Minnesota is now the 12th state to adopt a statewide program providing compensation to employees during family and medical leaves. It also joined the over 40 state and local jurisdictions mandating employer paid sick leave. Eligible Minnesota employees will be entitled to up to 48 hours of paid sick and safe leave and 20 weeks of family leave benefits. This patchwork of paid leave laws is further complicated in Minnesota where Minneapolis, St. Paul, Duluth,  and Bloomington (July 1, 2023) all have paid sick leave laws already on the books. The new state-wide paid sick leave law does not preempt the local ordinances. Employers with employees in those cities will need to meet the most generous leave provisions and other protections of the applicable laws. New legislation also amends existing law requiring accommodations for pregnant and nursing employees.

FAMILY & MEDICAL LEAVE

Minnesota House Bill 2, signed by Governor Walz on May 25, 2023 will provide eligible employee with up to 12 weeks of family leave benefits and 12 weeks of medical leave benefits, subject to a 20-week annual limit. Eligible workers will be permitted to take family and medical leave and receive compensation through the new state family and medical benefit insurance program beginning January 1, 2026. The program will be funded through employer and employee contributions which also begin on January 1, 2026.

Covered Employers

The law applies to all private businesses (as well as state or local government sector employers and charter schools).

Employers may also apply for approval to meet their obligations under the paid family and medical leave law through the substitution of a private plan that provides the same rights, protections, and benefits as the state program.

Who is Eligible for Paid Family Leave?

To be eligible, an individual must have earned at least 5.3 percent of the state average annual wage in total over the “base period” rounded down to the next lower $100 (currently $3,500 per year). 

Seasonal workers who are employed for no more than 150 days and federal employees are not eligible.  Self-employed individuals may opt-in to coverage. 

Types of Paid Family Leave

A covered individual is eligible for leave benefits if they take leave from work:

  1. To address their own serious health condition, including pregnancy;
  2. To care for a covered family member with a serious health condition;
  3. To bond with a new child;
  4. To address certain needs related to the domestic abuse, sexual assault, or stalking of the worker or the worker’s family member; and
  5. To address certain needs arising from a family member’s military deployment.

Family member is defined broadly and includes among other things, a child, spouse, domestic partner, parent, sibling, grandchild, or grandparent and includes many relationships by marriage.  Covered individuals will also be eligible for leave if they have been selected by an incapacitated person to be their caretaker.

Job and Benefits Protection

Employees who take leave are entitled to continued employee health benefits during leave and to reinstatement to an equivalent position unless the employer can show that the employee would not otherwise have been employed at the time reinstatement is requested.

Notice Requirements

Employers must post a notice prepared by the Department of Labor providing notice of available benefits and provide written notice to employees.

PAID SICK LEAVE

On May 24, 2023, Minnesota Governor Tim Walz signed an omnibus jobs and economic development bill which, among other things, creates statewide paid sick and safe leave entitlements for eligible employees and expands protections for pregnant and nursing employees.

Starting January 1, 2024, Minnesota employees will be entitled to receive up to 48 hours of earned sick and safe time (ESST) in a year. 

The ESST law applies to all individuals or businesses with one or more employees.  

Who is Eligible for ESST?

Any employee who performs work for at least 80 hours in a year in Minnesota will begin accruing ESST on January 1, 2024.

Independent contractors and certain individuals employed by air carriers as flight deck or cabin crew members are expressly excluded from the definition of “employee” and, therefore, are ineligible for ESST under the new law.

Accrual, Frontloading and Carryover

Under the ESST law, employees begin accruing ESST at the commencement of employment and will accrue a minimum of one hour of ESST for every 30 hours worked up to a maximum of 48 hours of ESST in a year.  

Employees who are exempt from overtime requirements are deemed to work 40 hours in each workweek for purposes of accruing ESST, except that an employee whose normal workweek is less than 40 hours will accrue ESST based on the normal workweek.

