Attorney General Issues Proposed Regulations On New Massachusetts Earned Sick Time Law

What you need to know:

The Massachusetts Attorney General’s office has issued proposed regulations clarifying the rights and responsibilities of employers and employees under the new Earned Sick Time Law that goes into effect on July 1. As detailed in our November and December client alerts, Massachusetts will require employers to grant at least forty hours of sick leave to their employees each year, effective on July 1, 2015.

What you need to do:

Employers should revise their leave policies to ensure that they comply with the proposed regulations. Although the regulations do not yet have the force of law, they are likely very similar to the final regulations to be issued this summer.

The Attorney General recently issued proposed regulations clarifying many aspects of the new law. While the regulations are lengthy, some of the questions answered include:

How does the law count the eleven-employee threshold for whether an employer must provide paid leave?

The portion of the law requiring paid sick leave applies only to employers with eleven or more employees. The regulations clarify that an employer must provide paid sick time if they had 11 or more employees on the payroll during (a) 20 or more weeks (whether consecutive or not) over either the current or preceding calendar year; or (b) 16 consecutive weeks over the current or preceding calendar year. All employees, including part-time and temporary employees, as well as interns, count towards the 11 employee threshold. It does not matter whether those employees work within or outside of Massachusetts.

Additionally, any employee whose “primary place of work” is in Massachusetts is entitled to sick leave under the law, even if the employer is not a Massachusetts-based company.

What if my company has eleven or more employees, but then drops below the eleven-employee threshold?

If an employer drops below the eleven-employee threshold, it is no longer required to offer paid leave, but remains obligated to provide unpaid sick leave. Employers must provide employees with at least 90 days’ advance written notice that future earned sick time will be unpaid.

Additionally, an employee’s previously earned sick time shall remain paid sick time until exhausted, despite the fact that the employee will begin to accrue unpaid sick time. Similarly, if an employee has earned unpaid sick time, the sick time will remain unpaid until exhausted. When an employee has accrued both paid and unpaid sick time, the employee has the option to use either paid or unpaid sick time.

Does my company need a new policy if we already provide paid time off?

If existing paid time off policies already provide for more generous leave time that can be used for the purposes enumerated in the Earned Sick Time law, and the policies otherwise comply with the notice and other requirements of the Earned Sick Time law, an employer may not need a new or separate sick time policy. The regulations clarify, for example, that paid time off policies may deviate from the accrual rate specified in the new law (1 hour for every 30 hours worked), so long as the existing policies provide leave entitlements that are more generous than what is required under the Earned Sick Time law. For example, an existing leave policy is more generous if it provides more job-protected sick time for the year than the 40 hours of earned sick time required under the statute. Additionally, a policy that provides a lump sum of 40 hours of job-protected sick time at the outset of employment and at the start of each subsequent calendar year, rather than tracking the accrual of earned sick time over time, is also acceptable.

What kind of notice may we require an employee to provide before using earned sick time?

Employees who plan to use earned sick time must give their employer “reasonable notice.” Reasonable notice may include compliance with an employer’s absence notification system, provided that the requirements of such system do not interfere with the purposes of the leave. If an employer does not have an existing policy or procedure for providing notice of an absence, the employer must establish such a policy or procedure (preferably in writing).

If an employee’s need for the use of earned sick time is unforeseeable, the employee must report his or her need to the employer as soon as practicable and must comply with an employer’s absence notification system. If the employee is unable to communicate his or her absence, the employee’s spouse, adult family member, or other responsible party may provide notice on the employee’s behalf.

Employers may require employees who plan to use sick time for a planned purpose to request time off up to seven days in advance. If an employee anticipates a multi-day absence from work, an employer may require notification on a daily basis, unless the circumstances make such notification infeasible.

In what increments can employees use earned sick time?

The law allows employees to use earned sick time in hourly increments or (if less) the smallest increment the employer’s payroll system uses to account for absences or use of other time.

However, where an employee’s absence from work requires the employer to pay a replacement for the full day or shift, the employer may require the employee to use up to a full day or shift of earned sick time.

Is my company required to track accrued and used sick time?

The law requires employers to maintain accurate records of the accrual and use of earned sick time. Employers must maintain such records for at least three years, and must allow employees (upon request) to inspect their own records at a reasonable time and place.

Can companies still reward employees for good attendance?

Yes, so long as the attendance policy that rewards employees does not otherwise interfere with or retaliate against employees who take earned sick time. The law expressly prohibits employers from taking adverse action against employees who take earned sick time. However, an employee’s ineligibility to earn a reward for good attendance based on his or her use of earned sick time is not considered an adverse action under the law.

How can my company prevent fraud or abuse?

Significantly, employers may only request certification of the need for leave after an employee uses leave for “more than 24 consecutively scheduled work hours.” Employees have 30 days to submit any requested certification or documentation. If an employee fails to provide reasonable documentation and there is no reasonable justification for the failure to comply, the employer may delay or deny the future use of accrued earned sick time until the employee provides the documentation.

The proposed regulations do allow an employer to discipline an employee for “misuse” of sick leave. The proposed regulations define “misuse” as the employee committing fraud or abuse by engaging in an activity that is not consistent with allowable purposes for leave or by exhibiting a “clear pattern” of taking leave on days when the employee is scheduled to perform duties perceived as undesirable (for example, taking off all Friday afternoons in the summer). However, given the law’s prohibition on retaliating against employees for using sick leave, employers should exercise caution and consult with employment counsel prior to disciplining employees for misuse of sick leave.

What kind of documentation may we require an employee to submit?

When an employee uses more than 24 consecutive hours of earned sick time, the employer may require written certification by a healthcare provider that the use of earned sick time was for an authorized purpose. If the employee does not have a healthcare provider, the employee can provide his or her own signed written statement evidencing the need to use the earned sick time. Employers should not ask employees to explain the nature of their illness or the details of domestic violence underlying the leave. The AG’s Office has stated that it will post a model form on its website at www.mass.gov/ago/earnedsicktime that employers can use as a guide, although that form has not yet been issued.

Does my company need to post a notice of the Earned Sick Time law?

Yes. The AG’s Office has stated that it will publish a notice regarding the law that employers must post (along with the final regulations) in a conspicuous location accessible to employees. Employers must also provide a copy of the notice and regulations to their employees. These regulations are not final, and remain subject to change following a public comment period. However, we recommend reviewing your policies now, as the law becomes effective on July 1st and the final regulations are likely to be very similar to the proposed regulations.