“Personal days” are not required by law so, just as with vacations, employers have considerable flexibility in setting their policies unless there is a collective bargaining agreement or specific agreements with individual employees. Employers may provide personal days to employees in addition to or instead of vacation and/or sick leave to be used for personal reasons, for example, caring for a sick child, staying home to monitor home repairs, etc. However, in light of attendance concerns and the abundance of legally required time off, many employers choose not to provide yet another opportunity for employee absences. It may make even less sense to designate personal days as paid days off in view of the fact that most employees will then consider the benefit akin to vacation time, leaving only the most conscientious of employees to use the benefit only when truly needed.
If the employer elects to adopt a policy providing for paid or unpaid personal days, it is clearly helpful to have that policy in writing. The policy should explain how personal days are granted, the conditions for the use of such days and any limitations on when such days may be used.
There is no obligation under either federal or Minnesota law to pay private employees for holidays or to pay them premiums for work performed on holidays. If the employer does choose to provide this benefit to employees, it makes good practical sense to put the policy in writing to enhance employee morale and to avoid confusion. Employers should designate in advance:
With an ever‑increasing emphasis on flexibility and accommodation in the workplace, many employers are beginning to offer paid time off (PTO), a paid leave bank (PLB) or similar benefits to employees instead of paid vacation, sick leave and personal leave. Such a policy offers employees greater freedom to use their paid time off in a manner that reflects their own personal needs, values, commitments and lifestyle choices. More importantly, the policy eliminates the need for the employer to police – and the incentive of the employee to fabricate – the reasons an employee uses to take time off.
The decision to use conventional vacation/sick leave/personal leave policies or to adopt a more flexible PTO or PLB policy must be made by each employer based upon the particular human resource philosophy and management style of the business. The law does not prefer one approach over the other. However, if an employer does elect to implement a PTO or PLB policy, the employer should clearly state their policy regarding how PTO or PLB is accumulated, whether granted but unused PTO or PLB will carry forward to the following year (and, if so, how much) and whether granted but unused PTO or PLB balances will be paid out at termination.
Employers in Minnesota are not required by federal or state law to provide vacation benefits to their employees so, unless there is a union collective bargaining agreement or specific agreements with individual employees, employers have considerable flexibility in setting vacation policies. If an employer does provide vacation benefits, as most do, the employer’s vacation policy should clearly state the requirements for taking vacations and granting vacation pay and that policy should be communicated to all employees.
The employer may place reasonable limitations on when employees can take vacation, for example, by requiring employees to take one week of vacation during an annual shutdown or during a specified period when business traditionally is slow. Employers also may require that vacation be taken in certain increments; for example, if employees are given two weeks of vacation per year, the employer may require that the employee use one week all at once.
It is important for employers to establish how vacation time is granted. Some may choose how vacation time is granted each pay period. Others may choose to have a full year’s worth of vacation granted upon an employee’s anniversary date or as of a specific date (for example, the first business day of the year or of the fiscal year). The decision as to how vacation is granted should be carefully considered because it will have an impact on how employees can use their vacation time and how they are paid for granted but unused vacation time if the employment ends. Employers may wish to restrict their employees’ ability to accumulate vacation over time. For example, an employer’s vacation policy may provide that:
Unlike some states, Minnesota courts do not treat all vacation pay as “wages” and, therefore, do not require that all granted but unused vacation time be paid to employees upon termination of their employment unless that payment is required by the employer’s policy or by a contract. However, because the courts will determine whether the vacation time is being granted as a component of wages, the provisions in an employee handbook will be critical. Employers should clearly state in their policy:
For example, the employer’s policy may be that:
Employers in Minnesota are not required to provide personal sick leave benefits to employees. However, some employers are required to allow eligible employees to be absent from work under the Family Medical Leave Act (FMLA) and provisions under the Minnesota Pregnancy and Parental Leave Law.
Under the Minnesota Safe and Sick Leave Law if an employer with 21 or more employees in one site does provide sick leave to its employees for their own injury or illness, it must also allow employees that have worked for the employer for at least 12 months to take time off:
Such leave must be provided in the same manner the employer would allow employees to use leave for themselves. If the employer provided leave is in the form of paid leave provided under the above circumstances must also be paid.
If an employer provides more than 160 hours of sick leave during a 12-month period, it may limit the employer’s use of leave for the illness or injury of family members other than a minor child to 160 hours.
While employees in companies with 50 or more employees are generally covered for pregnancy and parental leave under the Family Medical Leave Act (FMLA), Minnesota has enacted parental leave laws that apply to companies with 21 or more employees at one site. Employees who have worked at such companies for at least 12 months and who worked at least half time in the past 12 months are entitled to up to 12 weeks of pregnancy/parental leave.
This leave must be taken within 12 months of the birth or adoption of a child. If an employee is covered under the FMLA and Minnesota law the employee is only entitled to a total of 12 weeks of leave.
Some points of interest to employers are:
Under Minnesota law, no person summoned or accepted to serve on any grand or petit jury in the state may be dismissed from employment because of the nature or length of service upon such jury. Furthermore, threats of dismissal from employment of any person summoned for jury service in the state because of the nature or length of service upon such jury may be deemed contempt of court and will subject the violator to compensatory and punitive damages as well as attorney fees.
