The Massachusetts Earned Sick Time law that requires the accrual of sick time for employees in the Commonwealth went into effect on July 1, 2015.

Which employees are covered under this new law?

All employees who work in the Commonwealth, regardless of whether they are full-time, part-time or temporary, are entitled to earn and use sick time accrued under this law according to the conditions outlined below. 

What employers are subject to the law?

The regulations define an “employer” as “[a]ny individual, corporation, partnership or other private or public entity, including any agent thereof, who engages the services of an employee for wages, remuneration or other compensation,” but excludes the federal government and any city or town that has not accepted it. 

Also see:Obama sick-leave proposal would create admin ‘nightmare’ for employers.”

It is important to note that the law distinguishes between employers based on their size:

  • Employers that have 11 or more employees must allow their employees to earn paid sick time. 
  • Employers with fewer than 11 employees are required to allow their employees to earn unpaid sick time.

What types of sick leave are covered?

An employee may use his or her earned sick time if he or she is required to miss work for any of the following reasons:

  • To care for a physical or mental illness, injury, or medical condition affecting the employee or the employee’s child, spouse, parent, or parent of a spouse;
  • To attend routine medical appointments of the employee or the employee’s child, spouse, parent, or parent of a spouse; or
  • To address the effects of domestic violence on the employee or the employee’s dependent child.

The new law does not override employers’ obligation under any other contract or benefit plan that is more generous. Accordingly, employers that have time-off policies that meet the minimum requirements of the law for the accrual, use, and purpose and conditions of the earned time-off are not required to provide additional time.
How does sick time accrue and when can employees start using it?

Employers must provide the employee with one hour of earned sick time for every 30 hours worked, up to a maximum of 40 hours per year. The rate of accrual is the same for both paid and unpaid time off. Accrual begins on the date of hire or July 1, 2015, whichever is later. 

Also see:More jurisdictions require paid sick leave.”

Employees may begin to use the accrued sick time on the 90th day after hire, or earlier at the employer’s discretion.

May an employee carry over unused earned sick time at the end of the year?

Yes. Employees may carry over up to 40 hours of unused sick time to the next calendar year, but they are not entitled to use more than 40 hours in any calendar year. 

Must an employer pay the employee for any unused earned sick time upon the termination of employment?

No. The employer is not required to pay out unused sick time at the end of the employee’s employment. 

Does the employee have to give notice of their absence prior to using the sick time?

When the use of sick time is foreseeable, the employee is required to make a good faith effort to provide notice of this need to the employer in advance of the use of the earned sick time. 

Also see:Mandatory sick leave measures spark employer resistance.”

Can the employer require the employee to make up sick time? 

No. An employer may not require the employee to work extra hours to make up for the time, nor require the employee to cover his or her shift, when the employee is using the earned sick time.

Can the employer require employees to document why they need the sick time? 

No – unless an earned sick time absence covers more than 24 consecutively scheduled work hours, in which the employer may require certification.  Certification is any reasonable documentation signed by a health care professional indicating the need for the earned sick time taken. An employer cannot require that the certification explain the nature of the illness or the details of the domestic violence. 

Are there any recordkeeping requirements?

The employer is required to keep a true and accurate record of the accrual and use of earned sick time, and maintain those records for three years. 

Must employers post a notice of this new law?

Yes. The Attorney General’s Office issued a notice that must be posted in a conspicuous location accessible to employees. A copy of the notice must also be provided to employees. The notice can be found here:

http://www.mass.gov/ago/docs/workplace/earned-sick-time/est-employee-notice.pdf

How and to what extent is the law enforced?

The new law provides an anti-retaliation provision that prohibits any employer from interfering with, restraining, or denying the exercise of any right under this law. The law specifically prohibits employers from negatively relying on employees’ use of sick leave when evaluating or making employment decisions, such as promotion, disciplinary action, or termination. The Attorney General will enforce this law, violation of which could include treble damages and attorneys’ fees.

Also see:Obama’s sick leave mandate called ‘wrong approach’.”

What should Massachusetts employers do now?

To comply with the law, employers should consider the following measures:

  • Create or integrate a system to track the accrual and use of the earned sick time;
  • Update handbooks, policies, and payroll functions;
  • Post the notice and provide it to employees;
  • Train payroll personnel and/or work with a third-party payroll company, to ensure compliance with the new law’s requirements.

The Attorney General’s Office recently provided guidance for the 2015 transition year, and is in the process of finalizing the regulations, which have undergone extensive public comment. The Attorney General’s sick time website can be found at: http://www.mass.gov/ago/doing-business-in-massachusetts/labor-laws-and-public-construction/earned-sick-time/.

C. Forbes Sargent III is chair of Sherin and Lodgen’s Corporate Department and co-chair of the firm's employment law and social media and digital technology practice groups. He can be reached at 617.646.2189 or cfsargent@sherin.com. Scott McConchie is a partner in Sherin and Lodgen’s litigation department. He can be reached at 617.646.2083 or smcconchie@sherin.com

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