Massachusetts Attorney General Issues Draft Sick Leave Law Regulations
April 28, 2015
The Massachusetts Attorney General's Office ("AGO") has issued proposed regulations for the new sick leave law approved by voters last November. Effective July 1, 2015, Massachusetts employers (with certain limited exceptions) must permit their employees to earn and use up to 40 hours of sick leave per year. For employers with 11 or more employees, this leave must be paid.
The AGO is currently seeking public comment on the proposed regulations and has scheduled a series of public hearings for this purpose. (The schedule and location of public hearings can be found here.)
The following is a summary of the proposed regulations.
Question: If an employee works for an employer in Massachusetts and in other states, is he/she eligible to accrue and use earned sick leave?
Answer: Yes, if the employee's primary place of work is in Massachusetts. An employee does not need to spend more than 50% of working time in Massachusetts for it to be his/her primary place of work. For example, a painter with one employer works 40% of her hours in Massachusetts, 30% in New Hampshire and 30% in other states. Massachusetts is her primary place of work.
If an employee's primary place of work is in Massachusetts, then all hours that the employee works, regardless of location of the work, must be applied towards accrual of earned sick leave.
Question: How do employers calculate the accrual of sick leave?
Answer: Employees accrue at least one hour of sick leave per 30 hours worked. For accrual purposes, exempt employees will be deemed to work 40 hours per week unless their job specifies a lower number of hours per week, such as a salaried part-time employee.
Question: How must an employer pay an employee who uses earned paid sick leave?
Answer: An employer must pay an employee earned paid sick leave on the same schedule as regular wages. An employer may not delay payment until the employer receives written verification or documentation of the use of earned sick leave.
Question: When can employees begin to use accrued sick leave?
Answer: Sick leave begins to accrue on an employee's first day of work, and can be used after a 90 day vesting period, regardless of the number of days actually worked during the vesting period. Employees who have worked for the employer for at least 90 days as of July 1, 2015, are fully vested and may use sick leave as it accrues.
Question: What are the accrual and use implications for the remainder of 2015?
Answer: An employer must permit employees to accrue and use an aggregate of 40 hours of sick leave in 2015. Example: if an employer adopts a January 1 to December 31 method of tracking accrual and the employee has used 16 hours of paid sick leave in 2015 before July 1, 2015, the employer must allow the employee to use up to 24 hours of earned paid sick leave in the remainder of the year. Any unused, earned paid sick leave accrued beyond 24 hours may be carried over into 2016.
Question: Must employers with 11 or more employees provide 40 hours of paid leave during the remainder of 2015?
Answer: Yes, although any paid leave previously provided will be credited. If an employer must provide paid sick leave as of July 1, employees who took unpaid sick leave earlier in the calendar year shall still be entitled to accrue and use up to 40 hours of earned paid sick leave during the remainder of 2015.
Question: How does an employee determine its headcount for purposes of determining whether it is subject to providing paid time off?
Answer: There are two counting mechanisms; if an employer satisfies either of them, it must provide paid sick leave. First, employers who employed 11 or more employees on payroll during 20 or more weeks (whether consecutive or not) over either the current or preceding calendar year. Or, second, the employer maintained 11 or more employees on the payroll during 16 consecutive weeks over the current or preceding calendar year. All of an employer's employees, whether working in or outside Massachusetts, and regardless of their eligibility to accrue and use earned sick leave, shall be counted for the purpose of determining employer size.
If the kind of sick leave provided to an employee (paid or unpaid) changes due to employer size fluctuation, certain notice and usage regulations are implicated. See 940 C.M.R. 33.04 for more details.
Question: If an employee has a break in service, may the employee use sick leave earned prior to the break upon his/her return?
Answer: Yes, an employee may use any accrued earned sick leave after a break in service of up to one year from the last date of work for the employer.
Question: How may employees make use of earned sick leave?
Answer: Employees may use earned sick leave in hourly increments or in the smallest increment that the employer's payroll system uses to account for absences or use of other time. However, where an employee's absence from work at a designated time and place requires the employer to hire a replacement and the employer does so, the employer may require the employee to use up to a full shift of earned sick leave.
Question: Does an employee have to use accrued sick leave for every absence?
Answer: No, the law provides that an employer and employee may, by mutual agreement, arrange for the employee to work additional hours during the same or next pay period to avoid the use and payment of earned sick leave. However, if in so doing, the employee works more than 40 hours in a week, the employer must pay the employee at the overtime rate for the hours in excess of 40.
Question: What are the law's carry over and optional payout provisions?
Answer: An employer may, but need not, offer to employees a pay-out of up to 40 hours of unused earned sick leave at the end of the calendar year. If an employer elects to do so, it must also provide the employee with at least 16 hours of sick leave at the beginning of the new calendar year.
Question: How does an employer define a "calendar year?"
Answer: For purposes of accrual, a "calendar year" is any consecutive 12-month period of time as determined by an employer, as long as that time period is defined consistently and uniformly to all employees, and as long as the definition of calendar year is distributed in writing. Note: for the purposes of determining the employer size, the term "calendar year" shall mean a year that runs from January 1 to December 31.
Question: what does the term "Same Hourly Rate" mean?
