Sick and Safe Time Policies

If you are a business owner or work in human resources, you have likely heard about the new Sick and Safe Time Minnesota law that will be going into effect on January 1, 2024. Holt Law is here to assist you in changing your existing policies, employment agreements, and language of benefits packages to remain in compliance with the law and to ensure your employees understand what will be changing for them at their job.

What is sick and safe time and who is eligible for it?

Sick and safe time is a new requirement that employers must provide to any employee who works a minimum of 80 hours per calendar year. It is essentially paid time off (PTO) but it has less restrictions to accrue or to use than PTO has at some jobs. It is also for all employees, including part-time, seasonal, on-call, and employees in industries that typically do not offer paid time off. Sick and safe time is paid out at the same rate that the employee earns when they are working.

Who is not eligible for sick and safe time?

Independent contractors.
Employees in the building and construction industry who are represented by a building and construction trades labor organization and through a collective bargaining agreement, the labor organization has waived the requirements.
Certain individuals who are employed by an air carrier as a flight deck or cabin crew member.

How do employees accrue sick and safe time?

Existing employees will begin to accrue sick and safe time beginning on January 1, 2024. New employees that are hired after January 1, 2024, will begin to accrue sick and safe time beginning on their first day of employment. Employees can accrue up to a maximum of 48 sick and safe time hours per calendar year, or six, full eight-hour days. Hourly, nonexempt Employees accrue one hour of sick and safe time for every 30 hours that they work; full-time salaried, exempt employees will earn at the rate of 40 hours per week; and part-time salaried, exempt employees will be earn based upon the number of hours they typically work in a week.

Can employees carry over their sick and safe time from year to year?

Yes. Employees are allowed to carry over their sick and safe time from year to year, but at any given time, unless employers allow for it, an employee’s sick and safe time “bank” does not need to exceed 80 hours.

How do Employees use their sick and safe time?

Hourly employees, (nonexempt), may use their sick and safe time in increments as little as one hour. Salaried employees, (exempt), may use their sick and safe time in four-hour increments.

Sick and safe hours may be used for:

An employee’s own physical and mental health care needs, including preventative care;
The care of an employee’s family member (they do not need to live with the employee) and their physical and mental health needs; including preventative care;
Absences related to domestic abuse, sexual assault, stalking, or to obtain services or sick absences related to any of these occurrences;
Weather related to public emergency related business closures;
Taking care of a family member whose school or place of care has closed due to weather or other public emergency; and
To prevent potentially transmitting a communicable disease or illness to others by being in their presence or it is determined the employee may jeopardize the health of others in the community, regardless of whether they have tested positive for the disease or not.

Employees will be required to give notice to their Employer prior to using sick and safe time, if the time off needed is foreseeable; however, employees do not need to give more than seven days’ notice of their expected absence. If three sick and safe time days are used in a row, an employer can require the employee to provide documentation to show that their time off has been used for a sick and safe time qualifying reason. Employees will not be required to find a replacement worker to cover any of the time they will be absent while using sick and safe time.

What other things do I need to know, as an employer, about Sick and Safe Time?

Giving your employees sick and safe time as they accrue it is mandatory, unless their status is one of the things listed above that makes them ineligible for sick and safe time. But it is important to know that even if as an employer, you do not give your employees PTO, you are still required to give them paid sick and safe time.
If your PTO policy exceeds the requirements of the sick and safe time law, you do not need to give additional time off. For example, if your PTO policy is to give your employees 15 paid days per year, then you do not need to give them additional hours that they would ordinarily earn through a sick and safe time policy. The caveat is that many times PTO policies have stricter rules than the sick and safe time requires, so your existing PTO policy may still need to be amended.
The total number of earned sick and safe time hours that have been accrued and the number of sick and safe time hours that were used during that pay period must be on the employee’s earnings statement that is given at the end of each pay period.
When an employee is terminated, resigns, retires, or otherwise separates from their employer, they are not entitled to a financial payout or reimbursement of their unused sick and safe time hours.
If an employee is terminated, resigns, retires, or otherwise separates from their employer, but then is rehired within 180 days, the employer must reinstate the previous unused, accrued sick and safe hours.
Employees can use sick and safe time hours concurrently with the Family and Medical Leave Act (FMLA) or other protected leaves.

What do I need to do as an employer to prepare for the new law?

