Earned Sick and Safe Leave (ESSL)

What is the City of Bloomington’s Earned Sick and Safe Leave (ESSL) Ordinance?

The Earned Sick and Safe leave ordinance is a law in Bloomington that establishes minimum standards for employers to provide paid and unpaid time off work for certain types of employees that work in Bloomington.

Why was the Earned Sick and Safe Leave Ordinance created?

The ordinance was created to allow employees time to care for themselves and family members, and to ensure their protection and wellbeing; to safeguard the public welfare, health, safety, and prosperity of the citizens of and visitors to Bloomington; To reduce public and private health care costs in Bloomington by enabling individuals to seek early and routine medical care for themselves and their family members; To assist victims of domestic abuse by providing them with job-protected sick and safe leave time away from work to allow them to receive treatment and to take the necessary steps to ensure their protection and wellbeing;

What is Earned Sick and Safe Leave (ESSL)?

ESSL is paid or unpaid time off that employees may use to care for themselves or family members.

Eligible reasons include:

• Getting care for mental or physical illness, injury, or health condition or preventive medical or health care.
• Closure of the employee’s place of business by a public official’s order, closure of school or place of care by a public official’s order, closure of school or place of care due to inclement weather, loss of power, loss of heating, loss of water, or other unexpected closure.
• Medical and psychological counseling due to sexual assault, domestic abuse, or stalking
• Relocation, victim services, and other safety planning due to sexual assault, domestic abuse, or stalking
• Seeking a restraining order or legal counsel or participating in a legal proceeding due to sexual assault, domestic abuse, or stalking.

When does the Earned Sick and Safe Leave Ordinance go into effect?

The Earned Sick and Safe Leave Ordinance goes into effect on July 1, 2023.

Which type of employers must provide Earned Sick and Safe Leave to its employees?

The City of Bloomington, any individual, corporation, partnership, association, nonprofit organization, or group of people are required to provide Earned Sick and Safe Leave to each eligible employee working within the Bloomington City limits.

Who is considered a family member or member of household?

Family member or member of household means:

• The employee's child, stepchild, adopted child, foster child, adult child, spouse, sibling, parent, stepparent, mother-in-law, father-in-law, grandchild, grandparent, guardian, ward, or domestic partner
• People who currently reside in the employee’s home

Who is covered by the ordinance?

Full-time, part-time, and temporary employees who work within the Bloomington City limits for 80 hours or more in a year.

Who is not covered by the ordinance?

Independent contractors, student interns, extended employment program workers, government employees who work for the United States federal government, the State of Minnesota and its offices, departments, agencies, authorities, institutions, associations, societies, the legislature and the judiciary, county, and local governments are not covered by the ordinance.

Are employees of Bloomington Public Schools and public colleges and universities such as Normandale College covered by the Ordinance?

No, but employees of third-party contractors for these public institutions must comply with the Ordinance.

Are Bloomington charter schools covered?

Yes.

Are all employers required to provide paid sick and safe leave to employees?

No, employers who have fewer than 5 employees are required to provide unpaid sick and safe leave, but they may decide whether to provide paid leave. Employers with 5 or more employees are required to provide paid sick and safe leave to employees and may not choose to provide only unpaid leave.

Can employers give employees more leave than the amount required by the Earned Sick and Safe Leave ordinance?

Yes, employers may choose to be generous and provide more leave than required by the ordinance.

Does an employee have to live in Bloomington to receive Earned Sick and Safe Leave?

No, an employee must work within the city limits of Bloomington to receive Earned Sick and Safe Leave.

What does “accrual” mean?

Accrual describes how something increases or “adds up” (accrues). As time passes and an employee works more hours, the employees accumulate more earned sick and safe leave hours. According to the ordinance, employees accumulate 1 hour of ESSL for every 30 hours worked within the city limits of Bloomington.

When do employees begin to accrue paid Earned Sick and Safe Leave?

Existing employees begin to accrue paid ESSL on July 1, 2023, the effective date of the ordinance. Employees who start work after the effective date of the ordinance begin to accrue on their starting date of employment. However, employers are not required to allow the employee to use accrued ESSL until the employee’s 91st day of employment with the employer.

Do employees accrue Earned Sick and Safe Leave when on vacation or out sick?

No, the ordinance does not require the accrual of ESSL when an employee is on vacation or out sick. Earned Sick and Safe Leave is only accrued when an employee is working.

How many hours of Earned Sick and Safe Leave can an employee earn in a year?

The employer may not cap accrual at fewer than 48 hours. However, an employer may choose to allow more than 48 hours accrual.

Do Earned Sick and Safe Leave hours accrue on overtime hours worked?

For an employee who is not exempt from earning overtime compensation under federal and Minnesota wage-hour laws, ESSL hours accrue on all hours worked, including overtime hours.

How does an exempt employee accrue Earned Sick and Safe Leave hours?

Exempt employees (employees who are exempt from overtime pay requirements under the federal and Minnesota wage-hour laws) are presumed to work 40 hours per week for the purposes of ESSL accrual. In instances where there is clear evidence that an exempt employee’s regular work week is less than 40 hours, ESSL accrues based upon that employee’s actual regular work week.

How does an employer comply with the ESSL ordinance if offering unlimited ESSL?

A sentence on the pay statement stating that there is unlimited ESSL offered would suffice. It could also be stated in orientation materials and the employee handbook.

How do I know if my employee’s work location(s) is located within the geographical boundaries of the City of Bloomington?

You can visit the link below and enter the work location address to determine if it is within the geographic boundaries of the City of Bloomington: https://bit.ly/3sLigRF

Can an employer require advance notice of an employee’s intention to use Earned Sick and Safe Leave?

Yes and No. An employer may require not more than 7 days advance notice of an employee's intention to use ESSL if the need for use is anticipated or expected. Advance notice is not required if the need for use is unexpected.

Is the employer allowed to require documentation showing the need to use Earned Sick and Safe Leave?

Yes, an employer is allowed to require documentation showing the need to use ESSL if an employee is going to be absent for more than 3 consecutive days provided the employer provides health insurance benefits to the employee.

Can an employer credit Earned Sick and Safe Leave hours for employees on a weekly, monthly, or quarterly basis etc. ahead of hours worked?

Yes, an employer may calculate and credit accrual ahead of hours worked. However, employers must ensure that a sufficient number of hours are given. Failure to credit enough hours in advance (at least one hour per 30 hours worked, up to yearly and overall caps of at least 48 and 80 hours) must be remedied within one month to avoid a violation of the ESSL Ordinance.

At what rate does an employee accrue Earned Sick and Safe Leave?

The minimum rate at which an employee accrues ESSL is one hour for every 30 hours worked in the City.

Scenario: Julian has worked 120 hours. How many ESSL hours has he accrued? Julian has accrued four ESSL hours. After 150 hours worked, he will accrue a fifth ESSL hour.

How frequently must an employer calculate and record Earned Sick and Safe Leave hours?

Employers may calculate and record ESSL hours at the same frequency as the employer’s other typical payroll practices (e.g., per pay period, weekly, bi-weekly, twice per month etc.), as long as it is recorded at least once per month.

Do employees accrue Earned Sick and Safe Leave in hour-unit increments or fraction of an hour increments?

It is up to the employer whether ESSL accrues in increments of whole hours or fractions of an hour. Upon completion of every 30 hours worked, an employee accrues at least one additional hour of ESSL. Employers may exceed this minimum standard by recording time in fractions of an hour.

Scenario: Employee Aamina has worked 80 hours. How many hours of ESSL has she accrued? She has accrued at least two ESSL hours. Her employer may choose to record additional time in fractions of an hour. If Aamina continues, at the end of 1440 hours worked in Bloomington, she has accrued at least 48 (1440/30) hours of ESSL, recorded at least monthly.

Does the ESSL ordinance cover those employees under the age of 18

Yes.

How does an employee who is paid based on productivity accrue Earned Sick and Safe Leave hours?

When an employee is compensated based on productivity, accrual of sick leave is measured by the actual length of time spent performing work.

Can I carry over unused accrued Earned Sick and Safe Leave into the following year?

Yes, unused accrued ESSL time can be carried over into the following year, but an employer is not required to allow the accrual of more than 80 hours.

Scenario: Employee Anthony accrued 30 hours by the end of the first benefit year of his employment. However, he did not use any. His employer must carry-over those 30 hours into the following benefit year. Employee Anthony may then accrue additional hours.

What does “calendar year” mean?

Any consecutive 12-month period of time as determined by an employer. Most employers will find it helpful to use one of the following:

• Year that runs from Jan. 1 to Dec. 31
• Tax year
• Fiscal year
• Year running from an employee’s anniversary date of employment

Whichever method an employer chooses to measure the calendar year, once established it must be communicated to employees and applied similarly for all employees. Employers must use a consistent measuring period from year to year and from employee to employee.

Can an employer set a limit on how many ESSL hours an employee can accrue?

Yes. Employers may set a cap on each employee’s accrual. Employers must allow each employee to accrue at least 48 hours per year, carried over from year to year, until an 80-hour maximum accrual cap is reached. These two limits operate in tandem. These limits of 48 hours per benefit year and a maximum accrual cap of 80 hours per employee may be higher if an employer chooses, but not lower.

Scenario: Lyndale Consultants limits its employees’ accrual of ESSL to the minimum standard of 80 hours. Anthony accrued 30 ESSL hours by the end of the first benefit year of his employment. These 30 hours carried over into the second benefit year, during which he accrued an additional 48 hours. What happens during the third benefit year? Anthony accrues an additional two ESSL hours (30 hours + 48 hours + 2 hours) before stopping at a limit of 80 hours. He must use some accrued hours in his “bank” of 80 hours before accruing more ESSL.

Once an employee reaches their benefit year cap or maximum accrual cap of Earned Sick and Safe Leave hours (if an employer has set one), do they receive credit for additional hours worked?

No. Once an employee reaches the yearly cap of 48 hours, they no longer accrue ESSL hours for that benefit year. Once an employee reaches 80 hours through carry-over and accrual, they no longer accrue additional hours (even if the yearly cap is not yet met) until they use some of the hours they have "in the bank.” These two limits, 48 hours per benefit year and a maximum accrual cap of 80 hours, operate in tandem. The limits may be higher if an employer chooses, but not lower.

Scenario: Employee Anthony reached his overall accrual cap of 80 hours. Later, Anthony uses eight hours, reducing his bank to 72 (80 – 8). Upon his return to work, he begins accruing again. Following an additional 240 hours worked (240/30 = 8), he replenished his bank back up to 80 hours (72 +8).

May employers who use a January through December benefit year prorate the accrual cap for July 1, 2023, through December 31, 2023?

No.

Can employers count the paid sick and safe leave they provided employees, or that employees accrued and used between January 1, 2023, and July 1, 2023?

Yes.

Scenario: 98th St. Robotics provides employees with 48 hours of ESSL every January 1. Employee Jen used all 48 hours in June of 2023. She does not get to accrue additional hours until January 1, 2024.

See § 23.06(b)(5) in the ESSL Ordinance for more information.

What is “front-loading”?

“Front-loading” is an alternative method of accrual for employers who want to reduce the calculations and record keeping required of per-pay-period (e.g. weekly, bi-weekly, twice-a-month or monthly) accrual. This option allows employers to record accrual only once per year and avoid carryover from year to year. Employees get immediate access to the front-loaded hours at the beginning of each benefit year and do not accrue hours throughout the year.

May an employer front-load yearly Earned Sick and Safe Leave hours for part-time employees?

Yes. However, to avoid carryover, an employer must front-load an employee at least 80 hours (or 48 hours during the first benefit year) at the beginning of every year. Alternatively, employers may provide 48 hours per year and carryover any unused hours into subsequent years (subject to an 80-hour overall cap).

May an employer treat part-time and full-time employees differently, for example, front loading Earned Sick and Safe Leave for some but not others and not violate the ESSL Ordinance?

Yes. As long as an employer provides all employees at least what the employees are entitled to under the ordinance, an employer may provide some but not other employees more or different benefits.

Are there alternative accrual options other than “front-loading” available to employers?

Yes. Employers may provide ESSL hours in advance of hours worked while continuing to provide the carryover of each employee’s unused ESSL hours from the previous year (subject to an 80-hour overall cap). If from January 2024 through June 2024, an employee was front-loaded ESSL hours – i.e. a type of leave that can be used for all ESSL purposes, e.g. sick leave, vacation, or PTO etc. – the employer may count that towards accrual for purposes of compliance for an entire benefit year 2023. Alternatively, employers may carryover any unused hours into subsequent years (subject to an 80-hour overall cap) and provide ESSL hours in advance of hours worked (e.g. 48 at the beginning of each benefit year).

Scenario: Mumtaz is a business owner who employs Sara and provides ESSL hours per year. At the beginning of Sara’s employment, Mumtaz provides Sara 48 hours. Sara does not use any of these hours and the hours carry-over into the next benefit year. At the beginning of the second benefit year, Mumtaz adds an additional 32 hours, up to the 80 hour overall cap. During the second benefit year, Sara uses 70 hours. At that point in time, Mumtaz could provide Sara 16 hours (before reaching the 48 hours benefit year cap) or allow Sara to accrue one hour for every 30 hours worked (up to the 48 hours benefit year cap).

Can an employer credit Earned Sick and Safe Leave hours for employees on a weekly, monthly, or quarterly basis etc. ahead of hours worked?

Yes, nothing in the ESSL Ordinance prevents employers from allowing an employee to access ESSL hours in advance of hours worked. An employer may calculate and credit accrual ahead of hours worked. However, employers must ensure that a sufficient number of hours are given. Failure to credit enough hours in advance (at least one hour per 30 hours worked, up to yearly and overall caps of at least 48 and 80 hours) must be remedied within one month to avoid a violation of the ESSL Ordinance.

Scenario: Full-time (40 hour per week) employee Aamina has completed 1440 hours of work in Bloomington during the first nine months of the benefit year. Aamina has thus far banked at least 48 (1440/30) hours of ESSL. Aamina’s employer could have planned ahead of time the schedule for allowing Aamina access to accrued ESSL hours. For example, it may record six hours per month for eight months; three hours biweekly (or twice-per-month) for eight months; or five and one third hours per month for nine months. In comparison, four hours recorded per month evenly across the entire benefit year would fail to provide Aamina access her accrued time soon enough. Her employer’s compliance depends upon both the amounts and frequency with which it allows Aamina access.

Is there a period of time allowed at the beginning of employment when an employee may not use Earned Sick and Safe Leave?

Yes, although an employee begins to accrue ESSL immediately, an employer may enforce a 90-day period before allowing an employee to use any banked ESSL hours. Following the first 90 calendar days of employment, an employee must be allowed to access ESSL as it is recorded. These 90 calendar days of employment may be completed prior to July 1, 2023.

Scenario (a): Employee Alicia’s first day of work was Aug. 10. At that time, all of her hours worked must count for the purposes of ESSL accrual (i.e. her bank begins to grow immediately). When could she begin to use this ESSL? Her employer may require her to wait 90 days, until Nov. 8.

Scenario (b): As of July 1, 2023, employee Anthony has been employed by the same employer for several years. Must Anthony wait 90 days to use ESSL? No, as of July 1, 2023, Anthony has already completed 90 calendar days of employment.

What is “preventive medical or health care”?

Preventive medical or health care is routine health care such as screenings, vaccinations, checkups, and patient counseling to prevent illnesses, disease, or other health problems. Preventive care may include things like dentist or eye doctor appointments.

May an employee use Earned Sick and Safe Leave following the birth of a child?

Yes, an employee may use ESSL hours during any period of physical or mental recuperation after she gives birth. An employee may also use ESSL to care for a covered family member after the family member gives birth. An employee may use ESSL to care for a covered child’s need for medical diagnosis, care, or treatment of an illness, injury, or health condition, or preventive medical or physical care.

May Earned Sick and Safe Leave hours be used to care for an adult over the age of 18?

Yes. No age restriction applies to the care of a family member.

May an employee use Earned Sick and Safe Leave hours at the same time as other protected leave under other state or federal laws?

Yes. Nothing prevents an employee from using ESSL hours concurrently (at the same time) with the Family and Medical Leave Act (FMLA) or other protected leave to mitigate wage loss. Hours used by an employee as ESSL may also be counted by an employer toward concurrent entitled leave under federal or state law, such as the FMLA. Federal and state laws, such as the FMLA, Americans with Disabilities Act, or the Minnesota Human Rights Act, take 11 precedence when they require employers to do more than the Bloomington ESSL Ordinance. For more information concerning the FMLA, visit the U.S. Department of Labor website at http://www.dol.gov/whd/regs/compliance/whdfs28.pdf.

Is there a cap on the amount accrued of Earned Sick and Safe Leave hours that an employee may use?

An employee may use all of the ESSL hours that they have banked at any given time. There are no limits on use allowed in the ESSL Ordinance.

Scenario: Employee Sara has accrued 80 ESSL hours that carryover to a new benefit year She had surgery and requests to take off two weeks—all of the ESSL she has banked. May her employer impose restrictions on how much ESSL Sarah uses? No. All of her banked hours are available for her to use and she may accrue additional hours (up to yearly and overall caps) to replace them after their use. She can use all 80 hours to recuperate from her surgery. During the new benefit year, Sara uses 70 hours. At that point in time, her employer could provide Sara 16 hours (before reaching the 48 hours benefit year cap) or allow Sara to accrue one hour for every 30 hours worked (up to the 48 hours benefit year cap).

If an employer offers a Paid Time Off (PTO) plan or other sick or vacation leave, does that satisfy the requirements of the ordinance?

The name of an employer’s paid time off plan or other leave policy does not matter. A PTO plan (or any other type of leave, including sick or vacation) can satisfy the ESSL Ordinance requirements if the plan: (1) provides employees at least as much leave as required by the ESSL ordinance; (2) allows employees to use the leave for all of the reasons and under the same conditions required by the ESSL ordinance; and (3) lists on employee pay statements the leave accrued and available.

Scenario: An employer offers 80 hours of PTO per year. Does it need to begin referring to its PTO as “Earned Sick and Safe Leave”? No. The law does not require explicit reference to any employee programs or leave as “Earned Sick and Safe Leave”. The name used by employers does not matter. The amounts and conditions of use for time off work determine whether or not a PTO policy complies with the ESSL Ordinance. For example, advance notice requirements for approval of PTO when used for vacation cannot be applied in a case of sudden illness.

When does an employer need to offer additional Earned Sick and Safe Leave hours?

If an employer offers PTO or vacation days that may be used for any purpose and under the same conditions outlined in the ESSL Ordinance, at a rate of at least 1 hour per thirty hours worked, the employer is not required to offer additional leave. However, it may choose to do so. An employer may also combine amounts of sick leave and vacation or PTO it offers to cumulatively meet the minimum threshold amounts required under the ordinance.

Scenario: An employer offers each of its employees 80 hours paid per year of time off to use for any purpose. The time off is available throughout the benefit year. Is the employer in compliance with the ESSL Ordinance? Yes, the employer complies with the ordinance, provided that any conditions of use are consistent with the ordinance.

If an employer uses a PTO plan (or any other type of leave that encompasses all Earned Sick and Safe Leave ordinance purposes) to comply with the ordinance, does the employer need to track how an employee uses leave and ensure sufficient amounts are used for ESSL purposes?

No. Employers must provide access to leave that may be used for ESSL purposes. An employee who chooses to use this leave for other purposes is not entitled to additional ESSL. The employer must still list the accrued and available leave hours on employee pay statements.

What records must employers retain?

Employers may adopt or retain any record-keeping policies or practices, as long as their records indicate:

• For non-exempt employees, hours worked;
• Hours of leave available for Earned Sick and Safe Leave purposes; and
• Hours of leave used

Employers must retain these records for three years in addition to the current year and allow access to the employee and/or the Bloomington City Attorney’s Office upon request.

Are employers required to inform employees of their rights under the Earned Sick and Safe Leave Ordinance?

Yes. As of July 1, 2023, employers must display a Bloomington-specific workplace poster in a conspicuous and accessible location within each of their facilities in Bloomington. The poster should be displayed where employees can easily read it. Employers must display the poster in English and in each of the primary language(s) spoken by employees at the particular workplace. An employer that provides an employee handbook or any orientation materials to its employees must also include a copy of the workplace poster. The required workplace poster is available for download here: https://blm.mn/essl

What are the requirements for notifying employees about their balance of available Earned Sick and Safe Leave hours?

Under the ESSL Ordinance, employers must provide this information on employee pay statements/stubs.

May employers require employees to provide advance notice of Sick or Safe Time absences?

It depends. For leave that is foreseeable, employers may request notice ahead of time – or as early as possible – but may not require such notice more than seven days in advance. For unforeseeable leave, an employer may require notice as soon as is practicable.

Scenario (a): Employee Leif works for Commercial Cleaning Inc., which typically requires its employees to provide at least 24 hours advance notice of any absence. Two hours prior to Leif’s shift, a family member calls Leif from the hospital regarding a serious car accident involving Leif’s son. May Leif use ESSL in these circumstances? Yes. In this situation, Leif need not comply with Commercial Cleaning Inc.’s 24-hour advance notice policy; rather, he should provide Commercial Cleaning Inc. with notice as soon as practicable under the circumstances. Refusing to allow Leif’s ESSL use during this medical emergency would constitute a violation of the ESSL Ordinance.

Scenario (b): Jackson owns Enterprise and employs Bernice. Enterprise has a policy requiring at least seven days advance notice (or as soon as practicable) from its employees of ESSL use or other types of leave. Bernice schedules a well child check-up for her daughter several months in advance but forgets to inform Enterprise until two days before the appointment. Can Enterprise deny Bernice’s request to use ESSL or refuse to compensate Bernice for work hours scheduled during her daughter’s doctor’s appointment? Yes. The ESSL Ordinance allows employers to maintain a policy requiring advance notice, when foreseeable. Health care visits scheduled in advance are foreseeable.

How does an employee request use of Earned Sick and Safe Leave hours?

The method for notifying an employer of a need to use ESSL hours depends mostly on the employer’s practices and policies. The ESSL Ordinance does not replace an employer’s reasonable expectations for communication from its employees.

What are some examples of reasonable procedures and methods for notifying an employer of an absence?

Examples of reasonable procedures include instructing the employee to call a designated phone number to leave a message, following a uniform call-in procedure, or using another reasonable and accessible means of communication identified by the employer. An employer must consider the individual facts and circumstances of each situation in determining at what point it is practicable for an employee to give notice.

