Editor’s Note: This article was written on March 12, 2025. The statutes at issue are currently being debated by the legislature. Future legislation and caselaw may alter the decisions discussed herein.
When the Minnesota Legislature rolled out Earned Sick and Safe Time (ESST) in 2023, most employers and HR professionals focused on the benefits the amount of benefits required, the accrual rates, and the broad reason for using ESST. Now that ESST is in full effect, most of the calls I’m receiving from employers are about the mundane details of implementation. In particular: What is to be done when an employee’s notice of intent to take sick leave (both in terms of advance notice, and evidence of the need for leave) is lacking. This article will discuss some common situations and what to do about them.
“IF AN EMPLOYEE DOESN’T CALL IN SICK UNTIL 10 MINUTES AFTER THE START OF HER SHIFT, DO I HAVE TO PAY HER ESST?”
Well, that depends. If you’re one of the few employers who doesn’t have any written sick time policies at all, then yes, you need to pay it. But if that’s you, you probably haven’t heard of ESST and you’re probably not reading this article, so…best of luck to you.
You can and should have a written policy on sick time and that policy should include the strictest language allowed by the statute—Minnesota Statutes section 181.9447, Subdivision Example language would be: “Employees must inform the Company of their need for ESST as soon as the need is foreseeable. Even for prior known needs for ESST, we do not require more than seven days notice; but the Company and your coworkers will appreciate the advance notice so we can plan for your absence. For absences with seven or fewer days advance notice, if an employee does not give notice of the need for ESST as soon as practicable, ESST will be denied”
So long as you have such a written policy, and your employees have written notice of the written policy, then you can deny ESST. That of course raises two more questions:
1. “How do I know if the notice was ‘as soon as practicable’ or not?”
Unfortunately, neither the statute nor case law help us answer this question. I recommend employers start by asking: “Why didn’t you call in until after the start of your shift?” Essentially, you are looking to find out if there was any time between (a) the employee concluding she could not come to work, and (b) her decision to inform you of that fact and (c) why (a) and (b) happened after start time. Real life is unpredictable but it’s difficult to imagine a justifiable reason for calling in after shift start other than being so sick that one slept through her alarm, or being too sick to get to a phone.
Even more unfortunate, you really won’t have much to go on other than the employee’s word. If she tells an illogical story—“I didn’t know I was too sick to work until 10 minutes after shift start,” (and she has no explanation as to why she didn’t show up on time, if she thought she could work)—then you are safe to deny ESST and treat this as an unexcused absence. If she gives you a logically coherent (even if unlikely story) such as “I woke up an hour before shift start, like always, but I was in the bathroom vomiting constantly, and could not have got to my phone until I called” well, I would accept such a story, once. If this is a repeat process, I think you’re safe to judge that she could have practically called earlier.
2. “What if I’m wrong, and 10 minutes after shift start was in fact ‘as soon as practicable’?”
Again, neither the statute nor caselaw tells us where or how such a disagreement would be litigated. 181.9447 Subdivision 6 says “An employer shall not…retaliate or discriminate against a person because the person has…requested earned sick and safe time[.]” This is why in both our handbooks, and in our written discipline we draw clear distinctions between time off, and giving notice of time off.
If you wrote up this employee for calling in after shift start, you would want to make it clear that she is NOT being written up for asking for ESST. She’s being written up for failing to call in before shift start. Separately, she’s being denied ESST by operation of your notice policy, which the statute explicitly allows you to have and enforce.
“I HAVE AN EMPLOYEE WHO I KNOW PLAYS IN A BEER BALL SOFTBALL LEAGUE THURSDAY NIGHTS IN THE SUMMER. ABOUT HALF THE TIME, HE’S ‘SICK’ ON FRIDAYS. WHAT CAN I DO ABOUT THIS?”
If you’re an employer looking to end the article on a positive note, you probably should have stopped reading at the end of the last section.
Unfortunately, an employer can’t require a doctor’s note unless the ESST is used for more than three consecutive scheduled work days. (Minn. Stat. § 181.9447 Subd. 3(a)) More unfortunately (I’m using that word a lot in this article) there is no definition of what constitutes a “mental or physical illness…or other health condition;” under Subdivision 1. A hangover is a “health condition” and there’s no exception to ESST for avoidable health conditions. So, this is covered by ESST.
On top of that, Subdivision 6 makes it illegal to retaliate against this employee in any way for taking ESST, and you can’t discipline him for off work imbibing.
The only thing an employer can do to minimize this behavior is to make sure it costs the employee in some way. This is why I recommend two optional provisions in your leave policy. First, you should have a “two-bucket” system of leave—one including sick time that is no more generous than what the statute requires; and another for vacation which includes longer required notice periods for taking vacation. Second, you should pay out ESST at the end of the year so that this employee is costing himself money by burning his sick time in this way.
Minnesota’s Earned Sick and Safe Time forces employers and employees into a one-size fits all relationship in terms of sick time benefits offered. If abused, it also forces responsible employees to subsidize employees willing to exploit the system. As an employer, you owe it to your good employees to minimize this disruption and enforce what reasonable measures the law still allows.
