No fewer than 60 Minneapolis employers are sick about their failure to play it safe in complying with the city-wide Sick and Safe Leave Ordinance. As reported by the StarTribune on Monday, Minneapolis cited these employers failing to abide by the ordinance made effective last July, when Minneapolis and St. Paul would become the first major Midwestern cities to enact ordinances mandating that employers operating within their respective boundaries provide paid sick and safe leave for their employees. The ordinances each require employers, regardless of location, to provide sick and safe leave for any employee who works more than 80 hours per year within each city’s limits.
A court challenge to the Minneapolis ordinance was partially successful, but only to the extent that the ordinance applied to employees of an employer located outside the city (e.g., delivery drivers, home service and repair providers, etc.).
These citations should serve as a warning shot for Minneapolis and St. Paul employers, who have not already done so, to take steps to comply with the ordinances.
Both ordinances share the following features:
· Sick and safe leave must be provided to employees who work at least 80 hours per year (an average of about 1.5 hours per week) within city limits.
· Eligible employees must be offered paid sick and safe time accruing at the rate of at least one hour for every 30 hours worked.
· Sick and safe time may be capped at 48 hours per year.
· Employees must be allowed to accrue and bank up to 80 hours total.
· Sick and safe time begins to accrue on the first day of employment, although employers may implement a waiting period of up to 90 days before the employee may use the leave.
· Employers may require that sick and safe leave be used in minimum increments of up to four hours, if consistent with any paid non-sick leave policy.
· Sick and safe leave may be used for the mental or physical health condition of the employee or a family member (broadly defined), absences due various issues relating to domestic abuse, sexual assault or stalking of the employee or a family member and for various public health and weather-related issues.
· Employers may require documentation for sick and safe leave unless the leave is for fewer than four consecutive days.
· Employers must post notices, in the form approved by each city, of employee rights under the ordinances on bulletin boards and in employee handbooks.
· Records of employee hours worked within the border of each city and the accrual and use of sick and safe time for eligible employees must be maintained for three years. Employers that do not maintain such records will be presumed to be in violation of the ordinances.
· Employers of construction employees will be deemed compliant under both ordinances by paying at least the state prevailing wage or the rate required in an applicable registered apprenticeship agreement, regardless of whether the project is public or private.
· PTO policies that otherwise comply with the sick and safe time requirements may remain in effect.
It is worth noting that although the Twin Cities ordinances share many significant features, they are not identical twins. The differences are few, but they are not insignificant, and there are some employers that must comply with both mandates. The differences include:
Exemptions
The Minneapolis ordinance exempts employers with fewer than five employees from the paid leave requirements. Those with five or fewer employees, however, must provide 48 hours of unpaid leave per year.
The St. Paul Ordinance is effective July 1, 2017, for employers with more than 23 employees and January 1, 2018, for the remainder.
St. Paul provides no exemption to the paid leave requirement for small employers.
Minneapolis has exemptions for certain on-call employees. St. Paul does not.
The Minneapolis ordinance allows employers operating under a collective bargaining agreement to negotiate alternate means of meeting the goals of the ordinance. St. Paul’s version expresses no such exception.
Records
Minneapolis requires employers to maintain records for each employee showing accrued and used safe and sick time “for each day of the workweek.” St. Paul does not require a day-by-day record.
Startups
In Minneapolis, startup businesses are exempt from paid leave requirements for their first 12 months of operation. In St. Paul, the cutoff is six months.
In both cities, eligible employees are entitled to unpaid leave during these periods.
Enforcement
St. Paul’s ordinance provides a private right of action for retaliation. The Minneapolis ordinance prohibits retaliation but does not expressly provide for a private cause of action.
Recommendations
All organizations doing business in Minnesota should determine whether they have any employees who could arguably be covered by either city’s sick and safe leave requirements and take appropriate measures to ensure compliance, among them:
· Review employee handbooks and other personnel, payroll and leave recording policies, practices and procedures to ensure compliance with these ordinances – covered employers with employee handbooks will be required to include appropriate notices in them.
· Comply with record-keeping, notice and disclosure requirements – even employers with PTO policies that comply with the ordinances’ accrual and cap requirements must maintain detailed records of entitlement and use. The infractions range from minor oversights — such as not posting the new rules inside the business — to more significant, such as denying mandatory sick days to employees even after being contacted by city inspectors.
