Employers, take note! Passed by ballot initiative, the Massachusetts Earned Sick Time Law (“sick leave law”) becomes effective in less than a month—July 1, 2015. The law provides that all employees, including full-time, part-time, and even temporary and seasonal employees, can accrue up to 40 hours of sick time a year. Employers with 11 or more employees must provide paid sick leave, whereas employers with 10 or fewer employees may opt to provide sick leave that is unpaid rather than paid.
Under the law, employees earn 1 hour of sick time for every 30 hours worked. Employees begin accruing sick time on their date of hire or on July 1, 2015, whichever is later. Employers face civil liability should they interfere with or retaliate against employees for using sick leave or otherwise violate the law.
The term “sick leave” is a misnomer under the law, because an employee may use sick leave for any of several reasons. Specifically, an employee is entitled to take time off to (1) care for a physical or mental illness, injury, or other medical condition of an employee’s child, spouse, parent, or parent of a spouse; (2) care for the employee’s own physical or mental illness, injury, or other medical condition; (3) attend routine medical appointments or those of an employee’s child, spouse, parent, or parent of a spouse; or (4) address the effects of domestic violence on themselves or their dependent child.
If the need for earned sick time is foreseeable, an employee must make a good-faith effort to notify their employer in advance. An employer, however, may require a doctor’s note only if the employee is absent for more than 24 consecutively scheduled work hours. An employer should not withhold payment of an employee’s sick leave, which should be paid on the same schedule as regular wages, while having the employee submit a doctor’s note or other certification.
Employers may not have to comply with all of the sick leave law’s provisions. The law makes clear that employers’ existing paid-time-off or other vacation and sick-leave policies can satisfy the sick leave law’s requirement that 40 hours of annual sick leave be provided should certain conditions be met. Put differently, an employer’s existing time-off policy could excuse it from providing any additional sick leave as called for in the law. To be excused, an employer’s policy must allow employees to use leave for the same reasons, and provide the same protections (e.g. no retaliation), as called for in the sick leave law; the policy must pay the employee at least the amount that would be required under the law; and the employee must accrue time off at the rate of at least 1 hour for every 30 hours worked, up to 40 hours of leave on a yearly basis.
The Massachusetts Attorney General (AG) is charged with enforcing the law. The AG has issued draft regulations with a mid-June target date to make them final. The regulations provide clarity with respect to some of the law’s provisions, but several questions pertaining to the law remain unanswered.
Most important, the AG’s office recently issued a so-called “safe harbor.” The safe harbor excuses employers from complying with most of the law’s provisions until January 1, 2016 if an employer’s existing time-off policy meets certain conditions. The safe harbor states that an employer with a paid-time-off policy in existence as of May 1, 2015 that provides employees the right to use 30 hours of paid time off during the calendar year “shall be in compliance with the law with respect to those employees and to any other employees to whom the use of at least 30 hours of paid time off under the same conditions are extended.” That is, employees who can use 30 hours of sick time during the 2015 calendar year under an employer’s time-off policy in existence as of May 1, 2015 need not accrue sick time until January 1, 2016, so long as the employer does not interfere or retaliate against the employee for taking
their accrued time off.
At this point, employers should be reviewing their paid-time-off policies to see if they can take advantage of the safe harbor, and see if they have to make any changes to their time-off policies.
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