Answer: The law provides that an employer with 11 or more employees must compensate an employee's use of sick leave at the "same hourly rate" as the employee wage rate. The regulations define "same hourly rate" as the base rate wage, or, if the hourly rate fluctuates, the "blended" or "weighted average" rate of the previous pay period. If an employee works on a piece work, salary, fee, or any basis other than an hourly rate, the employee must calculate the "same hourly rate" by dividing total earnings in the previous pay period by the total hours worked during the previous pay period. The "same hourly rate" shall not include sums paid as commissions, draws, bonuses, incentive pay, overtime, holiday pay or other premium rates. However, the hourly rate shall never fall below minimum wage.
Question: Is an employer required to provide sick leave in addition to that provided under the FMLA, the Massachusetts Parental Leave Law, the Massachusetts Domestic Violence Leave Act, and the Small Necessities Leave Act?
Answer: This remains unclear. While the draft regulations state that sick leave is "in addition to" the time off provided by those other laws, the FMLA specifically permits employers to require employees to use other accrued time off concurrently with FMLA leave. The proposed regulations also permit employers to satisfy the sick leave requirements through existing paid time off ("PTO") plans, so long as those plans are at least as generous as the sick leave law and satisfy certain indicia described in the regulations.
Question: How must an employee provide notice of his or her intent to use sick leave?
Answer: The employee must make a good faith effort to provide notice through the notification system that the employee customarily uses to communicate with the employer for absences or requesting leave. If the employer does not currently have such a practice, it should develop one, preferably in writing.
Question: May an employer discipline an employee who is abusing the sick leave law?
Answer: Yes. If an employee is committing fraud or abuse by engaging in an activity that is not consistent with allowable purposes for leave (e.g. being sick, caring for an ill family member) or by exhibiting a clear pattern of taking leave on days when the employee is scheduled to perform duties perceived as undesirable, an employer may discipline the employee for misuse of sick leave.
Question: Must an employee reference the law or use the term "earned sick time" to afford him or herself of the law's protection?
Answer: No. An employer may review with the employee the purposes for which earned sick leave may be used under the earned sick leave law, provided that such review does not violate the privacy and confidentiality provisions of the earned sick leave law or federal or state medical privacy laws.
Question: May an employer require notification of foreseeable or multi-day use of earned sick leave?
Answer: Yes. The employer may require up to seven days advance notice if the reason for earned sick leave is pre-scheduled or foreseeable. If an employer requires such notice, it must create and maintain a written policy that contains procedures for the employee to provide notice. Likewise, if an employee anticipates a multi-day absence, an employer can require a daily update from the employee or employee's surrogate (spouse, family member, other responsible party) unless the circumstances make such notification infeasible.
Question: When must an employee notify the employer if the need for leave is not foreseeable?
Answer: As soon as is practicable. Also, the employee must comply with an employer's notification system that the employee customarily uses to communicate with the employer for unforeseeable absences.
Question: Must an employee submit documentation to his/her employer in order to use earned sick leave?
Answer: Only when an employee's use of earned sick leave results in an absence of more than 24 consecutive work hours. When an employee's use of earned sick leave results in an absence of more than 24 consecutive work hours, an employer may require written certification by a health care provider. Note, however, that employees who do not have a health care provider may provide a signed written statement evidencing the need for the use of earned sick leave.
Employees who have been absent for more than 24 consecutive work hours for reasons related to domestic violence will satisfy documentation requirements with most documents that attest to the domestic violence in question, ranging from a restraining order to a statement provided by a shelter worker.
Question: When and how must an employee submit documentation for use of earned sick leave?
Answer: Appropriate documentation must be submitted to an employer within 30 days of taking earned sick leave. The employee may submit documentation in hand or by any customarily used method by which the employee and employer communicate (including email, mail, text message, and/or facsimile).
If an employee fails to comply and there is no reasonable justification for such, the employer may delay or deny the future use of earned sick leave by the employee until documentation is provided.
Question: Can an employer deviate from the accrual rate?
Answer: Yes, so long as the employer's accrual rate is more generous than required by the law.
Question: Can an employer substitute its paid time off (PTO) policy in lieu of the sick leave law?
Answer: Yes, provided that the PTO policy:
accrues at a rate of no less than one hour of PTO for every 30 hours of work;
is paid at the employee's same hourly rate;
is accessible on the same basis, meaning time may be taken for the authorized uses under the law;
comes with the same notice requirements to employees; and,
is afforded the same job protections.
Question: Are "attendance" policies and awards any longer permissible?
Answer: Yes, so long as employees who exercise their rights under the law are not subject to any adverse actions. An employee's inability to earn a reward for good attendance based on his or use of earned sick leave does not constitute an adverse action or interference with an employee's rights under the law.
Question: What prohibitions on employer retaliation and non-interference does the law provide?
Answer: Employers may not interfere with any right provided under or in connection with the sick leave law. In addition, employers may not take adverse action against an employee for supporting another employee's exercise of sick leave benefits.
Question: Are there any record-keeping and disclosure requirements that employers must follow?
Answer: Yes. These are detailed in both the law and regulations and require employers to keep and maintain complete records of every employee's accrual and use of sick leave, consistent with the record-keeping requirements set forth in G.L. c. 151, §15. In addition, employers must post a notice of the Earned Sick Time law and the enacted regulations, in a conspicuous location. The Attorney General will prepare such notice.
For assistance with leave laws or policies, or for other legal advice, contact Allyson Kurker and Margaret Paget at Kurker Paget LLC.