New MN ESST Bulletin and Guidance

Francis is a Senior Attorney at Peters & Kappenman, P.A., a firm representing employers in a full range of employment law issues and litigation in Minneapolis, Minnesota.

On July 6, 2026, the Minnesota Department of Labor and Industry (MN DLI) published Final Rule on Minnesota Earned Sick and Safe Time (ESST). The new Final Rule became effective as of July 6, 2026. The Final Rule states, in relevant part:

Accrual Year. Employers must clearly communicate the definition of accrual year (e.g. work anniversary, calendar year, or any other 12-month period). If no accrual year is communicated, then the accrual year is defaulted to the calendar year.

How To Change The Accrual Year. An employer may change the accrual year by providing advance written notice to all employees. The changes cannot impact negatively employees.

Hours Worked. ESST is accrued on all “hours worked”. For ESST purposes, hours worked include:

• Training time.
• Call time.
• Cleaning time.
• Waiting time.
• Paid rest breaks (of less than 20 minutes).
• Any other time when the employee must be on the premises of the employer
• Any other time when the employee is involved in the performance of duties in connection with his or her employment.
• Any other time when the employee must remain on the premises or so close to the premises that the employee cannot use the time effectively for the employee’s own purposes while they wait for work to be prepared or available.
• Being on less than 24-hour duty pursuant to Minnesota Rule 5200.0121.
• Being on duty for 24 hours or more pursuant to Minnesota Rule 5200.0121.

Indeterminate Shift. An indeterminate shift is a work shift defined by business needs and not a specific number of hours. When deducting hours for an indeterminate shift, the employer must estimate the hours in one of three (3) ways:

• The hours worked by a replacement worker, if any;
• The hours the employee worked during the most recent similar shift of an indeterminate shift; or
• The greatest number of hours worked by a similarly situated employee, if any, who worked that shift.

• Example 1: Linda works at a bar and is scheduled to work on Thursday from 4 p.m. until relieved from her shift when the bar is less busy. Linda gets sick and calls out sick for her shift. The person who covers Linda’s shift works until 11 p.m. Therefore, as the replacement worker worked seven (7) hours, the employer may deduct seven (7) ESST hours for Linda’s missed shift unless the employer elects to use another allowable option to determine the length of the indeterminant shift for ESST purposes.
• Example 2: Linda works at a bar and is scheduled to work on Thursday from 4 p.m. until relieved from her shift when the bar is less busy. Linda starts her shift but feels sick and leaves her shift early at 6 p.m. Last Thursday Linda worked from 4 p.m. until 11 p.m. The employer decides to determine the length of Linda’s indeterminate shift by looking at the hours Linda worked last Thursday, which was seven (7) hours. Taking into consideration that Linda worked for two (2) hours before leaving work, the employer will deduct five (5) ESST hours for the remainder of Linda’s indeterminate shift that she missed.

When ESST Must Be Credited. If an employee is accruing ESST (instead of ESST being front-loaded), ESST must be credited each pay period on all hours worked no later than the regular payday after the end of each corresponding pay period.

• Example: Michael is paid every two (2) weeks on Friday. Michael’s pay period ends on Monday, which is four (4) days before the payday. The ESST hours that Michael accrues during each pay period are credited and available for use on the corresponding Friday he is paid for that same pay period.

How ESST Must Be Credited. Employers do not have to credit ESST in less than one (1) hour increments. However, the uncredited ESST must carry forward into the subsequent pay period to ensure that no ESST is lost and the employee is still receiving at least one (1) hour of ESST for every thirty (30) hours worked.

ESST Use. The Final Rule clarifies that employers cannot force employees to use ESST for an absence. If the employee does not use ESST, then the employee’s leave is not subject to the protections under ESST law. However, other legal protections might apply. Before taking any action, please contact legal counsel.

ESST Misuse. An employee misuses ESST when they use it for a purpose other than as described under Minnesota Statute 181.9447, subd. 1. The Final Rule provides guidance on how to determine if there is a pattern or a clear instance of suspected misuse:

• An employee repeatedly used ESST on their scheduled workday immediately before or after a scheduled day off, vacation, or holiday.
• An employee repeatedly used increments of ESST of less than 30 minutes at the start or end of a scheduled shift.
• An employee used ESST on a day for which the employer previously denied the employee's request to take other paid leave.
• Documentation or other evidence that conflicts with the employee's claimed use of ESST.

If you would like to have us assist you with your labor or employment questions, please contact Francis P. Rojas at 952.921.4624 or frojas@pklaborlaw.com, or any other attorney at Peters & Kappenman, P.A.