Earned Sick and Safe Time Law: What Cities Need to Know

Maybe. While Minnesota law generally allows an employer to satisfy the ESST requirements through an existing sick leave or PTO policy, simply renaming a sick leave bank to “ESST” may not be enough. Before doing so, cities should review their policy to ensure it complies with all ESST requirements.

For example, ESST provides broader rights than many sick leave policies, including:

• • A broader definition of family members. Refer to the Minnesota Department of Labor and Industry ESST FAQs.
  • The ability to use ESST when the employee’s workplace or a family member’s school or place of care is closed due to weather or another public emergency. (There are limited exceptions for certain essential service employees. See FAQ 12 for more information.)
  • The ability to use ESST to make arrangements for or attend a funeral or memorial service, or to address financial or legal matters following the death of a family member. See FAQ 12 for more information.

Many existing sick leave or PTO policies were not designed to cover these additional qualifying uses.

Effective Jan. 1, 2025, Minnesota law also requires that any paid leave provided for absences due to an employee’s personal illness or injury that exceeds the minimum ESST requirement must satisfy the minimum standards and protections of the ESST law, with the exception of the statutory accrual requirements. This requirement does not apply to short-term disability, long-term disability, or other salary continuation benefits. Leave accrued before Jan. 1, 2024, may continue to be governed by the employer’s policy or collective bargaining agreement that was in effect as of  Dec. 31, 2023.

The Department of Labor and Industry’s rules (Minnesota Rules 5200.1209) reinforce this concept. Employers may continue to offer more generous sick leave or PTO benefits than the law requires. However, whenever an employee uses that leave for an ESST-qualifying reason, the employee is entitled to the minimum rights and protections provided by Minnesota’s ESST law.

Effective Jan. 1, 2025, Minnesota law requires paid leave provided by an employer for absences due to an employee’s personal illness or injury that exceeds the minimum ESST requirement to meet or exceed the standards and requirements of the ESST law (except for the ESST accrual requirements). This means cities should review their existing sick leave and PTO policies to determine how they will administer leave balances accrued before and after Jan. 1, 2024.

Leave accrued before Jan. 1, 2024, may continue to be administered under the employer’s written policy or applicable collective bargaining agreement in effect on Dec. 31, 2023. For example, an employer may require employees using pre-2024 leave balances to follow the notice and documentation requirements that applied under the prior policy or collective bargaining agreement.

However, employers cannot require employees to use leave accrued after Jan. 1, 2024, before using leave accrued before that date.

A collective bargaining agreement may waive certain ESST notice and documentation requirements for paid leave provided above the 48-hour minimum required by Minnesota Statutes, section 181.9446, if the agreement explicitly references Minnesota Statutes, section 181.9447, subdivision 3, and clearly and unambiguously waives the application of that subdivision.

Cities have taken different approaches to addressing these requirements. Some cities have maintained separate pre-2024 and post-2024 leave balances and established different notice and documentation requirements for each balance. Other cities have combined existing sick leave banks and renamed the entire leave program as ESST.

Each approach has potential advantages and challenges. Maintaining separate balances may preserve certain employer requirements that applied to older leave banks but may require additional tracking. Combining all sick leave into one ESST-compliant bank may simplify administration but could eliminate some accountability provisions that were included in the prior sick leave policy.

Refer to FAQ 19 for ESST rules regarding advance notice from employees for use of leave and what an employer can request with respect to documentation.

Beyond notice and documentation requirements, any city leave available for an employee’s personal illness or injury as of Jan. 1, 2025, must comply with the requirements outlined in Minnesota Statutes, sections 181.9445-181.9446 and Minnesota Statutes, section 181.9448, including, but not limited to:

