On June 6, 2022, the Bloomington City Council passed an Earned Sick and Safe Leave Ordinance, joining its local counterparts Minneapolis, St. Paul, and Duluth to provide paid sick and safe time to employees.¹ Employers have just over a year to address their compliance obligations under Minnesota’s fourth local paid sick and safe time mandate, which does not take effect until July 1, 2023. The Bloomington ordinance is a near replica of the Minneapolis Sick and Safe Time Ordinance, which has been in effect since July 1, 2017. It generally requires employers to provide certain employees in Bloomington with up to 48 hours of paid sick and safe time per year.

The key provisions of the ordinance and any noteworthy differences from the Minneapolis ordinance are outlined below.

Covered Employers and Employees

The ordinance covers all employees (including part-time and temporary employees) performing work within Bloomington’s geographic boundaries for at least 80 hours in a year for their employer. The limited exceptions to coverage under the ordinance include unpaid student interns, independent contractors, and employees classified as extended employment program workers participating in the Minnesota extended employment program for persons with severe disabilities or severe impairment to employment.

The ordinance covers virtually all private employers but requires only that paid sick and safe time be provided by employers with five or more employees (working anywhere).

There is no exemption under the law for unionized employees, including those employees subject to a collective bargaining agreement on the effective date of the ordinance.

Accrual, Carryover and Frontloading

Beginning on the later of July 1, 2023, or an employee’s date of hire, covered employees will accrue one hour of paid sick and sick and safe time for every 30 hours worked within the geographic boundaries of Bloomington, up to a maximum accrual of 48 hours per calendar year. Employers may designate a different 12-month period of their choice (including an employee’s anniversary year) as the calendar year. The frequency with which an employer records accrual may be in a manner consistent with current payroll practices as defined by industry standards or existing employer policies, provided such practice or policy is no less frequent than a monthly basis.

All accrued but unused sick and safe time carries over from one calendar year to the next. However, the overall accrual amount for an employee will be capped at 80 hours unless the employer elects to set a higher cap. For example, if an employee accrues 48 hours in their first full calendar year of employment but does not use any time, all 48 hours will carry over to the next calendar year. The employee will continue accruing paid sick and safe time until their bank reaches 80 hours; employees will not resume accrual until they use some of their accrued time and their bank drops below 80 hours. At that point, accrual will resume until the either employee accrues 48 hours for the calendar year or the bank hits 80 hours again, whichever occurs first.

Employees may use any accrued paid sick and safe time – there is no annual use cap under the ordinance.

Similar to the Minneapolis and St. Paul ordinances, the Bloomington ordinance allows employers to avoid the carryover and accrual cap requirements by granting a lump sum of paid sick and safe time at the beginning of the calendar year. Employers must “frontload” at least 48 hours of sick and safe time following the employee’s initial 90 days of employment, and at least 80 hours of paid sick and safe time at the beginning of each subsequent year.

Using Existing Policies for Compliance

Employers with paid time off (PTO) policies do not need to provide additional time off to their employees if their existing policy satisfies the accrual and carryover requirements under the ordinance, and employees can use PTO for the same purposes and under the same conditions and paid sick and safe time under the ordinance.

Permitted Use of Sick and Safe Time

Employees may use accrued paid sick and safe time beginning 90 calendar days after the start of their employment. Employees may use paid sick and safe time when they are scheduled to work within the geographic boundaries of the city but cannot work for any of the following reasons:

1. The employee’s mental or physical illness; injury; health condition; need for medical diagnosis; care, including prenatal care; treatment of a mental or physical illness, injury, or health condition; or need for preventative medical or health care.
2. The care of a family member for the same reasons outlined in #1 above or the death of a family member.
3. An absence due to domestic abuse, sexual assault, or stalking of the employee or employee’s family member, provided the absence is to:
   
   1. Seek medical attention or psychological or other counseling services related to physical or psychological injury or disability caused by domestic abuse, sexual assault, or stalking;
   2. Obtain services from a victim services organization;
   3. Seek relocation due to domestic abuse, sexual assault, or stalking; or
   4. Seek legal advice or take legal action, including preparing for or participating in any civil or criminal legal proceeding related to or resulting from domestic abuse, sexual assault, or stalking.
4. The closure of the employee’s place of business by order of a public official to limit exposure to an infectious agent, biological toxin, hazardous material, or other public health emergency.
5. To accommodate the employee’s need to care for a family member whose school or place of care has been closed by order of a public official to limit exposure to an infectious agent, biological toxin, hazardous material, or other public health emergency.
6. To accommodate the employee’s need to care for a family member whose school or place of care has been closed due to inclement weather, loss of power, loss of heating, loss of water, or other unexpected closure.

The ordinance defines a covered “family member” to include 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 members of the employee’s household.

Employers must allow employees to use their paid sick and safe time in increments consistent with the employer’s current payroll practices, provided that such increment is not more than four hours.

Health care providers (including doctors, nurses, and emergency room personnel) may only use paid sick and safe time when they have been scheduled to work – excluding “on call” shifts, unless the health care provider has been asked to remain on the employer’s premises. If a health care provider calls in and requests a shift occurring within 24 hours, the provider will not be entitled to use paid sick and safe time to cover that shift.

Requesting Paid Sick and Safe Time

Employers may require up to seven days’ advance notice of a foreseeable need for paid sick and safe time. If leave is unforeseeable, employees need only provide notice as soon as practicable.

While the ordinance does permit “reasonable documentation” to verify an employee’s need for leave, the restrictions are unique and apply only to limited situations:

• The employee’s absence exceeds three consecutive days;
• The employee is absent for leave under reasons (1) through (3)(i) above (i.e., leave related to an employee’s or family member’s health); and
• The employer provides health insurance benefits to the employee.

Employers must treat as confidential any health or medical information regarding an employee or an employee’s family member or information pertaining to domestic abuse, sexual assault, or stalking of an employee or an employee's family member except with permission of the employee, when ordered by a court or administrative agency, or when otherwise required by federal or state law.

Calculating the Rate of Pay

Employers with five or more employees (working anywhere) must compensate employees covered by the ordinance at the “regular rate of pay for the hours the employee was scheduled to work during the time the employee uses their accrued sick and safe time.” The ordinance defines the “regular rate of pay” as the employee’s hourly rate, including payments for shift differentials, for an hourly employee or an equivalent rate for an exempt employee. It explicitly excludes:

• Tips;
• Commissions;
• Reimbursements for expenses incurred on the employee’s behalf;
• Premium payments for overtime work or work on Saturdays, Sundays, holidays, or scheduled days off, if the premium rate is at least 1.5 times the normal rate;
• Bonuses;
• Cash or other valuables in the nature of gifts on special occasions;
• Payments made pursuant to a bona fide profit-sharing plan or trust or bona fide thrift or savings plan; or
• Contributions irrevocably made by an employer to a trustee or third person pursuant to a bona fide plan for providing old-age, retirement, life, accident, or health insurance or similar benefits for employees.

In no case can the employee’s rate of pay drop below the state minimum wage. Compensation is required only for hours that an employee was scheduled to have worked.

Employers in the construction industry may opt to pay sick and safe time at the state prevailing wage or the rate required by the applicable registered apprenticeship agreement, regardless of whether the employees are working on private or public projects.

Separation from Employment Rehire

Employers are not required to pay employees for unused sick and safe time upon separation from employment, but any unused time must be reinstated and made available for use if the employee is rehired within 120 days of separation. Employees transferring outside of Bloomington will retain their accrued paid sick and safe time for a period of three years from the date of transfer but are not entitled to use such time unless they work again in Bloomington.

Employer Notice and Recordkeeping Requirements

Employers must provide notice to employees regarding employee rights under the Ordinance. The notice – which must be printed in English and any other language spoken by at least 5% of employees – must be: (1) included in any employee handbook and (2) posted in a conspicuous place at the workplace or jobsite where any employee works. The City Attorney’s Office will provide a suitable notice for employer use prior to July 1, 2023.

Employers must maintain accurate records for each employee showing (1) hours of leave available for sick and safe time purposes, (2) hours of leave used for sick and safe time purposes, and (3) hours worked (for non-exempt employees). Records must be retained for at least three years in addition to the current calendar year and must be available for inspection by the employee or the City Attorney’s Office.

While there are no paystub reporting requirements under the ordinance, employers may choose a reasonable system for providing the notification of available and used paid sick and safe time, including listing information on pay stubs or in an online system where employees can access the information.

Prohibited Acts, Enforcement, and Penalties

Under the ordinance, an employer cannot require that an employee seek or find a replacement worker to cover the hours during which the employee uses sick and safe time. However, employers may have a policy that allows employees to exchange hours or to trade shifts voluntarily.

Employers cannot discriminate or retaliate against employees for exercising their rights under the ordinance, including requesting accrued sick and safe time, using accrued sick and safe time, informing any person about an employer’s alleged violation of the Ordinance, and making a complaint or filing an action to enforce a right to accrued sick and safe time.

If an employee’s terms and conditions of employment are materially changed within 90 days of the employee’s exercise of rights under this Ordinance, there is a rebuttable presumption that the employer has retaliated against the employee. Material change to terms and conditions of employment includes termination, constructive discharge, reduction of employee’s wages or benefits, or other changes in employment that affect the employee’s future career prospects.

The City Attorney’s Office is responsible for enforcing the ordinance and has the sole discretion to investigate or pursue a violation. Employees must report suspected violations to the City Attorney’s Office within 365 days of the alleged wrongful act. The City Attorney’s Office will provide the employee with written notification if it determines not to investigate the report, including the reason for its decision. The employee then has 21 days to file a request for reconsideration, which again will be responded to in writing by the City Attorney’s Office.

The ordinance provides a non-exhaustive list of potential relief and administrative fines for the City Attorney’s Office to impose when a violation has occurred, including, but not limited to:

• Reinstatement and back pay.
• The crediting to an employee of any accrued sick and safe time accrued but not credited plus payment to the employee of the dollar value of the accrued sick and safe time accrued but not credited multiplied by two, or $250, whichever amount is greater.
• The payment of any accrued sick and safe time unlawfully withheld plus payment to the employee of the dollar amount of accrued sick and safe leave withheld multiplied by two, or $250, whichever amount is greater.
• Administrative fines of up to $1,000 for second and subsequent violations.

An administrative appeal process is available.

As an alternative to the administrative remedies outlined above, employees may file a private lawsuit alleging a violation of the ordinance, to recover damages, costs and attorneys’ fees.

Key Takeaways and Next Steps

Employers should calendar a reminder for the months leading up to July 2023 to monitor for any interpretative rules² and to ensure that they update any existing policies, as needed, before the ordinance takes effect.

Employers with Twin Cities-compliant policies have a significant head start, as the Bloomington ordinance tracks the Minneapolis ordinance in almost all respects. Employers should note, however, the two key differences:

• The more restrictive documentation/verification provisions; and
• A longer period for reinstatement of unused paid sick and safe time upon rehire (120 days versus 90 days).

Employers should review their policies to determine whether they will maintain separate policies for each city or adopt a single Twin Cities policy that includes most generous provisions from all three ordinances.