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 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.