Category Archives: Leaves of Absence

St. Paul Area Chamber of Commerce Opposes New Sick Leave Ordinance

Last week, the President of the St. Paul Area Chamber of Commerce, Matt Kramer, published a public letter in opposition to the proposed “earned sick and safe time ordinance” under consideration by the St. Paul City Council.  The ordinance currently under consideration in St. Paul is similar in many respects to the ordinance recently passed in Minneapolis.

The letter asserts that the proposed ordinance is based on “little data,” “driven by emotion,” and will likely be implemented “with little calculation as to the multi-million dollar impact this will have on the business community.”  The letter strongly questions the asserted public health benefits of the proposed ordinance.  It notes that there is no available data that shows a correlation between paid sick leave and public health.  The letter also discusses the negative impact that the ordinance will likely have on small employers and raises various other concerns with the proposed ordinance.  A copy of the letter is available here.

Takeaway:  Despite opposition from the business community, the St. Paul City Council is expected to pass a paid sick leave ordinance similar to the one recently adopted in Minneapolis in the near future.

Minneapolis Passes Paid Sick Leave Ordinance

On May 27, 2016, the Minneapolis City Council passed the “Sick and Safe Time” Ordinance.  Prior to its passing, several amendments were incorporated into the ordinance.  The final ordinance, as amended, is available here.

Here are the key points that employers should know about the final ordinance:

When will the paid sick leave ordinance take effect?  The effective date of the ordinance will be July 1, 2017.

What employers will be subject to the ordinance?  The ordinance will apply to all employers.  For employers with 5 or less employees, the sick and safe leave required by the ordinance may be unpaid.  For employers with 6 or more employees, the sick and safe leave required by the ordinance must be paid.  For established businesses, the number of employees will be determined based on the average number of employees during the previous year.  For new businesses, the number of employees will be determined based on the average number of employees during the first 90 days after the business’s first employee begins to work.

Is there an exception for new businesses?  During the first 5 years after the ordinance goes into effect, new businesses (other than chain establishments) will only be required to provide unpaid sick and safe leave during their first 12 months after the hire date of the employer’s first employee, but will not be required to provide paid sick and safe leave during that time.  This exception does not apply to “chain establishments,” which is defined to include any establishment doing business under the same trade name used by two or more establishments, or under the same ownership and doing the same business, whether such other establishments are located in the city or elsewhere and regardless of the type of ownership of each individual establishment.

What employees will be covered by the ordinance?  Any employee (exempt, non-exempt, part-time, or temporary) who performs work for an employer within the geographic boundaries of the City of Minneapolis for at least 80 hours in a year will be covered by the ordinance.  To administer this requirement, the ordinance will require that employers with employees who occasionally work in Minneapolis must track and keep records of the hours that those employees work within the City.  The ordinance will not apply to independent contractors.  For the construction industry, the ordinance states that employers can satisfy the ordinance by paying employees the required prevailing wage or apprentice wages.  For health care employees (such as doctors, nurses, and emergency room personnel) who are paid at least four times the federal minimum wage, sick and safe leave may only be used when the employee is scheduled to work.

How much sick and safe leave will the ordinance require?  The ordinance will require that employees must accrue a minimum of one hour of sick and safe leave for every 30 hours worked, up to a maximum of 48 hours in a calendar or fiscal year.  Employees may carry over unused sick leave from year to year, but may not accrue more than a total of 80 hours of sick and safe leave unless the employer agrees to a higher amount.  The sick leave begins to accrue at the beginning of an employee’s employment (or July 1, 2017 when the ordinance will take effect), but it may not be used until 90 calendar days after the commencement of employment.

When can employees use sick and safe leave?  Employees may use sick and safe leave for a variety of reasons, including but not limited to:  (i) an employee’s health condition or need for treatment or preventive care; (ii) the care of a family member with a health condition or who requires treatment or preventive care; (iii) absences due to the domestic abuse, sexual assault, or stalking of the employee or an employee’s family member; (iv) the closure of a business by a public official due to a health issue; (v) the closure of the school of an employee’s family member’s school or place of care by a public official due to a health issue; or (vi) the closure of the school of an employee’s family member’s school or place of care due to inclement weather, loss of power, loss of heating, loss of water, or other unexpected closure.  The ordinance will prohibit employers from retaliating against employees for the use of sick and safe leave.