• • Eligible employees — ESST rules apply to all eligible employees and qualifying family members. They include a broader definition of family member than many traditional leave policies, and allow employees to annually designate one individual who is not otherwise included in the statutory definition. The law does provide limited exceptions. For more information, refer to the Minnesota Department of Labor and Industry ESST FAQs and FAQ 9.
  • Eligible uses — ESST provides expanded qualifying reasons for leave.  Many city sick leave or PTO policies may need to be updated to include these additional  uses. See FAQ 12 for more information.
  • Increment of time used — In 2024, the law limits the increment in which ESST may be used to no less than 15 minutes and no more than four hours. See FAQ 7 for more information.
  • Prohibition on requiring replacement workers — Employers may not require an employee using leave for personal illness or injury to find a replacement worker. This prohibition applies to ESST and any additional leave available for personal illness or injury after Jan. 1, 2025. Effective July 1, 2025, the law clarified that employees may still voluntarily seek or trade shifts to cover an ESST absence.
  • Anti-retaliation provisions — The ESST anti-retaliation provisions protect employees from discharge, discrimination, discipline, penalties, interference, threats, restraint, or coercion because the employee exercised or attempted to exercise their right to use qualifying leave. These protections apply to all leave provided for personal illness or injury as of Jan. 1, 2024.

Not necessarily. A city is not required to provide an additional ESST bank if its existing sick leave or paid time off (PTO) policy meets or exceeds the minimum ESST requirements, including, among other things, an earning threshold of one hour per 30 hours worked.

Under Minnesota law, effective Jan. 1, 2024, employees must accrue at least one hour of ESST for every 30 hours worked, up to a minimum annual accrual of 48 hours. Employers may agree to a higher maximum annual accrual amount if they so choose. (Minnesota Statutes, section 181.9446 (a)).

Refer to FAQ 1 for additional requirements that apply if a city does not maintain a separate ESST bank but instead uses an existing sick leave or PTO policy to satisfy ESST requirements.

Cities are required by law to track ESST usage and available balances. At the end of each pay period, employers must provide employees with the following information in writing or electronically:

• The total number of ESST hours available to the employee.
• The total number of ESST hours used by the employee during the pay period.

A 2024 law change provides employers flexibility in how they provide this information. Employers may use a reasonable system for communicating ESST balances and usage, including:

• Listing the information on the employee’s earnings statement or attaching it to the earnings statement; or
• Providing the information through an electronic system where employees can access their ESST information.

If a city provides ESST information electronically, it must provide employees access to an employer-owned computer during the employee’s regular work hours so the employee can  view and print the information upon request.

Cities must retain ESST-related payroll records for at least three years. Records must also be maintained in a manner that allows them to be readily accessed and provided to the Minnesota Department of Labor and Industry (DLI) upon request. Employers must provide requested records within 72 hours of a DLI request for the information.

Generally, no. ESST accrual is based on an employee’s hours worked, not hours paid. Time that is not actually worked, such as vacation, sick leave, compensatory time off, or holidays, generally does not count toward ESST accrual. Per DLI’s FAQs, under the ESST law, employers must apply the same “hours worked” rules as codified in Minnesota Administrative Rules 5200.0120 and 5200.0121.

The U.S. Department of Labor’s guidance on the Fair Labor Standards Act does not require employers to treat time not worked, such as vacation, sick leave, or holidays, as hours worked. The Minnesota Department of Labor and Industry (DOLI) FAQs on ESST is consistent with this approach. 

Under the ESST law, employees accrue at least one hour of ESST for every 30 hours worked. At a minimum, cities should calculate accruals based on actual hours worked, including overtime hours. However, employers may choose to provide a more generous accrual method, such as counting certain paid leave hours toward ESST accrual, if they wish to do so.

No. An employee has the right to use ESST for a qualifying purpose, but an employer cannot require an employee to use ESST. See FAQ 22 for more information.

If an employee chooses not to use ESST for a qualifying absence, the absence is not protected by the ESST law. Instead, the absence may be administered under the city’s applicable leave policies or attendance rules. Cities should ensure employees understand the implications of declining to use available ESST for a qualifying absence.

Minnesota Rules 5200.1209 also clarify that Minnesota Paid Leave is distinct from ESST. As DLI notes in its FAQs, the rule clarifies that “other salary continuation benefits” include Minnesota Paid Leave, which is excluded from being subject to ESST minimum standards and requirements under Minnesota Statutes, section 181.9448, subdivision 1(a).

Employees may use ESST in the same increments of time “for which employees are paid,” as long as the increment is not less than 15 minutes. Cities should review their timekeeping practices, particularly for exempt employees, because many exempt employees do not track time in the same manner as nonexempt employees.

Effective July 6, 2026, if an exempt employee uses ESST for a full-day absence, the employer cannot deduct more ESST than the number of hours the employee is credited with working each day for ESST accrual purposes.

The Minnesota Department of Labor and Industry provides this sample scenario:

Miguel is an exempt employee under federal overtime requirements, and his employer credits him with 40 work hours per week for ESST accrual purposes. Because Miguel is absent for a full workday because he is sick, his employer can only deduct eight hours of ESST from his ESST accrual bank.

Yes, a city may use different ESST accrual methods for different employee groups, as long as each method meets or exceeds the minimum requirements of the ESST law and is applied consistently and in a nondiscriminatory manner.

The Minnesota Department of Labor and Industry (DOLI) ESST FAQs state, “Yes, an employer may treat part-time and full-time employees differently for purposes of ESST, so long as the employer provides all employees at least what they are entitled to under Minnesota’s ESST law, and as long as the law is applied in a way that does not discriminate against an employee or group of employees based on a protected class, such as race, sex, or national origin.”

For example, a city may:

• Use an accrual method based on hours worked for full-time employees; and
• Use a different method, such as frontloading 48 hours of ESST with a year-end payout option, for seasonal employees.

While frontloading ESST may simplify administration, cities should consider potential budget impacts, including the requirement to pay out unused hours if the applicable frontloading option requires payout.

Not always. The ESST law excludes certain individuals from the definition of “employee.” As a result, the following individuals are not eligible for ESST:

• Individuals who work less than 80 hours in Minnesota in a year.
• Independent contractors.
• Elected officials and individuals appointed to fill a vacancy in an elected office of a political subdivision.
• An individual who is a volunteer firefighter or paid on-call firefighter, with a department charged with the prevention or suppression of fires within the boundaries of the state; is a volunteer ambulance attendant as defined in section 144E.001, subdivision 15; or is an ambulance service personnel as defined in section 144E.001, subdivision 3a, who serves in a paid on-call position. It is important to note that Minnesota law includes multiple definitions of “volunteer firefighter” for purposes unrelated to ESST, like pension benefits and firefighter training and education. Cities should consult with their city’s legal counsel when interpreting the scope of this exemption. As an example, Minnesota Statutes, section 299N.03, subdivision 7, defines volunteer firefighter, which includes volunteer, part-time and paid-on-call firefighters.
• Election judges are not excluded from ESST solely because they serve as election judges. They are eligible for ESST if they otherwise meet the law’s eligibility requirements, including working at least 80 hours in Minnesota during a year.

Employees begin accruing ESST at the start of employment, provided the city, in good faith, anticipates the employee will work at least 80 hours in Minnesota during the year. This applies to full-time, part-time, temporary, and seasonal employees unless an exception under the law applies. (See Minnesota Statutes, section 181.9446, subdivision 1 (d) and Minnesota Rules 5200.1202.) 

The ESST law took effect on Jan. 1, 2024. The law defines a year as a regular and consecutive 12-month period established by the employer and clearly communicated to employees. See FAQ 11. At a minimum, cities should begin tracking ESST as of Jan. 1, 2024.

Effective July 6, 2026, Minnesota Rules define “good faith” to mean the city has evaluated the employee’s anticipated work schedule and the location where the employee will perform work in a manner that is not knowingly false or in reckless disregard of the truth. In other words, the city should make a reasonable, honest determination about whether the employee is expected to work at least 80 hours in Minnesota during the year. (Refer to the Minnesota Department of Labor and Industry ESST FAQs.)

For positions where it is uncertain whether an employee will reach the 80-hour threshold — such as election judges — cities should make a good-faith estimate at the time of hire. If the employee is not initially expected to work 80 hours but later reaches that threshold during the year, the employee becomes eligible for ESST, and accrual must be credited retroactively to the employee’s first hour worked during that year.

The law also excludes certain individuals from ESST coverage, including volunteer and paid-on-call firefighters, volunteer ambulance attendants, and paid-on-call ambulance service personnel. See FAQ 9 for more information.

Minnesota law allows employers to provide ESST using several different methods. Cities should choose the approach that best fits their workforce and payroll practices while ensuring they meet the minimum requirements of the law.

Accrual Year
Effective July 6, 2026, Minnesota ESST Rules 5200.1201 clarify that employers may establish their own ESST accrual year, provided it is clearly communicated in the written ESST notice to employees. If an employer does not designate and communicate an accrual year, the ESST accrual year defaults to the calendar year (Jan. 1 to Dec. 31).

If a city wishes to change its method of providing ESST (for example, from an accrual method to a frontloading method), Minnesota Rules 5200.1204, subpart 2, requires the city to:

• Provide written notice to employees before the change. See Minnesota Statues, section 181.032(f).
• Make the change effective only at the beginning of the next accrual year.
• Continue using the existing method if timely notice is not provided, unless the employee agrees to the change.
• Minnesota Statues, section 181.9446 prohibits changes that would negatively impact an employee’s ability to accrue ESST.

If a city changes its method of providing ESST and fails to provide the required written notice before the start of the new accrual year, the previous ESST method remains in effect unless the employee agrees to the change.

Option 1: Advance ESST based on anticipated hours worked (Effective Jan. 1, 2026)

Beginning Jan. 1, 2026, employers may advance ESST based on the number of hours they reasonably anticipate an employee will work during the accrual year or the remainder of the accrual year.

Under this option:

• Employees may use the advanced ESST immediately, even though they have not yet earned the leave.
• If the employee ultimately works more hours than anticipated and earns additional ESST, the employer must reconcile the employee’s balance.
• Effective July 6, 2026, Minnesota Rules 5200.1204 require the employer to credit any additional ESST within 15 calendar days after the employee’s actual hours worked exceed the anticipated hours used to calculate the advance.
• If an employer provides ESST using one of the frontloading methods, no additional ESST accrual is required during that accrual year.

Option 2: Accrue ESST as it is earned, with no payout required

Under the traditional accrual method:

• Employees accrue one hour of ESST for every 30 hours worked.
• Employees must be allowed to accrue at least 48 hours of ESST each year (or more if the employer chooses).
• Unused ESST carries over from year to year.
• Employers may cap an employee’s accrued balance at 80 hours, unless they choose to allow a higher balance.

Crediting accrued time

Effective July 6, 2026, Minnesota Rules 5200.1203 clarify that employers must calculate and credit ESST based on the hours worked during each pay period no later than the employee’s regular payday for that pay period. Employers cannot wait until the end of the month or the end of the year to update ESST balances.

For example:

• At the end of each pay period, the employer calculates the ESST the employee earned based on hours worked.
• The employer credits those hours to the employee’s ESST balance by the regular payday.
• ESST is considered accrued once it has been credited to the employee’s balance.

Tracking accruals in whole-hour increments

Minnesota Rules 5200.1203, subpart 2, also allow employers to track ESST using whole-hour increments rather than crediting fractional hours after every pay period.

For example:

An employee earns 0.46 hours of ESST during a pay period.

The employer may wait until the employee has earned a full hour before adding one hour to the employee’s ESST balance.

This rule simplifies payroll administration but does not reduce the employee’s overall entitlement to accrue one hour of ESST for every 30 hours worked. Employers may still choose to track smaller increments, such as tenths of an hour or minutes.

Option 3: Frontload 48 hours with year-end payout

Under this option:

• The employer provides at least 48 hours of ESST at the beginning of each accrual year for immediate use.
• Employees do not carry unused ESST into the next accrual year.
• Instead, the employer must pay employees for any unused ESST at the end of the accrual year at the employee’s regular hourly rate.

Some cities find this option attractive because it simplifies administration. Others should carefully consider the budget implications of paying out unused ESST each year.

Option 4: Frontload 80 hours with no payout and no carryover

Under this option:

• The employer provides at least 80 hours of ESST at the beginning of each accrual year for immediate use.
• Employees do not carry over unused ESST from year to year.
• The employer is not required to pay out unused ESST at the end of the accrual year.

Cities should consult with their city attorney before implementing this option if employment contracts, personnel policies, or collective bargaining agreements include provisions regarding the payout of unused sick leave or PTO.

Employees may use earned sick and safe time (ESST) for the following qualifying reasons:

• The employee’s own mental or physical illness, injury, health condition, medical diagnosis, treatment, or preventive care.
• To care for a family member with a mental or physical illness, injury, health condition, medical diagnosis, treatment, or preventive care.
• To address issues related to domestic abuse, sexual assault, or stalking involving the employee or a family member.
• When the employee’s workplace is closed due to weather or another public emergency, or when the employee needs to care for a family member whose school or place of care is closed due to weather or another public emergency.
• To make arrangements for or attend a funeral or memorial service, or to address financial or legal matters that arise following the death of a family member.
• When a health authority or health care professional determines that the employee or a family member is at risk of spreading a communicable disease.

Exception for certain emergency response employees

There is a limited exception that allows cities to prohibit the use of ESST during a weather event or public emergency for certain employees whose duties require them to respond to that emergency.

This exception applies only if:

• The employee’s preassigned or foreseeable duties require the employee to respond to the public emergency or weather event; and
• The employee is one of the following:
  • A firefighter;
  • A police officer;
  • A 911 dispatcher;
  • A correctional facility guard; or
  • An employee who is required to hold a commercial driver’s license (CDL), such as a public works snowplow driver.

In addition, one of the following conditions must be met:

• Represented employees: The applicable collective bargaining agreement (CBA) or memorandum of understanding (MOU) explicitly references Minnesota Statutes, section 181.9447, subdivision 1(4), and clearly waives the employee’s right to use ESST for workplace or school/place-of-care closures resulting from a weather event or public emergency.

OR

• Unrepresented employees: The employee is needed to maintain the city’s minimum staffing requirements, and the city has adopted an ESST policy that:
  • References Minnesota Statutes, section 181.9447, subdivision 1(4);
  • Complies with the ESST notice and posting requirements in Minnesota Statutes, section 181.9447, subdivision 9; and
  • Has been properly provided to employees. The Minnesota Department of Labor and Industry has published a sample ESST notice that employers may use.

Because this exception is narrowly written, cities should carefully review the statutory requirements before denying ESST for weather- or public emergency-related absences.

Generally, no. Minnesota’s ESST law does not require employers to pay out accrued but unused ESST when an employee voluntarily or involuntarily leaves employment.

The one exception involves employers that use the 48-hour frontloading method with a required year-end payout. Under that option, employers must pay employees for any unused ESST remaining at the end of the accrual year at the employee’s regular hourly rate. This payout obligation applies only to employees who remain employed through the end of the accrual year.

Cities have asked whether a seasonal or other employee who separates before the end of the accrual year must still receive a payout under the 48-hour frontloading method. No. The Minnesota Department of Labor and Industry (DLI) FAQs state: “Employers are not required to pay out any accrued and unused ESST if an employee leaves their job, either voluntarily or involuntarily. However, employers may choose to do so. An employee who transfers positions or work units within a single employer retains their accrued ESST.” According to DLI staff, this guidance also applies to unused hours provided under the 48-hour frontloading option. If an employee returns to work for the same employer within 180 days after separation, the employer must reinstate the employee’s previously accrued and unused ESST, subject to the limits established by law. See FAQ 14 for more information.

Generally, no. If a city pays an employee for their accrued and unused ESST upon separation, there is no ESST balance remaining to reinstate if the employee is rehired.

However, if an employee separates from employment without receiving a payout of accrued and unused ESST and is rehired by the same employer within 180 days, Minnesota law requires the employer to reinstate the employee’s previously accrued but unused ESST.

Effective July 6, 2026, Minnesota Rules clarify that:

• If the employee had 80 hours or less of accrued but unused ESST at separation, the employer must reinstate the employee’s actual unused balance.
• If the employee had more than 80 hours of accrued but unused ESST, the employer is required to reinstate up to 80 hours, unless a law, collective bargaining agreement, employment contract, or employer policy provides a greater amount.

Likewise, no reinstatement is required if the employee had already exhausted their ESST balance before separating from employment.

Cities should ensure their payroll or leave-tracking system identifies employees who return within the 180-day rehire period so that any required ESST reinstatement is accurately restored.

No. Once an employee qualifies for ESST by meeting the 80-hour threshold, they do not have to requalify each year.

A Minnesota Department of Labor and Industry (DLI) representative has advised League staff that the 80-hour threshold is generally a one-time eligibility determination made when the employee is hired, based on the employer’s good-faith expectation that the employee will work at least 80 hours in Minnesota during the employer’s defined 12-month accrual year.

For example, a part-time employee works 100 hours during the first accrual year and becomes eligible for ESST. In the following accrual year, the employee works only 70 hours. The employee remains eligible for ESST and continues to accrue leave at the rate of one hour for every 30 hours worked.

See FAQ 10 for additional information about determining employee eligibility and the 80-hour threshold at the time of hire.

It depends on the method the city uses to provide ESST.

If the city uses the accrual method, part-time and seasonal employees accrue ESST based on the hours they actually work. Under Minnesota law, employees accrue at least one hour of ESST for every 30 hours worked, up to a minimum annual accrual of 48 hours, unless the employer provides a more generous benefit. (Minnesota Statutes, section 181.9446, subdivision 1.)

If the city uses a frontloading method, the Minnesota Department of Labor and Industry (DLI) FAQs indicate that the ESST law does not authorize employers to prorate the amount of frontloaded leave based on an employee’s work schedule or hire date.

Instead, DLI suggests that employers who do not want to provide a full frontloaded bank to newly hired employees may:

• Place new employees on the accrual method when they are hired; and
• Transition those employees to the city’s frontloading method at the beginning of the next accrual year. See FAQ 11.

This approach allows employers to avoid prorating frontloaded ESST while remaining compliant with the law.

According to PERA representatives, ESST hours are generally eligible for PERA deductions when the hours are used and paid during a specific pay period, similar to other paid leave benefits such as PTO, vacation, or sick leave.

However, a lump-sum payout of unused ESST is not PERA-eligible. For example, if an employer uses the frontloading method and provides 48 hours of ESST at the beginning of the year, then pays out any unused ESST balance at the end of the year, that payout would not be subject to PERA deductions. This is consistent with PERA treatment of lump-sum payouts for unused vacation or sick leave.

In addition to providing employees with at least one hour of ESST for every 30 hours worked, up to a minimum of 48 hours per year, cities should ensure they provide the required notices and information to employees, including:

• ESST balance and usage information: Provide employees, in writing or electronically at the end of each pay period, with the total number of ESST hours accrued and available for use, as well as the total number of ESST hours used. See FAQ 4 for more information.
• Employee notice at hire: Provide employees with notice about ESST at the start of employment. The notice must be provided in English and in the employee’s primary language if that language is not English.
• Employee handbook notice: If the city maintains an employee handbook, the handbook must include information about ESST.

The Minnesota Department of Labor and Industry (DLI) has developed a sample ESST employee notice that employers may use. DLI will provide translated versions of the notice in additional languages, including Chinese, Hmong, Somali, Spanish, Vietnamese, and others.

Cities may also create their own ESST notices, provided the notice contains all required information.

DLI has also developed an ESST workplace poster that employers may use to meet workplace posting requirements.

Yes. The notice requirements depend on whether the need for ESST is foreseeable or unforeseeable.

• Foreseeable absences: An employer may require an employee to provide advance notice of the need to use ESST but may not require more than seven days’ advance notice.
• Unforeseeable absences: Effective July 1, 2025, an employer may require employees to provide notice as reasonably required by the employer. Before July 1, 2025, the standard was that employees provide notice “as soon as practicable.”

With the Jan. 1, 2025, expansion of ESST protections to other paid leave provided for personal illness or injury (such as sick leave or PTO), cities should review their existing notice and documentation requirements to ensure compliance. See FAQ 1 and FAQ 2 for more information.

An employer that requires notice for ESST use must have a written policy explaining reasonable procedures employees must follow to provide notice. The city must provide a copy of the policy to employees. If an employee has not received the written policy, the city may not deny ESST based solely on the employee’s failure to follow the notice procedures. (Minnesota Statutes, section 181.9447, subdivision 2.)

Documentation requirements

Effective July 1, 2025, the timeframe for when an employer may require reasonable documentation changed from more than three consecutive scheduled workdays to more than two consecutive scheduled workdays.

Unless otherwise provided by a collective bargaining agreement, employment agreement, or city policy, the documentation rules are:

• For ESST used on or before June 30, 2025: An employer may require reasonable documentation after an employee uses ESST for more than three consecutive scheduled workdays.
• For ESST used on or after July 1, 2025: An employer may require reasonable documentation after an employee uses ESST for more than two consecutive scheduled workdays.

If the employee or the employee’s family member did not receive services from a health care professional, or if obtaining documentation from a health care professional would create an unreasonable delay or additional expense, reasonable documentation may include a written statement from the employee confirming that the employee is using or used ESST. The statement may be written in the employee’s first language and does not need to be notarized. (Minnesota Statutes, section 181.9447, subdivision 3.)

Documentation for domestic abuse, sexual assault, or stalking

When an employee uses ESST for a qualifying reason related to domestic abuse, sexual assault, or stalking involving the employee or a family member, the employer must accept reasonable documentation such as:

• A court record;
• Documentation signed by a volunteer or employee of a victims’ services organization;
• Documentation signed by an attorney;
• Documentation signed by a police officer; or
• Documentation signed by an antiviolence counselor.

If documentation cannot be obtained within a reasonable time or without additional expense, a written statement from the employee may be considered reasonable documentation.

Failure to provide required documentation

Effective July 6, 2026, Minnesota Rules 5200.1207 clarify that if an employer notifies an employee that documentation is required, provides a reasonable deadline for submission, and the employee fails to provide the documentation within that timeframe, the employee may lose the ESST law protections that would normally apply to that absence.

Cities should ensure any documentation requirements are clearly communicated and that employees are provided a reasonable opportunity to comply.

Yes. Although employers generally may require documentation only after an employee uses ESST for more than two consecutive scheduled workdays (see FAQ 19), employers may require reasonable documentation sooner if there is a pattern or clear instance of suspected misuse.

Examples of suspected misuse include:

• Repeatedly using ESST immediately before or after scheduled days off, vacations, or holidays.
• Repeatedly using very small increments of ESST (less than 30 minutes) at the beginning or end of a shift.
• Using ESST on a day after the employer denied a request for another type of paid leave.
• Providing documentation or other information that conflicts with the employee’s stated reason for using ESST.

When requesting documentation based on suspected misuse, the employer must still follow the requirements of the ESST law. This includes requesting only reasonable documentation, providing the employee with a reasonable amount of time to submit it, and complying with the law’s confidentiality and cost-related requirements.

An employer may not deny an employee’s request to use ESST for a qualifying reason solely because the employer suspects misuse or because the employee previously misused ESST. If the absence qualifies under the ESST law, the employee must be allowed to use ESST.

However, misuse of ESST is not protected by the ESST law. If an employer determines that an employee misused ESST, the employer may address the misuse through appropriate action consistent with the employer’s policies and applicable laws.

Yes. An employee may, with the employer’s agreement, return to work on a part-time basis while using ESST. An employee who returns to work part-time during ESST leave does not lose their right to return to employment at the end of the leave period (Minnesota Statutes, section 181.9447, subdivision 8).

No. A city cannot require an employee to use ESST before using other available leave for illness or injury. Minnesota Rules 5200.1205 clarify that an employee has the right to choose whether to use ESST for a qualifying reason, and an employer cannot require an employee to use ESST hours.

Additionally, an employer cannot require an employee to use leave accrued on or after Jan. 1, 2024, before using leave accrued before that date.

The legal protections provided under the ESST law (such as protection from discipline, retaliation, or interference) apply when an employee actually uses ESST for a qualifying purpose. Employees who choose to use other available leave instead of ESST may not receive the specific protections provided under the ESST law for that absence.

Employees must be paid their base rate of pay for ESST hours used.

The employee’s base rate is determined as follows:

• Hourly employees: The same hourly rate the employee receives for hours worked.
• Hourly employees with multiple hourly rates: The rate the employee would have been paid for the period during which ESST was used.
• Salaried employees: The same rate guaranteed to the employee as if the employee had not taken ESST.
• Employees paid solely by commission, piece rate, or another method other than hourly or salary: A rate no less than the applicable local, state, or federal minimum wage, whichever is higher. The base rate of pay does not include:
  • Commissions.
  • Shift differentials paid in addition to an hourly rate.
  • Overtime premium payments.
  • Premium payments for work on Saturdays, Sundays, holidays, or scheduled days off.
  • Bonuses or gratuities as defined in Minnesota Statutes, section 177.23.

It depends. A city generally cannot deny a bonus or incentive simply because an employee used ESST. Minnesota Statutes, section 181.9447, subdivision 6(b) prohibits an employer’s attendance policy or absence control system from counting ESST used under Minnesota Statutes, sections 181.9445 to 181.9448, “as an absence that may result in retaliation or another adverse employment action.”

However, Minnesota Rules 5200.1206 clarify that if a bonus, reward, or other incentive is based on achieving a specific goal (such as hours worked, products sold, or perfect attendance) and an employee does not meet that goal because they used ESST, the employer may deny the incentive unless employees using other types of leave would receive the same benefit.

In other words, a city must treat ESST use consistently with other types of leave. If employees who use other approved leave (such as vacation, military leave, jury duty, or another protected leave) would still qualify for the bonus or incentive despite not meeting the goal, then an employee who used ESST must be treated the same.

Cities will want to review any incentive programs carefully with legal counsel to ensure they do not penalize employees for using ESST while still allowing legitimate performance-based requirements to apply consistently.

If an employee begins a shift but leaves before the end of the shift to use ESST, the employer should first determine the total number of hours the employee would have reasonably been expected to work using one of the methods described in FAQ 7. The employer then subtracts the hours the employee actually worked before leaving.

For example:

• The employer uses the employee’s previous similar shift method, and the employee’s similar shift lasted eight hours.
• The employee works three hours before leaving due to illness.
• The employer deducts five hours of ESST (8 hours − 3 hours worked = 5 hours of ESST used).

Effective July 6, 2026, if an employee’s shift does not have a predetermined end time (for example, the employee works until the job is completed, business slows down, or the employee is relieved), the employer must use a reasonable and consistent method to determine the number of ESST hours to deduct. The employee should only be charged for the amount of time they reasonably would have been expected to work.

A city may use one of the following methods:

• Replacement worker method: Deduct the number of hours the replacement employee actually worked. For example: An employee leaves work due to illness, and a replacement employee covers the shift for five hours. The employer deducts five hours of ESST.
• Employee’s previous similar shift method: Deduct the number of hours the employee worked during their most recent similar shift. For example: The employee’s last similar shift lasted seven hours. The employer deducts seven hours of ESST.
• Similarly situated employee method: Deduct the longest number of hours worked by another employee in a similar position who worked that same shift. For example: Another employee in the same position worked eight hours during that shift. The employer deducts eight hours of ESST.

For example:

A city snowplow operator is scheduled to work beginning at 2:00 a.m. and will remain on duty until they are finished plowing and are relieved of their shift. The employee becomes ill and calls in sick for the entire shift. Another snowplow operator covers the shift and works until 6:00 a.m. Because the replacement employee worked four hours, the city may deduct four hours of ESST from the originally scheduled employee’s balance, unless the city elects to use another allowable method to determine the length of the indeterminate shift for ESST purposes.

If an employee begins a shift that does not have a predetermined end time and leaves mid-shift using ESST, the employer should first determine the expected length of the shift using one of the methods noted above, then subtract the hours already worked. Only the remaining expected hours may be deducted from the employee’s ESST balance.

For example:

A city snowplow operator is scheduled to work beginning at 2:00 a.m. and will remain on duty until they are finished plowing and are relieved of their shift. The employee begins the shift but becomes ill and leaves work at 4:00 a.m. During the employee’s most recent similar snow event, the employee worked until 6:00 a.m., for a total shift of four hours. The city elects to determine the length of the shift without a predetermined end time using the employee’s most recent similar shift. Because the employee worked two hours before leaving, the city may deduct two hours of ESST for the remainder of the missed shift.