Employers will need to change their existing PTO policies to allow for or include sick and safe time. In the policy, employers must provide information about sick and safe time and the rate or amount that employees are entitled to, the procedure on how employees may use it, that retaliation against employees who use earned sick and safe time is prohibited, and that each employee has the right to file a complaint or bring a civil action against their employer if earned sick and safe time is denied or the employee is retaliated against for requesting to use their earned sick and safe time. Employees must be notified of this information before January 1, 2024, and employers need to include the notice or policy in their employee handbook, if they have one. Employers must provide the policy to each employee in English and the primary language spoken by the employee, as they have identified.

Things for employers to consider as they revise their policies to accommodate for sick and safe time:

Do you have an employment agreement with your employees?
- Likely the answer is “yes.” The next step is to look at the language of your employment agreement and figure out if changing one of the terms of the agreement will make the entire agreement void, or if there is language that allows for certain terms of the agreement to be amended and then separately signed off on. If the latter is the case, then a new policy that details the sick and safe time can be drafted with signature lines.
- If the answer is “no” then a new policy can be drafted for the sick and safe time and a copy can be given to all employees.
Should I decrease my existing PTO policy to accommodate for the sick and safe days that my employees will earn?

If you are a small to medium sized business owner, giving all employees up to 48 hours of additional paid time off may be a financial burden, so it would be reasonable that you may want to decrease your existing PTO policy. Before you change it, make sure that the language surrounding your PTO policies allows for you to revise it. Also, if you have an employee who bargained for PTO as a part of their employment agreement that differs from your company’s PTO policy, you won’t be able to change theirs without signing a new agreement with them.
Remember, if your PTO policy meets or exceeds the requirements of the sick and safe time laws, you do not have to change your policy.
The other option is to “front-load” PTO hours and change your existing PTO requirements to meet or exceed the sick and safe time law.

What does it mean to “front-load” hours?

This is an alternative option for employers who do not want to keep track of the hours accrued each pay period or don’t want to allow their employees to carry hours over from year to year. The downside to front-loading is that you must provide ALL employees with the maximum number of hours, regardless of whether they are full-time, part-time, seasonal, etc. There are two options with front-loading:

The first option is to provide all employees with 48 hours of sick and safe time at the beginning of every year that they have access to immediately. With this option, employees would be able to carry over unused sick and safe time hours from year to year, up to 80 hours at any given time.
The second option does not allow employees to carry over hours from year to year. Employers provide all employees with 48 hours of sick and safe time in the first year of their employment, or for existing employees, the 2024 year. Then in the second, and each subsequent year after, employees receive 80 hours of sick and safe time at the beginning of each year, that they have immediate access to, but they may not carry any hours over from year to year.

What are my options, as an employer?

While this is not an exhaustive list, here are a few options for employers for their PTO policies that will meet the requirements of the sick and safe time law.

Option #1. Decrease your existing PTO policy by a few days and have a separate policy for how regular PTO is earned and used, and a sick and safe time policy that abides by Minnesota Law.

What this would look like, for example:

Your current policy is that employees get 15 days of PTO per year that can be used for whatever reason the employee choses, but employees must give at least two weeks’ notice to request to use their PTO. Additionally, PTO does not begin to accrue for employees until they have been employed for 90 days and they cannot carry over any hours or days from year to year.

The new policy would be that employees would get 10 days of PTO per year with the same restrictions as the former PTO policy, but they also can earn up to 48 hours of sick and safe time, accrued at one hour per 30 hours worked, with restrictions that abide by Minnesota law for the sick and safe time law, such as employees do not have to give notice to use their sick and safe time, however, if the absence was foreseeable then employers can require notice, but not more than seven days in advance.

Pros of this option:

Employers are not adding a considerable number of additional days or hours to their existing policy, so there is less of an overall financial burden.
It meets the requirements of the sick and safe time leave laws.
It allows for employees to have both PTO and sick and safe time that they can divide up and use differently, according to their personal needs.
Ultimately employees should be happy about his option because, if they are full-time, they are gaining an additional day of time off per year.

Cons of this option:

Employees may initially think that the new policy is decreasing their PTO days, however, this is not the case if they look at the whole picture.
Having separate PTO and sick and safe time banks can be a lot of work to manage and keep track of, so an employer will need the “person power” to be able to choose this option. Payroll companies will need to agree to the changes as well since this must all be documented on employee earning statements at the end of each pay period. The employer will also need a system in place so anyone who manages employees and/or approves schedules and time off can accurately keep track of PTO and sick and safe hour banks for each employee and appropriately apply the policy for the two separate categories when employees take days off.
Employees would carry over their unused, accrued sick and safe time from year to year, up to 80 hours at any given time, which may be new for some employers who have previously not allowed any PTO carryover.

Below is a sample Sick and Safe Time Policy for this option:

Sick and Safe Time Policy

Beginning January 1, 2024, the structure for paid time off (PTO) will slightly change in the following ways to accommodate for sick and safe time and to remain in compliance with Minnesota State Law:

All employees who work a minimum of 80 hours per calendar year will accrue a new type of paid time off called sick and safe time. For hourly employees, it is accrued at a rate of one sick and safe hour for every 30 hours worked.
Full-time salaried employees, who are exempt from overtime, will be categorized as working 40 hours per week for purposes of accruing sick and safe time. Part-time salaried employees, who are exempt from overtime, will be categorized based upon the number of hours they typically work in a week.
In a calendar year, employees cannot accrue more than 48 sick and safe time hours, or six full, eight-hour days.
Hourly employees (nonexempt) may use their sick and safe time in increments as little as one hour.
Salaried employees (exempt) may use their sick and safe time in four-hour increments.
Sick and safe time is paid out the same as an employee’s hourly rate.
Employees may use their earned sick and safe time as it is accrued.
While PTO days cannot be carried over from year to year, sick and safe hours can be, but your sick and safe time bank will max out at 80 hours, at any given time.
Unused sick and safe time hours are not eligible for a financial payout or reimbursement when employment terminates with Company.
Sick and safe time hours will be listed on your earnings statement at the end of each pay period.

Sick and Safe hours may be used for:

An employee’s own physical and mental health care needs, including preventative care;
The care of an employee’s family member (they do not need to live with the employee) and their physical and mental health needs; including preventative care;
Absences related to domestic abuse, sexual assault, stalking, or to obtain services or sick absences related to any of these occurrences;
Weather related to public emergency related business closures;
Taking care of a family member whose school or place of care has closed due to weather or other public emergency; and
To prevent potentially transmitting a communicable disease or illness to others by being in their presence or it is determined the employee may jeopardize the health of others in the community, regardless of whether they have tested positive for the disease or not.

A family member, for the purposes of sick and safe time is,

an employee’s:

child, including foster child, adult child, legal ward, child for whom the employee is legal guardian to, or child to whom the employee stands or stood in loco parentis (in place of a parent);
spouse or registered domestic partner;
sibling, stepsibling, or foster sibling;
biological, adoptive, or foster parent, stepparent, or a person who stood in loco parentis when the employee was a minor child;
grandchild, foster grandchild, or step-grandchild;
grandparent or step-grandparent;
child of a sibling of the employee (niece/nephew);
sibling of the parents of the employee (aunt/uncle);
child-in-law or sibling-in-law;
any of the family members listed above of a spouse or registered domestic partner;
any other individual related by blood whose close association with the employee is the equivalent of a family relationship; and
up to one individual annually designated by the employee who does not fit into any of the above categories.

Employees will be required to give notice to Employer prior to using sick and safe time, if the time off needed is foreseeable; however, employees do not need to give more than seven days’ notice of their expected absence. If three sick and safe time days are used in a row, an employee will be required to coordinate with their direct supervisor and possibly provide documentation to substantiate that their time off meets the sick and safe time criteria. Employees will not be required to find a replacement worker to cover any of the time they will be absent while using sick and safe time.

If documentation is requested, employees must provide one of the following:

a signed statement by a health care professional that indicates the need for use of sick and safe time. If the employee, or employee’s family member, did not receive services from a health care professional, or if documentation cannot be reasonably be obtained, then documentation may include a written statement from the employee that the employee is using or used their earned sick and safe time for qualifying purposes according to this policy and Minnesota state law; or
a court record or documentation signed by a volunteer or employee of a victims’ services organization, an attorney, a police officer, or an antiviolence counselor.

All documentation and communication surrounding sick and safe time between employees and employer, or supervisory staff, will be kept confidential.

Employees will not be discharged, disciplined, penalized, interfered with, threatened, restrained, coerced, or otherwise retaliated or discriminated against because the employee has exercised or attempted to exercise their rights under Minnesota state law concerning Safe and Sick Time, by requesting earned sick and safe time, using earned sick and safe time, requesting a statement of accrued sick and safe time, informing any person of his or her potential rights under sick and safe time Minnesota laws, making a complaint or filing an action to enforce a right to earned sick and safe time, or is or was participating in any manner in an investigation, proceeding or hearing related to sick and safe time Minnesota laws.

Employees have the right to file a complaint or bring a civil action against this employer if earned sick and safe time is denied by employer or if the employee is retaliated against for requesting or using sick and safe time.

Option #2. Decrease your existing PTO policy by a few days but keep all the same provisions of your PTO policy regarding how it is accrued or how it may be used. For the sick and safe time policy, the hours would be front-loaded to all employees on January 1st for immediate access.

What this would look like: For the first year of the employee’s employment, if hired after January 1, 2024, or for existing employees, the year 2024, all employees would receive 48 hours of sick and safe time, regardless of how many sick and safe time hours they would accrue in a year. Employees would not be able to carry any safe and sick hours over from year to year.

In the second year of employment, and for each subsequent year, employees would be front-loaded, on January 1st, with 80 hours of safe and sick time per year. This increase in the number of hours given is to offset not being able to carry hours over from year to year and to satisfy Minnesota law.

Considerations: Ultimately, after the first year of employment, employees would be gaining 10, full eight-hour days off, if they use them, so take that into account when adjusting your PTO policy. Also, take into consideration that for an employee who does not have any health conditions and does not have family, or a close friend that they can consider family for the purposes of this law, they are not going to be able to take advantage of their sick and safe time hours in the same way an employee who has a health condition or who has an extensive family will. In other words, just because the sick and safe hours are given, it does not mean that every employee will be able to take advantage of using them, so it shouldn’t automatically be categorized in the same way PTO is for benefits.

Pros of this option:

There is less calculation and tracking of hours because all employees receive the same number of hours, regardless of how many they would typically accrue.
Employers would not allow employees to carry over sick and safe time hours so there is less to keep track of.

Cons of this option:

Front-loading the hours means employees could potentially use all their sick and safe time hours in the beginning of the year and then resign before the year is complete.
There is still quite a bit of tracking and calculation when you have two separate policies for PTO and sick and safe time. Even though hours accrued don’t have to be tracked, hours used do have to be tracked and it would need to be kept separate from PTO, since there would be different requirements to using them.
If you front-load employees 80 hours of sick and safe time on year two, and each subsequent year after, you are giving your employees 36 more sick and safe leave hours than is required by law.

Below is a sample Sick and Safe Time Policy for this option:

Sick and Safe Time Policy

Beginning January 1, 2024, the structure for paid time off (PTO) will slightly change in the following ways to accommodate for sick and safe time and to remain in compliance with Minnesota State Law:

Regardless of employment status or hours worked, employees who are in their first year of employment with Company, or for all existing employees, for the year of 2024, will be given 48 sick and safe time hours that are available for use immediately.
For each subsequent year of employment, all employees will receive 80 sick and safe time hours, that are available for use at the beginning of each year.
Hourly employees (nonexempt) may use their sick and safe time in increments as little as one hour.
Salaried employees (exempt) may use their sick and safe time in four-hour increments.
Sick and safe time is paid out the same as an employee’s hourly rate.
Sick and safe time hours cannot be carried over from year to year. What is not used in the current year is lost.
Unused sick and safe time hours are not eligible for a financial payout or reimbursement when employment terminates with Company.
Sick and safe time hours will be listed on your earnings statement at the end of each pay period.

Sick and Safe hours may be used for:

An employee’s own physical and mental health care needs, including preventative care;
The care of an employee’s family member (they do not need to live with the employee) and their physical and mental health needs; including preventative care;
Absences related to domestic abuse, sexual assault, stalking, or to obtain services or sick absences related to any of these occurrences;
Weather related to public emergency related business closures;
Taking care of a family member whose school or place of care has closed due to weather or other public emergency; and
To prevent potentially transmitting a communicable disease or illness to others by being in their presence or it is determined the employee may jeopardize the health of others in the community, regardless of whether they have tested positive for the disease or not.

A family member, for the purposes of sick and safe time is,

an employee’s:

child, including foster child, adult child, legal ward, child for whom the employee is legal guardian to, or child to whom the employee stands or stood in loco parentis (in place of a parent);
spouse or registered domestic partner;
sibling, stepsibling, or foster sibling;
biological, adoptive, or foster parent, stepparent, or a person who stood in loco parentis when the employee was a minor child;
grandchild, foster grandchild, or step-grandchild;
grandparent or step-grandparent;
child of a sibling of the employee (niece/nephew);
sibling of the parents of the employee (aunt/uncle);
child-in-law or sibling-in-law;
any of the family members listed above of a spouse or registered domestic partner;
any other individual related by blood whose close association with the employee is the equivalent of a family relationship; and
up to one individual annually designated by the employee who does not fit into any of the above categories.

If documentation is requested, employees must provide one of the following:

a signed statement by a health care professional that indicates the need for use of sick and safe time. If the employee, or employee’s family member, did not receive services from a health care professional, or if documentation cannot be reasonably be obtained, then documentation may include a written statement from the employee that the employee is using or used their earned sick and safe time for qualifying purposes according to this policy and Minnesota state law; or
a court record or documentation signed by a volunteer or employee of a victims’ services organization, an attorney, a police officer, or an antiviolence counselor.

All documentation and communication surrounding sick and safe time between employees and employer, or supervisory staff, will be kept confidential.

Option #3. Combine your PTO policy with a sick and safe time policy and do not differentiate between the hours/days.

As far as how much PTO and sick and safe time an employer should offer is completely up to the employer, so long as it is more than 48 hours per year to satisfy the sick and safe time law, if employees can carry hours over from year to year, and more than 80 years if they cannot. The requirements for employees to use their PTO/sick and safe time would be closer to the restrictions to use sick and safe time, as far as giving notice, but with more freedom to use it for whatever they may like, similar to PTO. With this option, employers can choose to either have employees accrue their time off as they work, provided employees are accruing at least one hour for every 30 hours worked or to front-load the hours each year. Employers can also decide if they would like to allow employees to carry hours over from year to year. If they do not allow for carry over, then employers would need to incorporate portions of the front-loading option into their policy so employees have access to their hours at the beginning of the year.

Pros of this option:

As an employer, you do not need to keep track of separate PTO and sick and safe time hours.
Employers do not need to have different rules to use the different types of hours. Time off hours would all be the same so employees and their supervisors do not need to make sure certain rules are followed for one type of time off and different rules are abided by for another type of time off.
This type of system is the most equitable for all employees because it does not benefit an employee who has family over another who does not, as it may be more difficult for the latter to use their sick and safe time.
Employees will like that there are less restrictions to use their time off.
By combining the two types of time off, employers will ultimately not have to give as much time off, if they so choose. With the other two options, because the PTO policy will continue to stand alone, if employers decrease the rate at which employees accrue PTO by too much, employee satisfaction will suffer. With this option, because both are wrapped into one policy, or time off bank, employees are not going to feel as though their benefits have been decreased. Instead, it will either be that employees are receiving the same amount of PTO as they were prior to the change or perhaps a small amount more, resulting in satisfied employees.

Cons of this option:

The regulations surrounding the use of sick and safe time may be much less stringent than current PTO rules, so it could be more difficult to staff when employees are not required to give much, if any, notice that they will be absent from work.
Certain professions or workplaces require that the employee find a replacement before they are allowed to take time off. With this new policy, employers would not be able to mandate this, so employers would need to schedule and staff accordingly to account for people that may call in with little notice.
This option would really work best in an employment setting where there is a lot of cohesiveness between staff members and management. A higher level of professionalism would be ideal where there is mutual respect and consideration for all members of the company team so employees wouldn’t take advantage of the loose restrictions of their time off.

Below is a sample Sick and Safe Time Policy for this option:

Combined Paid Time Off and Sick and Safe Time Policy

Beginning January 1, 2024, the structure for paid time off will change in the following ways to accommodate for sick and safe time and to remain in compliance with Minnesota State Law:

Regardless of employment status or hours worked, all employees will now receive 120 hours of PTO for their first year of employment, or for existing employees, for the 2024 year, that are available for use immediately.
For each subsequent year of employment, all employees will receive 136 hours of PTO, that are available for use at the beginning of each year.
Hourly employees (nonexempt) may use their sick and safe time in increments as little as one hour.
Salaried employees (exempt) may use their PTO in four-hour increments.
PTO is paid out the same as an employee’s hourly rate.
PTO hours cannot be carried over from year to year. What is not used in the current year is lost.
PTO hours will be listed on your earnings statement at the end of each pay period.
There are no restrictions on how PTO hours can be used, but it is wise to plan accordingly for any needs you may have throughout the year, both foreseen and unforeseen.

Employees will be required to give notice to Employer prior to using PTO, if the time off needed is foreseeable; however, employees do not need to give more than seven days’ notice of their expected absence. Employees will not be required to find a replacement worker to cover any of the time they will be absent while using PTO.

Employees will not be discharged, disciplined, penalized, interfered with, threatened, restrained, coerced, or otherwise retaliated or discriminated against because the employee has exercised or attempted to exercise their rights under Minnesota state law concerning Sick and Safe Time contained in this Combined Paid Time Off and Sick and Safe Time Policy, by requesting earned sick and safe time, using earned sick and safe time, requesting a statement of accrued sick and safe time, informing any person of his or her potential rights under sick and safe time Minnesota laws, making a complaint or filing an action to enforce a right to earned sick and safe time, or is or was participating in any manner in an investigation, proceeding or hearing related to sick and safe time Minnesota laws.

Employees have the right to file a complaint or bring a civil action against this employer if earned PTO is denied by employer or if the employee is retaliated against for requesting or using PTO.

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