Can employers require advance notice or documentation for sick and safe leave?  For foreseeable leave, an employer can require up to seven days advance notice of the need to use paid sick leave.  For unforeseeable leave, the employer can require the employee to provide notice as soon as practicable.  The employer may require reasonable documentation of the need for paid sick leave only if paid sick leave is used for an absence of more than three consecutive days.

How will the ordinance be enforced?  The ordinance will be enforced by the Minneapolis Department of Civil Rights.  An employee may report a violation to the Department within one year of its occurrence.  After receiving a report, the Department will investigate and determine whether a violation occurred.  During the investigation, the employer will have the opportunity to provide a written position statement in response to the alleged violation.  If the Department determines that a violation occurred, the employer will have a right to appeal by requesting a hearing with an administrative hearing officer within 21 days.  After that, the employer may seek a writ of certiorari to appeal the matter to the Minnesota Court of Appeals.  The Department of Civil Rights may also refer the matter to the Minneapolis City Attorney, who can seek to enforce the ordinance through a civil lawsuit in district court.

What are the potential penalties for violations?  During the first 12 months after the ordinance takes effect, the Department of Civil Rights will only have authority to mediate disputes, issue warnings, and issue notices to correct.  After the first 12 months, the Department will be able to impose the following forms of relief and penalties: (i) reinstatement and back pay; (ii) crediting of sick time accrued but not credited plus payment for that sick time multiplied by two, or $250, whichever is greater; (iii) payment of sick pay unlawfully withheld plus payment for that sick time multiplied by two, or $250, whichever is greater; (iv) a $1,500 administrative penalty payable to the employee; or (v) an administrative fine payable to the City of up to $50.00 for each day during which the violation continued following written notice to the employer of the violation with a period of no less than 5 business days to comply.

What notice requirements will apply?  The ordinance will require employers to post a notice of employee rights relating to paid sick leave in the workplace.  The notice will be developed and published by the Department of Civil Rights.  Employers who provide employee handbooks also must include in their handbooks a notice of employee rights and remedies under the ordinance.  In addition, each time an employer pays wages to an employee, the employer must provide a written statement to the employee regarding the amount paid sick leave available to them and the amount of paid sick leave that they have used.  The employer can include this information on a pay stub or may develop an online system for employees to access the information.

What recordkeeping requirements will apply?  Employers will be required to maintain accurate records of accrued and used paid sick leave and must allow an employee to inspect the records relating to that employee at a reasonable time and place.  In addition, an employer with employees who occasionally perform work within the City of Minneapolis will need to track hours worked in the City by each employee to determine whether they are covered by the ordinance.

Will paid sick leave need to be paid out to terminated employees?  No.  The ordinance does not require employers to pay terminated employees for accrued, but unused paid sick leave.

Minneapolis City Council Will Vote on Paid Sick Leave Ordinance on May 27, 2016

The Minneapolis City Council will soon vote on whether to adopt a draft ordinance that will require employers to provide paid sick leave to employees, beginning in July of 2017.  Here’s what employers need to know about the proposed ordinance and the upcoming vote:

When will the paid sick leave ordinance take effect?  If passed, the effective date of the ordinance will be July 1, 2017.

How much paid sick leave will the ordinance require?  The ordinance will require that employees must accrue a minimum of one hour of paid sick leave for every 30 hours worked, up to a maximum of 48 hours in a calendar year.  Employees may carry over up to 80 hours of unused sick leave per year.  The sick leave begins to accrue at the beginning of an employee’s employment (or July 1, 2017 when the ordinance will take effect), but it may not be used until 90 calendar days after the commencement of employment.  Employees may use the sick leave for a variety of reasons, including but not limited to:  (i) an employee’s health condition or need for treatment or preventive care; (ii) the care of a family member with a health condition or who requires treatment or preventive care; (iii) absences due to the domestic abuse, sexual assault, or stalking of the employee or an employee’s family member; (iv) the closure of a business by a public official due to a health issue; or (v) the closure of the school of an employee’s child by a public official due to a health issue.  The ordinance will also prohibit employers from retaliating against employees for the use of paid sick leave.