Employees must be permitted to carry over accrued but unused paid sick leave benefits, but the total amount of accrued but unused ESST must not exceed 80 hours at any time, unless the employer agrees to a higher amount. Moreover, unless the employer maintains a policy that states otherwise, the ESST law does not require an employer to pay out an employee’s earned but unused ESST upon separation from employment.

Instead of allowing employees to accrue ESST, employers may adopt a frontloading approach whereby the employer provides an employee with a lump sum of ESST at the beginning of each year or the commencement of employment. Employers who use the frontloading approach are not required to allow employees to carry-over unused ESST at the end of the year. Under the frontloading approach, employers must provide employees with 48 hours of ESST if the employer pays employees for unused ESST at the end of the year. If the employer does not pay employees for unused ESST at the end of the year, then the employer must frontload 80 hours of ESST. 

Use of ESST

An eligible employee may use ESST as soon as it accrues for any one of the following reasons:

  1. To address an employee’s own: (i) mental or physical illness, injury, or other health condition; (ii) need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; or (iii) need for preventive medical or health care;
  2. To care for a family member: (i) with a mental or physical illness, injury, or other health condition; (ii) who needs medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition; or (iii) who needs preventive medical or health care;
  3. For absences related to domestic abuse, sexual assault, or stalking of the employee or the
    employee’s family member, provided the absence is to: (i) seek medical attention related to physical or psychological injury or disability caused by domestic abuse, sexual assault, or stalking; (ii) obtain services from a victim services organization; (iii) obtain psychological or other counseling; (iv) seek relocation or take steps to secure an existing home due to domestic abuse, sexual assault, or stalking; or (v) 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. Time needed when the employee’s place of business closes due to weather or other public emergency or when an employee must care for a family member whose school or place of care has been closed due to weather or other public emergency;
  5. When an employee cannot work or telework because the employee is: (i) prohibited from working by the employer due to health concerns related to the potential transmission of a communicable illness related to a public emergency; or (ii) seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, a communicable disease related to a public emergency and such employee has been exposed to a communicable disease or the employee’s employer has requested a test or diagnosis; and
  6. When it has been determined by the health authorities having jurisdiction or by a
    health care professional that the presence of the employee or family member of the employee in the community would jeopardize the health of others because of the exposure to a communicable disease, whether or not the individual has actually contracted the communicable disease.

The definition of “family member” is quite extensive and includes any individual “related by blood or whose close association with the employee is the equivalent of a family relationship.” Employees may also designate one individual annually who will be considered a “family member” for purposes of ESST.

Employers must allow employees to use ESST in the smallest increment of time tracked by the employer’s payroll system, so long as the increment is no more than four hours.

Reinstatement

Paid ESST benefits survive transfers, separations followed by a reinstatement within 180 days, and, in some circumstances, acquisitions by successor companies.

Employer Recordkeeping and Notification

The ESST law contains recordkeeping and notification requirements. Employers must maintain records documenting hours worked and ESST used by employees and make those records available to employees.

Employers must provide notice to employees of their rights to ESST, including the amount of ESST, the accrual year, and how ESST may be used by the employee. The notice must meet other specifications set forth in the law.  The Department of Labor and Industry will publish a sample notice. Employers who intend to require employees to provide notice before using ESST, must also give employees a copy of a written policy with reasonable notice procedures.   This information must also be included in an employee handbook if an employer maintains and distributes one to its employees.

At the end of each pay period, employers must include in employees’ earning statements both the total number of sick and safe time hours accrued and available for use as well as the total number of earned sick and safe time hours used during the pay period.

Job and Benefits Protection

Employees who take ESST are entitled to continued employee health benefits during leave and to reinstatement of employment at the same rate of pay the employee had been receiving when the ESST leave commenced, plus any automatic adjustments in the employee’s pay scale that occurred during the leave period.

PREGNANT AND LACTATING EMPLOYEES

The omnibus bill also includes amendments expanding existing statutory protections for pregnant and lactating employees which will take effect July 1, 2023 and apply to all employers with one or more employees.

