As expected, on May 29, 2018, the Duluth City Council voted to pass the Earned Sick and Safe Time Ordinance (“Ordinance”). The Ordinance currently mandates that employers (wherever located), with 5 or more employees, provide paid sick and safe leave to employees starting January 1, 2020. That being said, given the recent ruling on the Minneapolis Ordinance, I would not be surprised if Duluth’s Ordinance is challenged as well, and eventually limited to employers with a business in Duluth.
What Does the Duluth Earned Sick and Safe Time Ordinance Require?
Effective January 1, 2020 employers are required to provide employees with 1 hour of earned sick and safe time for every 50 hours worked, up to 64 hours per year. However, the Ordinance only allows employees to use up to 40 hours of accrued but unused sick and safe time each year. Alternatively, employers can comply with the Ordinance by front-loading at least 40 hours of earned sick and safe time following the initial 90 days of employment each year and again at the beginning of each subsequent year.
Accrual begins at the commencement of employment, or for current employees, January 1, 2020. If an employee has unused accrued sick and safe time at the end of the year, the employee may carry over 40 hours of accrued but unused sick and safe time into the next year. Employers are not required to payout the accrued but unused sick and safe time hours upon termination or other separation from employment (make sure your handbook is clear especially if you have different types of time off such as vacation, sick, etc.).
Employers must compensate employees at their standard hourly rate, or an equivalent rate for salaried employees. The Ordinance does not require compensation for lost tips or commissions.
Who Is An “Employer” and “Employee” Under the Ordinance?
All individuals, corporations, partnerships, associations, nonprofit organizations with 5 or more Employees (as defined below), are considered an “employer” under the Ordinance. The number of employees is calculated based on the average number of employees per week in the previous year. Temporary employees from a staffing agency are considered an employee of the staffing agency under the Ordinance. Notably, in an attempt to avoid challenges to the Ordinance similar to the ones that arose surrounding the Minneapolis Sick and Safe Time Ordinance, the Duluth Ordinance defines an “employee” as:
- A person working within the geographic boundaries of Duluth for more than 50% of the employee’s working time in a 12-month period, or
- “is based in the city of Duluth and spends a substantial part of his or her time working in the city and does not spend more than 50 percent of their work-time in a 12-month period in any other particular place.”
The Ordinance does not cover independent contractors, student interns, or seasonal employees.
Construction Company Opt-Out
Similar to the Minneapolis Ordinance, construction companies may opt to satisfy the requirements of the Ordinance by paying at least the prevailing wage rate (Minn. Stat. 177.42), or the rates set for in a registered apprenticeship agreement.
What If An Employer Already Offers Paid Time Off?
The Ordinance allows employers to adopt more generous (but not less) sick and safe time policies. Employers can opt to establish a policy that allows employees to donate unused accrued sick and safe time to another employee or to allow employees to use sick and safe time prior to accrual.
What Can Accrued Sick and Safe Time Be Used For?
After 90 calendar days of employment, employees may use accrued sick and safe time hours 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 of the employee of family member.
A “family member” includes: an employee’s child, adopted child, adult child, foster child; legal ward, or child for whom the employee is a legal guardian; spouse or domestic partner; sibling, stepsibling or foster sibling; parent, stepparent, mother-in-law, father-in-law; grandchild, foster grandchild, grandparent, step-grandparent; and any other individual related by blood or whose close association with the employee is the equivalent of a family relationship.
What Can Employers Require of Employees?
An employer may require employees’ requests for sick and safe time to comply with the “usual and customary notice and procedural requirements for absences or leave.” However, the usual and customary practices cannot interfere with the purpose for which the leave is being requested. For absences longer than three consecutive days, the employer may require reasonable documentation that the sick and safe time is covered under the appropriate uses.
Employers must notify employees of the following:
- Employees are entitled to earned sick and safe time;
- The amount of earned sick and safe time;
- The terms of its use;
- Prohibition against retaliation for requests or use of earned sick and safe time; and
- Employees’ right to file a written complaint to the city clerk for being denied rights under the ordinance or for retaliation.
Recordkeeping, Confidentiality & No Retaliation
Employers must keep records of the following for three years:
- Hours worked by employees;
- Number of earned sick and safe hours accrued; and
- Number of earned sick and safe hours used.
An employer is required, upon request form the city clerk’s office, to provide access to these records for investigations or monitoring purposes. Additionally, the Duluth Ordinance contains provisions similar to Minneapolis that require an employer reinstate an employees unused accrued sick and safe hours when the employee who was separated from employment is rehired within 90 days. Employers must keep all health or medical information collected in connection with an employee’s request or use of sick and safe time confidential, unless consented to by the employee or ordered by a court or agency. As with most laws regarding employee rights, employers are prohibited from retaliating against an employee for invoking his/her rights under the Ordinance.
What Happens If An Employer Violates the Ordinance?
The city clerk’s office has sole discretion to decide whether to initiate an investigation or pursue a complaint. If the office pursues a complaint, the employer will receive, via mail, a notice and description of the allegations accompanied by a request for a position statement, records, or other information. The employer will have to comply with the request within 30 days. Upon a determination of a violation, the city clerk may order any appropriate relief, including, but not limited to:
- Reinstatement and back pay.
- The crediting to an employee of any accrued sick and safe time accrued but not credited.
- The payment of any accrued sick and safe time unlawfully withheld.
- An administrative penalty.
Additionally, once all other remedies set for in the ordinance have been exhausted, an injured individual may bring a civil action in district court.
The Ordinance and more information can be found on Duluth’s website. Employers located in Duluth with “employees” should be sure to revise your employee handbook and policies to ensure compliance by January 1, 2020. Employers not located in Duluth should also keep this on your radar, but watch for developments in litigation as it is likely to be challenged.