The Innovator’s Counsel: Massachusetts New Earned Sick Time Law

KCL KCL, Uncategorized

As of July 1, 2015 (the “Effective Date”), employers in Massachusetts must be prepared to deal with the implications of a new law regarding earned sick time. The new law requires employers who employ eleven (11) or more people to grant their employees the right to accrue paid sick leave up to 40 hours per year. This right also applies to part-time employees. Those employers that employ fewer people will also be impacted, as their employees will be able to accrue unpaid sick leave up to forty (40) hours per year.

Employers must allow employees to accrue sick time, paid or unpaid depending on the size of the organization, at a minimum rate of one (1) hour for every thirty (30) hours worked. The accrual of sick time begins on the commencement of employment (unless the employee was hired before the Effective Date in which case accrual commences on the Effective Date). However, despite immediate commencement of accrual, an employer may limit their new hires from using their paid sick time until the employee has worked ninety (90) days. However, once an employee is eligible to use his/her sick time, the  employee may use sick time in the increments of either (i) one hour or (ii) the smallest increment of time that the employer uses in accounting for absences or other use of time.

Those employees exempt from overtime laws will be presumed to work 40 hours per week for the purpose of sick time accrual, unless their normal work week is less than 40 hours, in which case the hours will accrue based on their normal work hours. Moreover, employers may limit the employee’s total accrual to 40 hours per year, which may be carried over from year to year despite the fact that the maximum number of hours an employee may actually use during a given year is forty (40). Unlike other forms of accrued time off, like vacation time for instance, employers are not required to pay an employee for accrued sick time upon separation from the company.

Employees will be able to use their earned sick time for a variety of reasons, as it is not limited merely to attending to one’s own health.  In fact, an employee can use earned sick time for any of the following reasons:

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

In addition, built into the statute is some flexibility. For example, employers may request that employees make good faith effort to give advanced notice when the use of earned sick time is foreseeable, but such notice is not required. Moreover, if an employee misses work for something for which that employee could have used paid sick time, but the employee arranged with the employer to make up the time in the same or next pay period, the employee does not have to use his/her earned sick time for the missed time. In such a situation, the employer would not have to pay the employee for the missed time that is scheduled to be made up. Importantly, however, employers are prohibited from requiring employees to work additional hours or find a replacement for missed time.

There are additional protections built into the statute for employees, such as an employer may NOT require proof of an illness (i.e. a Doctor’s note or any other certification by a healthcare provider) until after the employee has missed twenty-four 24 consecutively scheduled work hours. Moreover, employers cannot delay payment of wages to an employee for used sick time simply because the doctor’s note/certification has not yet been provided. Of course, retaliation and/or interference with an employee’s use of earned sick time is prohibited.

The employer must post a notice from the Massachusetts Office of the Attorney General about the employee’s rights under the statute and provide each employee with a copy. The Attorney General‘s Office will enforce the law, but employees may also file suit to enforce their rights under the statute.

Finally, an employer should keep in mind that the law sets a minimum and not maximum standard. Employers with more generous plans, which meet the accrual ratio (1 hour of sick time for every 30 hours worked), need not change their plans.  However, given the impending changes, now is the time for an employer to review his or her plan in order to be sure that the plan meets the minimum requirements outlined in the law.