The new Massachusetts Sick Time Law

Issue February 2015 By Catherine E. Reuben

On Nov. 4, 2014, Massachusetts voters answered "yes" to Question 4, approving a law mandating that employers provide employees with up to 40 hours of earned sick time per year. The law goes into effect on July 1, 2015, and will be enforced by the Office of the Attorney General. Pending issuance of regulations from the attorney general, the following is a list of questions and answers about the new law, based on a plain English reading of the statutory language. The article also addresses some questions that are not clearly answered.

When does the sick leave law go into effect?
The law goes into effect on July 1, 2015, subject to certification by the secretary of the commonwealth and the Legislature.

What employers are subject to the law?
Employers are defined as "any individual, corporation, partnership or other public or private entity, including any agent thereof, who engages the services of an employee for wages, remuneration or other compensation." All employers will be subject to this law when it goes into effect; the only exceptions are the U.S. government and cities and towns that have not specifically accepted it.

Which employees are eligible for the benefits of this law?
An employee is defined as "any person who performs services for an employer for wage, remuneration or other compensation." The law further states that all employees who "work in the commonwealth" shall be entitled to earn and use sick time. Thus, under the plain language of the law, any employee who works in Massachusetts is covered - including part time and temporary workers.

The broad definition of employee raises the question of whether independent contractors would be covered. It is anticipated that the attorney general will address this issue in the regulations and will hopefully clarify that someone who is truly an independent contractor in Massachusetts (a tough standard to meet) would be excluded.

What can earned sick time be used for?
Earned sick time for the following reasons:

  1. To care for a child, parent, spouse or parent of a spouse who is suffering from a physical or mental illness, injury or medical condition that requires home, preventative or professional care;
  2. To care for the employee's own physical or mental illness, injury or other medical condition that requires home, preventative or professional care;
  3. To attend the employee's routine medical appointment or the routine medical appointment of the employee's child, parent, spouse or parent of spouse; or
  4. To address the psychological, physical or legal effects of domestic violence as defined in the recently-enacted Massachusetts Domestic Violence Leave law.

How much sick time can employees take under the new law?
The statute states that sick time is accrued at the rate of one hour for every 30 hours worked, which works out to 69.3 hours per year for a full-time employee. The law goes on to state, however, that employees are entitled to "earn and use up to 40 hours" of sick leave per calendar year. Presumably, then, once an employee has accrued 40 hours of sick leave in a calendar year, the employee stops accruing sick leave; however, this is a question for which the attorney general may provide further guidance.

For accrual purposes, exempt employees will be assumed to work 40 hours per week unless their normal work week is less than 40 hours, in which case earned sick time will accrue based on their normal work week.

Employees begin to accrue earned sick time on their date of hire or the date this law becomes effective, whichever is later, but they are not entitled to use their accrued earned sick time until the 90th calendar day following the start date of their employment. On and after the 90-day period, employees may use earned sick time as it accrues. Employers can allow the accrual of earned sick time at a faster rate or allow for the use of earned sick time at an earlier date than the law requires.

Is earned sick time paid or unpaid?
Employees of an employer of 11 or more employees are entitled to earn and use up to 40 hours of paid sick time per calendar year. Employees of an employer with fewer than 11 employees are entitled to earn and use up to 40 hours of unpaid sick time in a calendar year. All employees performing work for compensation on a full-time, part-time or temporary basis are counted when determining the number of employees an employer employs.

One of the questions not answered by the law is how and when the 11 employees are counted. For example, if an employer has 11 employees for only part of a year, would the employees be eligible for paid sick time the entire year? Such questions are left for the attorney general, who is empowered to issue regulations including "the manner in which employer size shall be determined."

Another unanswered question is how the number of employees would be counted with respect to non-Massachusetts employers. For example, if a Maine employer has 15 employees, but only one of them in is Massachusetts, would that employee be entitled to paid sick time? We will need to await further guidance from the attorney general on this issue.
Sick time is compensated at the same hourly rate as the employee earns at the time the employee uses the paid sick time, provided, however, that the hourly rate may not be less than the minimum wage.

The law does not describe how that "hourly rate" would be determined. As this law is part of the wage and hour laws, it is anticipated that the attorney general would determine hourly rate in the same manner as it does for overtime purposes.

What if an employer has a PTO or other paid leave policy?
Employers who provide their employees paid time off under a sick time, paid time off (PTO), vacation or other paid leave policy may continue to do so with no obligation to provide additional earned paid sick time as long as they make available an amount of paid time off sufficient to meet the accrual requirements that may be used for the same purposes and under the same conditions as earned paid sick time under this law.

One question that many employers have asked is whether they must now designate PTO as either sick or vacation time. Consider, for example, this scenario: an employer provides all employees with 40 hours of PTO at the beginning of a year, which the employees can use for any reason they want. An employee chooses to use that time in March to take a vacation. In November, the employee gets sick. Does the employee have a right to take another 40 hours of sick time? In the opinion of this author, the employer would not have any obligation - at least not under the Mass. sick leave law - to provide additional paid sick time, since it was already provided. Note, however, that the law states that the attorney general shall prescribe by regulation the employer's obligation to make, keep and preserve records pertaining to the law. It is possible that those record-keeping requirements could involve tracking of how time is used.

What happens if an employer is subject to a collective bargaining agreement?
The law states that nothing in the statute shall be construed to diminish or impair the obligation of an employer to comply with any contract, collective bargaining agreement or any employment benefit program or plan in effect on the effective date of the law that provides to employees greater earned sick time rights than the rights established by the law. Accordingly, union employees who are covered by a collective bargaining agreement which provides less sick time than that allotted by the law would presumably be able to accrue and use additional sick leave up to and including the limit provided in the statute. Employees covered by a collective bargaining agreement which provides the same or more sick time than that provided in the law would not be impacted by the law.

