Earned Sick and Safe Time Law: What Cities Need to Know

Maybe. While state law seems to permit an employer to rename its sick leave bank to ESST, city officials should consider the following before making that decision.

ESST offers broader eligible uses than most sick leave policies, such as:

• A more inclusive definition of family members. Refer to the Minnesota Department of Labor and Industry ESST FAQs.
• The ability to use ESST for closure of the employee’s place of business due to weather or other public emergencies (Minnesota Statutes, section 181.9447, subdivision 1(4)). There are limited exceptions in 2024 to reject certain essential service workers from using ESST for inclement weather or public emergency situations. See FAQ 12 for more information.
• The need to make arrangements for, or attend, a funeral service or memorial, or address financial or legal matters that arise after the death of a family member. See FAQ 12 for more information.

It is likely that many of those aspects were not part of your city’s sick leave or paid time off (PTO) plans.

Effective Jan. 1, 2025, all paid time off provided to employees must be available for uses that qualify under ESST laws. Specifically, the statute states, all paid time off and other paid leave made available to an employee by the employer in excess of the minimum amount required in Minnesota Statues, section 181.9446 for absences from work due to personal illness  or injury, but not including short-term or long-term disability or other salary continuation benefits, must meet or exceed the minimum standards and requirements provided in Minnesota Statutes, sections 181.9445 to 181.9448, except for Minnesota Statutes section 181.9446. As a result, all paid leave for employees for absences from work due to personal illness or injury accrued after Jan. 1, 2024, needs to meet existing and new ESST law provisions. Use of leave accrued prior to Jan. 1, 2024, may follow the employer’s policy or collective bargaining agreement as of Dec. 31, 2023.

Employers may require an employee, using leave accrued prior to Jan. 1, 2024, to follow the written notice and documentation requirements in the city’s applicable policy or applicable union contract as of Dec. 31, 2023, instead of the ESST notice and documentation rules. An employer cannot require an employee to use leave accrued after Jan. 1, 2024, before using leave accrued prior to that date.

The documentation and notice requirements of ESST may be waived for paid leave made available in excess of the 48-hour minimum required in Minnesota Statutes, section 181.9446 through a collective bargaining agreement so long as it explicitly references Minnesota Statues, section 181.9447 subdivision 3 and clearly waives the unambiguously application of that section.

Some cities found it helpful to clearly define differing notification and documentation requirements for pre- and post-2024 leave balances to help employees easily discern what documentation and notice rules apply for the leave they are taking. Other cities took a different path and simply renamed all sick leave to ESST. Both options present challenges and benefits for both employers and employees alike. Combining all sick leave and relabeling it ESST may have eased tracking concerns for employers but can also limit accountability provisions that were likely included with pre-2024 leave policies.

Refer to FAQ 19 for ESST rules regarding advance notice from employees for use of leave and what an employer can request with respect to documentation.

Beyond the notification and documentation requirements, any city leave an employee may use for personal illness or injury as of Jan. 1, 2025, must comply with the requirements outlined in Minnesota Statutes, sections 181.9445-94466 and Minnesota Statutes, section 181.9448, including, but not limited to:

• Eligible employees — ESST rules apply to all eligible employees and their family members. ESST rules include a more extensive definition of a family member than many traditional leave policies, including up to one individual annually designated by the employee. However, the law provides for some exceptions. For more information, refer to the Minnesota Department of Labor and Industry ESST FAQs and FAQ 9.
• Eligible uses — There are expanded uses for ESST purposes, so in many cases a city’s sick or PTO policy needs to be updated to reflect those eligible uses as well. See to FAQ 12 for more information.
• Increment of time used — In 2024, the law changed to limit the increment of time an employee uses to nothing less than 15 minutes or more than four hours. See FAQ 7 for more information.
• Prohibition on requiring an employee using leave to find a replacement worker — The prohibition against requiring an employee using leave to seek or find a replacement worker applies to leave for ESST time and any personal illness and injury time after Jan. 1, 2025. Effective Aug. 1, 2025, the statute clarifies employees are still allowed to “voluntarily” seek or trade shifts to cover their ESST absence. 
• Anti-retaliation provisions — The anti-retaliation provisions include protections for employees against discharge, discrimination, discipline, penalization, interference with, threatening, restraining, and coercing as a result of having exercised or attempted to exercise their rights of using leave applies to all leave for personal illness or injury as of Jan. 1, 2024.

