On June 19, 2015, the Massachusetts Attorney General issued final regulations for the new Massachusetts Earned Sick Time Law (“EST Law”), which takes effect on July 1, 2015 and applies to all Massachusetts employers. Because the final regulations differ in significant respects from the draft regulations, this Alert is intended to provide the most up-to-date information we have on several key topics within the EST Law.
The Basics of the Earned Sick Time Law
Under the EST Law, all employees, whether full-time, part-time, temporary, or seasonal, are allowed to accrue up to 40 hours of sick time per year. For employers with 11 or more employees, the sick time must be paid. For employers with 10 or fewer employees, the sick time may be unpaid. Employees begin accruing sick time on July 1, 2015 or their first day of employment, whichever is later. Employees accrue 1 hour of sick time for every 30 hours worked. Employees are entitled to carry over up to 40 hours of sick time each year but are not permitted to take more than 40 hours of sick time in any one year.
Employees may use their accrued sick time (a) for their own physical or mental illness, injury, or other medical condition, or that of their child, spouse, parent, or parent of a spouse; (b) to attend their own routine medical appointments or those of their child, spouse, parent, or parent of a spouse; or (c) to address the effects of domestic violence on themselves or their dependent child.
Guidance from the Final Regulations
Although the draft regulations provided guidance in interpreting the law, they left many questions unanswered and raised new questions. As a result of feedback received from employers, trade groups, and chambers of commerce, among others, the final regulations contain numerous changes and clarify many aspects of the new law. Here is what we now know about some of the key topics within the EST Law.
Overlap with Other Leave Laws
The sick time provided by the EST Law may run concurrently with time off provided by other statutory leave laws, such as the Family and Medical Leave Act, the Massachusetts Parental Leave Act, the Massachusetts Domestic Violence Leave Act, and the Small Necessities Leave Act. Employees may choose to use, or employers may require employees to use, earned sick time under the EST Law in order to receive pay when taking leave under another law, if that leave would otherwise be unpaid.
Calculating the Pay Rate
Employees who are paid on an hourly basis must be paid the same hourly rate for sick time. Employees who are paid different rates for different shifts must be paid either (a) the rate they would have received had they worked the hour(s) they were absent; or (b) a blended rate calculated using the customary weighted average. Tipped employees must be paid minimum wage.
Accrual of Sick Time
Employees accrue sick time only for hours worked, not during other absences such as vacation, paid time leave, or earned sick leave. Employees who were hired on or before April 2, 2015 must be allowed to use their sick time as it accrues, whether paid or not.
Increments of Use
The smallest amount of sick time an employee may use for any given absence is 1 hour. If an employee is using more than 1 hour of sick time for any given EST Law absence, the additional time beyond the first hour must be calculated in the smallest increment the employer uses for absences or other time.
Determining Employer Size
To determine employer size, employers must calculate an average by counting the number of employees (including full-time, part-time, temporary, seasonal) during each pay period in the preceding benefit year and dividing by the number of pay periods. Employees furnished to an employer by a temporary staffing agency count as employees of both the employer and the staffing agency. All employees, whether located in Massachusetts or in another state, must be counted.
Notice to Employer of Use of Earned Sick Leave
Employees must notify employers before they use sick time, except in an emergency. For foreseeable or pre-scheduled sick time, employers may have a written policy requiring up to 7 days’ notice. For unforeseeable sick time, notice must be “reasonable under the circumstances.”
Certifications
Employers cannot require medical certifications unless the sick time (a) exceeds 24 consecutively scheduled work hours; (b) exceeds 3 consecutive scheduled work days; (c) occurs within 2 weeks of scheduled end of employment; (d) occurs after 4 unforeseeable and undocumented absences within a 3-month period; or (e) for employees 17 and under, occurs after 3 unforeseeable and undocumented absences within a 3-month period. If a certification is permitted under one of these circumstances, an employer may require an employee to provide the written certification within 7 days after taking the sick time. If an employee fails to comply with these requirements, an employer can recoup the sum paid for the sick time from a future payment, provided that the employee was on notice of this practice. Employers are prohibited from requiring employees to provide documentation explaining the nature of the illness or the details of the domestic violence.
Managing Problematic Employees
Employees are expressly prohibited from invoking sick time as an excuse for being late to work. If an employee is exhibiting a clear pattern of using sick leave before or after a weekend, vacation, or holiday, an employer may, unless the employee provides verification of authorized sick leave, discipline the employee for misuse of sick time.
For further information and answers to your questions, please contact a member of our Labor & Employment Group.