Pregnant Employees

Employers must provide reasonable accommodations to employees experiencing health conditions related to pregnancy or childbirth unless the employer can demonstrate the accommodation would impose an undue hardship on the operation of the employer’s business. The employee and employer shall engage in an interactive process with respect to an employee’s request for a reasonable accommodation.

The new amendments did not change the law’s limits on the information employers can request from employees and the limits on undue hardship.  An employer still may not require a pregnant employee to obtain the advice of a licensed health care provider or certified doula or claim an undue hardship for the following accommodations: (1) more frequent or (now) longer restroom, food, and water breaks; (2) seating; and (3) limits on lifting over 20 pounds.

In addition, the bill added temporary leave of absence, modification in work schedule or job assignments, seating and more frequent or longer break periods to the potential reasonable accommodations listed in the law.

Lactating Employees

For lactating employees, employers must continue to provide reasonable break times each day to an employee who needs to express milk for any reason. The break times may (but no longer must) run concurrently with any break times already provided to the employee. The law also removed language (i) stating employers were not required to provide breaks if it would unduly disrupt the business and (ii) limiting the time period an employee can take these breaks to the 12 months following birth. Employers may not reduce an employee’s compensation for time used for the purpose of expressing milk.

Additionally, while employers must still make reasonable efforts to provide a room or other location that meets the statutory specification for employees to express milk, they must also now make reasonable efforts to provide a space that is “clean, private, and secure.”  

Notice Requirements

The bill also includes new notice requirements.  Employers must now inform employees of their rights regarding pregnancy and lactation accommodation at the time of hire and also when an employee makes an inquiry about or requests parental leave. Employers must also include notice of employee rights and remedies in the employee handbook. The Commissioner of the Department of Labor & Industry will publish the required notice.

Covered employers should begin reviewing their policies to ensure compliance with the new leave and accommodation requirements. With regard to pregnancy and lactation accommodation, employers should also review their obligations under the new federal Pregnant Workers Fairness Act and Pump for Nursing Mothers Act.

These Minnesota laws are included in our leave law map database that provides subscribers with a detailed explanation of state and local leave laws around the country. The Leave and Accommodation Suite is developed and updated continually by our Disability, Leave & Health Management attorneys. Register here if you would like to learn about our Leave & Accommodation Suite.

A new Georgia law takes effect on July 1, 2023 (GA S 129), that provides employees time off to advance vote in primaries and elections. This new measure amends existing law and, among other things, provides time off for employees to advance vote and revises provisions related to time off for employees to vote on election day. Georgia employees can take two hours off on election day or one of the days designated for in-person early voting. Likewise, Georgia employees can take two hours off, regardless of whether the polls are open two hours before or after a work shift ends. Time off for voting is not required to be paid; that is up to the employer. From a practical standpoint, employees must give reasonable notice to their employers of the need for time away from work to vote.

The Georgia legislature, with sign off from Governor Brian Kemp, also recently voted to repeal the sunset provision relating to use of sick leave for care of immediate family members (including a spouse, child, parent, grandparent, and grandchild or any dependents as shown in the employee’s most recent tax return), effective May 1, 2023. (GA S 61) This limited sick leave law measure was initially enacted in 2017, providing that if a private-sector employer elects to provide its employees paid sick leave, the employer must permit employees to use up to five days of the sick leave for the care of family members. This provision does not obligate employers to offer sick leave or require an employer to allow an employee to use more than five days of earned sick leave per calendar year for the care of an immediate family member.     

Please contact Emily Borna or the Jackson Lewis attorney with whom you usually work if you have questions.

The U.S. Department of Labor Wage and Hour Division (WHD) published Field Assistance Bulletin No. 2023-02 providing guidance to agency officials responsible for enforcement of the “pump at work” provisions of the Fair Labor Standards Act (FLSA)  including those recently enacted under the 2022 PUMP Act.

