New earned sick and safe time (ESST) law changes

The earned sick and safe time (ESST) law was recently updated to clarify who qualifies for ESST, the rate at which ESST must be paid, ESST application to other paid time off and more. Below is an overview of some of those changes. Note:  Most of these changes are effective as of May 25, 2024.

Earnings statement

• Employers are no longer required to provide information about an employee's ESST hours available for use and ESST hours used during the pay period on earnings statements or pay stubs. Instead, employers can choose a reasonable system for providing this information at the end of each pay period. While employers can still include this information on an earnings statement or pay stub, they could also choose to provide this information electronically. If an employer provides the information electronically, they must provide their employees with access to an employer-owned computer during regular working hours to review and print the information.

Covered employees

• The ESST law change clarifies that employees anticipated to work at least 80 hours in a year for an employer in Minnesota are covered by the ESST law. The changes to the law also establish that ESST requirements don’t apply to volunteer or paid on-call firefighters, volunteer ambulance attendants, paid-on-call ambulance service personnel, elected officials, individuals appointed to fill vacancies in elected offices, and individuals employed by a farmer, family farm, or family farm corporation who work for 28 days or less per year. Additionally, certain family caregivers can waive their ESST rights.

Increment of time used

• The ESST law change establishes that employees may use ESST in the same increment of time for which they are paid. Employers are not required to allow ESST use in less than 15-minute increments and cannot require use in more than four-hour increments. 

Base rate 

• Employers must provide employees who use ESST with pay equal to the base rate the employee earns from employment. For employees paid on an hourly basis, the base rate is the same rate the employee receives per hour of work. If an employee receives multiple hourly rates, the employee should receive the rate the employee would have been paid for the period of time during which the leave is taken. For employees paid on a salary basis, the employee should receive the same rate guaranteed to the employee as if they had not taken leave. Finally, for employees paid solely on a commission, piecework or any other basis other than hourly or a salary, the employer must pay the employee no less than the applicable local, state or federal minimum wage, whichever is greater.

ESST application to other paid time off

• If an employer provides employees with paid time off (PTO) or other paid leave that is more than the amount required under the ESST law for absences due to personal illness or injury, the additional PTO must meet the same requirements as the ESST hours, other than the ESST accrual requirements, when it used for an ESST-qualifying purpose. For example, if an employee receives 50 hours of PTO in addition to the minimum requirement of 48 ESST hours per year, the employer must follow the ESST requirements about notice, documentation, anti-retaliation, replacement workers and more for the additional PTO hours when they are used for an ESST-qualifying purpose.

• Employers can still apply their notice and documentation requirements that were in effect as of Dec. 31, 2023 when employees use PTO accrued on or before that date. However, employers cannot require employees to use PTO accrued on or after Jan. 1, 2024, before using PTO accrued before that date.

• The effective date of this provision is Jan. 1, 2025.

Bereavement leave

• As a result of the ESST law changes, ESST hours can now be used to make funeral arrangements, attend a funeral service or memorial or address financial or legal matters that arise after the death of a family member.

Documentation

• The updated ESST law maintains the original documentation requirements (see “Using ESST hours”) but clarifies that the more than three consecutive days of ESST use that trigger the employer’s ability to require reasonable documentation refers to scheduled workdays. It also adds that acceptable documentation for employees using ESST for absences related to domestic abuse, sexual assault or stalking includes an employee's written statement if documentation cannot be obtained in a reasonable time or without added expense. 

Weather-event exception for certain employees

• Certain employees, such as firefighters, licensed peace officers, 911 dispatchers, correctional facility guards and public employees with commercial driver's licenses, cannot use their ESST hours for absences related to the closure of the employee's workplace or their family member’s school or care facility due to weather or public emergencies, except under certain circumstances. 

Remedies for ESST violations

• The updated ESST law establishes that an employer that fails to provide or allow ESST use as required is liable to employees for the amount of ESST they should have been provided or could have used, plus an equal amount as liquidated damages. If the exact ESST hours owed is unclear, employers are liable for 48 hours each year ESST was not provided, plus an equal amount as liquidated damages.

Questions?

Contact Labor Standards at esst.dli@state.mn.us or 651-284-5075.

This page is a summary of some changes to Minnesota law. It is intended as a guide and is not to be considered legal advice or a substitute for Minnesota Statutes regarding ESST.

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