For those of us HR and employment law nerds, the goings-on about paid sick leave in Minnesota has been fascinating and at times, nail-biting. Minneapolis reached its ordinance first, St. Paul quickly followed suit, the Republican-controlled Legislature got really, really upset, and then Governor Dayton squashed the Legislature’s hopes. Ah, the drama! Now, that the legislative kerfuffle is over, it’s time to focus. If you do business in the Twin Cities or you have employees who spend more than 80 hours a year working here, these ordinances require your attention.
What the Ordinances Do
The ordinances are called “Sick and Safe Time” ordinances, designed to give employees time off for illness (their own and their immediate family members), time off when an employee (or family member) has been the victim of domestic abuse or stalking, certain public health emergencies, inclement weather, and other closures due to loss of power or HVAC operations. Minneapolis and Saint Paul want to employers to provide this time to promote employee well-being and improve the overall health of each city.
The similarities between the ordinances are many, but both have their own quirks. Here is a breakdown of each ordinance:
|Employers with 5 or fewer employees need only provide time off, the time does not need to be paid||Employers of all sizes must provide paid time off. However, for employers with 23 or fewer employees, the ordinance does not go into effect until January 1, 2018|
|Employees accrue 1 hour of time off for every 30 hours worked||Employees accrue 1 hour of time off for every 30 hours worked|
|Employers may impose a cap of 48 hours||Employers may impose a cap of 48 hours|
|Employees can carry over time, but an employer can cap the amount of available time to 80 hours||Employees can carry over time, but an employer can cap the amount of available time to 80 hours|
|Employers may grant the leave in advance (i.e. employers can front-load the time)||Employer may grant the leave in advance (i.e. employers can front-load the time)|
|Employers can prohibit employees from using the time in the first 90 days of employment||Employers can prohibit employees from using the time in the first 90 days of employment|
|Employees may use the time in a manner consistent with business/payroll practices, provided the time is no more than 4 hours at a time||Employees may use the time in a manner consistent with business/payroll practices, provided the time is no more than 4 hours at a time|
|Startups (under a year old) can provide unpaid time in their first year (until July 1, 2022)||Startups (within six months of hiring employee number 1) can provide unpaid time. After six months, the employer must provide paid time off.|
|Minneapolis has a notice provision and a poster||Saint Paul has a notice provision and a poster|
|Employees can lodge complaints of violations with the City of Minneapolis Department of Civil Rights||Employees may lodge complaints with the City of St. Paul or may bring a private action (litigation) in court|
The Saint Paul ordinance’s private right of action provision is controversial and a big deal. If the employee is successful in bringing a claim, the employee may also get attorneys’ fees and costs. (Spoiler alert: Attorneys are not cheap.) Minneapolis’ ordinance does not provide for such a right and instead, employees can only lodge a complaint with the Minneapolis Department of Civil Rights, which can determine how to handle the complaint. While the availability of a private lawsuit shouldn’t sway an employer to implement policies consistent with the ordinance, it should give an employer pause.
The ordinances are a bit of a challenge to implement. Many (if not most) employers grant time off based upon years of service, not on hours worked. This presents the challenge of counting the hours, making sure the way the employer grants time is equal to or greater than the ordinance allotment. Another challenge may require employers to revise or rewrite their policies. Depending on the employer, this may involve drafting a detailed list of how an employee may use the time to be consistent with the ordinances. A policy doesn’t have to list all the ways, leaving room for some flexibility, but that said, some employers may want to be more explicit to make compliance clear on the surface of the policy.
Here are a few scenarios that you may be facing:
- If you offer paid time off (PTO) and your PTO policy allows employees to take time off for the same reasons the ordinances allow employees to take time off and in equal amounts or greater amounts than what the ordinances require, you don’t need to take any action. Your PTO policy is probably already compliant.
- If you offer sick time separate from vacation, you will need to review your sick time to make sure you grant the same amount (or more) than the ordinances and you permit employees to use the time for the same reasons the ordinances allow employees to use the time.
- If you offer unlimited time off, your program is probably in compliance provided you are providing payment for the time off and encourage employees to take the time.
- If you don’t offer any sick time (or PTO), the ordinances provide a framework to offer time.
Both ordinances attempt to extend beyond their own borders by covering any employee who works more than 80 hours a year within the respective city. For example, if an employer was headquartered in a suburb, but employees regularly work in the big city, the employer would have to provide paid leave to those employees too. Businesses were really upset by this and the Minnesota Chamber of Commerce challenged the Minneapolis ordinance in court. The Chamber was partially successful and obtained an injunction on this issue, which it is up on appeal. The hearing on the injunction is scheduled for July 11, 2017 – ten days after the ordinance goes into effect. While we probably will not get a decision until September or later, risk-adverse employers whose employees only occasionally work in the Twin Cities may want to still implement sick leave while the appeal is pending.
New laws are always a challenge for employers. These ordinances are no different. While Minneapolis promises not to “enforce” the ordinance for the first year, employers should be looking at their policies, updating where necessary, and identifying where we could offer more benefits where compliance would require it. Your friendly neighborhood employment attorney is here to help. Use us.