Must an employee specifically ask to use “Earned Sick and Safe Leave”?

No. An employee is not required to specifically ask for “ESSL” or reference the ESSL Ordinance when requesting ESSL hours. Employees simply must state their need for an absence for a reason covered by the ordinance. It can be as simple as “I am sick and need to miss my shift today.” If an employee calls in sick, the employer should assume the employee intends to use accrued ESSL, unless the employee asks the employer to consider another arrangement.

May an employer require an employee to provide specific details about the reason for use?

Generally, no. An employer may not require an employee or a health care provider to specify the detailed nature of the employee’s or the employee’s family member’s injuries, illness, condition, services, or emergency, except as allowed by other laws (e.g. Family Medical Leave Act).

Does an employer have to keep medical information about employees confidential?

Yes. An employer must keep confidential health and safety information about an employee or an employee’s family member obtained solely because of the Earned Sick and Safe Leave Ordinance unless the employee permits disclosure or disclosure is required by law.

Does an employee have to provide documentation for use of Earned Sick and Safe Leave?

An employer may not link approval or compensation to the employee providing documentation from a third party such as a medical professional unless clear evidence of misuse exists, or the employee is absent for more than three consecutive scheduled workdays and the employer provides the employee with health insurance.

Scenario: Employee Alicia has now been out four consecutive scheduled workdays because of illness. Her employer’s provides health insurance. May Alicia’s employer require her to submit documentation from the doctor? Yes, Alicia’s employer may condition approval and compensation of ESSL hours on evidence that Alicia indeed consulted a doctor because she has been out for more than three consecutive days. Note: Employers also may require documentation as allowed by other laws (e.g. Family Medical Leave Act).

What is “clear evidence” of misuse by an employee?

“Clear evidence” of Earned Sick and Safe Leave misuse shows that an employee is highly likely to have engaged in an activity that is not consistent with the employee recuperating or otherwise using the time for a legitimate ESSL purpose. It results in an employer’s reasonable, good faith suspicion. It is determined on a case-by-case basis. Examples include but are not limited to: (a) using ESSL hours on days when an employee’s request for vacation has been denied, (b) a contemporaneous social media photo or post of the employee that conflicts with their stated reason for using ESSL, or (c) a consistent pattern of circumstantial evidence. Note: An employee who uses ESSL hours for purposes other than those authorized under the ESSL Ordinance is not protected by the ordinance.

May employers ask an employee whether Earned Sick and Safe Leave was used for a permissible purpose?

Yes, and the employer may ask the employee to state as much in writing. An employer may:

• Request that an employee confirm verbally or state in writing that he used ESSL hours for a permissible purpose
• Ask if an employee has received or will receive any health care or other services and then require documentation of such services for absences of more than three consecutive workdays if the employer provides the employee with health insurance

Examples of documentation of health care services include:

• A copy of a note from a health care provider
• A copy of medical records or other written receipt of health care services provided

Scenario: Melissa calls in sick because of illness and states that she plans on visiting a medical clinic for diagnosis and treatment. May her employer require documentation from this health care provider? No, because Melissa has not been away from work for more than three consecutive workdays. However, Melissa may voluntarily provide a doctor’s note if she chooses, and her employer may request that upon her return to work she state in writing that she used ESSL for a permissible purpose. Employers must maintain the confidentiality of sensitive information shared by an employee.

May an employer require a minimum amount of time per use?

Yes. An employer may require its employees to use a minimum of up to four hours per occurrence. This minimum-amount-per-use may be set at any amount up to four hours but may not exceed four hours.

Scenario: 98th Street Grill requires its employees to use a minimum of four ESSL hours per occurrence. Employee Anh Nguyen is scheduled to work back-to-back shifts. She has 20 hours of ESSL available and plans on being away from work that day at noon for two hours to attend her daughter’s doctor appointment. She gives her employer proper advance notice of the appointment. May she use ESSL for just two hours? No, 98th Street Grill may require Employee Anh Nguyen to use a minimum of four ESSL hours for her daughter’s doctor appointment. She should return to work at four o’clock.

What if an employee does not have the minimum number of hours of ESSL available that the employer requires to be used per occurrence?

In that situation, the employer can only require that the employee use what they have available.

Scenario: Mississippi Corner Store requires its employees to use a minimum of four Earned Sick and Safe Leave hours per occurrence. Employee Abdullah has two hours of ESSL available and calls a half hour before he is scheduled to work to say he feels ill and will be late. Abdullah wants to use one hour of ESSL. May Mississippi Corner Store deny his ESSL request because he does not have four hours available? No, but they can require him to use both of his two hours that he has available.

May an employee trade shifts or work alternative hours instead of using Earned Sick and Safe Leave?

Yes. With mutual employer and employee consents, employees may suggest working additional hours or trading shifts instead of using ESSL hours. However, the employer may not unilaterally require an employee to work an alternate shift or reduce normally scheduled hours to avoid use of ESSL hours.

Are employees required to find their own replacement when they use Earned Sick and Safe Leave?

No. An employer may not require an employee to find a replacement to “cover a shift” as a condition for using ESSL.

May an employer have a policy that permits employees to donate unused Earned Sick and Safe Leave hours to other employees?

Yes, as long as the policy is voluntary.

May employees use Earned Sick and Safe Leave hours during overtime that they were scheduled to work?

Yes. An employer must allow employees to use ESSL for all hours they are scheduled to work, including any mandatory regular or overtime hours. However, ESSL hours are paid at the employees’ regular rate of pay.

When, because of last-minute shift scheduling changes, may an employer reject an employee’s use of Earned Sick and Safe Leave?

