By Mark J. Ventola
Attorney General Maura Healey has issued the proposed regulations (the “Regulations”) further defining the provisions of the new Massachusetts Earned Sick Time Law (the “Law”). As reported in our previous Client Alert, the Law requires that all employers provide employees with a minimum of 40 hours of sick time each year. The proposed regulations, which are now in a “notice and comment period,” clarify some of the issues left open under the law itself.
Whether the sick leave is paid or unpaid is determined based upon the number of employees, with employers of eleven or more employees begin required to provide paid sick leave. How to “count to eleven” then was an important but unanswered question under the Law. The Regulations answer this question, providing that the required number is reached if an employer: (1) has 11 or more employees on the payroll during 20 or more weeks (whether consecutive or not) over either the current or preceding calendar year; or, (2) has 11 or more employees on the payroll during 16 consecutive weeks over the current or preceding year. If an employer has fewer than 11 employees, the employer is obligated to provide the same 40 hours of sick time to each employee, but it need not be paid.
The Regulations also state that all of an employer’s employees, whether working inside or outside Massachusetts, will be counted for the purpose of determining employer size. Thus, it does not matter if a company has only a single employee in Massachusetts; if the company has 10 or more employees elsewhere, the employer is obligated to provide 40 hours of paid earned sick time to the single Massachusetts employee.
The regulations define “employee” as including full time, part-time, seasonal and temporary employees. The definition also includes interns.
An employee is eligible to accrue and use earned sick time if the employee’s primary place of work is in Massachusetts. However, an employee need not spend more than 50% of working time in Massachusetts for it to be his or her primary place of work. For example, a salesman might spend 40% of his time in Massachusetts, 30% in Connecticut and 30% in other states. Even though he works outside of Massachusetts 60% of the time, it is still considered his primary place of work under the Regulations. Further, if an employee is eligible to accrue and use earned sick time, then all hours the employee works must be applied toward accrual of earned sick time, regardless of the location of the work.
The regulations provide that when an employee uses earned sick time, he or she must make a good faith effort to provide notice to the employer in advance. If an employer has an existing policy that covers notification for absences or leave requests, the regulations permit continued use of that system. The employer may also institute additional notification procedures when earned sick time will be used, including requiring up to seven days’ advance notice if the reason for earned sick time is for a pre-scheduled or foreseeable absence. If an employer requires such advance notice, the employer must maintain a written policy that contains procedures for the employee to provide notice. It is advisable for all employers to adopt a written policy or procedure requiring notice from an employee when using sick leave.
If an employee uses more than 24 consecutive hours of sick leave, then the employer may require written certification by a health care provider. Employees that do not have a health care provider can submit instead a signed written statement evidencing the need for use of the earned sick time. An employer may never require any such documentation to explain the nature of the illness, or details of the domestic abuse.
In one somewhat controversial provision, the Regulations include the notion of “breaks in service,” which is defined as “a period of time up to one year extending from the date an employee last worked for the employer until the employee’s return to employment, whether the separation was voluntary or involuntary.” Employers of seasonal or temporary workers should pay particular attention to this provision, as upon return to work, the employee maintains the right to use any sick time that was accrued during her previous period of employment.
Apart from simply being a best practice, the Regulations require that employers keep a true and accurate record of the accrual and use of earned sick time in accordance with the employee recordkeeping requirements in M.G.L. c. 151,§ 15, for a period of three years.
The Regulations stress that the Law is a floor, not a ceiling. For employers that have existing paid time off policies in place with more generous benefits, the Regulations encourage them to be maintained.
On May 18, 2015, the Attorney General announced a safe harbor provision that applies to employers that, as of May 1, 2015, have a paid time off policy providing at least 30 hours of paid leave per year. To remain in compliance during this extra six month period, any paid time off, including sick leave, used by an employee from July 1, 2015 to December 31, 2015, must be job protected leave subject to the law’s non-retaliation and non-interference provisions. This grace period expires on January 1, 2016, when all employers must fully comply with the Law.
Finally, the Regulations are now in draft form, and the Attorney General is conducting hearings around the state before the final version is promulgated. This process may result in changes, and it is likely that we have not yet seen all the nuances. Remain aware and alert as the final regulations will be issued in June, not long before the July 1 implementation date for most. Given the many changes in the area of sick leave, it is advisable for employers to conduct a full review of all time off policies in the very near future.
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Mark J. Ventola is a Shareholder at Sheehan Phinney. He is Co-Chair of the firm’s Labor, Employment and Employee Benefits Group.
This article is intended to serve as a summary of the issues outlined herein. While it may include some general guidance, it is not intended as, nor is it a substitute for, legal advice.