United States: Saint Paul Becomes The Second City In Minnesota To Mandate Paid Sick And Safe Time

On September 7, 2016, Saint Paul became the second city in Minnesota to mandate that employers provide earned sick and safe time for their workers. Under Saint Paul's ordinance (the "Saint Paul Ordinance"), covered employers must allow employees who work in Saint Paul to accrue one hour of sick and safe time for every 30 hours worked, up to 48 hours of sick and safe time each year. The Saint Paul Ordinance applies to private employers of all sizes, including employers with only one employee, as long as at least one employee works within Saint Paul city limits. The Saint Paul Ordinance does not exempt small businesses, but it provides them with more time to comply with the paid sick and safe time requirements. The Saint Paul Ordinance is effective July 1, 2017, for employers with 24 or more employees, while it is effective July 1, 2018, for smaller employers.

The Saint Paul Ordinance tracks many of the requirements of the Minneapolis Sick and Safe Time Ordinance ("the Minneapolis Ordinance"), which Minneapolis passed earlier in the year. However, the Saint Paul Ordinance contains a few significant differences from the Minneapolis Ordinance, forcing employers with employees in both Minneapolis and Saint Paul to decide whether to create different policies for their employees. The Saint Paul City Council and Mayor Chris Coleman have both urged the Minnesota Legislature to enact a statewide law to address the piecemeal, and at times conflicting, local legislation.

Covered Employees and Employers

With limited exceptions, the Saint Paul Ordinance applies to all employees, including full-time, part-time and temporary employees, who work within Saint Paul for at least 80 hours in a year. The Saint Paul Ordinance excludes independent contractors and government workers, except government workers employed by the City of Saint Paul. It also permits employers in the construction industry to satisfy the requirements of the Saint Paul Ordinance by paying construction industry employees at least the prevailing wage or the rate required by the applicable registered apprenticeship agreement.

To help new businesses manage costs, the Saint Paul Ordinance allows new employers to provide unpaid sick and safe time for the first six months after hiring their first employee. After six months, the employer must provide paid sick and safe time. Beginning on January 1, 2023, new employers will no longer receive the six-month grace period. Saint Paul's six-month grace period is in contrast to the Minneapolis Ordinance, which provides a 12-month grace period for new employers.

Similar to the Minneapolis Ordinance, the Saint Paul Ordinance does not allow the paid sick and safe time requirements to be waived in a collective bargaining agreement ("CBA"). As a result, employers may need to negotiate with unionized employees about paid sick and safe leave benefits if the leave provisions in their CBA do not satisfy all of the requirements of the Saint Paul Ordinance.

Accrual, Carryover, and Cap Requirements

Under the Saint Paul Ordinance, covered employees will accrue one hour of sick and safe time for every 30 hours worked, beginning on the first day of employment or the day the Saint Paul Ordinance becomes effective for the employer, whichever is later.  Unlike some other jurisdictions, including Minneapolis, which allow employers to generally assume that their over-time exempt employees work 40 hours per week for purposes of the paid sick leave laws, the Saint Paul Ordinance does not address whether employers must begin tracking the number of hours their overtime-exempt employees work.

Employers may limit the amount of sick and safe time an employee may accrue to 48 hours in a year and may cap the amount of sick and safe time an employee may have available for use at 80 hours. With such a cap, once an employee has 80 hours in his or her sick and safe time bank, the employee would cease accruing further sick and safe time. All accrued but unused sick and safe time carries over from one calendar year to the next, but time carried over is limited to the accrual caps.

The Saint Paul Ordinance, however, does not appear to allow employers to limit the amount of accrued sick and safe time an employee may use per year or at once. As such, an employee could potentially use more than 80 hours of sick and safe time in a year. For example, if an employee accrues 80 hours by the end of the second year and does not use any of that time, the 80 hours would carry over to the third year. If the employee uses all 80 hours in January of the third year, the employee could accrue up to another 48 hours during that year and use that time during the third year.

Frontloading

The Saint Paul Ordinance explicitly permits employers to provide earned sick and safe time in a lump sum at the beginning of the year, rather than have the time accrue over the course of the year.  However, the Ordinance creates little incentive for employers to choose a lump-sum method because employers choosing that method must provide at least 48 hours of earned sick and safe time following the initial 90 days of employment for use during the first year, and provide at least 80 hours of earned sick and safe time beginning each subsequent year.

Use of Sick and Safe Time

The Saint Ordinance provides that, beginning 90 calendar days after their employment begins, employees are entitled to use accrued sick and safe time for any of the following purposes:

  1. For an employee's, or an employee's family member's, mental or physical illness, injury, or health condition, or when an employee or his or her family member needs to obtain medical diagnosis, care, treatment, or preventive care;
  2. For an absence due to domestic abuse, sexual assault, or stalking of the employee or the employee's family member, provided the absence is to seek medical attention, obtain services from a victim services organization, obtain psychological or other counseling, seek relocation, or seek legal advice or take legal action;
  3. When an employee's place of business is closed by order of a public official to limit exposure to an infectious agent, biological toxin or hazardous material or other public emergency;
  4. 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 or hazardous material or other public emergency; or
  5. 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.

