If Pain, Yes Gain—Part 102: The Land of 10,000 Lakes or Paid Sick Leave Laws? Bloomington Becomes the Fourth Minnesota City to Pass a Paid Sick and Safe Leave Law

Seyfarth Synopsis: Minnesota, also known as “the land of 10,000 lakes” is quickly becoming “the land of 10,000 paid sick leave laws.”  Last month, Bloomington became the fourth Minnesota city to pass a citywide Earned Sick and Safe Leave ordinance, requiring all private employers with one or more employees to provide eligible employees with safe and sick leave.  The ordinance becomes effective on July 1, 2023.

On June 13, 2021, Bloomington’s City Council unanimously approved a citywide Earned Sick and Safe Leave  (“ESSL”) ordinance, which requires covered employers to provide eligible Bloomington employees with one hour of paid ESSL for every 30 hours worked, up to a maximum of 48 hours per year.  Employers with less than five employees only have to provide unpaid  ESSL.[1]

Bloomington is the fourth city in Minnesota to require covered employers to provide paid sick leave to eligible employees.[2]  The new citywide ordinance goes into effect on July 1, 2023.

Key Ordinance Highlights

Here are the key highlights of the Ordinance:

• Employer Coverage: Employer coverage under the Ordinance is very broad, defining “employer” to include an individual, partnership, association, corporation, nonprofit organization, or group of persons employing one or more employees.  The definition of “employer” does not include public employers, such as the United States, Minnesota or any political subdivision of the state, or any county or local government, except Bloomington.
• Employee Definition: “Employee” is defined to include an individual who performs services for hire and compensation for an employer who works for the employer within the geographic boundaries of the City of Bloomington for at least 80 hours in a year.  The definition includes temporary and part-time employees, but does not include independent contractors, student interns, or extended employment program workers.[3]
• Accrual Rate: Employees may begin to accrue ESSL on July 1, 2023 (i.e., the Ordinance’s effective date) or upon hire, whichever is later. Employees accrue one hour of ESSL for every 30 hours worked within the city.
• Accrual Cap: The Ordinance has both an annual accrual cap and a “point-in-time” cap.  Specifically, employees must be permitted to accrue up to 48 hours of ESSL in a year, and employees must be permitted to accrue up to a total of 80 hours of ESSL at any point in time.
• Usage Waiting Period: A newly hired employee may begin using accrued ESSL 90 calendar days after the employee’s commencement of employment.
• Usage Cap: The Ordinance does not appear to set a cap on the amount of ESSL an employee may use per year.
• Year-End Carryover: The Ordinance does not appear to set a cap on the amount of ESSL that carries over at year end but rather provides that all accrued, unused ESSL may carry over at year end, subject to the applicable accrual caps (explained above).
• Frontloading: Instead of permitting employees to accrue ESSL, an employer may elect to provide newly hired employees with a lump sum grant of 48 hours of ESSL following the employees’ first 90 days of employment to be used by employees during the first calendar year[4] of employment and provide them with at least 80 hours of ESSL each subsequent calendar year.  It is unclear at this time whether frontloading gets rid of an employer’s year-end carry over obligations.  Hopefully this and other open questions from the Ordinance will be addressed in forthcoming administrative guidance.
• Reasons for Use: An employee may use available ESSL for the following covered reasons:

1. 1. The employee’s (a) mental or physical illness, injury, or health condition; (b) need for medical diagnosis, care, including prenatal care, or preventive medical or health care; or (c) treatment of a mental or physical illness, injury, or health condition.
   2. Care for a family member of the employee with a mental or physical illness, injury, or health condition who needs (a) medical diagnosis or care, including prenatal care; (b) treatment of a mental or physical illness, injury, or health condition; or (c) preventive medical or health care.  ESSL may also be taken for the death of a family member.
   3. Absence necessary due to domestic abuse, sexual assault, or stalking of the employee or the employee’s family member, if the leave is for the employee to: (a) seek medical or psychological treatment or other counseling related to physical or psychological injury or disability caused by domestic abuse, sexual assault, or stalking; (b) obtain services from a victim services organization; (c) seek relocation due to domestic abuse, sexual assault, or stalking; or (d) seek legal advice or take legal action, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from domestic abuse, sexual assault, or stalking.
   4. Closure of the employee’s place of business by order of a public official to limit exposure to an infectious agent, biological toxin, hazardous material, or other public health emergency.
   5. Accommodate the employee's need to care for a family member whose school or place of care has been closed by order of a public official to limit exposure to an infectious agent, biological toxin, hazardous material, or other public health emergency.
   6. Accommodate the employee's need to care for a family member whose school or place of care has been closed due to inclement weather, loss of power, loss of heating, loss of water, or other unexpected closure.

