As predicted in my earlier post, on September 7, 2016, St. Paul joined Minneapolis in unanimously approving a sick and safe leave ordinance – with a very big difference. Unlike Minneapolis, the St. Paul ordinance mandates paid leave be provided by all sizes of employers. For purposes of the St. Paul Ordinance, an “employer” is a person or entity that employs 1 or more employees – even if that person is part-time or a temporary employee. As of July 1, 2017, employees working in the city for a large employer “shall” be provided paid time off for sick leave, safe leave, and…snow days.
What Does the St. Paul Sick and Safe Time Ordinance Require?
The St. Paul Ordinance is effective July 1, 2017 for large employers (those with 24 or more employees), and January 1, 2018 for smaller employers. Similar to Minneapolis, employees working in St. Paul will accrue sick and safe time leave at the rate of 1 hour for every 30 worked, up to an annual cap of 48 hours (either calendar or fiscal year). Employees must be allowed to use sick and safe time after 90 calendar days of employment. Employers must permit an employee to carry over at least 80 hours of accrued but unused sick and safe time into the following year.
Accrued but unused sick and safe time does not need to be paid out at termination. Employees must be able to use the leave in the same increment of time consistent with current payroll practices and existing employer policies (but no more than 4 hours). They must be compensated at the same hourly rate with the same benefits (except they are not entitled to lost tips or commissions and compensation is only required for the hours the employee was scheduled to work).
Who Is An “Employer” and “Employee” Under the Ordinance?
The Ordinance defines these terms with specificity, but here it is in a nutshell:
- An “Employer” is a non-government person/entity employing one (1) or more employees.
- An “Employee” is any individual employed by an Employer (including temps and part-time) that performs work for the Employer within St. Paul for at least 80 hours in a year. An Employee is not an independent contractor.
- “Family Members” are children (step, adopted, foster, adult); spouse; sibling; parent (step and in-laws); grandparents; grandchildren; guardian (ward, or member of household); registered domestic partner; and “any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship”
Unlike Minneapolis’ ordinance, this Ordinance does not specifically allow employers operating under a collective bargaining agreement to develop alternate means of meeting the goals of the Ordinance. In fact, the St. Paul ordinance sates that, “Nothing in this chapter shall be construed as diminishing the obligation of an employer to comply with any contract, collective bargaining agreement, employment benefit plan, or other agreement providing more generous sick and safe time to an employee than required herein.”
Construction Company Opt-Out
Also like Minneapolis, construction companies may opt-out of this Ordinance if the employees are paid at least the Minnesota prevailing wage (Minn. Stat. 177.42) or the rates set forth in a registered apprenticeship agreement. Such employers shall be deemed in compliance for those employees who receive either prevailing wage rate or the apprenticeship rate – regardless of whether the employees are working on a private or public project.
What If An Employer Already Offers Paid Time Off?
Employers may certainly have more generous sick and safe time policies – but no lesser. Employers do not need to offer additional paid time off to employees if they already offer the same amount of PTO to employees that “may be used for the same purposes and under the same conditions.” In other words, the PTO policy must meet these minimum standards of accrual, use, recordkeeping, notices, etc.
Further, the Ordinance does not prohibit employers from having policies allowing donation of this paid leave to other employees – so an employee may accrue the time but not “use” it, instead “donating” it to another (seems to me that this goes against the whole purpose of the ordinance for the benefit of that employee). Employers may also advance sick and safe leave to an employee prior to accrual.
What Can Accrued Sick and Safe Time Be Used For?
Like Minneapolis, after 90 calendar days of employment, an employee may use sick and safe time for:
- Mental or physical illness, injury, or health condition (theirs or family members).
- Medical diagnosis, care, or treatment of a mental or physical illness, injury or health condition (theirs or family member).
- Preventative medical or heath care (theirs or family member).
- Absence due to domestic abuse, sexual assault, or stalking (so long as the absence is to seek related medical attention, victim services, counseling, relocation or legal action).
- Closure of the employer’s business by a public official due to public health emergency or an infectious or hazardous situation.
- Accommodation of need to care for child whose school or daycare has been closed by a public official due to public health or emergency situation.
- Accommodation for need to care for 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.
Unlike Minneapolis, the St. Paul ordinance does not carve out that a health care provider may only use sick and safe time when the provider has been scheduled to work (this does not include when the provider calls in and requests a shift within 24 hours or for on-call shifts – unless asked to remain on the premises during the on-call shifts).
What Can Employers Require of Employees?
The St. Paul ordinance requires an employee to do far less to obtain this new benefit. Whereas a Minneapolis employer may require an employee to provide up to 7 days’ advance notice of foreseeable leave (such as doctor appointments) if the employee intends to use sick and safe time leave and notice of the need to use such leave “as soon as practicable” when it is unforeseeable (such as domestic violence), St. Paul only states that:
Earned sick and safe time shall be provided upon the request of an employee.”
Like Minneapolis, St. Paul employers may require “reasonable” documentation that the leave is covered for absences of 3 or more days. For all leave, “when possible, the request shall include the expected duration of the absence.” Further, “An employer may require an employee 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.” In other words… “sick and safe time shall be provided upon the request of an employee”.
Notices Required at Workplace, Employee Handbook & Upon Request
Employers must post a notice that addresses the following: “Employees are entitled to earned sick and safe time; the amount of earned sick and safe time and the terms of its use guaranteed under this chapter; that retaliation against employees who request or use earned sick and safe time is prohibited; and that each employee has the right to file a complaint or bring a civil action if earned sick and safe time as required by this section is denied by the employer or the employee is retaliated against for requesting or taking earned sick and safe time.” The St. Paul Department of Human Rights and Equal Economic Opportunity (HREEO) will be creating a model notice for employers to use, which must be displayed in a “conspicuous and accessible place”.
Further, if you have an employee handbook – which I strongly advocate every employer should – the notice must be included in the handbook. Also, upon request, the employee must be provided their then-current hours of sick and safe leave he or she has earned, and how much has been used. This may be provided on a pay stub or other online system for employees to access their own information.
Recordkeeping, Confidentiality & No Retaliation
Employers must keep records of hours worked and sick and safe time taken for 3 years. HREEO may have access to the records to monitor compliance, as well as the employee. Similar to Minneapolis, if an employee is transferred to a location outside of St. Paul by the same employer, and the employer doesn’t have sick and safe leave outside the city, the employer has to keep the employee’s accrued time on the books for 3 years. If that employee returns to work in the city within 3 years, the employee is entitled to all previously accrued time not used. Thus, employers that have employees perform work in Minneapolis and St. Paul should consider providing this leave outside of the city so that there is only one bucket of paid leave for all work, wherever performed.
Further, if an employee is terminated but thereafter returns to the same employer within ninety (90) days, his or her sick and safe leave must be reinstated and the employee may use it at the commencement of reemployment (no 90 day wait). In the case of mergers and acquisitions of businesses where the employees remain, the employees accrued time remains intact (no 90 day wait).
Not surprising, any health or medical information collected as a result of the employee’s use of sick and safe time must be treated as confidential. As with any laws providing employee rights, retaliation for any employee actions under this Ordinance must be prohibited.
What Happens If An Employer Violates the Ordinance?
Any person may report a suspected violation. The HREEO Director may decide to investigate and/or pursue a violation. Note, the “relief and administrative fines” are different than Minneapolis (and the procedure a little less clear at this point):
- Reinstatement and back pay.
- For the first violation – payment to the employee of the time unlawfully withheld x2 or $250, whichever is greater, as liquidated damages.
- For a second violation against the same employee – an additional fine payable to the City of St. Paul, up to $1,000.
- For a third violation against the same employee – ad additional penalty of up to $1,000 to the employee, or an amount equal to 10% of the total amount of unpaid wages, whichever is greater.
- Administrative penalty of up to $1,000 payable to the employee for each violation.
- Administrative fine of up to $1,000.
An employee, former employee or employer may appeal any violation of this Ordinance within 21 days from the determination. Following the appeal process, the violation determination becomes final. If an employer does not comply the City of St. Paul may initiate a civil action in Court against the employer and, upon prevailing, “shall be entitled to such legal or equitable relief as may be appropriate to remedy the violation.” Further, an employee does have a private right of action to sue the employer directly in district court if retaliated against for exercising rights under the Ordinance.
The HREEO has to create the notice for employers. It’s expected that the HREEO will also adopt guidelines and regulations for its implementation. As to the bigger picture, as predicted in my blog about Minneapolis’ ordinance, I suspect Duluth will be next as on July 18, 2016, the Duluth City Council approved a resolution establishing an earned sick and safe time taskforce.