United States: Proposed Regulations Shed Light On Unanswered Massachusetts Sick Leave Questions

On November 4, 2014, Massachusetts voters approved a ballot question that requires all private-sector employers to provide employees with up to 40 hours of sick leave per calendar year.1 That new law, which goes into effect on July 1, 2015, left many questions unanswered. For example, the law did not specifically address whether multi-state employers with fewer than 11 employees in Massachusetts had to provide paid, as opposed to unpaid, sick leave. The law also did not address whether employers may provide employees with the option of cashing in accrued, paid sick leave.

In an attempt to answer some of these questions, the Massachusetts Attorney General recently proposed regulations interpreting the new sick leave law. As discussed below, the proposed regulations provide answers that may be surprising to employers.

Which employers must provide paid leave?

Under the new law, all employers, regardless of their size, must provide sick leave to employees. Employers with 11 or more employees, however, must provide paid sick leave. Employers with fewer than 11 employees must provide, at a minimum, unpaid sick leave.

In the proposed regulations, the Attorney General's Office takes the position that, when calculating whether an employer meets the paid sick leave threshold, all full-time, part-time, seasonal and temporary employees must be counted, including employees who work outside of Massachusetts. Thus, for example, an employer with 15 employees would have to provide paid sick leave to its employees in Massachusetts, even if only one employee is based in the Commonwealth.

What about employees who work outside of Massachusetts?

According to the proposed regulations, employees are eligible to accrue sick leave if their primary place of work is in Massachusetts, even if the employee spends less than 50% of his or her working time in Massachusetts. By way of example, the proposed regulations reference a painter who works for one employer and spends 40% of her hours in Massachusetts, 30% of her hours in New Hampshire, and 30% in other states. According to the Attorney General's Office, Massachusetts would be the painter's primary place of work and, therefore, the painter would be eligible to accrue sick leave for all working hours, including hours worked outside of Massachusetts.

How do employers calculate the accrual of sick leave?

Beginning July 1, 2015, employers must provide all employees, including full-time, part-time, seasonal and temporary employees, with a minimum of one hour of sick leave for every 30 hours worked, up to a maximum of 40 hours per calendar year. Surprisingly, the proposed regulations state that the term "calendar year" means any consecutive 12-month period designated by an employer. Thus, if adopted as proposed, the regulations will permit employers to choose which 12-month period to designate as the "calendar year" for accrual purposes (e.g., fiscal year, the year running from an employee's anniversary date, etc.). Upon hire, however, employers must provide employees with a written notice that explains what the calendar year is for sick leave purposes. Any change to an employer's definition of calendar year must be prospective and cannot result in a loss or forfeiture of any previously accrued sick leave.

The proposed regulations also state that, for accrual purposes, exempt employees are assumed to work 40 hours per week unless their normal work week is less than 40 hours.

What happens to accrued, unused sick leave if an employee leaves the company?

Under the sick leave law, employers are not required to pay out accrued, unused sick leave upon the termination of the employment relationship. Under the proposed regulations, however, if an employee returns to work within a year from the last date of employment, any sick leave earned prior to the break in service shall be available for the employee to use immediately.

May employers permit employees to cash out their unused sick leave?

Employees are only entitled to use 40 hours of sick leave per calendar year, but they are statutorily entitled to carry over up to 40 hours of unused sick leave to the next calendar year.

The proposed regulations allow employers to offer, at the employee's sole discretion, the option to receive payment for any unused sick leave at the end of the calendar year, provided that at least 16 hours of sick leave are available at the beginning of the new calendar year. The proposed regulations, however, prohibit any payout or other forfeiture of sick leave as it accrues during the year.

What if an employee already received paid sick time prior to July 1, 2015?

Employees must begin to accrue sick leave on July 1, 2015. The proposed regulations, however, permit employers with existing sick leave policies to credit any paid sick leave taken prior to July 1st against their statutory obligations. For example, if an employee takes two hours of paid sick leave between January 1, 2015 and June 30, 2015 pursuant to his or her employer's existing sick leave plan, the employer may treat those two hours of sick leave as though they were taken pursuant to the Massachusetts law. As a result, for the transition year from July 1 through the beginning of the next calendar year, the employee would be entitled to only 38 hours of paid sick leave, not the 40 hours of sick leave provided for in the statute.

At what rate must paid sick leave be paid?