If an employee requested a shift occurring within twenty-four (24) hours of the employee’s request, then an employer may reject use of sick or safe time during that shift. Otherwise, employers must allow legitimate ESSL use for all hours scheduled to be worked.

Scenario: On Monday, Anthony’s employer offers him an extra shift to cover a co-worker’s shift occurring on Thursday. Anthony accepts. On Thursday, Anthony’s daughter becomes ill and must stay home from school. May Anthony use ESSL hours to care for his daughter? Yes, Anthony did not proactively request the shift (it was offered to him and he accepted it). Furthermore, this communication did not occur within twenty-four (24) hours prior to the shift. In comparison, if Anthony (1) normally exercises control of his work schedule and (2) volunteered to work a shift within twenty-four (24) hours, then his employer may deny his use of ESSL.

May an employer deny use of ESSL for particularly “critical” employees or during times of heightened importance?

No. There is no exemption in the ESSL Ordinance for “critical” employees or exigent business circumstances. Employers should encourage consistent employee attendance and plan for the occurrence of emergency staffing situations regardless of the ESSL Ordinance.

What is the Earned Sick and Safe Leave rate of pay for an employee who is paid an hourly wage?

Compensation for the use of ESSL hours for employees who are paid an hourly wage is the employee's hourly wage (including shift differentials where applicable).

Is an employee entitled to be compensated for tips, commissions, bonuses, or overtime that might have been lost while they were off of work using Earned Sick and Safe Leave?

No. An employee is not entitled to lost tips, commissions, bonuses, or overtime payments (i.e. one and a half times the regular rate or more) during use of ESSL hours. However, the employer must pay the employee at least the legal minimum wage for ESSL hours used.

How does an employer calculate hourly Earned Sick and Safe Leave compensation for a salaried employee who has no set schedule?

Employees who are paid an annual salary and are exempt from overtime laws, as provided under the Fair Labor Standards Act and/or Minnesota wage and hour laws, are deemed to work 40 hours a week for purposes of accruing and using ESSL. If any employee normally works less than 40 hours a week, then they will accrue and use ESSL based upon their normal work week. Employers have no obligation to pay an employee more than their full salary for use of ESSL.

If an employee has two different jobs for the same employer, what should the rate of pay be for Earned Sick and Safe Leave hours used?

The rate of pay for the employee’s use of ESSL should be the rate of pay for the job/shift the employee was scheduled to work.

If an employee is paid based on production instead of time, at a “piece rate,” what should the rate of pay be for Earned Sick and Safe Leave hours used?

If rate of pay is determined by a fixed “piece rate” for each unit produced or action performed regardless of time, employers must calculate in good faith an average or typical hourly rate based on the employee’s comparable recent earnings history for similar jobs or shifts.

How does an employer compensate an employee who uses Earned Sick and Safe Leave hours for a shift of indeterminate length?

An employer may determine reasonable payment based on hours worked by similarly situated employees who worked that same (or similar) shifts in the past or calculate an average or typical length of shift based on the employee’s work history.

How soon must an employee be compensated for use of Earned Sick and Safe Leave?

ESSL use must be compensated in the same manner and at the same time as the employee would have received compensation for hours worked.

Can employers “cash out” or otherwise raise employee wages in lieu of providing Earned Sick and Safe Leave?

ESSL rights and responsibilities may not be waived or cashed out to discourage use. However, ESSL hours may be paid (or cashed out) in advance of use if the equivalent time off remains available for use unpaid. Moreover, if an employer chooses to frontload ESSL hours on a yearly basis it may choose to cash out unused hours at the end of each year.

Are employers required to pay out unused Earned Sick and Safe Leave at the end of an employment relationship?

No. Nothing in the ESSL Ordinance requires employers to allow employees to pay out unused ESSL hours at the time the employment relationship is terminated. However, employers may choose to do so.

How does an employer determine its size?

Employer size is based upon the average number of employees per week during the previous calendar year. Employers with an average of fewer than five employees must provide Earned Sick and Safe Leave, but they may choose to provide it unpaid.

Which employees are included in a business size calculation for purposes of the Earned Sick and Safe Leave Ordinance?

Any individual who performs services for hire and compensation for an employer, including temporary employees and part-time employees.

Scenario (a): Employer Josie owns a small restaurant and thus does not count herself as an employee. For several years, she has employed three part-time employees and one full-time employee. Therefore, she employs four total permanent employees. In addition, for 11 weeks during the summer of last year she added two temporary employees, bringing her total employees during those weeks to six. What is her business size for purposes of the ESSL Ordinance? She uses the following calculation: Forty-one weeks at four employees (41 x 4) equals 164 employee weeks. Eleven weeks with six employees (11 x 6) equals 66 employee weeks. Added together (66 + 164), they total 230 employee weeks. 230 employee weeks divided by 52 total weeks in a year (230/52) equals a weekly average of approximately four-and-a-half employees. Josie’s restaurant has fewer than five employees for purposes of the ESSL Ordinance. Because she employs fewer than five people, she may choose to provide ESSL unpaid.

Scenario (b): Thirty people work for Purple Star, which is headquartered in Wisconsin. All but two of these employees work at facilities outside of Bloomington. Because Purple Star employs five or more people – regardless of location – the two employees stationed in Bloomington must receive ESSL hours as paid time.

How do I calculate the number of employees for a new employer?

To determine business size for an employer that has existed for less than one year, calculate the average number of employees per week during the first 90 days of operation.

When is an employee covered by the Earned Sick and Safe Leave Ordinance?

Employees who work at least 80 hours in a benefit year within the geographical boundaries of Bloomington are covered under the ESSL Ordinance, regardless of the location of the employer. Employees who only drive through the city are not covered even though this occurs during an employee’s work hours. An employee is required to accrue ESSL only while physically located within Bloomington and performing work for the employer.