Not necessarily. If your city’s sick leave or PTO policy meets the minimum ESST earning threshold of one hour per 30 hours worked, then your city may not be required to offer additional leave hours. 

According to the law, as of Jan. 1, 2024, at a minimum, an employee accrues one hour of ESST for every 30 hours worked, up to a maximum of 48 hours a year. Employers may agree to a higher maximum annual accrual amount if they so choose. (Minnesota Statutes, section 181.9446 (a)).

Refer to FAQ 1 for additional requirements to follow if the city does not provide a separate ESST bank of hours to employees.

Tracking ESST hours is required by law. At the end of each pay period, cities need to provide the following information to employees in writing or electronically:

• The total number of earned sick and safe time hours available to the employee.
• The total number of earned sick and safe time hours used by the employee in the pay period.

With a 2024 law change, employers may choose a “reasonable system for providing this information, including but not limited to listing information on or attached to each earnings statement or an electronic system where employees can access this information.” If a city provides the information electronically, they must provide employee access to an employer-owned computer during an employee’s regular working hours to view and print.

Cities will must these records for at least three years and be sure the records are readily available for inspections by the Minnesota Department of Labor and Industry upon 72 hours of a request for the data.

The U.S. Department of Labor’s guidance on the Fair Labor Standards Act notes that it does not require payment for time not worked, such as vacations, sick leave, or federal or other holidays. The Minnesota Department of Labor and Industry (DOLI) FAQs on ESST also support this.

The ESST statute specifies “hours worked.” At a minimum, your city would calculate actual hours worked, including overtime hours as the basis for the ESST accrual. However, employers have the option to be more generous than the statute requires.

Employees may use ESST in the same increment of time “for which employees are paid,” provided that is not less than 15-minute increments (typically the minimum time increment used for nonexempt employees). In many cities exempt employees track time off differently. In theory exempt employees are paid on a salary basis for professional services. Employers may require exempt employees to use ESST in four-hour increments.

ESST does not specifically address this, but Minnesota Department of Labor and Industry (DOLI) ESST FAQs state, “Yes, an employer may treat part-time and full-time employees differently for purposes of ESST, so long as the employer provides all employees at least what they are entitled to under Minnesota’s ESST law, and as long as the law is applied in a way that does not discriminate against an employee or group of employees based on a protected class, such as race, sex, or national origin.”

A city may implement an ESST accrual method for full-time employees based on hours worked, while using a different method (such as front-loading 48 hours with a payout at the end of the year) for another employee group like seasonal workers. While front-loading ESST may be easier from an administrative perspective, there are budgetary impacts to consider and plan for.

With 2024 ESST law changes, there are new exclusions from the definition of employee. Effective immediately, the law provides for the following employee eligibility exceptions:

• Those who work less than 80 hours in Minnesota in a year.
• Independent contractors.
• An elected official or a person who is appointed to fill a vacancy in an elected office as part of a political subdivision.
• Volunteer and paid-on-call firefighters, for a department charged with prevention or suppression of fires within Minnesota boundaries, as well as volunteer ambulance attendants, or paid-on-call ambulance service personnel. Unlike “volunteer ambulance attendant” and “paid-on-call ambulance service personnel,” the ESST law does not define “volunteer and paid-on-call firefighters.” Minnesota law includes multiple definitions of “volunteer firefighter” for purposes unrelated to ESST, like pension benefits and firefighter training and education. Cities should consult with their city attorney when interpreting the scope of this exemption. As an example, Minnesota Statutes, section 299N.03, subdivision 7, defines volunteer firefighter, which includes volunteer, part-time and paid-on-call firefighters.
• Election judges remain eligible for ESST if they work 80 hours in a year.

