Earned sick, safe time law now effective for all workers
This Legal Briefs column, written by Education Minnesota attorneys, is one of an occasional series on legal developments that affect educators.
On Jan. 1, Minnesota’s new Earned Sick and Safe Time (ESST) law became effective. This law is a huge step forward for a significant number of workers who did not previously have access to sick leave. For these individuals, being sick or having to take care of someone who was sick meant losing a day’s pay at best and losing a job at worst. For 30 years, American workers have primarily had the benefit of laws that protect the right to unpaid leave in the event of serious illness.
The ESST provision that is most important for workers who did not previously receive sick leave is the requirement that employers provide workers with a minimum of 48 hours of sick and safe leave. This can make all the difference for a parent of small children, or someone acting as their parent’s primary caregiver. Importantly, ESST also permits employees to accrue at least 80 hours of sick leave.
For employees covered by a collective bargaining agreement, it is likely that they already receive at least 48 hours of sick leave per year. However, ESST also permits employees to use leave for a wider variety of uses. In addition to caring for oneself, the leave may be used for:
- 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; and
- 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.
Additionally, while sick leave was traditionally for self-care, and FMLA permitted leave for a narrow set of family members, ESST may be used to care for many more relatives, including:
- Their child, including foster child, adult child, legal ward, child for whom the employee is the legal guardian or child to whom the employee stands or stood in loco parentis (in place of a parent);
- Their spouse or registered domestic partner;
- Their sibling, stepsibling or foster sibling;
- Their biological, adoptive or foster parent, stepparent or a person who stood in loco parentis (in place of a parent) when the employee was a minor child;
- Their grandchild, foster grandchild or step-grandchild;
- Their grandparent or step-grandparent;
- A child of a sibling of the employee;
- A sibling of the parents of the employee;
- A child-in-law or sibling-in-law;
- Any of the family members of an employee’s spouse or registered domestic partner;
- Any other individual related by blood or whose close association with the employee is the equivalent of a family relationship; and
- Up to one individual annually designated by the employee.
This aspect of the law is more reflective of a wide variety of family structures and care obligations.
ESST is now the law, whether Education Minnesota locals are still bargaining or not. Happily, several locals and districts have been able to incorporate the requirements of the new law in their contracts or in memoranda of understanding with a minimum amount of fuss and/or muss.
In the districts in which the new law has been more controversial, we have seen a few types of problems:
Existential consternation
In a few districts, employers have expressed concerns about writ large ESST. A handful of district negotiators have suggested that employees will use ESST to take care of pets. It really cannot be overstressed that this sort of rhetoric is neither accurate nor helpful, and it is okay to say that out loud in bargaining.
On the other hand, employers may be legitimately worried about the ability to find substitutes for missing employees. This is understandable, but since employees were already able to use sick leave—including for the care of relatives—prior to ESST, it is a fairly marginal concern.
Concern about whether this statute creates a new entitlement
Initially, there have been also concerns about whether this created an obligation to provide sick leave in addition to what unions and employers had agreed to in their collective bargaining agreements. The Department of Labor and Industry has made clear that this is not the case. The implication of this for bargaining is straightforward; it would be inappropriate to cost ESST as a separate item during the parties’ collective bargaining.
Concern about how ESST “fits” with existing sick leave policies and contract language
This concern has had more grounding. The ESST statute is prescriptive about the manner in which employees may receive the time. It can either be given to employees as one single grant of time at the beginning of a 12-month period, or it may be accrued. Where there has been more flexibility is in the accrual methods, because employers are permitted to advance sick leave or allow employees to accrue it more quickly than the statutory minimum of one hour for every thirty hours that an employee works. Given this, it should be possible to administer sick leave accrual with little change going forward.
Since the Legislature adopted the ESST law, Education Minnesota has produced reference information about the law, as well as bargaining guidance for locals. Because this law impacts the way that members may be able to take existing, accrued sick leave, we continue to recommend that locals and districts either fold ESST discussions into bargaining or adopt a standalone memorandum of understanding reflecting how the law will relate to contractual sick leave benefits.
Members can access bargaining guidance at the Education Minnesota website. Furthermore, we continue to encourage local leaders to contact field staff at Education Minnesota. Our field staff, negotiations department and legal department will continue to answer those questions that may be tailored to a local’s individual circumstances.
In addition to this guidance, the Department of Labor and Industry has posted a question and answer document that can be found here: https://www.dli.mn.gov/sick-leave. Staff at the department continue to update that document as questions arise.
— Meg Luger, staff attorney