Does earned sick time need to be used in daily increments?
No. Earned sick time can be used in the smaller of hourly increments or the smallest increment that the employer's payroll system uses to account for absences or use of other time. So, for example, if an employee needs to arrive late in order to take her child to the doctor, that time would be covered.

Can employees carry over their unused earned sick time at the end of the year?
Yes. Employees may carry over up to 40 hours of unused earned sick time to the following calendar year. Employees are not entitled, however, to use more than 40 hours of sick time in any one calendar year.

Some employers have programs that permit or require employees to "cash out" unused earned time at the end of a year. The law is clear that employees have a legal right to carryover, so a mandatory cash-out or "use it or lose it" policy would violate the law. It is not clear, however, whether a voluntary program that permits but does not require cash-out would be permissible. We will need to await further guidance from the attorney general on this question.

Are employers required to pay out unused earned sick time when the employee leaves the employer?
No. The law clearly states that employers are not required to pay out unused earned sick time upon the separation of the employee from the employer.

If an employer relies on a vacation policy to comply with the new law, however, payout would presumably be required since, under well established law, accrued, unused vacation pay must be paid to an employee at the time of separation.

Can employees be required to show documentation for their use of earned sick time?
Yes, but only for absences using earned sick time that covers more than 24 consecutive scheduled work hours. Any reasonable documentation signed by a health care provider indicating the need for earned sick time taken for personal illness, the illness of a family member, or a routine medical examination for either the employee or a family member must be deemed acceptable for this purpose. An employer may not delay the taking of earned sick time or delay pay for the period in which the earned sick time was taken for those employees entitled to pay on the basis that the employer has not yet received the certification.

An employer may not require that the documentation describe the specific illness or other details about the reason for the sick leave. For earned sick time taken to address the effects of domestic violence, documentation deemed acceptable under the Domestic Violence Leave law shall be deemed acceptable. An employer may not require details about the domestic violence. The law also states that the attorney general may issue regulations regarding the manner in which an employee who does not have a health care provider shall provide certification.

Can employees be required to find a replacement employee to cover their hours if they are going to use earned sick time?
No. An employer may not require that an employee search for or find a replacement to work the hours during which the employee is using earned sick time.

Can employees be required to give advance notice of their need to use sick leave?
If the use of earned sick time is foreseeable, employees are required to make a good faith effort to notify the employer in advance. We will need to await further guidance from the attorney general on the extent to which employees can be penalized for failing to follow the employer's uniformly-enforced policies with respect to the method and timing for reporting absences.

Can employees be required to make up time off taken as sick leave?
No. An employer may not require an employee to work additional hours to make up for hours taken as sick time under the new law. If there is mutual consent, however, an employer and employee can agree that, if an employee works (and is paid for) an equivalent number of additional hours or shifts during the same or the next period as the hours or shifts taken as sick time under the new law, the employee will not be required to use accrued sick time, and the employer will not be required to pay for the time that the employee was absent. Employers should note, however, that if the hours are made up during a different week, the employee may be entitled to overtime pay during that week.

Can an employer consider an employee's use of earned sick time in making employment decisions, for example, when evaluating the employee's attendance?
The law provides that use of earned sick time may not be used as a negative factor in any employment action, such as evaluations, promotions, disciplinary actions, termination or otherwise subjecting an employee to discipline for using earned sick time.

Some employers have a policies providing that, if an employee takes a sick day the day before or after a holiday, the employee will not be paid for the holiday. It is not clear whether such policies would still be permissible.

The law also does not address whether or not an employee who uses sick time under the new law should still be eligible for an employer's "perfect attendance" bonus. The Department of Labor takes the position that employees who take FMLA leave need not be given a "perfect attendance" bonus. This author is hopeful that the attorney general will take a consistent approach.

Are employers required to notify employees of their rights under the law?
The law requires that the Attorney General's Office prepare a notice regarding the law in English and other languages. Employers will be required to post this notice in a conspicuous place accessible to employees in every location where employees with rights under this law work, and they will also be required to provide a copy to their employees.

What happens if an employer violates the law?
The law will be enforced by the Attorney General's Office, which is empowered to issue rules and regulations necessary to carry out its purposes. If an employee believes that an employer has violated the law, the employee can file a complaint with the Attorney General's Office. Employees may also file suit in court in order to enforce their rights under the law.

Employers can be subject to a range of penalties applicable to wage and hour violations, including treble damages and attorney fees.

What questions are not answered by the text of the law?
While many aspects of the law are relatively clear, there are a number of unanswered questions. The employment law community will need to await guidance from the attorney general on many issues, including:

  • What records will employers be required to keep?
  • How will breaks in service be handled?
  • Are individuals who are truly independent contractors covered?
  • How is the employee's hourly rate determined?
  • How are joint employer relationships handled?
  • How and when is employer size determined? Do employees outside of Massachusetts count?
  • If an employee takes time off for a purpose that qualifies as sick leave under the law, can the employer require the employee to use his/her accrued sick leave?
  • Can employers have policies that require an employee to be present the day before or after a holiday in order to receive holiday pay?
  • Once an employee accrues 40 hours of sick leave in a calendar year, does the employee stop accruing?
  • To what extent can employees be penalized for failing to follow the employer's uniformly-enforced policies with respect to method and timing for reporting absences?
  • Can an employer deny a "perfect attendance" bonus to an employee who uses Massachusetts sick leave?
  • Can an employer offer a voluntary sick leave "cash out" program?

Members of the labor and employment law community are encouraged to reach out to the attorney general with their thoughts.