As many employers are aware, the 2023 Minnesota Legislative Session brought a multitude of changes that impacted employee handbooks, policies, and employer practices. One of the more significant changes was the requirement that employers provide Earned Sick and Safe Leave (ESST) to full-time, part-time, seasonal, and temporary Minnesota employees with very few exceptions.
Just when employers were ready to roll out updated policies in compliance with the new law, the Minnesota Department of Labor and Industry (the “Department”) issued updated FAQ guidance on Dec. 4, 2023.
The updated guidance addresses a number of issues on which the statute is silent, including, but not limited to, the waiver that applies to building and construction industry employees; when accrual must begin; whether hours must accrue in hour blocks; how to treat “on-call” time; how to determine the rate of pay for employees paid based on commission or productivity; and whether employees are entitled to missed tips.
The FAQ also addresses whether policies that front-load ESST balances can pro-rate the time for new hires. The FAQ expressly states:
[t]he ESST law does not authorize prorating front-loaded hours. An employer must provide at least one hour of ESST for every 30 hours worked, up to at least 48 ESST hours per year, or front load at least 48 hours. However, an employer could choose to place new employees on an accrual system when hired, and then switch them to a front-loaded system at the beginning of the next accrual year.
The updated guidance also outlines the Department’s stance on policies that require employees to use ESST if they miss work for an eligible reason by stating, “[t]he ESST law does not require an employee to use ESST, but an employee may choose to use ESST for eligible purposes.”
We recommend all employers with Minnesota employees closely review the updated guidance to determine if any additional policy changes are needed to ensure compliance. Please feel free to reach out to a Taft Minneapolis Employment and Labor Relations attorney for further guidance.