Employers should note that the Fair Labor Standards Act (FLSA) significantly limits an employer’s ability to dock an exempt (salaried) employee’s pay for time spent on jury duty. In order to maintain an employee’s status as exempt from the overtime requirements of the FLSA, the employee must be paid “on a salary basis,” meaning that the employee regularly receives a predetermined amount of wages that is not subject to reductions based on variations in the quality or quantity of work performed. In other words, with few exceptions, exempt employees must receive their full salary for any week in which they perform any work, without regard to the number of hours or days worked. Improper deductions could result in the loss of exempt status for that employee. The federal regulations contain a very limited exception to the prohibition against deductions from pay with regard to jury duty:
While an employer cannot make deductions from pay for absences of an exempt employee occasioned by jury duty, attendance as a witness or temporary military leave, the employer can offset any amounts received by an employee as jury fees, witness fees or military pay for a particular week against the salary due for that particular week without loss of the exemption.
For example, if an exempt employee worked one day and was on jury duty the remaining four days in the week, the employee would be entitled to a full salary for that week, although the employer could deduct from the employee’s wages any amounts received from the court as jury fees. However, if an exempt employee were on jury duty for a full week and did not report to work at all that week, a deduction from the employee's salary for the entire week would not violate the prohibition against deductions from pay in the “salary basis” requirement. The employer’s policy regarding jury duty leave should take this requirement into account and should clearly explain any differences in the application of the policy to exempt and nonexempt employees.
As a measure of goodwill towards employees, some employers elect to supplement jury duty pay so that all employees (exempt and nonexempt) continue to receive their regular compensation during this time. As in the sample policy, any requirements for receiving jury duty pay from the employer should be outlined in the policy.
Employers in Minnesota not covered by the FMLA still have broad discretion to define their medical leave of absence policies, that is, an employer may set the terms and conditions of employees’ medical absence leaves (including the duration, frequency and payment (or nonpayment) for such leaves) as the employer decides is in its best business interest. (Of course, employers covered by the Americans with Disabilities Act (ADA) may be required to provide unpaid leave as a “reasonable accommodation” for qualified employees with disabilities.)
Employers not subject to FMLA are not legally obligated to provide leave for the care of a newborn child or other family-related illnesses, events or conditions. However, if possible, within the scope of the business, such leave policies promote employee satisfaction and loyalty and encourage employees to return to work after such an event. If an employer not subject to the FMLA voluntarily chooses to include a leave policy after the birth, adoption or fostering of a child, then they are legally compelled to offer paternity leave under the same policy. Excluding men from such a leave could trigger a discrimination claim. However, if an employer not subject to FMLA treats pregnancy as a disability and addresses time off for labor, delivery and recovery as such, then it is not necessary to extend the policy beyond the mother. Note, however, that such a limited approach meaningfully excludes employees that may have children through adoption or foster care and careful consideration for morale should be applied.
Employers are not obligated by either federal or state law to provide personal leaves of absence to their employees. If an employer chooses to voluntarily provide such leave, its policy should state whether the employee will be entitled to pay during the leave and the conditions for taking it. Additionally, the employer should draft the policy carefully so as to avoid any express or implied promise of reinstatement upon completion of an employee’s personal leave.
Minnesota law requires employers to provide an employee with paid time off to vote if:
The employer may determine the hours that an employee may be absent to vote in order to minimize any disruption to business operations. An employer may not require employees to use personal leave or vacation time for time taken off of work for the purpose of voting.
There is no obligation under federal or state law to provide bereavement leave to employees, even without pay. However, employers should be aware that bereavement leave is commonly offered by employers and may have a positive impact on employee morale and retention.
A bereavement leave policy should specify eligibility requirements and conditions for such leave, including the relationship of the deceased to the employee. Since same-sex marriages now are legal, “spouse” in bereavement policies must be interpreted to include same-sex spouses. Some employers may require an employee requesting bereavement leave to provide a copy of the death certificate or obituary or some proof of the deceased’s relationship to the employee. Although requiring such documentation may deter employees from abusing the bereavement leave benefit, it also may be offensive to a grieving employee – thus, employers are advised to exercise discretion and compassion in administering any bereavement leave policy.
The EEOC and the courts consistently define “reasonable accommodation” decisions as an examination of appropriate accommodation rather than the existence of a disability. It is a violation of the discrimination laws requiring “reasonable accommodation” of applicants and employees (the Americans with Disabilities Act (ADA) for disabled persons and Title VII of the Civil Rights Act (Title VII) for religious beliefs and now for pregnancy) for employers to disqualify or treat differently persons who request or need such accommodations. In fact, the U.S. Supreme Court’s 2015 ruling held that employers violate Title VII if they disqualify an applicant because they merely suspect the applicant may need an accommodation if hired.
It is important for employers to remember that, under the law, employees do not need to request “reasonable accommodation” for a disability in writing and, in fact, the majority of such requests are made orally and informally to the employee’s immediate supervisor. Therefore, the supervisors must be trained to immediately relay to Human Resources (or the responsible person in senior management) any employee statements that may resemble a request for reasonable accommodation for an illness/disability.
Questions of disability and accommodation and the interplay of the ADA, FMLA and workers compensation, involve employer considerations of many factors and analyses of several legal standards. Each of these factors is discussed in detail in their respective chapters.
Employees who, or whose family member, have been the victim of domestic violence may take leave to obtain or attempt to obtain a harassment restraining order o an order for protection relating to a domestic abuse situation.
The amount of leave employers are to provide is not specified. Make sure to give the employees whatever time they need. This leave is not required to be paid; however, employees may choose to use accrued vacation, PTO or sick leave to be paid while out on domestic violence leave.