In 2018, after a lengthy process and vigorous debate, Duluth City Council approved an Earned Safe and Sick Time (ESST) ordinance, establishing minimum standards for paid sick and safe time in the City of Duluth (Chapter 29E).
The ordinance takes effect on January 1, 2020.
Duluth follows a national ESST trend. According to the National Partnership for Women and Families, nearly one in three private sector workers – or 34 million people – do not have paid sick days to care for their own health, or may lack the ability to use paid sick time to care for a family member. This type of data has spurred conversation and debate across the nation and prompted a growing trend towards implementation of ESST requirements at the state and local level.
Currently, eleven states plus Washington D.C. require some form of paid sick leave. Connecticut was the first state to adopt a law in 2011, and has since been followed by: Arizona, California, D.C., Maryland, Massachusetts, Michigan, New Jersey, Oregon, Rhode Island, Vermont and Washington (in alphabetical order). Additionally, cities across the nation from San Francisco to New York City have enacted ordinances with varying requirements for employers. Executive Order 13706 requires federal contractors and subcontractors to provide paid sick leave, effective January 1, 2017.
In Minnesota, Minneapolis and St Paul both established ESST ordinances, with effective dates of July 1, 2017. The Minneapolis version was quickly challenged, and a court order struck down part of the ordinance. Employers in Minneapolis must continue to comply with the ordinance, however, the Court found it cannot be enforced against businesses without a physical location in the city. The City has appealed this decision and litigation is ongoing.
In the wake of the City Council decision, the question lingers “but what does this mean for Northland employers?”
The first question for most businesses is whether they are impacted by the new rules. Employers with five or more employees are required to comply with the new ordinance.
The number of employees is determined based on the average number of employees per week during the previous calendar year. “Calendar year” means a consecutive twelve-month period determined by the employer; an employee’s employment anniversary date may be used.
The language of the ordinance defines an employer broadly and includes an individual, corporation, partnership, association, nonprofit organization or a group of persons. However, it does not include federal, state, county or local government, except the city of Duluth.
The more confusing part of the ordinance for employers surrounds the definition of employee. An employee means a person who performs work within the city for more than 50% of his or her 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% of their work-time somewhere else.
This means employers within the city are impacted by the new rules. They also apply to employers outside the city that have an employee that spends 50% of his or her time performing work in Duluth or is based in Duluth and spends a substantial amount of time working here (and not somewhere else). This is a modification from the ESST Task Force’s final recommendation that only employers with a physical location in the City of Duluth with five or more employees be covered.
First off, the definition of employee does not include:
Employees are eligible on their date of employment (or if employed prior to January 1, 2020, on the date the ordinance is effective).
It is important for employers to implement an efficient way to accurately track the accrual and use of ESST. Employees accrue one hour for every 50 hours worked and time accrues in one-hour increments. This is also a change from the ESST Task Force’s final recommendation (one hour for every 30 hours worked). To put this in perspective, for an employee working 40 hours each week, this equals an accrual of just over 40 hours a year.
Following 90 days of employment, employees are allowed to use 40 hours of ESST each year and carry over 40 hours of earned but unused sick and safe time into the next year.
Employees are allowed to use the time for the following reasons:
Under the new rules, family member is defined as:
1) Child, adopted child, adult child, foster child; legal ward, or child for whom the employee is a legal guardian;
2) Spouse or domestic partner;
3) Sibling, stepsibling or foster sibling;
4) Parent, stepparent, mother-in-law, father-in-law;
5) Grandchild, foster grandchild, grandparent, step-grandparent; and
6) Any other individual related by blood or whose close association with the employee is the equivalent of a family relationship.
An employer is not required to provide financial or other reimbursement to an employee upon his or her termination, resignation, retirement, or other separation from employment for accrued but unused time.
An employer is not required to provide additional earned sick and safe time if it has a substantially equivalent paid leave policy (such as PTO or a combination of sick and vacation time) that provides for ESST and meets the requirements of the new rules.
The process in Duluth included the creation of the ESST Task Force “for the purpose of gathering information, collecting public input, proposing the best options for implementing ESST policies and bringing forward policy recommendations.”
“The task force worked hard to be inclusive and get input from both employers and employees.”
ESST Task Force Co-Chair Laura Weintraub.
The process, which spanned over a year and included extensive research, surveys and listening sessions, culminated in final recommendations to City Council.
The City Clerk’s office is tasked with administration of the ordinance and developing materials for employers. These materials may include FAQs and other resources. The office is currently developing internal processes and planning employer outreach. A definitive timeline has not been set. However, the office plans to have materials and resources available well before the implementation date.
About The Author
HR thought leader, Stacy Johnston, provides innovative HR solutions with a mission to support organizations in understanding and engaging their biggest competitive advantage… their employees. Johnston writes and speaks about contemporary HR issues. She is a licensed attorney and holds the SHRM-CP and PHR credentials.
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Citations:
* This article is not meant as a deep dive into ESST, but rather as an informational framework.
http://www.duluthmn.gov/city-clerk/earned-sick-and-safe-time/
http://www.nationalpartnership.org/
http://www.nationalpartnership.org/research-library/work-family/psd/paid-sick-days-statutes.pdf
https://www.stpaul.gov/departments/human-rights-equal-economic-opportunity/contract-compliance-business-development/earned
http://sicktimeinfo.minneapolismn.gov
http://sicktimeinfo.minneapolismn.gov/uploads/9/6/3/1/96313024/order_on_cross_motions_for_sj__final__05.08.18.pdf
http://www.duluthmn.gov/media/542930/esst-report-final-recommendations.pdf
http://www.duluthmn.gov/media/542930/esst-report-final-recommendations.pdf
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