An Update on the Massachusetts Earned Sick Leave Law

On November 4, 2014, Massachusetts voters passed a ballot question which will provide 40 hours of earned paid sick leave to employees. This new law is scheduled to become effective on July 1, 2015 for employers that have more than 10 employees. Employers with 10 or fewer employees will be required to allow their employees to earn and use up to 40 hours of unpaid sick leave. As a result of the favorable vote, the Attorney General’s office has reviewed the law and issued proposed regulations. The regulations were intended to clarify some of the ambiguities of the original law, which will be summarized below.

• The regulations mirror the primary purpose of the law which is to provide all Massachusetts employees with 40 hours of paid sick leave per calendar year.
• The proposed regulations do attempt to clarify the definition of employee. Where the original law appeared to indicate that almost all types of employees are covered, the regulations clarify that such is the intent. The law is intended to provide benefits to all employees whether they are full time, part time, seasonal, or temporary. Interns and students are also deemed to be employees under this new law.
• The regulations also clarify that the new law applies to all Massachusetts employees. That includes a Massachusetts employee that may be performing services in a different state. Such employees may benefit from the state law if Massachusetts is their primary place of employment.
•  Calendar year is defined in the regulations as any consecutive 12 month period determined by the employer. Some employers may utilize a traditional calendar year starting on January 1st. State employers may utilize the June 1st date which is the start of the Commonwealth’s fiscal year.
• Employers may be credited for sick time earned prior to the effective date of the new law. For example, if an employee earned 10 hours of sick time for the period January 1, 2015 through June 30, 2015, they would only be entitled to an additional 30 hours after July 1, 2015, not 40 more hours.
•  For the first year of the new law (July 1, 2015 through December 31, 2015) the Attorney General has provided a safe harbor clause for certain employers. If, as of May 1, 2015 an employer maintains a sick leave policy which provides at least 30 hours of paid sick leave, they will be deemed to be in compliance with the new law for the first year. Any such employer must adjust their sick leave policy as of January 1, 2016 to provide at least 40 hours of paid leave.

The Attorney General’s proposed regulations were not intended to be all encompassing. Since they are not final it is possible that further changes or clarifications could be forthcoming. Other relevant and unchanged portions of the new law are discussed below.

Employers that already provide their employees paid time off under a paid time off, vacation, collective bargaining agreement provision or other paid leave policy are not required to provide any additional paid sick time under this law, provided they permit employees to use at least 40 hours per calendar year. This law does not override any employer’s obligations that provide more generous provisions.

Employees will earn a minimum of one hour of sick leave for every 30 hours worked starting on July 1, 2015 or from their date of hire (whichever is later), up to a maximum of 40 hours per calendar year. Employees are not entitled to use their accrued earned sick time for the first 90 days of their employment.

Employees may use their earned sick leave intermittently, either in hourly increments or the smallest increment in the payroll system for absences.

Employees are permitted to carry-over up to 40 hours of earned but unused sick leave into the next calendar year. Employers are not required to pay employees for accrued but unused sick leave upon separation from employment. Such remains the case for accrued vacation time.

An employer may require medical certification of the need for earned sick leave if your employee is absent for more than 24 consecutively scheduled work hours, but you may not delay or deny sick leave because you have not received medical certification. When the need for leave is foreseeable, employees must make a good faith effort to provide advance notice of their leave.

In anticipation of these changes required by the new law soon to be in effect, Massachusetts employers should review their paid time off, vacation, or other paid leave policies to determine whether they will have to implement earned sick leave for any of their employees. Managers and supervisors should also be informed of the new policy changes and advise them of their added responsibilities.

Employers should also consider reviewing and revising their employee handbooks to account for these changes and be on the look-out for further information issued by the Massachusetts Attorney General.

If you have any questions about this new law please contact the attorneys in Rubin & Rudman’s Employment Group located in the Boston office at (617) 330-7000.