The statute defines a year as a regular and consecutive 12-month period as determined by an employer and clearly communicated to each employee. Since the ESST law was in effect as of Jan. 1, 2024, your city would, at a minimum, begin counting from that date onward.

Generally, all employees, including full time, part time, temporary, and seasonal are eligible for ESST if they are anticipated to work at least 80 hours in a year, and they begin to accrue ESST at the start of employment (Minnesota Statutes, section 181.9446 (d)). (Refer to the Minnesota Department of Labor and Industry ESST FAQs.) In 2024, there were some new exceptions for paid-on-call and volunteer fire and ambulance personnel. See FAQ 9 for more information.

For those roles where it may not be clear that an employee will work at least 80 hours in a year, such as election judges for example, once that employee works 80 hours in a year, then ESST accruals are to be awarded retroactively to the first hour worked.

The law provides for several methods an employer can choose to award ESST (Minnesota Statutes, section 181.9446):

• Advance ESST hours to employees based on the estimated number of hours the employee will accrue in the accrual year: 
  This option allows an employer to advance ESST to an employee even though the employee has not yet earned the time off. Under the newly added language, when an employer advances ESST based on the anticipated hours the employee will work, the employer must reconcile the advanced ESST hours to ensure the employee received all the hours the employee was due.
• • • Employees can be advanced ESST hours based on the number of hours the employee is anticipated to work for the remaining portion of the accrual year.
    • If the advanced amount is less than the amount the employee would have accrued based on the actual hours worked, the employer must provide additional ESST to make up the difference.
• Accrue as earned, with no payout required: 
  • One hour of ESST earned and added to the employee’s leave bank for every 30 hours worked.
  • Employees are permitted to accrue a minimum of up to 48 hours of ESST in a year (more if the employer agrees to a higher amount).
  • Employees can carry over unused ESST into the next year. However, at no time can an employee’s accrued ESST exceed 80 hours (unless the employer agrees to a higher amount).
• Front-loading 48 hours with payout and no carryover:
  Some employers find front-loading of ESST hours a distinguishing factor when considering employer-of-choice initiatives in a tight labor market, while others may find front -loading easier for payroll recording. However, there are budget implications of front-loading 48 hours of ESST since the law requires any remaining ESST hours each year to be paid out to the employee at the end of the year.
  • Employer provides a minimum of 48 hours of ESST for the year made available for immediate use at the start of each year.
  • Unused ESST hours are paid out at the end of the accrual year at the employee’s hourly base rate.

• Front-loading 80 hours with no payout and no carryover:
  • Employer provides a minimum of 80 hours of ESST and makes it available for immediate use at the start of each year.
  • No payout of unused ESST  at the end of the accrual year, but cities should check with their city attorney for impacts if there is existing contractual language regarding payout of sick leave or PTO balances.

Employees can use their earned sick and safe time for reasons such as:

• The employee’s mental or physical illness, treatment, or preventive care.
• A family member’s mental or physical illness, treatment, or preventive care.
• Absence due to domestic abuse, sexual assault, or stalking of the employee or a family member.
• Closure of the employee’s workplace due to weather or public emergency or closure of a family member’s school or care facility due to weather or public emergency.*

  *There is an exception prohibiting the use of ESST during a public emergency or weather event for certain workers who are responsible for responding to a public emergency or weather event. This limited exception applies if:

• • The employee’s preassigned or foreseeable work duties requires the employee to respond to the public emergency or weather event.
  • The employee is a firefighter, a police officer, a 911 dispatcher, a guard at a correctional facility, or an employee with a commercial driver’s license (like a public works snowplow driver) and one of the following conditions are met:
    • If the represented employee is covered by a collective bargaining agreement or memorandum of understanding that explicitly references Minnesota Statutes, section 181.9447, subdivision 1 (4) regarding closure of the employee’s place of business due to weather or other public emergency or an employee’s need to care for a family member whose school or place of care has been closed due to weather or other public emergency and clearly waives application of that section for the employee’s position.
    • For unrepresented employees, if they are needed by the city to maintain minimum staffing requirements and the city has an ESST policy referencing Minnesota Statutes, section 181.9447, subdivision 1 (4) regarding closure of the employee’s place of business due to weather or other public emergency or an employee’s need to care for a family member whose school or place of care has been closed due to weather or other public emergency in accordance with the notice and posting requirements of the ESST law. See Minnesota Statutes, section 181.9447, subdivision 9 regarding notice requirements. The Minnesota Department of Labor and Industry has posted a sample notice for employer use.
• To make arrangements or attend funeral services or a memorial, or address financial or legal matters arising after the death of a family member.
• When determined by a health authority or health care professional that the employee or a family member is at risk of infecting others with a communicable disease.

Under the law, no payout of accrued ESST is required, except in the case of front-loading 48 ESST hours. Any unused ESST hours are paid out at the end of the year at the employee’s base hourly rate.

Some cities have asked if an employee is not employed at year-end (such as a seasonal worker), does the employee still need to be paid out? No. In fact, DLI FAQs state, “Employers are not required to pay out any accrued and unused ESST if an employee leaves their job, either voluntarily or involuntarily. However, employers may choose to do so. An employee who transfers positions or work units within a single employer retains their accrued ESST.” Per DLI staff, this is meant to be inclusive of front-loaded hours as well. If an employee returns to work for the same employer within 180 days of separation they are entitled to the ESST hours accrued before leaving the employer. Refer to FAQ 14.

The law states an employee who returns to work for the same employer within 180 days of separation is entitled to the previously accrued ESST hours the employee had on the books prior to leaving. However, ESST hours reinstatement is not required if the returning employee had already exhausted their accumulated ESST balance prior to separation or was already paid out on the balance of their accumulated ESST hours upon the previous separation.

Your city’s payroll system should include a tracking mechanism to ensure any employees who leave and are not already paid out their ESST leave balance, but then return (such as seasonal employees) within the 180-day window receive their accrued ESST and unused leave balance.

A Minnesota DOLI representative confirmed to League staff that an employee only has to qualify once (meaning work at least 80 hours), typically at the time of hire.

For example, if a city has a part-time employee who worked 100 hours in one year (and qualified for ESST since they worked at least 80 hours in the city-defined 12-month period year), but worked only 70 hours the next year, the employee would still continue to earn ESST in the second year at the rate of one hour for every 30 hours worked.

If the employer adopts the accrual method, then the employees only accrue ESST based on the number of hours worked. The law states an employee accrues a minimum of one hour of ESST for every 30 hours worked, up to a maximum of 48 hours in a year (Minnesota Statutes, section 181.9446 (a)).

Alternatively, if the employer decides to front-load ESST hours at the beginning of the year, then DLI FAQ guidance suggests the ESST does not authorize prorating front-loaded hours. Instead of prorating the leave, DLI FAQ guidance states “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.”

According to PERA representatives, ESST hours are eligible for PERA deductions, assuming the hours are used and relate to a certain pay period, similar to how PTO or vacation/sick leave hours are PERA-eligible.

However, for example, if an employer front-loads 48 ESST hours at the beginning of the year and then pays out any remaining ESST balance at the end of the year, that lump sum payout would be ineligible for PERA deductions, just like vacation or sick leave lump-sum payouts are ineligible for PERA deductions.

Cities will want to ensure that — in addition to providing employees with one hour of paid leave for every 30 hours worked, up to at least 48 hours each year — they:

• Include the total number of earned sick and safe time hours accrued and available for use, as well as the total number of earned sick and safe time hours used, in writing or electronically to employees at the end of each pay period. Refer to FAQ 4 for more information.
• Provide employees with a notice at the start of employment in English or in an employee’s primary language if that is not English, informing them about earned sick and safe time.
• Include a sick and safe time notice in the employee handbook if the employer has an employee handbook.