The PUMP Act was adopted along with the Pregnant Workers Fairness Act when President Biden signed the Consolidated Appropriations Act, 2023 in December 2022.

This guidance provides employers a glimpse into how the WHD understands and will enforce the rights now available to most employees under the Fair Labor Standards Act for reasonable break time and a place to express breast milk at work for a year after a child’s birth.

Here are a few highlights from the WHD’s bulletin.

  • Frequency and Duration of Breaks. The WHD emphasizes that employees are entitled to breaks every time they need to pump and the length and frequency of breaks will vary by employee. Employers and employees may agree to a certain schedule based on the employee’s need to pump, but the WHD advises that employers cannot require employees to comply with a fixed schedule. The WHD also reminds employers that an employee’s needs and break schedule may need to be adjusted over time.
  • Compensation. Time for pump breaks may be unpaid unless otherwise required by federal, state, or local law. Employers should pay careful attention to the FLSA’s standard requirements for counting and compensating hours worked. Employees must be paid for any time spent pumping when they are not fully relieved from duty or when pumping during an otherwise paid break.
  • Privacy Requirements. The FLSA requires that employees have access to a place to pump at work that is (1) shielded from view; (2) free from intrusion from coworkers and the public; (3) available each time it is needed by the employee; and (4) not a bathroom. To ensure privacy, the WHD advises that an employer could display a sign when the space is in use or a lock on the door. Teleworking employees must also be free from observation from a computer camera or other similar device while pumping.
  • Functional Space Requirements. The WHD advises that the location must be “functional” for pumping: “A space must contain a place for the nursing employee to sit, and a flat surface, other than the floor, on which to place the pump. Employees must be able to safely store milk while at work, such as in an insulated food container, personal cooler, or refrigerator. Ideally, spaces to pump breast milk should also include access to electricity, allowing a nursing employee to plug in an electric pump rather than use a pump with battery power, which may require more time for pumping. Access to sinks near to the space provided to pump so that an employee can wash their hands and clean pump attachments also improves the functionality of the space and may reduce the amount of time needed by nursing employees to pump breast milk at work.”
  • Small Employer Exemption. In limited circumstances, employers with less than 50 employees nationwide may be exempt from the pump time requirements if they can demonstrate that compliance with the pump at work provisions for a particular employee would cause an undue hardship. The burden of proving this hardship is on the employer. “To assert the exemption, an employer must be able to demonstrate that the employee’s specific needs for pumping at work is an undue hardship due to the difficulty or expense of compliance in light of the size, financial resources, nature, and structure of the employer’s business.”
  • Anti-Retaliation Provisions. Like most employment laws, the FLSA prohibits retaliation against anyone who has engaged in protected activity, including requesting break time or space to pump or requesting payment of wages. As an example, the WHD states that employers cannot hold time the employee took for pump breaks against them for quotas or require employees to work additional hours to make up for the time missed due to pump breaks.
  • Poster. Employers should post the WHD’s updated FLSA poster.

The WHD also provides additional resources for employers on its Pump At Work webpage.

Employers are reminded to review state and local wage and hour laws and lactation accommodation laws. If you have any questions about applying the FLSA or state and local laws to your workforce, please reach out to any Jackson Lewis attorney.

As anticipated, President Joe Biden has rescinded the COVID-19 safety requirements for federal contractors in connection with the declared end of the COVID-19 public health emergency and the World Health Organization determination that COVID-19 is no longer a Public Health Emergency of International Concern.

Read more here.

The governor of Puerto Rico has issued Executive Order No. OE-2023-012, ending the state of emergency declared in 2020 due to the pandemic caused by the Coronavirus (COVID-19) and repealing multiple Executive Orders issued to adopt preventive measures because of COVID-19. OE-2023-012, signed on May 11, 2023, went into effect immediately.

Read more here.

