an applicable statute, regulation, rule, ordinance, policy, contract, or other legal authority requires a greater amount of Laurie’s sick leave to be reinstated.

Accrual and advancing methods (Minn. R. 5200.1204)

Can an employer advance ESST hours to employees?

Yes, Minn. Stat. § 181.9448, subd. 1(j) allows employers to advance ESST before accrual. The rule clarifies that when an employer advances ESST to an employee based on the number of hours the employee is anticipated to work for the remainder of the accrual year:

  1. The advanced amount of ESST must be calculated at no less than the rate required in Minn. Stat. § 181.9446(a).

  2. Employers are not required to advance more than 48 hours of ESST, unless required by an applicable statute, regulation, rule, ordinance, policy, contract, or other legal authority; and 

  3. If the advanced amount is less than the amount the employee would have accrued based on the actual hours worked, the employer must provide additional ESST to make up the difference within 15 calendar days of the employee's actual hours worked surpassing the number of hours the employer anticipated the employee would work when it advanced ESST.

Can an employer change the method of providing ESST from accrual to frontloading (or vice versa)?

The rule clarifies that if an employer wants to change the method it uses to provide ESST, such as switching from accrual to frontloading or from frontloading to accrual, the employer may do so. The employer must give employees written notice of the change as part of the written notice of changes to employment terms required by Minn. Stat. § 181.032(f). 

When an employer changes from accrual to frontloading, or from frontloading to accrual, when does the change take effect?

The rule clarifies that if an employer changes the method it uses to provide ESST, the change is not effective until the first day of the next accrual year. In addition, if the employer does not give the required written notice before the first day of the next accrual year, then the previous ESST method remains in effect unless the employee agrees to the change.

Sample scenario 

  • Michelle’s bakery provides ESST to employees using the accrual method. Its accrual year is Jan. 1 to Dec. 31. In September, Michelle’s bakery gives its employees written notice that it will switch to the frontloading method. The change in methods is effective on Jan. 1, the first day of the next accrual year. 

If ESST is provided by the frontloading method, is additional ESST required under the accrual method? 

The rule clarifies that if an employer provides ESST by the frontloading method, either at a minimum of 48 hours or 80 hours for the year, no additional ESST by the accrual method is required. 

Employee use (Minn. R. 5200.1205)

Can an employer require an employee to use ESST for an absence?

The rule clarifies that it is an employee’s right to use, or not use, ESST for a qualifying purpose.

What happens if an employee chooses not to use ESST for an absence?

The rule clarifies that when an employee requests not to use ESST for an absence from work, the employee’s leave is not subject to the protections provided to employees under the ESST law. 

Incentives (Minn. R. 5200.1206)

Can an employer deny a bonus, reward or other incentive if an employee uses ESST?

The rule clarifies that if a bonus, reward, or other incentive depends on meeting a specific goal, such as hours worked, products sold, or perfect attendance, the employer may deny the incentive if the employee did not meet the goal because they used ESST. However, if the employer pays the incentive to employees who miss the goal because they took other types of leave, the employer must treat ESST the same way. 

Reasonable documentation (Minn. R. 5200.1207)

What must an employer do when requiring reasonable documentation for ESST use?

Under Minn. Stat. § 181.9447, subd. 3, when an employee uses ESST for more than two consecutive scheduled workdays, an employer may require reasonable documentation that the ESST is for an eligible reason. The types of reasonable documentation an employer may require vary by qualifying ESST use and include a written statement by the employee. The rule clarifies that any requirement for reasonable documentation must be clearly communicated to the employee and the employee must be given a reasonable amount of time to provide reasonable documentation.

What happens if an employee does not provide reasonable documentation when it is required?

The rule clarifies that if an employee does not provide required reasonable documentation after the employer has clearly communicated the requirement and provided a reasonable amount of time to the employee, then the employee is not covered by the protections provided under the ESST law. 

Misuse of ESST (Minn. R. 5200.1208)

What is considered misuse of ESST?

The rule clarifies that misuse occurs when an employee uses ESST for a purpose that is not listed as an eligible use under Minn. Stat. § 181.9447, subd. 1. Furthermore, misuse of ESST is not subject to the protections provided to employees under the ESST law.

When may an employer request reasonable documentation based on suspected ESST misuse?

The rule clarifies that an employer is permitted to require reasonable documentation from an employee when there is a pattern or clear instance of suspected ESST misuse by the employee, even if the employee has not been absent for more than two consecutive scheduled workdays. 

What reasonable documentation can an employer require for suspected ESST misuse? 

The rule clarifies that when an employer requires reasonable documentation for suspected ESST misuse, they must still follow the ESST documentation requirements under Minn. Stat. § 181.9447, subd. 3(b) to (f).

What patterns or instances may indicate suspected ESST misuse?

The rule clarifies that a pattern or clear instance of suspected misuse includes, but is not limited to:

  1. An employee repeatedly used ESST on their scheduled workday immediately before or after a scheduled day off, vacation, or holiday. 

  2. An employee repeatedly used increments of ESST of less than 30 minutes at the start or end of a scheduled shift.

  3. An employee used ESST on a day for which the employer previously denied the employee's request to take other paid leave.

  4. Documentation or other evidence that conflicts with the employee's claimed use of ESST.

Does ESST misuse allow an employer to deny future ESST requests?

The rule clarifies that an employer must not deny an employee the use of ESST for a qualifying purpose based on previous misuse of ESST by the employee or the employer's suspicion that the employee may misuse ESST. 

Can an employee be disciplined for misuse of ESST?

If an employee uses ESST for a reason that is not allowed under the law, that use is not subject to ESST protections and the employee may be disciplined. 

More generous sick and safe time policies (Minn. R. 5200.1209)

How do the ESST rules clarify the treatment of more generous sick and safe time policies?

Minn. Stat. § 181.9448, subd. 1(a) requires that employers apply the ESST minimum standards and requirements, except for those in Minn. Stat. § 181.9446, to employer-provided PTO or other paid leave in excess of the minimum amount required by the ESST law that can be used for absences from work for personal illness or injury. 

The rule clarifies that this excess PTO or other paid leave is subject to the ESST minimum standards and requirements only when the leave is used for an ESST qualifying purpose, as defined in Minn. Stat. § 181.9447, subd. 1.

Sample scenario

  • Phoebe’s employer provides her with 120 hours of PTO each year that can be used for any reason, including for sick time and vacation; this amount is in excess of what is required under the ESST law. Phoebe uses her 120 hours of PTO to take care of a sick family member. As Phoebe used the excess PTO for an ESST qualifying purpose, her employer must treat the 120 hours of PTO as protected under the ESST law.

How do the ESST rules address Minnesota Paid Leave?

Minnesota Paid Leave is distinct from ESST. The rule clarifies that "other salary continuation benefits" include Minnesota Paid Leave, which is excluded from being subject to the ESST minimum standards and requirements under Minn. Stat. § 181.9448, subd. 1(a).

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