United States: Massachusetts Earned Sick Time Law Takes Effect July 1 - Attorney General Issues Final, Relatively Employer-Friendly Regulations

As we reported in a previous alert, the Massachusetts Earned Sick Time Law takes effect on July 1, 2015, with significant consequences for most employers with Massachusetts-based employees. In summary, the new law entitles employees who work primarily in Massachusetts (including full-time, part-time, temporary and seasonal employees) to accrue and use up to 40 hours of sick time per year. Employers with 11 or more employees (regardless of where those employees are based) are required to provide paid sick time, while smaller employers must provide unpaid sick time.

The Attorney General of Massachusetts recently released final regulations interpreting this new law, providing detailed guidance to employers as they work to bring their policies into compliance. Of note, these regulations introduce several limitations to the law's sick time entitlement that are protective of employers, representing a significant deviation from the proposed regulations. The most noteworthy provisions of the final regulations are as follows:

  • Safe harbor during transition year. The final regulations provide a six-month safe harbor for certain employers who had a paid leave policy in effect on May 1, 2015. These employers will be deemed to be in compliance with the new law until January 1, 2016, as long as (i) full-time employees can earn and use at least 30 hours of paid leave in 2015 (which must be available for the purposes specified by the new law and must be available for carryover into the following year, if unused); and (ii) on or after July 1, 2015, any employees not covered by the policy accrue or be granted allotments of paid leave at the same rate or in the same amount as covered full-time employees.
  • Certain employers and employees not covered. The final regulations newly note that, among other exempt groups, the law does not apply to (i) local public employers (in addition to cities and towns), unless the law is accepted by vote or appropriation of funds by the applicable governing body or (ii) college students who participate in a federal work study or similar financial aid/scholarship program or who provide student housing services in exchange for a reduction of education-related expenses.
  • Interaction with other forms of leave. Although the proposed regulations stated that sick time must be in addition to leave granted under certain federal and state leave laws (such as the federal Family and Medical Leave Act), the final regulations state that sick time may run concurrently with any such leave. Employers may require employees to use their paid sick time when taking other forms of leave that would otherwise be unpaid.
  • Interaction with other policies. As noted in the statute, an employer may substitute paid leave under its own paid leave policy for earned sick time, as long as that policy permits employees to earn and use sick time at (at least) the same rates and for the same purposes as specified under the new law. The final regulations explain that this type of substitution is permissible even if employees use all of their accrued leave for other purposes (such as vacation), as long as the employer's policy makes clear that additional sick time will not be provided in these circumstances.
  • Limitations on how sick time is paid.
    • Hourly employees. The final regulations require hourly employees to be paid for sick time based on their regular hourly rate only, excluding overtime, holiday and premium pay, rather than their regular hourly rate plus any other benefits paid on an hourly basis, as stated in the proposed regulations.
    • Salaried employees. Salaried employees must be paid for sick time based on their hourly rate for the previous pay period, but salaried employees who are exempt from federal overtime pay requirements will be assumed to work 40 hours per week (or the employee's normal work week, if less).
    • Employees with different hourly pay rates. For employees who have different hourly pay rates from the same employer, the final regulations grant employers the option of paying sick time based on (i) the wages the employee would have been paid for the hours used for sick time; or (ii) a "blended" rate determined by calculating the average of all pay rates over the previous pay period or other period that the employer customarily uses to calculate a blended rate for similar purposes.
  • Limitations on how sick time is accrued and used. The final regulations make clear that employees may have a maximum of 40 hours of sick time accrued at any time, including any carryover from the previous year. Sick time does not accrue during non-working hours, such as vacation time. Additionally, sick time may be accrued at a rate of one hour per every 30 hours worked or smaller equivalent increments (e.g., one minute per every 30 minutes worked). The smallest increment of sick time that an employee may use is one hour, and any time beyond one hour may be used in hourly increments or the smallest increment that the employer's payroll system uses to track other absences or use of other time. Of note for colleges and universities, for purposes of calculating accruals, adjunct faculty who are paid on a "per-course" basis will be deemed to work three hours for each "classroom hour" worked.
  • Flexibility in defining a benefit year. The law entitles employees to accrue up to 40 hours of sick time per "benefit year." The final regulations allow employers to define a benefit year as a calendar year, fiscal year, or any other 12-month period that the employer chooses for a particular employee (including, for example, a year that runs from the anniversary of the employee's hire date). 
  • Accounting for breaks in service. The final regulations newly instruct on how employers should account for employees' breaks in service, as follows: (i) following a break of up to four months, an employee may use previously accrued sick time; (ii) following a break of between four and 12 months, an employee may use previously accrued sick time if it equals or exceeds 10 hours; and (iii) following a break of up to 12 months, an employee can start to accrue new sick time without restarting the 90-day vesting period that applies to new employees under the law.
  • Employer ability to require employee documentation. The final regulations greatly expand the circumstances under which employers may require written documentation for employees' use of sick time, including when sick time exceeds 24 consecutively scheduled work hours, exceeds three consecutive days on which an employee is scheduled to work, occurs within two weeks before an employee's final day of employment (except with respect to temporary employees), or occurs after four (or three, for employees who are 17 or under) unforeseeable and undocumented absences within a three-month period. Additionally, health care providers may require written documentation from their employees who use sick time during a local, state or federally declared emergency. If an employee fails to provide required documentation, the employer may recoup any amount paid for the undocumented sick time from future pay, with notice to the employee. Employees who do not have health care coverage may provide a signed written statement in lieu of documentation from a medical provider. As noted below, the Attorney General has issued a model verification form for this purpose.
  • Good attendance rewards and holiday incentives permissible. As noted in our previous alert, an employer may not take an adverse action (such as discipline or discharge) against an employee for using earned sick time that is protected by the new law. However, the final regulations expressly protect an employer's ability to reward good attendance or pay extra compensation for holiday work, stating that an employee's inability to earn an attendance award or holiday incentive based on the use of sick time will not constitute an adverse action for purposes of the new law.

Employers must post a workplace notice that describes employees' rights under the Massachusetts Earned Sick Time Law, as well as provide a hard copy or electronic copy of the notice to employees or include the employer's applicable policy in an employee handbook. The Attorney General has issued model notices of employee rights, a sample policy, and a sample verification form, all of which are available to download on the Attorney General's website.

All employers with employees in Massachusetts should determine whether they are subject to this new law, and if so, should ensure that they have compliant policies in place. If you have questions about the Massachusetts Earned Sick Time Law (including requests for a new policy or revisions to an existing policy), please contact your usual Ropes & Gray advisor or a member of our labor and employment practice group.

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
 
In association with
Related Topics
 
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