Sick and Safe Leave Update: Geographic Limitations

07.10.2017
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In 2016, Minneapolis enacted an ordinance requiring that all employees who work in the city more than 80 hours per year accrue paid leave for illness, injury, or safety concerns for themselves or their dependents. St. Paul enacted a similar ordinance a few months later. Together, these are known as Earned Sick and Safe Time (ESST) ordinances. Controversy surrounding them has resulted in a lawsuit, now-vetoed state legislation, and much debate. Recently, both cities released enforcement guidelines modifying the effects of the ordinances in an effort to comply with a recent court order, which is under appeal. The future of these ordinances remains unclear, but we know that for now, they’re at least partially in effect.  Here are some of the important things you need to know:

 

Who is Affected Right Now?

The ESST ordinances only apply when both an employer and an employee meet certain criteria.

Minneapolis employers: The Minneapolis ordinance currently applies to businesses that reside within the city of Minneapolis and have at least one employee. Small businesses with fewer than 6 employees and new businesses less than 1 year old must still provide ESST leave, but that leave can be unpaid.

St. Paul employers: The St. Paul ordinance currently applies to employers with at least 24 employees and with a physical location in St. Paul (i.e., a permanent building or structure they work out of). The ordinance doesn’t apply to employers with fewer than 24 employees until January 2018.

Other employers: As of July 1st, the ESST laws don’t apply to employers residing outside the city limits of St. Paul and Minneapolis. Be aware, however, that by the time you read this, changes may already be underway. Both ordinances were drafted to cover any employer who has affected employees (see below for definition), regardless of the employer’s location. The Minneapolis ordinance has been challenged in court, and a temporary court order currently prevents it from applying to non-resident employers. That order has been appealed, with a hearing date in July. If the order is lifted or the overall case is eventually resolved in favor of the city, non-Minneapolis employers with affected employees will be required to comply. St. Paul’s current enforcement guidelines restrict enforcement to match the Court’s order in the Minneapolis case. However, the St. Paul ordinance’s reach will likely expand if Minneapolis is permitted to do so.  Additionally, employers outside of Minneapolis and St. Paul may find themselves covered by other cities, such as Duluth, that are considering enacting their own ESST ordinances.

Affected Employees:  Each city’s ESST ordinance only applies to employees of an affected employer (as defined above) who work within that city’s boundaries for at least 80 hours in a calendar year.  This includes full-time, part-time, and temporary workers as long as they log at least 80 hours in the city in a year. Employees supplied by a staffing agency will generally be considered employees of the staffing agency.   Prevailing-wage employees are generally exempt from ESST. Employees who work both inside and outside the city limits only accrue ESST for hours worked within that city.

 

ESST Requirements

The ordinances require that affected employers provide affected employees with one hour of “sick and safe” leave for every 30 hours worked. Leave hours are paid at the employee’s normal hourly rate. Employees may earn up to 80 hours of leave per year, but may only use 48 per year. Unused hours carry over to the next calendar year, which is also subject to the 48-hour annual usage cap.  An employer does not need to compensate an employee for unused ESS leave after termination.

Employees may use leave for treatment, recuperation, or preventive care for a medical or mental health condition, illness, or injury for themselves or an immediate family member or member of the employee’s household. Leave can also be used to seek law enforcement, counseling, or other services for domestic abuse, sexual assault, or stalking.  Employees can take leave in the event of an unexpected closure of a family member’s school or place of care, including weather-related closures.

Employers must generally allow ESST to be used in a manner consistent with existing employer policies or, if no such practices are in place, industry standards. Regardless of such policies or standards, however, employers cannot require ESST to be used in increments greater than 4 hours. Employees begin accruing ESST their first day on the job, but must wait at least 90 days to begin redeeming them.

 

Record keeping:

Employers must retain records of accrued sick and safe time for 3 years. The records should log (1) hours worked by employees, (2) accrued ESST leave, and (3) use of accrued time. The current rules issued by both Minneapolis and St. Paul don’t require employers to keep records of time employees work outside of their respective cities.

 

Penalties for noncompliance:

Violations of the ordinance may result in administrative fines, as well as reinstatement and back pay for employees discharged in violation of the ordinance.

 

More information about the ESST ordinances is available at http://sicktimeinfo.minneapolismn.gov/ and https://www.stpaul.gov/departments/human-rights-equal-economic-opportunity/contract-compliance-business-development/earned.

 

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