Can employers require advance notice or documentation for paid sick leave?  For foreseeable leave, an employer can require up to seven days advance notice of the need to use paid sick leave.  For unforeseeable leave, the employer can require the employee to provide notice as soon as practicable.  The employer may require reasonable documentation of the need for paid sick leave only if paid sick leave is used for an absence of three or more consecutive days.

What employees will be covered by the ordinance?  Any employee (exempt, non-exempt, part-time, or temporary) who performs work for an employer within the geographic boundaries of the City of Minneapolis for at least 80 hours in a year will be covered by the ordinance.  For a full-time employee, that means that an employee who spends at least 3.8% of his or her working time within Minneapolis will typically be covered, even if the remaining 96.2% of the working time occurs elsewhere.  To administer this requirement, the ordinance will require that employers with employees who occasionally work in Minneapolis must track and keep records of the hours that those employees work within the City.  The ordinance will not apply to independent contractors, construction workers who are paid the prevailing wage rate, construction worker apprentices paid in accordance with State law, and casual health care employees (such as doctors, nurses, and emergency room personnel) who work at uncertain or irregular times as needed by an employer and who are paid at least four times the federal minimum wage.

What employers will be subject to the ordinance?  The ordinance will apply to employers with at least “6 or more employees,” regardless of whether those employees are employed within Minneapolis or not.  For established businesses, the number of employees will be determined based on the average number of employees during the previous year.  For new businesses, the number of employees will be determined based on the average number of employees during the first 90 days after the business’s first employee begins to work.

How will the ordinance be enforced?  The ordinance will be enforced by the Minneapolis Department of Civil Rights.  An employee may report a violation to the Department within one year of its occurrence.  After receiving a report, the Department will investigate and determine whether a violation occurred.  During the investigation, the employer will have the opportunity to provide a written position statement in response to the alleged violation.  If the Department determines that a violation occurred, the employer will have a right to appeal by requesting a hearing with an administrative hearing officer within 15 days.  After that, the employer may seek a writ of certiorari to appeal the matter to the Minnesota Court of Appeals.  The Department of Civil Rights may also refer the matter to the Minneapolis City Attorney, who can seek to enforce the ordinance through a civil lawsuit in district court.

What are the potential penalties for violations?  During the first 12 months after the ordinance takes effect, the Department of Civil Rights will only have authority to mediate disputes, issue warnings, and issue notices to correct.  After the first 12 months, the Department will be able to impose the following forms of relief and penalties: (i) reinstatement and back pay; (ii) crediting of sick time accrued but not credited plus payment for that sick time multiplied by two, or $250, whichever is greater; (iii) payment of sick pay unlawfully withheld plus payment for that sick time multiplied by two, or $250, whichever is greater; (iv) a $1,500 administrative penalty payable to the employee; or (v) an administrative fine payable to the City of up to $50.00 for each day during which the violation continued.

What notice requirements will apply?  The ordinance will require employers to post a notice of employee rights relating to paid sick leave in the workplace.  The notice will be developed and published by the Department of Civil Rights.  Employers who provide employee handbooks also must include in their handbooks a notice of employee rights and remedies under the ordinance.  In addition, each time an employer pays wages to an employee, the employer must provide a written statement to the employee regarding the amount paid sick leave available to them and the amount of paid sick leave that they have used.  The employer can include this information on a pay stub or may develop an online system for employees to access the information.

What recordkeeping requirements will apply?  Employers will be required to maintain accurate records of accrued and used paid sick leave and must allow an employee to inspect the records relating to that employee at a reasonable time and place.  In addition, an employer with employees who occasionally perform work within the City of Minneapolis will need to track hours worked in the City by each employee performing work in the City to determine whether they are covered by the ordinance.

Will paid sick leave need to be paid out to terminated employees?  No.  The ordinance does not require employers to pay terminated employees for accrued, but unused paid sick leave.

