As we detailed in November 2014, Massachusetts voters last fall approved a new law mandating that employers provide earned sick time to their employees. Under the new law, employers with 11 or more employees must provide paid sick leave for workers and smaller employers must provide unpaid sick time. The law is set to take effect on July 1, 2015, and employers have raised many questions about how the law will be implemented. The Massachusetts Attorney General’s Office (AGO) recently issued proposed regulations that provide detailed guidance concerning implementation of the new law. The AGO has scheduled six public hearings to gather public feedback on the regulations and has invited any interested parties to submit written comments on the regulations.

The proposed regulations provide definitions and guidance on many issues that were unclear based on the statutory text. However, they raise some additional compliance challenges for employers as well. Of particular note, the proposed regulations:

  • Broadly define “employer” to include entities that have very small Massachusetts operations. All employees will be counted toward the 11-employee threshold that requires an employer to provide paid sick leave, regardless of whether those employees work in Massachusetts or are eligible to accrue and use earned sick time.
  • Broadly define the types of employees entitled to sick leave. Employees may accrue and use earned sick time on all hours worked regardless of whether those hours are worked in Massachusetts, so long as the employee’s “primary place of work”—the location they spend the most time working—is Massachusetts. Also, all full-time, part-time, temporary, or seasonal employees are entitled to earned sick time under the law.
  • Outline how employers should take steps to comply in 2015 in light of the statute’s mid-year effective date (July 1).
  • Permit employers to define their own “calendar year” for purposes of accrual and use of earned sick time, provided the employer gives written notice to employees as described in the regulations. This will assist employers in coordinating use of earned sick time with their existing paid time off and leave policies.
  • Define the rate that must be paid to employees who use earned sick time (including a requirement that salaried employees be paid at an “hourly rate” determined by dividing their total earnings by hours worked from the previous pay period), and when those payments must be made.
  • Allow employers to require employees to use a full shift of earned sick time if their absence required the employer to hire a replacement for the shift, even though the statute generally requires that employers allow employees to take earned sick time in hourly increments or the smallest increment the employer’s payroll system allows.
  • Modify the statute’s mandate that employers must allow employees to carry-over 40 hours of earned sick time from year to year. Employers can, but are not required to, establish policies that provide for the payout of up to 40 hours of earned paid sick time at the end of each calendar year so long as the employee would maintain at least 16 hours of previously-accrued time.
  • Allow employers to create notice policies mandating that (1) employees give advanced notice of up to seven days for pre-scheduled or foreseeable absences, and (2) require daily notification if an employee anticipates a foreseeable multi-day absence. 
  • Allow employers to require “written verification” from employees that they have used earned sick time for purposes permitted by the statute for any amount of earned sick time used. However, an employer may not require medical documentation unless the employee is absent for more than 24 consecutive work hours.
  • Permit employers to discipline employees for misuse of sick leave if the employee is “committing fraud or abuse by engaging in an activity that is not consistent with allowable purposes for leave (e.g., being sick, caring for an ill family member) or by exhibiting a clear pattern of taking leave on days when the employee is scheduled to perform duties perceived as undesirable.”
  • Permit employers to maintain “good attendance” rewards policies if those policies do not subject employees that use earned sick time under the statute to any adverse action. The inability of employees to qualify for such rewards because they used earned sick time does not constitute a statutorily-prohibited adverse action or interference with employees’ rights.
  • Require employers to maintain records of accrual and use of earned sick time for three years, with those records being subject to inspection by the AGO and the employee.
  • State that time off under the new earned sick time law will be “in addition to” time off provided by the Family and Medical Leave Act (FMLA), Massachusetts Domestic Violence Leave Act, Massachusetts Parental Leave Act, Massachusetts Small Necessities Leave Act, “and the like.” The intended meaning of the phrase “in addition to” is not clear, but it could be read to require that employers provide paid earned sick leave sequentially with leave under those other laws (for example, an employer would need to provide one week of paid earned sick time under Massachusetts law and  a subsequent 12 weeks of FMLA leave). However, this interpretation would appear to conflict with other laws.  For example, the U.S. Department of Labor regulations interpreting the FMLA permit employers to require that employees use any accrued paid leave concurrently with FMLA leave.   

Employers should review their existing leave policies to determine if they will comply with the Massachusetts earned sick time law and these proposed regulations, because the final regulations will likely retain many of the provisions from the proposed regulations. Also, employers should consider the impact and implementation challenges these proposed regulations will have on their business, and consider voicing their concerns and providing suggestions to the AGO at the upcoming public hearings or in written comments. In addition, employers can contact their legislators about their concerns, as there is at least one legislative effort (a pending bill in the Massachusetts Senate) that would modify the statute passed by voters in November 2014 and delay the effective date of the law. 

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