Under the Massachusetts sick leave law, an employer must pay an employee for paid sick time "at the same hourly rate as the employee earns from the employee's employment at the time the employee uses the paid sick time." In the proposed regulations, the Attorney General states that, if an employee is paid on an hourly basis and receives different pay rates for hourly work, then the employer must pay sick leave using a "blended" rate, i.e., the weighted average of all straight-time rates of pay during the prior pay period. For employees paid on any other basis (e.g., piece work, salary) the base rate is calculated by dividing the previous pay period's gross pay by the hours worked. For employees paid on a commission basis, whether base wage plus commission or commission only, the hourly rate is the greater of the base wage or the effective minimum wage. Under the proposed regulations, amounts paid as commissions, bonuses, or other incentive pay or overtime, holiday pay, or other premium rates are not included in the paid sick leave calculation.

How may employees provide notice of the need for sick leave?

When the need for sick leave is foreseeable, employees must make a "good faith effort" to provide advance notice, but the law does not define "good faith effort" or establish any minimum notice period. Similarly, the law is silent as to when an employee must notify his or her employer that an absence was covered by the sick leave law when the absence was not foreseeable. The proposed regulations offer employers some guidance regarding acceptable notice requirements.

The proposed regulations clarify that reasonable notice may include compliance with an employer's existing notification system that employees use to communicate other absences, provided those notice requirements do not interfere with the purposes of the law. According to the proposed regulations, if an employer does not have a notification policy in place, the employer must establish one, preferably in writing, so employees know how to provide notice of the need for leave.

Where the need for sick leave is pre-scheduled or foreseeable, the proposed regulations allow employers to require up to seven days' advance notice. If the leave is not foreseeable, employers can require employees to report the need as soon as practicable using the employer's notification system for unplanned absences or call-in procedures, recognizing certain situations such as accidents or sudden illness may make such requirements unreasonable or infeasible. If an employee cannot personally provide notice, the employer must accept notice from the employee's spouse, adult family member or other responsible party.

Employers may require employees to submit written verification that they used sick time for allowable purposes. However, employers cannot require an employee to provide a doctor's note or other form of certification unless the employee is absent for more than 24 consecutively scheduled work hours. If the employer requests certification, the employee must provide it within 30 days. Employers may not require that the employee provide certification prior to taking leave or delay payment for time taken pending receipt of the certification.

Employers cannot require a certification that explains the nature of the illness. Rather, employers are limited to seeking medical notes that simply excuse the employee from work. Employees who do not have a health care provider may provide a written statement signed by the employee documenting the need for the sick leave.

How does the law affect an employer's good attendance bonus program?

Under the law, employers are strictly prohibited from interfering with employees' rights to use sick leave, including, but not limited to, disciplining an employee for sick leave use or considering use of sick leave as a negative factor in any employment decision. An employer also cannot require an employee to make up hours missed because of a covered absence or require an employee to search for or find a replacement.

The proposed regulations explain that attendance policies that reward employees for perfect attendance are permissible if the policy does not subject employees to an adverse action based on the use of sick leave. The proposed regulations also expressly state that the denial of a perfect attendance award for an employee who uses protected sick leave is not an adverse action.

Does the law impose a posting requirement?

Employers will be required to post a multi-lingual notice to be prepared by the Attorney General. In addition, employers must provide employees with copies of the notice.

What should employers be doing now?

The Attorney General's Office has scheduled six public hearings to discuss the proposed regulations at various locations across the Commonwealth between May 18th and June 5th. Additionally, written comments may be submitted to the Attorney General through June 10th. After this public comment period, the Attorney General's Office will adopt final regulations. It is possible that the final regulations will differ from the proposed regulations discussed above.

In the interim, employers should consider the steps they need to take to comply with the new law. Among other things, employers should consider:

  • Reviewing or adopting a notification system that employees will use to communicate absences, including absences triggered by the need to use sick leave.
  • Determining whether employees will be entitled to paid versus unpaid sick leave when the law takes effect, based on the 11-employee threshold as interpreted by the proposed regulations.
  • Reviewing and revising, if necessary, paid sick leave and/or PTO policies and procedures to ensure they meet the law's requirements, including a review of carryover, cap and usage provisions, as well as policies governing attendance and anti-retaliation.
  • Reviewing and revising, if necessary, any bonus programs that are tied to attendance.
  • Ensuring that they have appropriate systems in place to calculate and track earned and used sick time.
  • Training supervisory and managerial employees, and HR and payroll personnel, on the new law's requirements.

Employers should consult with experienced employment counsel when addressing these issues. Littler Mendelson is holding a free Breakfast Briefing on June 5, 2015 in Burlington, Massachusetts to discuss the new sick leave law, as well as other new federal and state employment laws.2

Footnotes

1. See Adam Forman, Christopher Kaczmarek, and Carie Torrence, Massachusetts Voters Approve Paid Sick Leave Law, Littler ASAP (Nov. 7, 2014).

2. For more information on this event, click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Christopher B. Kaczmarek
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions