On May 29, 2018, the Duluth City Council adopted Ordinance 10571, establishing minimum standards for paid earned sick and safe time in the city. The ordinance will take effect on January 1, 2020, making Duluth the third city in Minnesota to enact a paid sick and safe time law. The new ordinance applies to private employers with five or more employees, regardless of whether employees work in Duluth or whether the employer is physically located in the city.
To be eligible, employees must work in Duluth more than 50% of their working time in a 12‑month period, or be based in Duluth, spend a substantial part of time working in Duluth, and not spend more than 50% of his or her work time in a 12‑month period in any other particular place. The ordinance applies to workers covered by a collective bargaining agreement, but not independent contractors, student interns, seasonal employees, or individuals entitled to benefits under or otherwise covered by the federal Railroad Unemployment Insurance Act.
After 90 calendar days of employment, employees may use accrued leave for covered sick and safe time purposes, including mental or physical illness, injury, or health condition, medical diagnosis, care, or treatment of the same, and preventive medical care. Leave can also be used to obtain assistance for domestic abuse, sexual assault, or stalking. Employees can use sick and safe leave for themselves or to care for or assist a family member, which includes an employee’s child, adopted child, adult child, foster child, or child for whom the employee is a legal guardian, spouse, domestic partner, sibling, step-sibling, foster sibling, parent, stepparent, parent-in-law, grandchild, foster grandchild, grandparent, step-grandparent, or any other individual related by blood or whose close association with the employee is the equivalent of a family relationship.
Employees can use up to 40 leave hours per year in increments consistent with the current business or payroll practices, provided the increment is not more than four hours. Employers who already provide a sufficient amount of paid leave that can be used for the same uses and under the same conditions as earned sick and safe time are not required to provide additional sick and safe leave time. For employers implementing a new policy, employees will begin accruing leave when the law takes effect or when employment begins, whichever occurs later. Employees accrue one leave hour for every 50 hours worked. Employers must allow accrual of up to 64 sick and safe leave hours per year, but they can limit carry-over from one year to the next to 40 hours.
Employers can alternatively choose to front load 40 leave hours each year, eliminating the annual carry-over requirement. Employers who choose this method can front load the hours after 90 days of employment during an employee’s first year, and thereafter at the beginning of each subsequent year.
Employers must provide earned sick and safe time upon request of the employee, but they may enforce usual and customary notice and procedural requirements for absences or for requesting leave, provided such requirements don’t interfere with employees’ leave rights. When possible, the request must include the expected duration of the absence. For absences of more than three consecutive days, an employer can require reasonable documentation that leave was taken for a covered purpose.
Employees using sick and safe time leave must be compensated at their standard hourly rate, or an equivalent hourly rate, for salaried employees. They are not entitled, however, to lost commissions or tips when leave is used.
Employers must notify employees that they are entitled to earned sick and safe time, the amount thereof, the terms of its use under the law, that retaliation is prohibited, and that employees can file a written complaint with the city clerk if leave is denied or if they are retaliated against for requesting or using leave. Employers must retain records for three years documenting hours worked and leave accrued and used.
Employees can file a private lawsuit for violations, but they must first exhaust administrative remedies, which requires reporting a suspected violation to the city clerk within one year of the alleged conduct. The city clerk may investigate and where it determines a violation occurred, order appropriate relief, including reinstatement and back pay, award of uncredited leave, payment for leave unlawfully withheld, lost wages, injunctive and other equitable relief.
The Duluth city clerk has created a webpage for the new law which will be periodically updated with additional information: http://www.duluthmn.gov/city-clerk/earned-sick-and-safe-time/. Since the law doesn’t go into effect until 2020, employers have plenty of time to bring their policies into compliance. Contact myHRcounsel if you need assistance with this new ordinance.
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