Now that Massachusetts has passed a comprehensive earned sick time law—the broadest sick time law in the nation—employers must ensure that they do not fall into any traps for the unwary. What traps may the unwary encounter, you ask? A stray banana peel? A furious, ravenous, giant squid?! Perhaps not. There are, however, provisions of the new law, and of the proposed regulations recently filed with the Secretary of State’s Office by Attorney General Maura Healey, that employers must understand before the law becomes effective on July 1.
The Earned Sick Time Law – What Is It?
The Earned Sick Time law, or “EST law” for short, will provide sick leave access to nearly one million people according to the Attorney General’s office. The EST law provides employees of employers with 11 or more employees up to 40 hours of paid sick time per calendar year, and 40 hours of unpaid sick time for employees working for employers with 10 or fewer employees. Employees begin accruing sick time on their first day of work and can begin using it on the 90th day after hire. Employees earn 1 hour of sick time for every 30 hours worked, including overtime, and they may carry over up to 40 hours of unused time from one year to the next (though they cannot use more than 40 hours in a calendar year). Earned sick time must be paid at the same salary or hourly rate that the employee earns at the time the leave is taken.
The AG’s proposed regulations will help employers avoid traps from the outset because they include an oft-missing definitions section. The regulations clearly define potentially litigious terms such as “employee,” “employer,” “same hourly rate,” and “break in service.” Of utmost importance, the definition of “earned sick time” lays out the reasons for which an employee can use sick time:
- Care for certain family members suffering from a physical or mental illness or injury,
- Care for the employee’s own physical or mental illness or injury,
- To attend a routine medical appoint for the employee or for certain family members,
- Or to address psychological, physical, or legal effects of domestic violence.
What Traps Must Employers Avoid?
The EST law and proposed regulations will have an effect on the sick-leave policies of many employers around the Commonwealth, particularly small employers and those that have not provided sick time in the past. In addition to understanding the basics of the EST law, employers should be aware of the following provisions:
- Payouts: Employers may, but are not required to, offer an employee a payout of their unused sick time either at year’s end or upon separation from employment. If an employer chooses to make a year-end payout, the employer must make available at least 16 hours of sick time at the beginning of the calendar year to the new employee. Employers are not permitted to payout sick time as it accrues during the calendar year.
- Increments of Sick Time: Employees are permitted to use earned sick time in hourly increments or in the smallest increment the employer’s payroll system uses to account for absences or use of other time.
- Sick-Time Policy: If not done already, employers must establish a policy, preferably in writing, that dictates how employees should provide notice that they are using their sick time.
- Written Verification: Employers can require employees to submit written verification that they have used earned sick time, but may not request medical documentation unless the employee uses more than 24 consecutive hours of earned sick time. Also, if an employee wants to use earned sick time before accruing it, the employee must have a mutual agreement with the employer in writing.
- Advanced Notice: An employer may require up to seven days advance notice if the reason for using sick time is for a foreseeable absence, provided a written notice policy is in place.
- No Interference or Retaliation: An employer may not interfere with an employee’s sick-time rights, nor may they retaliate against an employee because the employee opposes practices that he or she believes to be in violation of the EST law.
As a responsible Massachusetts employer or attorney, you have already taken the first step toward avoiding the pitfalls that the EST law may bring. For further counsel on sick-time issues, please contact any of the experienced employment attorneys at Conn Kavanaugh. And remember: earned sick time for all Massachusetts employees, like the giant squid, is not a myth.