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
 
In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.