On May 15, 2023, in response to the end of the COVID-19 Public Health Emergency Declaration, the EEOC updated its COVID-19 technical assistance: “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”. This guidance has now been updated roughly twenty times since the start of the pandemic. The EEOC’s recent update to its informal guidance appears to give employers permission to continue with many of their COVID-19 practices and protocols, despite the May 11, 2023 end of the Public Health Emergency.

While the EEOC reminds employers that medical exams and inquiries must be job related and consistent with business necessity, according to the EEOC: “the ‘business necessity’ standard allows for consideration of whether a person may have COVID-19, and thus might pose a ‘direct threat.’” As a result, the EEOC continues to allow employers to follow the CDC guidance but warns that “guidance from medical and public health authorities may be relevant to making certain legal determinations under one or more EEO laws (e.g., “direct threat” under the ADA). Because changes in such guidance may impact the legal assessments made under Title I of the ADA and other EEO laws … the EEOC recommends that employers … routinely check for guidance updates from CDC, FDA, and other medical and public health authorities.”  Below are some of the points raised by the EEOC in the updated guidance:

  1. “The ADA does not prevent employers from following CDC advice.” (A4)
  1. If an employee calls in sick or reports feeling sick at work, an employer may ask whether the employee has COVID-19 or common symptoms of COVID-19 as identified in CDC guidance. (A1, A12)
  1. Employers may still ask all employees entering the worksite or working in close proximity to others if they have COVID-19 or COVID-19 symptoms, if they have been COVID-19 tested and if so, the results. (A8)
  1. If an employee has COVID-19 or COVID-19 symptoms, employers may follow CDC recommended isolation guidance. (A4)
  1. Employers must maintain all information about employee illness as confidential medical records in compliance with the ADA. (A1)
  1. Measuring an employee’s body temperature or requiring an employee to undergo COVID-19 viral testing are medical examinations. Requiring medical examinations and making disability-related questions must meet the “business necessity” standard. It is important for the employer to consider why it wishes to require a medical examination. (A3, A9)
  1. The ADA doesn’t prevent employers from following CDC recommendations regarding whether, when and for whom testing or other medical screening is appropriate.  According to the EEOC, following CDC recommendations will meet the ADA “business necessity” standard. (A9)
  1. An employer may ask employees coming into the worksite whether they have had contact with “anyone” diagnosed with COVID-19 or who may have symptoms associated with the disease. But only asking about an employee’s contact with family members would create a GINA issue and would unnecessarily limit the information obtained about an employee’s potential exposure to COVID-19. (A10)
  1. Employers can ask employees about domestic or international travel as these are not disability-related inquiries, but if the employer wants to require testing of individuals who have traveled, it must meet the business necessity standard. (A14)
  1. According to the EEOC, the possible types of reasonable accommodations to address Long COVID vary, depending on a number of factors, including the nature of the symptoms, the job duties, and the design of the workplace. The EEOC provided the following examples of possible accommodations: a quiet workspace, use of noise cancelling or white noise devices, and uninterrupted worktime to address brain fog; alternative lighting and reducing glare to address headaches; rest breaks to address joint pain or shortness of breath; a flexible schedule or telework to address fatigue; and removal of “marginal functions” that involve physical exertion to address shortness of breath. The Job Accommodation Network has information on a variety of possible accommodations. (D17)
  1. The end of the Public Health Emergency declaration does not automatically provide grounds to terminate reasonable accommodations that may continue to be needed to address ongoing circumstances (e.g. continued high risk to individuals with certain disabilities if they contract COVID-19 as discussed in CDC guidance). However, employers may engage in the interactive process to determine if, on an individualized basis, they are still necessary and whether alternative accommodations might meet those needs. (D20)
  1. The EEOC reminds employers that harassing an employee with a disability-related need to wear a mask or take other COVID-19 precautions or harassing an employee who is receiving a religious accommodation to forgo mandatory vaccination may violate Equal Employment Opportunity laws. 

