By Robert P. Rudolph, Esq. and Adam J. Shafran, Esq.
After several months of public hearings on the new Earned Sick Time Law, the regulations have been finalized. Beginning July 1, 2015, Massachusetts employees have the right to earn one hour of sick leave for every thirty hours worked, up to forty hours per year. This time can be used when the employee or the employee’s child, spouse, parent or parent of a spouse is sick, has a medical appointment, or has to address the effects of domestic violence.
Employees begin earning sick time on their first day of work and may begin using it ninety days thereafter. Employees can carry over up to forty hours of unused sick time at the end of the year, but cannot use more than forty hours in a year.
If an employer has eleven or more employees, sick time must be paid. It can be unpaid for employers with ten or fewer employees. Paid sick time must be paid on the same schedule and at the same rate as regular wages. Tipped employees who ordinarily receive the service rate are to receive the effective minimum wage for paid sick time. Employers do not have to pay employees for unused sick time at the end of employment. Employers are prohibited from requiring an employee to work additional hours to make up missed time or to find a replacement employee, but should an employee agree to work the missed hours in the same or next pay period, the employee will not have to use earned sick time for the missed time, nor will the employer have to pay for the missed time.
The smallest amount of sick time that can be used is one hour. When an employee’s use of sick time requires the employer to hire a replacement or call in another employee, the law allows the employer to require the employee to use a certain number of hours of earned sick time depending on the scenario, up to a full shift of earned sick time. Employers can have a written policy requiring up to seven days’ notice to use earned sick time, but notice required for unforeseeable absences is what is reasonable under the circumstances. Under certain circumstances, an employer can require written documentation for use of earned sick time, but it can never require documentation explaining the nature of the illness or details of the domestic violence. However, employers can require employees to personally verify in writing that they have used earned sick time for allowable purposes after using any amount of sick leave.
A safe harbor provision exists for employers with existing policies that provide paid time off. Employers with a policy in existence on May 1, 2015 that provides paid time off or paid sick leave, shall be deemed in compliance with the Earned Sick Time Law until January 1, 2016 provided; 1) full time employees on the policy have the right to earn and use at least thirty hours of paid time off/sick leave during the calendar year 2015; and 2) on and after July 1, 2015, all employees not previously covered by the policy, including part-time employees, new employees, and per diem employees must either: a) accrue paid time off at the same rate of accrual as covered full-time employees; or b) if the policy provides lump sum allocations, receive a prorated lump sum allocation based on the provision of lump sum paid time off/sick leave to covered full-time employees. Such lump sum allocations may: i) where lump sums of paid time off are provided annually, be halved for employees who receive coverage as of July 1, 2015, and proportionately reduced for employees hired after July 1, 2015; and/or ii) be proportionate for part-time employees. If an employee is not compensated on an hourly or salaried basis, the employee must accrue or receive lump sum allocations based on a reasonable approximation of hours worked.
On or before January 1, 2016, all employers operating under this safe harbor provision must adjust their policy providing paid time off to conform to the Earned Sick Time Law. Employers with the option to utilize the safe harbor may also choose full compliance with the Earned Sick Time Law and regulations beginning July 1, 2015 for some or all employees. Employees using earned sick time cannot be fired or retaliated against for exercising or attempting to exercise earned sick time.
Massachusetts leave time laws are becoming increasingly more complicated. Earned Sick time may run concurrently with time off provided by the Family Medical Leave Act, Massachusetts Paternal Leave Act, Domestic Violence Leave Act, Small Necessities Leave Act and other leave that allow concurrent leave for the same purposes as the Earned Sick Time Law. The penalties for violations can be severe. Employers must make sure they have the proper policies, employee notifications and forms in place at all times. If you need your employee handbook, policies and/or certification forms updated, please contact us.
