On behalf of Wessels Sherman posted in Employee Benefits on Sunday, June 25, 2017.

In 2016, both Minneapolis and St. Paul passed city ordinances requiring private employers to provide their employees with paid sick time / safe time. These ordinances, despite opposition in the courts and in the legislature, go into effect on July 1, 2017. Many employers already provide their employees with paid time off; however, it is wrong to assume that more generous leave policys automatically satisfy these ordinances. Unfortunately, the majority of existing leave policies require modifications to fully comply with these new laws. Some of the more common areas that we have been addressing with clients, include:

• Ensuring that leave can be used for all of the purposes allowed in the ordinances (e.g. domestic abuse).
• Eliminating existing restrictions common in most employers’ leave policies that may not be applied to these newly mandated leaves (e.g. documentation or other forms of proof).
• Conflicts between existing “use-it-or-lose-it” policies and new rights to carry over accrued leave from year to year.

The sick time / safe time ordinances will provide about 150,000 workers with paid sick time / safe time leave. Both ordinances provide leave for employees who perform work in the city for at least 80 hours per year. The Minneapolis ordinance covers all employers. Employers who employ six or more employees must provide paid leave. However, Minneapolis provides an exemption for smaller employers; those with fewer than six employees may provide unpaid leave. In St. Paul, employers who employ 24 or more employees must provide paid leave starting July 1, 2017. Starting January 1, 2018, employers with 1-23 employees must also provide paid leave. In determining number of employees, both ordinances require that employers count all employees, including part time employees, temporary employees, and employees performing work outside of the city.

The sick time / safe time ordinances are designed to provide leave to cover situations involving health conditions, safety concerns, and childcare responsibilities. The sick time may be used for the employee’s own health condition, appointments for diagnosis, or preventative care. In addition, the leave may be used for the health condition of a family member. Safe time refers to the use of leave as a result of domestic abuse, sexual assault, or stalking. It may be used in situations involving the employee or a member of the employee’s family. Finally, the new ordinances apply to time of used for childcare in the event of a school closing.

Affected workers will begin accruing time on their first day of employment and are eligible to use the leave after 90 days on the job. According to the ordinances, the leave accrues at the rate of one hour per 30 hours worked. Workers may accrue up to 48 hours per year and may roll over 80 hours per year. Therefore, an employee would be able to use up to 128 hours of paid sick leave per year.

The ordinances permit employees to use the paid leave without providing any notice if the need is not foreseeable. However, if the notice is foreseeable, employers may require notice. In St. Paul, employers may require reasonable advance notice. Minneapolis employers may also request reasonable notice, but may not request more than seven days of advance notice.

While it appears that these new requirements will go into effect in July, future changes are possible given ongoing litigation over the Minneapolis ordinance. The Minnesota Chamber of Commerce filed a lawsuit requesting a Hennepin County Court to halt enforcement of Minneapolis’ ordinance as a whole, arguing that it conflicted with state law and was an example of local government overreach because it was written to apply to any workers doing business in the city. The Court ordered an injunction limiting the reach of the Minneapolis ordinance to cover only employees who work for employers within a Minneapolis location. However, the Court let the remainder of the ordinance stand. The Minnesota Chamber of Commerce appealed this decision to the Minnesota Court of Appeals, arguing that the entire ordinance should be halted. Businesses and city officials in St. Paul have been closely watching this litigation to determine its impact on their own ordinances. It appears the Minnesota appellate courts will have the last word in deciding whether and to what extent the Minneapolis and St. Paul ordinances survive.

What should employers do?

While employers that already provide paid time off that meets the ordinance requirements do not need to provide any additional leave, there are steps that every employer should take to prepare prior to the July 1, 2017 effective date.

•1. Prepare but don’t take action just yet. The final versions of these ordinances are still undecided, as is evident by the pending appellate litigation. Best practice is to wait until the ordinances become effective to announce any program changes.

•2. Count your employees and determine your company’s responsibilities. As stated above, Minneapolis’ ordinance obligations vary depending a business size of 6 employees. In St. Paul, 24 or more employees will determine when an employer must meet its obligations. In addition, new employers should prepare to comply within 6 months of hiring their first employee. The ordinances permit a six-month grace period for new employers until January 1, 2023.

•3. Review current leave and handbook policies. Employers must prepare to make changes to comply with the new ordinances starting July 1, 2017. If an Employee Handbook exists, employers should also include a notice of employee rights and remedies in the handbook.

•4. Ensure compliance with leave entitlements by creating a system to tally and track time. Under the ordinances, employers must provide workers with a current leave balance upon a worker’s request. Business should devise a system that will track this balance with ease.

•5. Prepare to post notice of employee rights at any worksite where any employee works. The cities will release notices in multiple language for employer use. Using the posting published by the department, employers should prepare to display versions of the postings in those languages spoken by at least five percent of the employer’s workforce.

•6. Watch the news. While the pending appeal will certainly impact the outcome of Minneapolis’ ordinances, it is also likely to change how the St. Paul ordinance is ultimately administered. Other cities that have been considering local sick time requirements (Duluth) will also be watching the appeal outcome to determine how to best institute similar rules.

Questions? Please contact James Sherman at (952)-746-1700 or by email jasherman@wesselssherman.com

Related Posts: What Illinois Employers Should Know About Vacation Pay: Frequently Asked Questions, Why a Handbook? The Necessity of Having an Employee Handbook, Paid Sick Leave For Employees is Now the Law of the City of Chicago and Cook County: Is Your Company in Compliance?, Federal Court Bars Minnesota Department of Labor and Industry From Pursuing Claims for Sick Leave Benefits Against AT&T on Behalf of Union Employees Who Were Not Sick