The Saint Paul Ordinance provides broader coverage than the Minneapolis Ordinance, defining "family member" to mean the employee's child, step-child, adopted child, foster child, adult child, spouse, sibling, parent, step-parent, mother-in-law, father-in-law, grandchild, grandparent, registered domestic parent, and any individual related by blood or affinity whose close association with the employee is the equivalent to a family relationship.1

An employer cannot require, as a condition of using leave, that an employee seek or find a replacement worker to cover the hours during which the employee uses sick or safe time. An employer may, however, have a policy that allows employees to exchange hours or trade shifts voluntarily.

Employers must allow an employee to use sick or safe time in increments consistent with the employer's current payroll practices or industry standards for recording time, provided such increment is not over four hours.

Requests for Leave, Limited Certifications, Confidentiality, and Nondisclosure

Earned sick and safe time must be provided upon the request of an employee. In contrast to the Minneapolis Ordinance, the Saint Paul Ordinance does not provide different notice requirements for the foreseeable and unforeseeable need for sick and safe time.2 Rather, the Saint Paul Ordinance simply provides that an employer may require employees to comply with the employer's usual and customary notice and procedural requirements for absences or for requesting leave, provided that such requirements do not interfere with the purposes for which the leave is needed. Thus, as a practical matter, an employer should avoid strictly enforcing its notice requirements when the need for leave is unforeseeable and the employee is unable to follow the employer's requirements.

When an employee's absence is for more than three consecutive days, an employer may require that the employee provide reasonable documentation to show that the leave is or was for a reason covered by the Saint Paul Ordinance. The Saint Paul Ordinance does not provide guidance regarding the type of documentation that may be "reasonable," but employers should avoid requesting more information than is necessary to verify the reason for the leave.

Additionally, the Saint Paul Ordinance requires employers to treat as confidential all information the employee or others provide in support of an employee's request for sick and safe time, that the employee has requested or obtained sick and safe time, and any written or oral statement, documentation, record, or corroborating evidence the employee provides. Such confidential information may not be disclosed except with the employee's permission, when ordered by a court or administrative agency, or when otherwise required by federal or state law.

Pay During Sick and Safe Time

Employers must provide paid sick and safe time at the same hourly rate as an employee earns from employment, but employees are not entitled to compensation for lost tips or commissions. Compensation is required only for hours that an employee is scheduled to work.

Termination, Reinstatement, Transfer, and Succession

Employers are not required to pay employees for unused earned sick and safe time upon separation from employment. However, an employer must reinstate sick and safe time when it rehires an employee within 90 days. The Saint Paul Ordinance, however, leaves some questions unanswered. For example, it does not address whether the sick and safe time must be reinstated if the employer pays out the sick and safe time upon termination.

The Saint Paul Ordinance also provides that if an employee is transferred to a separate division, entity, or location outside Saint Paul, but remains employed by the same employer, and the employer does not allow the use of accrued paid sick and safe time outside the city, the employer must maintain the employee's accrued sick and safe time on the books for three years from the time of transfer. If the employee transfers back to a division, entity, or location within Saint Paul within the three-year period, the employee is entitled to all previously accrued and unused sick and safe time.

When an employer succeeds or takes the place of an existing employer, an employee who remains employed by the successor employer is entitled to all the unused sick and safe time the employee accrued with the original employer.  If, at the time of the business transfer, the original employer terminates the employment of an employee, but the successor hires the employee within 30 days of the termination, the employer is entitled to all earned sick and safe time accrued but not used when employed by the original employer.

Notice and Posting Requirements

Employers must give employees notice informing them of their rights under the Saint Paul Ordinance. The Saint Paul Department of Human Rights and Equal Economic Opportunity ("Department") will publish a poster and model notice containing the required information. Employers may comply with the notice requirements by displaying the poster in a conspicuous and accessible place in each establishment where Saint Paul employees are employed. Employers must also include the notice in any employee handbook.

At an employee's request, the employer must provide a written or electronic notification of the employee's current amount of: (1) earned sick and safe time available to the employee; and (2) used sick and safe time.  Employers may provide the required information on a pay stub, in an online system where employees can access their own information, or through another reasonable system.

Recordkeeping Requirements

For three years, employers must maintain accurate records for each employee showing: (1) hours worked; (2) the accrual of earned sick and safe time; and (3) the use of earned sick and safe time. At an employee's request, the employer must provide a copy of these records to the employee. Employers must also allow the Department to access the records with appropriate notice and at a mutually agreeable time.

The Saint Paul Ordinance does not specifically address the accrual or tracking of sick and safe time for employees who only occasionally perform work in Saint Paul.

Prohibited Acts, Enforcement, Private Right of Action

Employers are prohibited from discriminating or retaliating against employees for exercising their rights protected under the Saint Paul Ordinance. Those rights include, but are not limited to, the right to use earned sick and safe time, to file a complaint or inform any person about an employer's alleged violation of the Saint Paul Ordinance, to cooperate with the commission in its investigation of alleged violations, and to inform any person of his or her potential rights under the Saint Paul Ordinance.