Does the Minneapolis City Council have authority to pass this ordinance?  The draft ordinance states that the Minneapolis City Council has authority to pass the ordinance pursuant to is police power to preserve and protect safety, health, and general welfare.  However, there is a question whether the ordinance, if passed, may be preempted by existing State law.  If passed, it is possible that some or all of the ordinance’s provisions will be subject to a legal challenge.

How can employers provide input to the City Council regarding the draft ordinance?  The last chance for employers to provide input regarding the draft ordinance before the City Council is scheduled to vote on it will be on May 18, 2016.  A public hearing will be held at 3:00 p.m. at Minneapolis City Hall on May 18, 2016, to discuss the ordinance.  The City Council will vote on the ordinance on May 27, 2016, but there will be no opportunity to provide input on the ordinance before the vote that day.

Is the paid sick leave ordinance a good idea?  There are both supporters and opponents of the draft ordinance.  The arguments in support of the draft ordinance are listed in the “Findings” section of the draft ordinance.  In contrast, the Star Tribune Editorial Board recently published an editorial opposing the ordinance, which lists many of the arguments against the draft ordinance.

Minnesota Employment Law and Local Mandates

Should the fundamental rules of Minnesota Employment Law be uniform throughout the State?  That is the question at the heart of certain bi-partisan proposed legislation that would require uniformity in state labor regulations regarding minimum wages, benefits, leaves or other work conditions by pre-empting local mandates.  For example, the Cities of St. Paul and Minneapolis are considering ordinances requiring sick and safe time for employers operating within their municipal boundaries.  For a very good ongoing summary of the St. Paul/Minneapolis ordinances – in task force stage – please see the St. Paul Area Chamber of Commerce blog.

If passed, these ordinances will create a local mandate with a significant effect on employer obligations for certain Minnesota employers, those within Minneapolis and St. Paul, and not for other Minnesota employers, those operating outside of the Twin Cities.  Unlike other state labor and employment laws, the applicability for the law is not based on the size or nature of the employer but whether the employer operates business within the municipal boundaries.

There are 21 other states that have laws supporting state-wide uniformity of labor regulations.  The purpose of House File HF 1241/SF 565 is for Minnesota to become the 22nd State that would pre-empt local labor ordinances and require that Minnesota Labor Law be uniform.  Advocates see the proposed “uniform” legislation as keeping a “consistent marketplace” in the fundamental aspects of employment law throughout the State.  Opponents may view it as reducing the influence of local governments on local businesses and public welfare.

Takeaway:  All Minnesota Employers should be tuned into this movement.  The controversial “sick and safe time” ordinances being considered by the Minneapolis and Saint Paul City Councils will likely have an impact beyond their borders by triggering consideration of state-wide uniformity in labor regulations.  Stay tuned to Minnesota Employer for further updates.

New Executive Order Requires Paid Sick Leave for Employees of Federal Contractors

On Labor Day, President Obama issued a new executive order that will require federal contractors and subcontractors to provide paid sick leave for certain employees.  Here’s what employers need to know about the executive order:

When Will the New Requirements Take Effect?  The executive order will apply to covered contracts where the solicitation for such contract has been issued, or the contract has been awarded outside the solicitation process, on or after January 1, 2017.

Which Employees Must Receive Paid Sick Leave?  All employees who work on the performance of covered federal contracts or subcontracts.

How Much Paid Sick Leave Is Required?  Employees must earn at least one hour of paid sick leave for every 30 hours worked.  Employers cannot limit the total amount of paid sick leave accrued at less than 56 hours.  In addition, the paid sick leave must carry over from one year to the next and must be reinstated if an employee is rehired within 12 months of a job separation.

When May Paid Sick Leave Be Used?  The executive order allows paid sick leave to be used for any of the following circumstances:

  1. Physical or mental illness, injury, or medical condition;
  2. Obtaining diagnosis, care, or preventive care from a health care provider;
  3. Caring for a child, a parent, a spouse, a domestic partner, or any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship who has any of the conditions or needs for diagnosis, care, or preventive care described above, or is otherwise in need of care; or
  4. Domestic violence, sexual assault, or stalking, if the time absent from work is for the purposes otherwise described above, to obtain additional counseling, to seek relocation, to seek assistance from a victim services organization, to take related legal action, including preparation for or participation in any related civil or criminal legal proceeding, or to assist an individual related to the employee as described above.

