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
When does the sick leave law go into
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
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
What can earned sick time be used for?
Earned sick time for the following reasons:
- 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
- To care for the employee's own physical or mental illness,
injury or other medical condition that requires home, preventative
or professional care;
- 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
- 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
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
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
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
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
What happens if an employer is subject to a collective
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
Does earned sick time need to be used in daily
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
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
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
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
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
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
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
What questions are not answered by the text of the
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,
- What records will employers be required to keep?
- How will breaks in service be handled?
- Are individuals who are truly independent contractors
- 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
- 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"
Members of the labor and employment law community are encouraged
to reach out to the attorney general with their thoughts.