• Covered Family Members: The Ordinance defines “family member” to include (a) an employee’s child, step-child, adopted child, foster child, or adult child; (b) spouse; (c) sibling; (d) parent, step-parent, mother-in-law, or father-in-law; (e) grandchild; (f) grandparent; (g) guardian or ward; or (h) member of the employee’s household. 
• Increments of Use: ESSL may be used in the smaller of four hours or increments consistent with the employer’s current payroll practices as defined by an existing employer policy or industry standards.
• Rate of Pay: Employers with five or more employees must pay ESSL taken during hours that an employee was scheduled to have worked at the employee’s regular rate of pay, excluding tips, commissions and bonuses, but not less than the applicable minimum wage rate. Employers with less than five employees do not need to compensate employees for their use of ESSL.
• Notice to Employer: An employer may require notice of an employee’s intention to use ESSL (a) up to seven days in advance, if the need for use is foreseeable; or (b) as soon as practicable, if the need for use is unforeseeable.
• Documentation: An employer may require reasonable documentation for ESSL used for more than three consecutive days only if (a) the ESSL was taken for Reasons for Use (1), (2), or (3)(a), above; and (b) the employer provides health insurance benefits to the employee.
• Pay Out on Termination / Rehire: Employers are not required to pay out accrued, unused ESSL upon an employee’s termination, resignation, retirement, or other separation from employment.  However, if an employee is separated from employment and rehired within 120 days of separation by the same employer, the employer must reinstate previously accrued, unused ESSL.
• Compliance Using Existing Policy: Employers with paid time off or other paid leave policies or collective bargaining agreements can use those policies to comply with the Ordinance if the policy (1) makes available an amount of ESSL that meets the accrual requirements of the Ordinance; and (2) permits that the leave be used (a) for, at minimum, the same purposes and (b) under the same terms and conditions that the Ordinance requires.
• Notice and Posting: Employers must display a poster to be published by the City Attorney’s Office in a conspicuous place in each workplace or jobsite where any employee is employed.  Such poster must be displayed in English and any language spoken by at least five percent of the employees at the workplace or jobsite if published by the City Attorney’s Office.  Additionally, an employer that provides its employees with an employee handbook must include within the handbook a notice of employee rights and remedies under the Ordinance.
• Available Balance Notice: Upon request by an employee, the employer must provide, in writing or electronically, information stating the employee's then-current amount of accrued ESSL available to the employee and the amount of used ESSL.
• Recordkeeping: Employers must retain records documenting hours worked by non-exempt employees and hours of ESSL available and taken by employees.  Such records must be retained for at least three years in addition to the current calendar year.
• Retaliation: Employers cannot take any adverse employment action or discriminate against employees for exercising their rights under the Ordinance, including requesting or using ESSL, informing any person about the employer's alleged violation of the Ordinance, or making a complaint or filing an action to enforce a right to earned ESSL under the Ordinance.

Employer Takeaways

Before the Ordinance’s July 1, 2023 effective date, we expect the City to release further guidance.  In the meantime, employers with Bloomington employees should consider taking the following steps:

• Monitor the Bloomington Earned Sick and Safe Leave website for the release of further guidance.
• Review sick leave or paid time off policies and procedures to ensure that they meet at least the minimum requirements of the Ordinance, and revise as needed.
• Develop a Bloomington sick and safe leave policy that complies with the Ordinance for any employees who are not covered under the employer’s existing sick leave or paid time off policies.
• Review and, as necessary, revise anti-retaliation, attendance, conduct, and discipline policies to prevent retaliation against employees for taking time off under the Ordinance.
• Train supervisory and managerial employees, as well as HR, on the Ordinance’s requirements.

With the paid leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with paid leave requirements.  To stay up-to-date on Paid Sick Leave developments, click here to sign up for Seyfarth’s Paid Sick Leave mailing list.  Companies interested in Seyfarth’s paid sick leave laws survey should reach out to sickleave@seyfarth.com.

[1] The Ordinance says that “in determining the number of employees, all persons performing work for hire and compensation on a full-time, part-time, or temporary basis shall be counted, whether or not the persons work in the city.”  (Emphasis Added).

[2] Duluth, Minneapolis, and Saint Paul have already adopted similar ordinances.

[3] Under the Ordinance, extended employment program workers are those defined as such in Minnesota Rules part 3300.6000 and participating in the Minnesota Statutes, section 268A.15 extended employment program.

[4] The Ordinance defines “calendar year” as a regular and consecutive 12-month period determined by the employer.  The calendar year may be based on an employee’s employment anniversary date.