Can Paid Sick Leave Count Towards Prevailing Wage or Davis-Bacon Act Obligations?  No.

Can Existing Policies Remain In Effect?  An employer’s existing paid sick leave policy will be deemed compliant if it meets the minimum conditions established by the Executive Order.

How Much Notice Is Required From Employees?  Employees must provide at least 7 calendar days’ notice if the need for leave is foreseeable.  Otherwise, the employee must provide notice as soon as practicable.

Can Employees Be Required to Find a Replacement?  No – the use of paid sick leave cannot be made contingent on the employee finding a replacement worker.

Can Employers Require Certification of the Need For Leave?  Employers may only request certification if the absence is of 3 or more consecutive workdays.  If that condition is satisfied, employers may request certification of the “minimum necessary information establishing a need for the employee be absent from work.”

Do Employees Need To Be Paid For Unused Paid Sick Leave On Termination?  No – but the paid sick leave must be reinstated if the employee is rehired within 12 months.

Is There Anything Else That Employers Need to Know?  Employers are prohibited from interfering with paid sick leave or discriminating against employees who use paid sick leave.

Takeaway:  The new executive order requiring paid sick leave for employees of federal contractors is part of a broader trend, particularly at the state and local level, of new paid sick leave requirements for employers.

Should Employers Offer Up To One Year of Paid Parental Leave?

According to reports, Netflix recently adopted a policy that will allow employees to take unlimited paid parental leave within the first year after a child is born or adopted.  The new policy is part of a broader trend among employers to attract and retain talent by offering generous parental leave benefits.  Netflix’s Chief Talent Officer explained the new policy by stating that “Netflix’s continued success hinges on us competing for and keeping the most talented individuals in their field.”

Other companies, particularly in the tech field, also offer parental leave benefits that exceed the requirements of federal or state law.  For example, Facebook allows new parents to take up to four months off, and Apple allows mothers to take up to 14 weeks off and their partners to take up to 6 weeks off.

The primary benefit of these policies is that they help employers recruit and retain employees, particularly women – which has been difficult for some tech employers to achieve.  After Google increased its parental leave from 12 weeks to 18 weeks, the company reported that mothers were leaving the company at half the rate they did previously.

On the other hand, the downsides include increased costs for the employer and a potential decrease in productivity.  When employees take paid leave, the employer must either hire a temporary replacement or re-allocate the employee’s work responsibilities to others, increasing those other employees’ workloads.  Given these concerns, not all employers may be able or willing to offer parental leave benefits as generous as the new Netflix policy.

Takeaway:  Offering generous parental leave benefits is one method of recruiting and retaining employees, but whether it is right for a particular company depends on a variety of factors.

USERRA Leave: The “Most Favorable Treatment” Requirement

The Uniform Services Employment and Reemployment Rights Act (“USERRA”) requires that a USERRA leave be given the “most favorable treatment” to any “comparable leave” provided by the employer.  20 C.F.R. § 1002.150.  Since most USERRA leaves are unpaid, this “most favorable treatment” requirement raises questions when an employer offers different types of paid leave.  If an employer gives two days’ paid leave for a bereavement leave, does an employee on a USERRA leave have the right to two days’ pay?

The key concept is “comparability” – an imprecise term, indeed.  USERRA does provide some refinement:

If the non-seniority benefits to which employees on furlough or leave of absence are entitled vary according to the type of leave, the employee must be given the most favorable treatment accorded to any comparable form of leave when he or she performs service in the uniformed services. In order to determine whether any two types of leave are comparable, the duration of the leave may be the most significant factor to compare. For instance, a two-day funeral leave will not be “comparable” to an extended leave for service in the uniformed service. In addition to comparing the duration of the absences, other factors such as the purpose of the leave and the ability of the employee to choose when to take the leave should also be considered.

