On Friday, June 19, the Massachusetts Office of the Attorney General released the final version of regulations implementing the Massachusetts Earned Sick Time Law, which requires all private-sector employers to provide their Massachusetts employees with up to 40 hours of sick time per calendar year. The final regulations incorporate feedback from the business community, employment attorneys and other interested parties concerning the Attorney General's earlier-issued proposed regulations. As we noted when Massachusetts voters approved the Earned Sick Time Law last fall, the requirements of this statute will impact every employer in the Commonwealth. While ambiguities remain, the final regulations provide some measure of clarity for employers attempting to modify or create valid sick leave policies before the law goes into effect on July 1, 2015. A few of the key elements of the newly issued regulations are highlighted below.
Can Employers Keep Their Current Paid Time Off Policies?
The law requires employers to provide employees with one hour of earned sick time for every 30 hours worked, up to a maximum of 40 hours per calendar year, beginning on the later of the employee's hire date or July 1, 2015. Many employers with existing paid time off or similar leave plans questioned how or if they could continue such plans, which typically do not track hours worked for leave accrual purposes, and still comply with Earned Sick Leave Law. The final regulations address this issue, providing that employers may substitute their own paid leave plans as long as such plans are more generous than what is required under the statute. In general, paid leave plans will be considered more generous if they provide more than 40 hours of paid leave per calendar year that accrues at a faster rate than the statute requires. Moreover, if employers provide employees with a lump sum of 40 hours or more of sick leave or paid time off at the beginning of each year, they do not need to track accrual or allow any rollover of time to the next calendar year.
The final regulations also provide a schedule of leave employers may use if they prefer not to track accrual of sick time over the course of the year. For employees working an average of:
Employers using these schedules will be in compliance even if an employee's hours vary from week to week. Employers may also accelerate the accrual or increase hours if they choose. Note that employees accruing earned sick time on these schedules will have the right to roll over up to 40 hours of their sick leave, and accrual may be delayed while an employee maintains an unused bank of 40 hours.
According to the final regulations, employers providing employees with 40 or more hours of paid time off or vacation that also may be used as earned sick time will be in compliance with the law and will not have to provide additional sick leave after the paid time is exhausted, but only if their policies make clear that no additional sick leave time is available.
Note also that even if an employer's current policy provides more generous paid leave than the law requires for some employees, it is important to remember that earned sick leave must now be provided to all employees, including part-time, temporary and seasonal employees. Thus, employers whose current leave policies exclude or limit leave for certain categories of employees must closely review their current eligibility criteria and amend their policies accordingly.
Safe Harbor for the Remainder of 2015
The final regulations include a "safe harbor" provision previously issued by the Office of the Attorney General for employers with existing policies providing paid time off. Under this provision, employers with policies in existence on May 1, 2015, that provide paid time off or paid sick leave shall be deemed in compliance with the Earned Sick Time Law if:
Note that employers taking advantage of the safe harbor provision still must bring their policies into compliance with the rest of the law by January 1, 2016.
To address concerns of employers that track attendance on something other than a January to December calendar year basis, the Attorney General has defined "calendar year" for purposes of the law as "[a]ny consecutive 12-month period of time as determined by an employer." Thus, employers may calculate sick leave entitlements using fiscal year, contract year or even the year running from an employee's anniversary date of employment, if desired.
All employers with 11 or more employees must provide their Massachusetts employees with paid sick time. The final regulations state that, for purposes of determining whether this threshold is met, employers must count all of their employees, whether or not they work in Massachusetts. Employers with 10 or fewer employees must allow their employees to accrue unpaid sick time.
What Can Sick Time Be Used For?
The Earned Sick Leave Law provides generally that an employee can use earned sick time to care for the employee's own physical or mental health needs or those of a child, spouse, parent, or parent of a spouse; to attend routine medical appointments; or to address the psychological, physical or legal effects of domestic violence. The final regulations also permit an employee to take sick time to travel to and from an appointment, a pharmacy or another location related to the purposes referenced above. The regulations also reiterate that an employer may not interfere with an employee's use of sick time, consider the use of sick time in any employment actions or retaliate against an employee for opposing any unlawful practices under the statute.
Notice and Documentation
The law provides that employees must make a "good faith effort" to give an employer advance notice when the need for sick time is prescheduled or foreseeable. The final regulations provide that employers may have a written policy requiring up to seven days' advance notice, unless the leave is unforeseeable, in which case the employee must give notice that is "reasonable under the circumstances." To address employer concerns about possible abuse of sick leave, the final regulations provide that sick time cannot be used as an excuse to be late for work and explicitly permit an employer to discipline employees who exhibit a clear pattern of taking leave on days just before or after a weekend, vacation or holidays, unless the employee provides documentation supporting the need for sick time.
An employer can require documentation from a healthcare provider of the need for sick time when an employee's use of earned sick time:
An employee who does not have a healthcare provider may provide a signed written statement evidencing the need for use of earned sick time but may not be required to explain the nature of the illness. Documentation relating to leave for domestic violence may also include restraining orders, police reports and the like but may never require the employee to explain details of the domestic violence.
The law prohibits an employer from delaying leave or payment for leave because it has not received required documentation. However, the final regulations do allow employers to recoup the sum paid for earned sick time from future pay as an overpayment if an employee fails to comply with documentation requirements without reasonable justification, provided employers put employees on notice of this practice.
Interaction With Other Leave Laws
One important clarification in the final regulations relates to the interaction of the Earned Sick Time Law with other state and federal leave laws. Employees may choose to use, or employers may require employees to use, concurrent earned paid sick time to receive pay when taking other protected unpaid leave. Earned sick time may run concurrently with time off provided by the Family and Medical Leave Act, the Massachusetts Parental Leave Act, the Massachusetts Domestic Violence Leave Act, the Massachusetts Small Necessities Leave Act and other similar laws.
The Attorney General has issued a notice that must be posted in a conspicuous place accessible to employees. The notice must also be distributed electronically or in hard copy to all eligible employees, or alternatively it may be included in any employee handbook or manual.As anticipated, implementation of the Earned Sick Leave Law has been a challenge for many employers. That challenge likely will not diminish when July 1 rolls around, as employers begin to deal with the details of administering their time off policies under the law. In the few days remaining prior to the effective date of the law, employers should again carefully review their leave policies and practices in light of the final regulations and make any necessary revisions to ensure that they comply with this far-reaching leave law.
Patrick McCarthy and Christopher Stracco are scheduled to speak on Friday, February 10, at the New Jersey Institute of Continuing Legal Education's Annual 2017 Redevelopment Law Institute at the Renaissance Woodbridge Hotel in Iselin, New Jersey.
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