In our blog post on May 22, 2015, we discussed traps that unwary employers must avoid when the Earned Sick Time law, or “EST law” for short, becomes effective on July 1. Well, that day is today, meaning all employers must revisit their sick time policies to ensure compliance with the EST law.
On June 19, Attorney General Maura Healey released final regulations for the EST law, including a number of changes that astute employers must take note of. While one should review the final regulations to capture every update, or consult with counsel about best practices, some of the trickier changes and clarifications follow.
- Interaction with State and Federal Leave Laws: The final regulations state that sick time may run concurrently with time off provided by the Family Medical Leave Act, the Massachusetts Parental Leave Act, the Massachusetts Domestic Violence Act, the Small Necessities Leave Act, and other applicable laws whereas the draft regulations stated that sick time could be used in addition to time off allowable under these laws.
- Travel: The final regulations clarify that sick time may indeed be used for travel to and from an appointment, pharmacy, or other location related to the purpose for which the sick time was taken.
- Accrued Time Limits: Once an employee has accrued 40 hours of earned sick time in one benefit year, he or she does not continue to accrue additional hours regardless of additional hours worked. Further, once an employee banks 40 hours by carrying them over from one year to the next, an employer may opt to delay further accrual until the employee reduces his or her bank of earned sick time below 40 hours.
- Notice Provisions – Employees have a number of notice constraints on their ability to use earned sick time. They may not use earned sick time as an excuse for being late to work without an authorized purpose. Nonetheless, the form of notice an employee must provide for unforeseeable absences will depend on what is reasonable under the circumstances (recognizing that in some situations advanced notice may be unfeasible), and an employer may require notification of the expected duration of multi-day absences when reasonable. Employers would be wise to create a reasonable notification system for ease of use by both employees and management.
- Medical Documentation – Employers may request medical documentation for an employee’s use of earned sick time that: exceeds 24 consecutively scheduled work hours, exceeds 3 consecutive days on which the employee was scheduled to work, occurs within 2 weeks prior to an employee’s final day of work before termination (except in the case of temporary workers), or occurs after 4 unforeseeable/undocumented absences within a 3 month period (3 such absences for employees under aged 17).
- Breaks in Service – The final regulations have a comprehensive “break in service” section describing how employees who separate from their employees, either voluntarily or involuntarily, can use accrued sick time. Following a break in service of up to 4 months, an employee maintains the right to use all unused but earned sick time accrued before the break, but if the break is between 4 – 12 months, the employee can only use such time if he or she has accrued 10 or more hours.
These clarifications to the EST law are but a few of the overall updates to the law’s final regulations. There are many facets for employers to consider beyond the simple notion that employees must be afforded sick time. Employers are encouraged to speak with counsel experienced with employment law and knowledgeable about the EST law’s parameters, especially when updating their employee handbooks or drafting new internal policies compliant with the EST law.