20 C.F.R. § 1002.150 (emphasis added).  Thus, points of comparability are the duration, purpose, and timing of other leaves.  While a paid sabbatical leave may be comparable, a two-day bereavement leave is not.  But the USERRA comparability requirement is far from fully developed.  Failure to comply can result in a complaint to the U.S. Department of Labor and the risk of enforcement penalties.

Takeaway:  An employer who voluntarily provides pay for otherwise unpaid leaves needs to keep an eye on the USERRA comparability requirement.  A good resource for checking your thinking on comparability is the web page and helpline for the U.S. Department of Defense, Employer Support of the Guard and Reserve Office (ESGR).

New Paid Parenting and Caregiver Leave Legislation Introduced In Minnesota

On February 5, 2015, just a few days after the introduction of new legislation to require employers to provide paid “sick and safe leave” to employees, DFL members of the Minnesota legislature introduced legislation that would also provide paid parenting and caregiver leave for employees in Minnesota. See H.F. 580. Under the bill, paid parenting and caregiver leave would be funded by new taxes on both employers and employees. The benefits would be administered by the State in a manner similar to unemployment insurance benefits.

Here’s what employers need to know about the new bill:

Which Employers Would Be Covered By the Law? The law would amend the Minnesota Parenting Leave Act (MPLA) to apply to any employer in Minnesota with one or more employees. As a result, any employer with one or more employees will be subject to the MPLA’s 12-week parenting leave requirement, Minnesota’s new pregnancy accommodation requirements, and the new paid parenting and caregiver leave requirements. Currently, the MPLA and Minnesota’s pregnancy accommodation requirements only apply to employers with “21 or more employees at at least one site.” See Minn. Stat. § 181.940, subd. 3.

Which Employees Would Be Eligible For Leave? Employees would be eligible for paid parenting and caregiver leave if they have performed at least 680 hours of work for the employer or worked for the employer for at least 17 weeks. This new definition of “employee” will also apply to the MPLA and Minnesota’s pregnancy accommodation requirements, making it easier for employees to qualify for parenting leave or pregnancy accommodations. Currently, employees are only eligible for parenting leave or pregnancy accommodations if they have worked for the employer for at least 12 months preceding the request for leave and for an average number of hours per week equal to one-half the full-time equivalent position in the employee’s job classification. See Minn. Stat. § 181.940, subd. 2.

What Types of Leave Would Be Required? The bill would amend the MPLA to require an employer to provide up to 12 weeks of unpaid leave to any employee who is: (i) a biological, adoptive, or foster parent in conjunction with the birth, adoption, or placement through foster care of a child; (ii) a female employee for prenatal care, or incapacity due to pregnancy, childbirth, or related health conditions; or (iii) caring for a family member who has a serious health condition. The employee would then be eligible to apply to receive benefits from the State for up to six weeks of any of these covered forms of leave.

How Will The Paid Leave Be Funded? To fund the parenting and caregiver leave benefits, both employers and employees will be required to contribute to a fund administered by the State. Employees will be required to pay a premium equal to 0.1% of the employee’s first $78,000.00 in yearly wages, up to a maximum of $78.00 per year. Employers will be required to deduct the premiums from the employee’s wages and pay an additional premium equal to the amount paid by the employee. After the program has been in place for two years, the Commissioner of the Minnesota Department of Labor and Industry (“DOLI”) will be required to adjust the maximum annual premium amount to account for inflation.

How Will The Paid Leave Be Administered? DOLI will administer the paid leave fund and pay benefits to eligible employees on covered parenting or caregiver leave. To obtain benefits, an employee will need to file an application with DOLI, which may require a certification from the employee’s health care provider. Employees who make willfully false statements or misrepresentations to obtain benefits may be required to repay any erroneous payments and may be disqualified from receiving benefits for up to one year.

How Much Pay Will Employees Receive While On Leave? The amount of benefits that employees will receive while on leave will vary depending on how much the employee makes in comparison to the median family income in the employee’s county. Although the current bill does not define specific thresholds, the amount of wages will vary from 66% of the employee’s weekly wage to 95% of the employee’s weekly wage, up to a maximum of $1,000.00 per week for six weeks. After the program has been in place for two years, the Commissioner of DOLI will be required to adjust these weekly benefit amounts to account for inflation.

Takeaway: Like the new paid sick and safe leave bill, the paid parenting and caregiver bill represents another potentially significant change to Minnesota employment law, which employers should continue to monitor. If you feel strongly about the proposed paid parenting and caregiver leave bill – one way or the other – contact your state representatives to let them know how you feel.

New Paid Leave Legislation Introduced In Minnesota

On February 2, 2015, DFL members of the Minnesota legislature introduced a bill that would require private employers to provide paid “sick and safe leave” to employees. See S.F. No. 481. This legislation was anticipated as a follow-up to last year’s Women’s Economic Security Act (WESA). It is also part of a broader national trend regarding paid leave.

The new bill would replace Minnesota’s current sick leave law, which does not obligate employers to provide paid leave, but requires employer who do provide paid leave to allow employees to use it to care for family members. If passed, the new bill will not only require employers to provide paid leave to employees, it will also result in some changes for the Minnesota Parenting Leave Act (MPLA) and the pregnancy accommodation requirements of WESA.

Here’s what employers need to know about the new sick and safe leave bill:

What Employers Would Be Subject to the Law? The law would apply to any employer in Minnesota with one or more employees. The law would also amend the definition of “employer” in Minn. Stat. § 181.940 to include any employer with one or more employees. The effect of this amendment is that any employer with one or more employees would not only be subject to the new sick and safe leave law, it would also be subject to the MPLA and the pregnancy accommodation requirements of WESA, which currently only apply to employers with “21 or more employees at at least one site.”

Which Employees Would Be Eligible For Sick and Safe Leave? Employees would be eligible for sick and safe leave if they have performed at least 680 hours of work for the employer or worked for that employer for at least 17 weeks. This new definition of “employee” will also apply to the MPLA and the pregnancy accommodation requirements for WESA, making it easier for employees to qualify for parenting leave or pregnancy accommodations. Currently, employees are only eligible for parenting leave or pregnancy accommodations if they have worked for the employer for at least 12 months preceding the request for leave and for an average number of hours per week equal to one-half the full-time equivalent position in the employee’s job classification. See Minn. Stat. § 181.940, subd. 2.

How Much Sick and Safe Leave Would Be Required? The new law would require that employees must accrue “a minimum of one hour of earned sick and safe time for every 30 hours worked,” up to a maximum of 72 hours in a calendar year for employers with 21 or more employees. For employers with less than 21 employees, employees could accrue up to a maximum of 40 hours of sick and safe leave in a calendar year. The leave would begin accruing at the commencement of employment, and employees would be eligible to use it after 90 days of employment.

When Could Employees Use Sick and Safe Leave? Employees would be permitted to use sick and safe leave for an employee’s or an employee’s family member’s: (i) mental or physical illness, injury, or health condition; (ii) need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; (iii) need for preventive medical or health care; or (iv) when necessary due to the domestic abuse, sexual assault, or stalking of the employee or employee’s family member (e.g., medical appointments, legal actions, counseling, relocation, etc…). In addition, employees would be permitted to use sick and safe leave due to “closure of the employee’s place of business due to weather or other emergency, or an employee’s need to care for a child whose school or place of care has been closed due to weather or other public emergency.”

What Notice and Verification Requirements Would Apply? Employers would be able to require employees to give up to seven days’ advance notice for foreseeable leave or to provide notice as soon as practicable for unforeseeable leave. Employers would be permitted to request reasonable documentation to verify sick and safe leave absences only if the absence lasts for more than three consecutive days.

Would Employees Need To Be Paid For Earned Sick and Safe Leave At Termination? No, the bill provides that employers would not be required to pay employees for accrued but unused sick and safe leave upon termination.

What Other Requirements Would Apply? Other requirements of the bill include the following: (i) after using sick and safe leave, employees would be entitled to reinstatement to a comparable position; (ii) employers would be required to maintain information relating to sick and safe leave confidential; (iii) employers would be prohibited from retaliating against employees for using sick and safe leave; and (iv) employers would have to notify employees of their sick and safe leave rights, including in their employee handbooks.