• City of Bloomington geographical boundaries
• Find out if an address is inside or outside of Bloomington

Does an employee always accrue Earned Sick and Safe Leave while working from home?

No. Employers may restrict an employee’s accrual of ESSL to the time that the employee performs work within the City of Bloomington. An employer may voluntarily allow accrual of ESSL hours regardless of an employee’s geographic location if it chooses.

Are employers required to permit the use of Earned Sick and Safe Leave hours when an employee is scheduled to perform work outside of Bloomington?

No. An employee has a right to use banked ESSL hours for covered purposes only when scheduled to perform work within the city limits of Bloomington. An employer may allow use of ESSL hours regardless of where an employee is scheduled to work if it chooses.

How does an employer know how much time an employee spends working within the City limits?

An employer may make a reasonable estimate of an employee’s time spent working in the City for purposes of Earned Sick and Safe Leave eligibility, accrual, and use. Documentation of how the reasonable estimate was derived may include, but is not limited to, dispatch logs, delivery addresses and standard estimated travel times, or historical averages. Smart phone apps also exist for the purpose of GPS location and payroll time tracking.

Are nonprofit employers covered under the Earned Sick and Safe Leave Ordinance?

Yes.

Is the construction industry exempt?

No. However, employers in the construction industry may comply with the ESSL Ordinance by paying employees or registered apprentices the applicable prevailing wage rate as calculated by the Minnesota Department of Labor and Industry. Visit the Minnesota Department of Labor and Industry website for more information.

Are employees covered by the terms of collective bargaining agreements exempt?

No.

If an employer contracts with a temporary staffing agency or other type of joint employer, which entity is responsible under the Earned Sick and Safe Leave Ordinance to meet the ESSL obligations to employees?

More than one entity may be considered an employee’s “employer” under the ESSL Ordinance and, if so, each has an independent obligation to ensure that the ordinance requirements are met. These “joint employers,” may include a staffing agency or professional employer organization and a client, for example. Joint employers may agree between them which will monitor their collective compliance with the ordinance. However, any such assignment of responsibility does not affect the rights of employees under the ordinance. An employee is not entitled to duplicative ESSL from each “joint employer.”

Note: Joint employers may exist where more than one person or entity directly or indirectly or through an agent or any other person or entity, including through the services of a temporary service or staffing agency or similar entity, employs or exercises control over the wages, hours, or working conditions of an employee. The duration of the work, control over work or working conditions, location of work, and repetitive and rote nature of work may indicate the existence of a joint employment relationship within the meaning of the ESSL Ordinance.

Scenario: An employee has worked for various businesses through a temporary staffing agency and has accrued 32 hours of ESSL. However, the employee has only worked for one week at their current assignment. Is the employee entitled to use paid ESSL? The temporary staffing agency has the responsibility for providing ESSL in this scenario since the employee has worked for it for more than 90 days and accrued paid sick leave. The business has no obligation to pay the employee sick leave because the employee has not worked for it for at least 90 days and accrued paid sick leave in that assignment.

When one employee works at different jobs for separate, unrelated employers, does each employer have to provide Earned Sick and Safe Leave?

Yes. Each employment relationship creates rights and responsibilities under the ESSL Ordinance.

Does the Earned Sick and Safe Leave Ordinance require employers to provide ESSL to independent contractors?

No. However, merely labeling someone as an "independent contractor" does not necessarily relieve the employer of its ESSL obligations. Consistent with Minnesota law, whether a person is an employee or independent contractor is determined by a variety of facts including the extent to which the independent contractor retains supervision, direction, and control over the work and the means to complete it. For more information on how the State of Minnesota similarly reviews issues relating to independent contractor status, visit the Minnesota Department of Labor and Industry website.

Does the Earned Sick and Safe Leave Ordinance cover employees regardless of their immigration status?

All employees who work in Bloomington – no matter their status under federal immigration law – have legal rights under the Bloomington ESSL Ordinance. The Bloomington City Attorney’s Office will process an employee's report of suspected violation without regard to their immigration status. An employee filing a complaint will not be questioned about their or their immigration status.

Do employees who leave and return (seasonal, rehires, etc.) get to keep their accrued Earned Sick and Safe Leave hours?

If an employee is rehired within 120 days after separation, the employer must reinstate (and allow immediate use of previously accrued and unused ESSL hours, unless the employer paid the employee for unused ESSL hours at the time of initial separation. If the employee’s break in employment is more than 120 days, the ESSL Ordinance does not require the employer to reinstate accrued and unused ESSL hours. If a returning employee does not have to go through the normal hiring process (e.g. application, I-9, etc.), then they are considered to have been continuously employed and will retain their previously accrued ESSL hours regardless of how long it has been since they last performed work for the employer.

If ownership of an employer changes, what happens to an employee’s banked Earned Sick and Safe Leave hours?

If an employee remains employed with the new employer, the employee retains banked ESSL hours. This new employer must allow its employees to use the banked ESSL hours.

If an employee is transferred from a part-time position to a full-time position or vice versa at the same employer, do they retain their accrued ESSL hours?

Yes.

If an employee is transferred to another division or location of the same employer, is the employee entitled to Earned Sick and Safe Leave hours that were banked at the previous location?

Yes. The employee gets to keep these hours and may use all banked ESSL hours when performing work within the city limits of Bloomington.

How can employees and employers confirm whether or how the law applies to them?

Employers and employees can contact the Bloomington City Attorney’s Compliance Division in the following ways:

• Phone: 952-563-8753
• Email: essl@bloomingtonmn.gov
• Website: https://blm.mn/essl
• In-Person/Mail: Legal Department – Compliance Division, 1800 West Old Shakopee Road, Bloomington, MN 55431

How will the Earned Sick and Safe Leave Ordinance be enforced?