The Department is responsible for enforcing the Ordinance and has sole discretion to decide whether to investigate or pursue a violation. An employee or other person may report to the Department any suspected violation occurring after the effective date of the Saint Paul Ordinance (i.e., July 1, 2017, for employers with 24 or more employees, and July 1, 2018, for smaller employers), as long as the alleged violation has occurred within 365 days prior to filing the report. If the Department does not investigate or otherwise pursue a report, it must provide the complainant with written notification that the Department is declining to further investigate and the reason for declining. The complainant may, within 21 days, file a request for reconsideration, and the Director of the Department of Human Rights ("Director") must provide a written response within 10 days.

The Ordinance also details the investigation procedures, steps parties can take to appeal the Director's violation determination, and the standard of review on appeal. The Department will refer appeals to the Human Rights and Equal Economic Opportunity ("HREEO") Commission. The HREEO Commission's decision constitutes the city's final decision.

In another deviation from the Minneapolis Ordinance, the Saint Paul Ordinance creates a private right of action. Instead of filing a complaint with the Department, employers may bring a civil action in the district court where the retaliation is alleged to have occurred or where the employer resides or has a principal place of business, to recover any and all damages recoverable at law, costs and disbursements, attorney's fees, and injunctive and other equitable relief as determined by a court.

Remedies and Penalties

The Ordinance provides a non-exhaustive list of potential relief and administrative fines available for the Department to impose when a violation has occurred. The Director may impose any appropriate relief, including but not limited to:

  • Reinstatement and back pay.
  • For a first violation, payment of any earned leave unlawfully withheld and liquidated damages, which may include payment of the dollar value of the accrued leave withheld multiplied by two or $250, whichever is greater.
  • For a second violation, payment of any earned leave unlawfully withheld and liquidated damages in an additional amount, and payment of the dollar value of the accrued leave withheld multiplied by two or $250, whichever is greater. Additionally, the employer shall be assessed an administrative fine payable to the city, up to $1,000.
  • For a third or any subsequent violation, in addition to the above, the employer shall be assessed an administrative fine of up to $1,000 or an amount equal to 10 percent of the total amount of unpaid wages, whichever is greater, payable to the employee.
  • An administrative fine of up to $1,000, payable to the employee, for each violation of the Saint Paul Ordinance's confidentiality and nondisclosure, discrimination, or retaliation provisions.
  • An administrative fine of up to $1,000, payable to the city, for each violation of the Saint Paul Ordinance's required notice and posting, required statement to employee, or other recordkeeping violations. Unlike the Minneapolis Ordinance, the Saint Paul Ordinance does not provide employers with an opportunity to remedy those violations before they may be assessed an administrative fine.3

The potential remedies and penalties are cumulative.

If an employer fails to promptly comply with the final determination of a violation, the Department may refer the action to the city attorney to consider initiating a civil action. Upon prevailing, the city may be entitled to legal or equitable relief.

No Effect on More Generous Policies

If an employer's existing leave policies satisfy the Saint Paul Ordinance's detailed requirements, the employer does not have to provide additional sick and safe time. Employers may continue to maintain other leave policies, such as vacation, sick, or other paid time off (PTO) policies, as long as the policies do not otherwise conflict with the Saint Paul Ordinance.

The Saint Paul Ordinance also explicitly permits employers to have policies that allow employees to use sick and safe time prior to accrual, or to voluntarily donate unused accrued sick and safe time to another employee.

Recommendations

Employers with employees who perform work in Saint Paul should consider the following actions:

  • Review and revise sick time or PTO policies and procedures to determine whether they satisfy the Saint Paul Ordinance's requirements, including those pertaining to accrual, use, carryover, and all other provisions.
  • Review attendance and other disciplinary policies to ensure that adverse actions are not taken against employees for using accrued sick and safe time.
  • Once the Department publishes the poster and model notice of employee rights and remedies, update existing postings and employee handbooks to include the required notice.
  • Review and update timekeeping, payroll and benefits systems to verify that they will comply with the law's recordkeeping requirements.
  • Review CBAs to determine whether their leave provisions will satisfy the requirements of the Ordinance and prepare for negotiating changes if they do not.

Additionally, employers with employees in both Saint Paul and Minneapolis should review sick time or PTO policies and procedures to determine whether they will maintain separate policies for their different employees, or adopt one policy that includes the most generous provisions from each city's ordinance.

Footnotes

1. The Minneapolis Ordinance's definition of "family member" does not include an "individual related by blood or affinity whose close association with the employee is the equivalent to a family relationship"; instead, it includes guardian, ward, and members of the employee's household.

2. The Minneapolis Ordinance provides that when the need for sick or safe time use is foreseeable, an employer may require that the employee provide seven days' advance notice. In other cases, the employer may require that the employee provide notice as soon as practicable.

3. The Minneapolis Ordinance provides employers with five business days to remedy a notice, posting, or recordkeeping violation before an administrative fine will be assessed for those reasons.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions