Minnesota Department of Labor and Industry Proposes Permanent Rules Relating to Earned Sick and Safe Time (ESST)

At a Glance

• The proposed rules — if adopted as proposed — would provide much needed clarity to the ESST law and establish a few employer protections regarding employee misuse of ESST. 
• With Minnesota Paid Leave taking effect January 1, 2026, the proposed rules attempt to address “the related interplay between the ESST law and the Minnesota Paid Leave program.”
• The DLI’s website sets a deadline of November 26, 2025, at 4:30 p.m., if interested persons or groups want to submit written comments or information about these possible rules. 

On Monday, October 27, 2025, the Minnesota Department of Labor and Industry published proposed rules for Minnesota’s Earned Sick and Safe Time (ESST) law in the Minnesota State Register. 

The proposed rules clarify certain key issues in the ESST law, including employer administration of ESST benefits, determining hours worked that are subject to ESST accrual, an employee’s right to use ESST, incentives related to production or attendance goals, reasonable documentation, employee misuse of ESST, and the interaction of employers’ more generous paid leave policies with the ESST law. The proposed rules are meant to reflect feedback received during the two comment periods in 2024 and 2025. There is a 30-day public comment period, with the effective date of these rules yet to be determined. 

Summary of Key Provisions Within the Proposed Rules

Below is a high-level summary of a few key provisions within the proposed rules.

Impact of Hours Worked in Minnesota

If an employee works more than 50% of their hours for an employer in Minnesota in an accrual year, then all of the employee’s hours worked count toward their accrual of ESST, regardless of location. If an employee works more than 50% of their hours for an employer outside Minnesota in an accrual year, then only the employee’s hours worked in Minnesota count toward their accrual of ESST.

Employee Use

While already addressed in the Minnesota ESST FAQs, it is an employee’s right to use ESST for a qualifying purpose, and employers cannot require an employee to use ESST. 

More Generous Sick and Safe Time Policies

Any excess paid time off and other paid leaves made available to an employee that can be used for a personal illness or injury are subject to the minimum standards and requirements of ESST (except accrual of ESST under Minn. Stat. Section 181.9446), only when the leave is used for a qualifying purpose. 

Scope of “Other Salary Continuation Benefits”

For purposes of Minn. Stat. Section 181.9448, Subd. 1 — which excludes “short-term or long-term disability or other salary continuation benefits” from the scope of “paid time off and other paid leave made available to an employee” that must meet or exceed the minimum standards and requirements of ESST — “other salary continuation benefits” include Minnesota Paid Leave, which takes effect January 1, 2026.

Advancing Hours

If advancing ESST to an employee for the remaining portion of an accrual year, employers must advance (i.e., frontload) at least the amount of ESST the employee would accrue based on the rate of one hour for every 30 hours worked for the remainder of the applicable year; however, employers are not required to advance more than 48 hours of ESST. If an employer advances less ESST than the employee would have earned based on the employee’s actual hours worked through the remainder of the year, then the employer must make up the difference within 15 calendar days of the employee’s actual hours worked surpassing the number of hours the employer anticipated the employee would work when it advanced/frontloaded ESST. 

Note that the following language of the ESST law is not effective until January 1, 2026: “An employer is permitted to advance earned sick and safe time to an employee based on the number of hours the employee is anticipated to work for the remaining portion of an accrual year. If the advanced amount is less than the amount the employee would have accrued based on the actual hours worked, the employer must provide additional earned sick and safe time to make up the difference.” Minn. Stat. Section 181.9448, Subd. 1(j). 

Indeterminate Shifts

When an employee uses ESST for an absence from a scheduled shift of indeterminate length, then the employer must deduct from the employee’s available ESST bank using only one of the available options within the rules: (i) the hours worked by the replacement worker, if any; (ii) the hours worked by the employee in the most recent shift of an indeterminate length; or (iii) the greatest number of hours worked by a similarly situated employee, if any, who worked the shift for which the employee used ESST. 

Crediting Accrual

ESST must be credited to an employee no later than the regular payday after the end of each corresponding pay period. 

Increment of Time Accrued

Employers are not required to credit employees with less than hour-unit increments (i.e., an employee is not entitled to accrue ESST in less than one-hour increments on a prorated basis). 

Reasonable Documentation

If an employee does not provide reasonable documentation, the employee’s leave is not subject to the protections of the ESST law. However, any requirement for reasonable documentation must be clearly communicated to the employee, and the employee must be given a reasonable amount of time to provide the reasonable documentation. “Reasonable amount of time” is not defined. 

Misuse of ESST

Clarifies that if the employee uses ESST for a purpose not covered by the law, that the leave is also not subject to the protections of the ESST law. Employers may also require reasonable documentation from an employee where there is a pattern or clear instance of suspected misuse of ESST by the employee; however, the employer is limited to asking for documentation permitted by Minn. Stat. Section 181.9447, Subds. 3(b) to (f). An employer cannot deny future use of ESST based on an employee’s previous misuse of ESST by the employee, or the employer’s suspicion that an employee misused ESST. 

Employer Notification Requirements

The proposed rules require that employers must provide written notice of the following changes in accordance with Minn. Stat. Section 181.032(f):

• A change to the start and end date of an accrual year, which must not negatively impact an employee’s ability to accrue ESST.
• A change to the employer’s method of providing ESST to an employee (i.e., change from accrual method to frontloading), which cannot take effect until the first day of the next accrual year. If the employer does not provide a timely notice of the change to the accrual method, the prior accrual method remains in effect, unless the employee agrees otherwise. 
• Any significant changes, such as a change in work location or duties. 

Interaction of Proposed Rules With Minnesota Paid Leave

With Minnesota Paid Leave taking effect January 1, 2026, the proposed rules attempt to address “the related interplay between the ESST law and the Minnesota Paid Leave program.” As noted above, the proposed rules would clarify that Minnesota Paid Leave is considered by the Minnesota Department of Labor and Industry (DLI) as a “salary continuation benefit,” meaning that Minnesota Paid Leave is not subject to the minimum standards and requirements of the ESST law. Specifically, this is helpful in determining whether employers must allow employees to use Minnesota Paid Leave in the same increment of time for intermittent leave as they must allow for an employee’s use of ESST. Under the ESST law, employees may use ESST “in the same increment of time for which employees are paid, provided an employer is not required to provide leave in less than 15-minute increments nor can the employer require use of earned sick and safe time in more than four-hour increments.” Minn. Stat. Section 181.9447, Subd. 5. Furthermore, Minn. Stat. Section 181.9448, Subd. 1(a) extends these requirements to “any paid time off and other paid leave made available to employees in excess of the minimum amount required” that an employee can use to be absent from work due to a personal illness or injury, but specifically excludes “short-term or long-term disability or other salary continuation benefits.”

However, this still leaves employers with questions about the effects of the ESST law on Minnesota Paid Leave. Under the Minnesota Paid Leave law, intermittent leave “must be taken in increments consistent with the established policy of the employer to account for use of other forms of leave, so long as such employer’s policy permits a minimum increment of at most one calendar day of intermittent leave.” Minn. Stat. 268B.04, Subd. 6(a). Paid time off, vacation, and leave under the Family and Medical Leave Act (FMLA) most certainly qualify as “other forms of leave” under the Minnesota Paid Leave law. Given that the ESST law imposes its minimum requirements onto more generous sick and safe time policies, it is still decidedly unclear whether employers must allow employees to use Minnesota Paid Leave in 15-minute increments when taken on an intermittent basis, because paid time off and vacation are other forms of leave. The Minnesota Paid Leave Division has not indicated it will enforce the program in this manner, but it may ultimately address the ambiguity in a FAQ. 

In Conclusion

Ultimately, the proposed rules — if adopted as proposed — would provide much needed clarity to the ESST law and establish a few employer protections regarding employee misuse of ESST. 

The DLI’s website sets a deadline of November 26, 2025, at 4:30 p.m., if interested persons or groups want to submit written comments or information about these possible rules. If more than 25 individuals submit a written request for a hearing by the November 26 deadline, the DLI anticipates holding a two-day hybrid public hearing on Wednesday, January 21, 2026, at 9:30 a.m., and Thursday, January 22, 2026, at 9:30 a.m.