The Massachusetts Attorney General has released final regulations interpreting the Massachusetts sick leave law, in effect as of July 1st. The following summary offers a guide to employers.
Which employers must provide paid earned sick leave?
Employers with an “average of 11 or more employees” throughout the preceding calendar year must allow their employees to earn and accrue at least 40 hours of paid sick leave each calendar year. Paid sick leave will be compensated at the same hourly rate paid to the employee at the time the sick leave is used.
How does an employer determine whether it had an “average of 11 or more employees” during the preceding year?
Employers shall determine the average number of employees by counting the number of employees (including full-time, part-time, seasonal, and temporary employees) on the payroll during each pay period, and dividing by the number of pay periods. Employees furnished to an employer by a temporary staffing agency, and paid by the staffing agency, count as employees of both the staffing agency and the employer for the purpose of determining employer size.
Which employers may provide unpaid earned sick leave?
Employers with an average of 10 or fewer employees must allow their employees to accrue and use up to 40 hours of earned sick leave per calendar year, but it may be unpaid.
Are employees who work outside of Massachusetts counted for purposes of determining the employer’s average size?
Yes. All employees, whether working in or outside Massachusetts, are counted for the purpose of determining employer size.
What should an employer do if its average size changes from year to year?
Employers must notify employees in writing at least 30 days in advance if earned sick leave will be changing from paid to unpaid (or from unpaid to paid) sick leave, based on a change in employer size. Earned sick leave is paid or unpaid based on when the employee accrued the leave, not when the leave is used.
How does an employer calculate the rate of pay for employees who receive paid sick leave?
There are several different methods of calculating the rate of pay for sick leave, depending on the employee’s position.
- For an employee who is paid hourly, the rate of paid earned sick leave equals an employee’s regular hourly rate.
- For an employee paid at two or more hourly rates (for example, employees who perform two different jobs for the same employer), the rate of pay is either: (1) the wages that the employee would have been paid during the hours used as sick leave; or, (2) a blended rate, determined by taking the weighted average of all regular rates of pay over the previous pay period. In either instance, an employer must be consistent with each employee throughout the year.
- For salaried employees, the rate of pay is calculated as the employee’s total earnings in the preceding pay period divided by the total number of hours worked by the employee in that pay period. Salaried employees are presumed to work 40 hours per week, unless their normal work week is less than 40 hours.
- For employees paid on a piece work or fee-for-service basis, the rate of pay equals a “reasonable calculation” of the wages that the employee would have received if the employee had worked.
When must sick leave be paid?
Earned sick leave must be paid on the same schedule as regular wages. An employer cannot make compensation contingent upon written verification or documentation of the use of earned sick leave.
How do employers calculate accrual of earned sick leave?
Starting on the first day of actual work, employees accrue sick leave at a rate of one hour for every 30 hours worked, including hours worked during overtime. Employers should note that “fee-for-service” employees accrue earned sick leave based on “a reasonable measure of the time the employees work, including established practices or billing.”
When can employees begin to use earned sick leave?
Employees may use earned sick leave 90 calendar days after their first date of actual work.
What happens to earned sick leave after an employee’s break in service?
- For breaks in service of 0-4 months, employees maintain the right to use their sick leave accrued before the break.
- For breaks of 4-12 months, employees maintain the right to use sick leave accrued before the break if the accrued leave equals or exceeds 10 hours.
- Employees are not required to restart the 90-day vesting period for breaks of up to 12 months.
Can employers cap the accrual of sick leave?
Yes. Once an employee has accrued 40 hours of sick leave during a benefit year, an employer is not required to permit additional accrual, regardless of additional hours worked by the employee. At the end of the benefit year, an employee may rollover up to 40 hours of unused earned sick leave to the next year.
What absences qualify for earned sick leave?
Employees will be able to use earned sick leave to address their own health needs or those of an immediate family member (children, spouse, parent, or parent of a spouse) to:
- Care for a physical or mental illness, injury or medical condition;
- Attend routine medical appointments;
- Address the effects of domestic violence;
- Travel to and from an appointment, a pharmacy, or other location related to the purpose for which the leave was taken.
What are the increments by which an employee can use earned sick leave?
Per the final regulations, the smallest amount of sick leave that an employee can use is one hour. After the first hour, the employee can use earned sick leave by the smallest increment allowed by the employer’s payroll system.
Are there alternatives to using earned sick leave?
An employer and an employee may agree for an employee to work additional hours during the same or next pay period to avoid the use and payment of earned sick leave.
How do employees provide notice of the need to use earned sick leave?
An employee need not refer to his/her need to take “sick leave,” or to the law that establishes that right. An employer may review with an employee the purposes for which earned sick leave may be used, but may not ask questions about sick leave that would violate an employee’s privacy protections under federal or state privacy laws.
Employees must make a “good faith” effort to provide advance notice to their employers when the need for sick leave is foreseeable. An employer can require up to 7 days’ notice for a prescheduled or foreseeable absence; however, if an employer requires such notice, it must maintain a written policy that contains procedures for an employee to provide notice.
Employers may also discipline employees who use earned sick leave for a purpose not provided for under the law.
When can an employer request verification from an employee regarding the use of earned sick leave?
An employer may require employees to verify in writing that their use of sick leave in any amount was for allowable purposes.
When can an employer request medical documentation from an employee regarding the use of earned sick leave?
An employer may require medical documentation from employees, however, only when leave: (1) exceeds 24 consecutively-scheduled work hours; or (2) exceeds 3 consecutively-scheduled work days; or (3) occurs within 2 weeks prior to an employee’s final day of work before separation; or (4) occurs after 4 unforeseeable and undocumented absences within 3-month period (3 absences if employee is 17 or under).
For leave taken in connection with domestic violence, an employee may provide documentation as provided for in that law.
May an employer require a fitness for duty certification?
An employer may require an employee to provide fitness for duty certification or work release from a medical provider before an employee returns to work if: (1) such certification is customarily required; (2) certification is consistent with industry practice or state or federal safety regulations; and, (3) reasonable safety concerns exist regarding an employee’s ability to safely perform (“reasonable safety concerns” means a reasonable belief of significant risk of harm to the employee or others).
How will the sick leave law be implemented during the upcoming Transition Year (July 1, 2015 – January 1, 2016)?
Eligible employees will accrue earned sick leave beginning on July 1, 2015. Any paid leave given prior to July 1, 2015 is credited. An employer need not provide more than 40 hours of paid sick leave for the remainder of 2015.
If an employer must provide paid sick leave, employees who took unpaid earned sick leave earlier in the calendar year will still be entitled to accrue and use up to 40 hours of paid earned sick leave.
What is the Safe Harbor?
The Safe Harbor is available to eligible employers during the upcoming Transition Year, between July 1, 2015 and January 1, 2016. It provides that employers whose existing paid time off policies meet certain criteria may maintain their existing policies until January 1.
To be eligible for the Safe Harbor exemption, an employer must have had a paid time off policy in place as of May 1, 2015, under which: (1) full-time employees can earn and use at least 30 hours of paid time off during 2015; (2) as of July 1, all employees accrue paid time off/earned sick leave at the same rate as a full-time employee (or, if employer gives “lump sum” paid time off, the newly-covered employees receive the same on a prorated basis); (3) paid time off is afforded the same protections and can be used for the same purposes as earned sick leave; and, (4) carryover of unused earned time off is permitted.
Can employers use PTO policies to comply with the law?
Employers may substitute their own sick leave or paid time off (“PTO”) policies, so long as:
- Employees can use at least the same amount of leave;
- For the same purposes;
- Under the same conditions;
- With the same job protections as provided under the sick leave law.
Employers may have different paid leave policies for different groups of employees, so long as all employees are afforded the minimal amount of leave and other protections under the law.
What do employers need to know about the prohibitions on retaliation and non-interference?
Employers cannot retaliate against, or interfere with, an employee’s right to use earned sick leave. Examples of such include:
- Denying use or delaying payment of earned sick leave.
- Terminating an employee for using sick leave.
- Taking away work hours.
- Giving an employee undesirable assignments or schedule changes.
- Giving false and/or negative references for future employment.
- Making false criminal reports to authorities about the employee.
- Reporting an employee to immigration authorities.
- Threatening an employee with any of the above-listed adverse actions.
What are an employer’s record keeping and notification requirements?
- Employers must maintain a true and accurate record of the accrual and use of earned sick leave.
- Employers should post a notification of rights under the law and regulations for employees to review (available on the AG’s website).
- Employers also should distribute such a notification to employees (i.e., in employee handbooks).