What should employers do? The EEOC’s updated guidance allows, but does not require, employers to continue some of the COVID-19 protocols that were in place during the pandemic. It remains to be seen how much deference courts will give to the EEOC’s informal guidance, and as the EEOC recognizes, it is subject to change based on changing circumstances and guidance from the CDC and other public health authorities. What is certain is that COVID-19 litigation is expected to continue due to the strong and divergent views on the issues and, as a result, employers should carefully think through their practices to determine whether they still make sense for their workforce due to current circumstances.  

Employers should reach out to the Jackson Lewis attorney with whom they regularly work to discuss their current COVID-19 practices and the changes in federal and state COVID-19 law and guidance.

Maryland Governor Wes Moore has signed an amendment (Senate Bill 828) modifying the 2022 law that established the state’s paid leave system, the Family and Medical Leave Insurance (FAMLI) Program.

The Time to Care Act establishes an insurance-like program for paid leave. Employees and employers will contribute to a shared fund, which will generally pay out up to 12 weeks of paid leave when a qualifying employee requests leave.

Following the amendment, collection of employees’ and employers’ contributions to the FAMLI fund has been pushed back a year and will begin October 1, 2024. Payout of benefits has also been delayed a year and will begin January 1, 2026.

Further, rather than let the Maryland Department of Labor (MDOL) set the contribution rates, as previously envisioned, the modifying law sets the contribution ratio for qualifying employers at 50/50, with employees and employers sharing equally in contributions. Importantly, the new law also caps the total rate of contribution at 1.2% of an employee’s covered wages. In other words, combined contributions cannot exceed 1.2% of an employee’s pre-tax wage base.

The modified FAMLI Program will not require employees to exhaust all of their employer-provided paid sick leave, paid vacation or other paid time off before receiving benefits. Still, employers will have a say in managing the relationship between their employer-provided plans and paid FAMLI leave. If an employee agrees, an employer can pay out portions of the individual’s accrued paid leave in combination with FAMLI leave to provide up to 100% of their average weekly wage.

Finally, the MDOL will promulgate additional regulations by October 1, 2023. These, too, should provide a better idea of the ins and outs of the FAMLI Program. We will provide an update when those regulations are available. Please contact a Jackson Lewis attorney with any questions.

The U.S. COVID-19 Public Health Emergency will end on May 11, 2023, one week after the World Health Organization determined that COVID-19 is no longer a Public Health Emergency of International Concern. On that same day, the Biden-Harris Administration has announced it will end COVID-19 vaccination requirements for federal employees, federal contractors, and international air travelers. The Administration also announced that the Department of Health and Human Services and the Department of Homeland Security will start the process to end their vaccination requirements for Head Start educators, healthcare facilities certified by the Centers for Medicare & Medicaid Services (CMS), and certain noncitizens at the land border. 

COVID-19 still exists but like all emergencies, the COVID-19 Public Health Emergency was never intended to last forever. Thankfully. We will undoubtedly continue to see occasional upticks of COVID-19 infections. But for now, the CDC’s COVID-19 Community Levels map shows low levels across almost the entire U.S. except for scattered small, pockets of medium and high levels. And with more people having some level of immunity either due to past exposure, vaccination, or a hybrid mix of both, and with the increased availability of therapeutics, COVID-19 presents a lower risk of severe illness across the United States. As explained recently by the CDC: 

The United States has mobilized and sustained a historic response to the COVID-19 pandemic. As a nation, we now find ourselves at a different point in the pandemic – with more tools and resources than ever before to better protect ourselves and our communities.

The end of the U.S. Public Health Emergency does not mean the end of all COVID-19 regulation.  Some state and local requirements remain in place. But it is a good time for employers who might still have COVID-19 protocols in place to assess whether those protocols still make sense for their workplace in light of our current COVID-19 circumstances. Policies like testing and vaccination, and some accommodations, should be reviewed for legal compliance given the changes. The end of the Public Health Emergency provides employers a good opportunity to communicate with employees regarding what to expect in the workplace on a going forward basis and hopefully start to put the COVID chapter behind us.