Takeaway: The new sick and safe leave bill represents a potentially dramatic change to paid leave requirements for employers under Minnesota law. It will also substantially broaden the requirements of the MPLA and WESA’s pregnancy accommodation requirements. As a result, employers should continue to monitor this legislation. If you feel strongly about the proposed sick and safe leave bill – one way or the other – contact your state representatives to let them know how you feel.

White House Announces Paid Leave Initiative

One of the proposals that President Barack Obama will discuss at the upcoming State of the Union address is the White House’s new initiative to support paid leave for employees. The initiative has several components, including the following:

The Healthy Families Act: The Obama administration is supporting proposed legislation entitled “The Healthy Families Act,” which would require employers with 15 or more employees to allow employees earn at least 1 hour of paid sick time for every 30 hours worked, up to a maximum of 56 hours per year. Given the current Republican control of the House and Senate, however, it is unlikely that this legislation will pass in the near future.

Paid Parental Leave for Federal Workers: On January 15, 2015, President Obama signed a memorandum directing federal agencies to agencies to allow federal workers to take up to six weeks of paid sick leave to care for a new child or ill family members. The federal agencies will be required to advance the paid sick leave to employees who have not accrued a sufficient amount of paid leave to cover the absence.

Paid Leave Funds for State Workers: The President’s budget for 2015 will propose allocating $50 million to a State Paid Leave Fund for the Department of Labor to provide competitive grants to states to help them launch paid leave programs for state employees.

By providing paid leave to federal employees and encouraging state governments to do the same for state employees, the White House’s new paid leave initiative is intended not only to offer paid leave to government employees, but also to increase market pressure on private employers to offer competitive benefits. In Minnesota, the City of St. Paul recently began offering paid parental leave to city employees, and Minneapolis is considering adopting a similar policy. Other cities that offer paid parental leave to employees include Chicago, Illinois, San Francisco, California, and Austin, Texas.

Paid leave legislation is also possible at the state level.  Several states – such as California, Connecticut, and Massachusetts – have recently passed laws requiring certain employers to offer paid leave to employees.  So far, this legislation has not passed in Minnesota, but it has been discussed as a potential follow-up to last year’s Women’s Economic Security Act legislation.

Takeaway: Although federal legislation requiring private employers to offer paid leave is unlikely in the near future, the federal government as well as some state and local governments are implementing paid leave programs with the goal of increasing the pressure on private employers to adopt similar policies.  Employers should continue to monitor these efforts as well as state legislation concerning paid leave.

Minnesota School Activities Leave

As the new school year is now well underway, employees may be requesting time off with greater frequency to attend activities related to their children. These requests may involve school conferences with teachers or advisors, school-related sporting events, or school concerts or play performances. Employees with children receiving child care services or attending a prekindergarten regular or special education program may also seek time off from work to attend a conference or activities, or to observe and monitor the services or program.

As an important reminder, eligible Minnesota employees are entitled to up to 16 hours of school-related activities leave during any 12-month period to attend such conferences or events which cannot be scheduled during non-work hours. Minn. Stat. § 181.9412. To receive this unpaid leave the employee must have worked for the employer for at least 12 consecutive months immediately preceding the leave request. The employee should provide reasonable notice of the leave request and make a reasonable effort to schedule the leave so as not to unduly disrupt the employer’s operations.

It is important to note that these activities must be school related. The Minnesota law does not apply, for example, to community or private programs such as youth hockey, gymnastics, or private music lessons or performances.

Takeaway: Employers should make sure to grant eligible employees the unpaid leave to which they are entitled to attend school-related activities.

Election Requirements for Employers in Minnesota

There’s an election coming up on Tuesday, November 4, 2014.  Here are the two things that employers in Minnesota need to know about the upcoming election:

  1. Voting Leave: Minnesota law permits employees to take voting leave “for the time necessary to appear at the employee’s polling place, cast a ballot, and return to work on the day of that election.”  For more information about voting leave, click here.
  1. Election Judge Leave: Minnesota law permits certain employees who serve as election judges to be absent from work for the purpose of serving as an election judge without penalty.  For more information about election judge leave, click here.