Enforcement of the ESSL Ordinance is the responsibility of the Bloomington City Attorney’s Office. Enforcement is complaint based; however, it also has broad authority to proactively investigate possible violations and issue fines as necessary to gain compliance. As in other types of labor law enforcement, compliance reviews and investigations may be utilized to identify all affected employees and protect the anonymity of complainants. Administrative fines will be imposed to make employees whole. Repeat or intentional violators will receive harsher penalties. Violations of the ESSL Ordinance may also result in license sanctions, up to and including revocation of a business license by the City of Bloomington. All legal options and penalties to gain compliance, including enforcement in a court of law, will be considered.

Scenario: An employer has a policy or practice of not providing or refusing to allow the use of sick leave. How would this be remedied by the Department? The finding that an employer has such a policy or practice constitutes a violation of the law for each and every employee affected by the policy.

As a complainant, can I provide my name and contact information to the City Attorney’s Office but have that information not revealed to anyone else?

The City Attorney’s Office will seek to protect the name and contact information of a complainant.

What happens if an employer’s written policies include Earned Sick and Safe Leave but, in practice, the employer’s actions dissuade employees from using it?

Retaliation against an employee for exercising or attempting to exercise any rights available to them under the ESSL Ordinance is strictly prohibited. Retaliation is any act that would dissuade a reasonable employee’s use of ESSL. Material changes in job classification, duties or hours, formal disciplinary action such as documented warnings or suspension, the accumulation of points under an attendance point system, or employment termination may be considered retaliatory. Aggressive enforcement to protect employees’ rights will be pursued in these types of cases.

What may an employer do in cases of suspected misuse?

In cases of suspected Earned Sick and Safe Leave misuse, an employer may review future use with heightened scrutiny. An employee who uses ESSL hours for purposes other than those authorized under the ESSL Ordinance is not protected by the ordinance.

May an employer discipline an employee who misuses Earned Sick and Safe Leave?

Yes. An employee who uses ESSL hours for purposes other than those authorized under the ESSL Ordinance is not protected by the ordinance.

An employer has an absence control policy that issues an “occurrence point” for each absence, including Earned Sick and Safe Leave absences. Is that allowed?

No. Employers are allowed to have absence-control or discipline policies but may not count ESSL absences negatively within those policies. Additionally, an employer may not take an employee’s legitimate ESSL use into account when rating that employee’s attendance record for the purposes of awarding a benefit, such as a raise, premium or bonus. Such actions would constitute unlawful retaliation.

Can an employee be treated differently in any way (bonuses, pay) based on their ESSL usage?

No, it would be illegal interference with, and discouragement of the use of, an employee’s ESSL rights for an employer to treat the employee differently based on the usage of accrued ESSL.

Scenario: Melissa’s employer does not pay an employee for a holiday unless they work the work days immediately preceding and following the holiday. Melissa misses the day after a holiday due to a valid use of her accrued ESSL. The employer must pay her for the holiday.

Who do I contact if my question isn’t answered here?

Employers and employees can contact the Bloomington City Attorney’s Compliance Division in the following ways:

• Phone: 952-563-8753
• Email: essl@bloomingtonmn.gov
• Website: https://blm.mn/essl
• In-Person/Mail: Legal Department – Compliance Division, 1800 West Old Shakopee Road, Bloomington, MN 55431

To recommend to the City Council an ordinance ensuring the provision of paid Earned Sick & Safe Leave to individuals working in the city of Bloomington. The recommended ordinance will:

• promote and protect the wellbeing of the Bloomington workforce and Bloomington residents; 
• support the Bloomington City Council’s strategic priority of equity and inclusion; 
• balance the unique needs and circumstances of Bloomington employers with a recognition that Bloomington is part of a regional labor and service market;
• reflect the input of a diverse pool of stakeholders;
• outline how the City will ensure compliance with the provisions of the ordinance;
• be as clear, understandable and uncomplicated as feasible for both employers and employees. 

To recommend to the City Council an ordinance ensuring the provision of paid Earned Sick & Safe Leave to individuals working in the city of Bloomington. The recommended ordinance will:

• promote and protect the wellbeing of the Bloomington workforce and Bloomington residents; 
• support the Bloomington City Council’s strategic priority of equity and inclusion; 
• balance the unique needs and circumstances of Bloomington employers with a recognition that Bloomington is part of a regional labor and service market;
• reflect the input of a diverse pool of stakeholders;
• outline how the City will ensure compliance with the provisions of the ordinance;
• be as clear, understandable and uncomplicated as feasible for both employers and employees. 

The Task Force will strive to incorporate resident and stakeholder input in a meaningful way and to make decisions by consensus and produce a recommended ordinance that all members can support.  Final decision on the ordinance developed will rest with the City Council, following a formal public hearing.

The Task Force brought forward a draft ordinance which supports the City Council's strategic priority of equity and inclusion. It also balances the unique needs and circumstances of Bloomington employers with the recognition that the City is part of a regional service and labor market.  

• January 8, 2022:  City Council Meeting - Task Force report and Draft Ordinance
• March 2022:  City Council Meeting - Continued Discussion Draft Ordinance 

Meetings were held at Bloomington Civic Plaza or virtually. Members of the public were welcome to attend, although no public comments were taken.

Meeting agendas and documents can be found online

Phase 1

• Meeting 1: Wednesday, June 23, 2021
• Meeting 2: Wednesday, July 14, 2021
• Meeting 3: Wednesday, July 28, 2021

Late July – early September: Break to gather stakeholder input

Phase 2

• Meeting 4: Wednesday, September 15, 2021 - CANCELLED
• Meeting 4: Wednesday, October 13, 2021
• Meeting 5: Wednesday, October 27, 2021
• Meeting 6: Monday, November 22, 2021 (via Zoom)