Please reach out to the Jackson Lewis attorney with whom you regularly work to discuss all these issues. 

 

The Biden-Harris Administration has announced that, at the end of the day on May 11, 2023, it will end COVID-19 vaccination requirements for federal employees, federal contractors, and international air travelers. The COVID-19 public health emergency also will end on the same day. 

Learn more here.

Last year the City of Bloomington, Minnesota became the fourth city in Minnesota to pass an ordinance requiring certain employers provide paid sick and safe leave to eligible employees. The City of Bloomington’s Earned Sick and Safe Leave (ESSL) Ordinance is set to go into effect on July 1, 2023. In light of the upcoming effective date, the City recently posted Initial Rules implementing the Ordinance and providing additional guidance to employers.

Covered Employees

The Rules clarify that ESSL applies to all workers (including part-time and temporary employees), irrespective of U.S. citizenship status, who perform work within the City of Bloomington for at least 80 hours in a calendar year. The Rules also emphasize that employers are required to provide  ESSL to an employee physically working in Bloomington city limits, regardless of an employer’s location.

The Rules permit employers with employees who work in multiple cities during a work shift to make a reasonable estimate of the employee’s time spent working in the City of Bloomington for the purposes of calculating coverage, accrual and use. The Rules identify documentation an employer may use in estimating the employee’s time spent in the City, including “dispatch logs, employee logs, delivery addresses and estimated travel times, or historical averages.”

Accrual of ESSL

Under the Ordinance, employees accrue one hour of ESSL per 30 hours worked, up to a maximum of 48 hours in a year. In accordance with January 2023 amendments to the Ordinance, the Rules clarify that employers may permit employees to accrue time in fractions of an hour.

The Rules further clarify that employees may begin using accrued ESSL on the 91st day following the start of their employment. Current employees are entitled to use accrued ESSL on the effective date of the Ordinance or the 91st day of employment, whichever comes later.

Employer Notice and Record Keeping Obligations

Similar to the Minneapolis, St. Paul and Duluth sick and safe time ordinances, employers who have an employee handbook must include notice of employees’ rights and remedies under the Bloomington ESSL Ordinance by providing a copy of the workplace notice poster in the handbook. The Rules also require an employer provide employees with a copy of the poster in any type of “orientation material” provided. The Rules do not, however, expand on what the City defines as “orientation material.” While the notice poster is currently available in English, the City Attorney’s Office is anticipated to make available workplace notice posters in Chinese, Khmer, Spanish, Somali, and Vietnamese.

Employers must also provide employees with earnings statements showing the number of ESSL hours accrued and unused at the end of each pay period.

Additional Information Forthcoming

The City of Bloomington is expected to publish an FAQ guide by the end of this month, April 2023. The FAQs will be available on Bloomington’s Earned Sick and Safe Leave website.

What’s Next?

In response to Bloomington’s new Initial Rules and in light of the upcoming effective date, covered employers should consider taking these steps: (1) review current policies to determine compliance with the Ordinance and Initial Rules, and (2) update employee handbooks and orientation materials if necessary.

For more information on the Bloomington ESSL Ordinance, see our articles,  Bloomington Becomes the Fourth City in Minnesota to Require Paid Sick and Safe Leave and Bloomington and St. Paul’s Sick and Safe Time Ordinances Get Checkups in the New Year.

The Bloomington ESSL Ordinance is included in our leave law map database that provides subscribers with a detailed explanation of state and local leave laws around the country. The Leave and Accommodation Suite is developed and updated continually by our Disability, Leave & Health Management attorneys. Register here if you would like to learn about our Leave & Accommodation Suite.

If you have any questions, please contact the Jackson Lewis attorney(s) with whom you regularly work. 

(Law clerk Kaylyn Stanek contributed significantly to this article.)