The Minnesota Department of Labor and Industry offers a uniform employee notice that employers could use to distribute to employees at the start of employment, and will translate it to Chinese, Hmong, Somali, Spanish, Vietnamese, and additional languages. Minnesota Department of Labor and Industry has also created an ESST workplace poster. An employer may develop its own notices as well, provided it includes all the necessary information.

Access the Minnesota Department of Labor and Industry ESST poster for the workplace (doc).

Yes, if the need for ESST use is foreseeable, an employer may require advance notice of the employee’s intention to use ESST but must not require more than seven days’ advance notice. Keep in mind, with the Jan. 1 2025, expansion of ESST to other paid leave available for personal illness or injury (i.e., sick, PTO, etc.) those changes may have impacted a city’s notice and documentation requirements (refer to FAQ 1 and FAQ 2 for more information). As of Aug. 1, 2025, if the need for ESST is unforeseeable, an employer may require an employee to give notice as reasonably required by the employer. For reference, prior to Aug. 1, 2025, the employee notice for unforeseen ESST events was “as soon as practical.”

An employer requiring notice of the need to use ESST must have a written policy containing reasonable procedures for employees to provide notice and must provide a written copy of the policy to employees. If a copy of the written policy has not been provided to an employee, a city may not deny the use of ESST on that basis. (Minnesota Statutes, section 181.9447, subdivision 2.)

Effective Aug. 1, 2025, the timeframe for when an employer can request documentation from an employee has been reduced from more than three consecutive workdays to more than two consecutive, scheduled workdays. Thus, unless otherwise specified in a union collective bargaining agreement, employment agreement, or city policy, if an employee uses ESST:

• On or before July 31, 2025, an employer may require reasonable documentation that the time off meets eligibility requirements after three consecutive scheduled workdays.
• As of Aug. 1, 2025, if an employee uses ESST for more than two consecutive workdays, an employer may require reasonable documentation that the time off meets eligibility requirements.

However, in either case, if an employee or the employee’s family member did not receive services from a health care professional, or if documentation cannot be obtained from a health care professional in a reasonable time or without added expense, then reasonable documentation may include a written statement from the employee indicating that the employee is using, or used, ESST. A written statement by an employee may be written in the employee’s first language and does not need to be notarized. (Minnesota Statutes, section 181.9447, subdivision 3.)

When an employee is using, or used, ESST for a qualified absence due to domestic abuse, sexual assault, or stalking of the employee or employee’s family member, an employer must accept a court record or documentation signed by a volunteer or employee of a victims’ services organization, an attorney, a police officer, or an antiviolence counselor as reasonable documentation. If documentation cannot be obtained in a reasonable time or without added expense, then reasonable documentation may include a written statement from the employee.

Yes. An employee, in agreement with the employer, may return to work part-time during the leave without forfeiting the right to return to employment at the end of the ESST (Minnesota Statutes, section 181.9447, subdivision 8).

No, a city cannot require an employee to use ESST or any other leave accrued on or after Jan. 1, 2024 before using leave accrued in 2023 or earlier.

Employees are paid their base rate for ESST hours used. Base rate means:

• For employees paid on an hourly basis, the same rate received per hour of work.
• For employees paid on an hourly basis who receive multiple hourly rates, the rate the employee would have been paid for the period of time in which leave was taken.
• For employees paid on a salary basis, the same rate guaranteed to the employee as if the employee had not taken the leave.
• For employees paid solely on a commission, piecework, or any basis other than hourly or salary, a rate no less than the applicable local, state, or federal minimum wage, whichever is greater.

Base rate does not include:

• Commissions.
• Shift differentials that are in addition to an hourly rate.
• Premium payments for overtime work.
• Premium payments for work on Saturdays, Sundays, holidays, or scheduled days off.
• Bonuses or gratuities defined in Minnesota Statutes, section 177.23.