Massachusetts Earned Sick Leave Law has Implications for Employers

In November 2014, voters in the State of Massachusetts passed into law the state’s Earned Sick Leave Law. The law took effect July 1, 2015 with a probationary period that lasted until January 1, 2016. After that point, all businesses are required to provide earned sick leave to their employees.

Currently the 20 states have passed preemptive laws against both minimum wage and sick leave bills on the local level. Those states include Arkansas, Alabama, Florida, Georgia, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, North Carolina, Oklahoma, Ohio, Oregon, South Carolina, Tennessee, and Wisconsin

Employees earn 1 hour of sick leave for every 30 hours of time worked. Overtime-exempt employees are considered to earn sick leave based on a 40 hour work week. Employees are allowed to accrue and use up to 40 hours in a year. After they have earned 40 hours in a year, they do not continue to accrue additional hours. Additionally, unearned sick time must be rolled over to the following year.

Even if an employee rolls over unused sick leave, they can are still capped at a total usage of 40 hours in that year. Employers are not restricted from providing more generous sick leave, but the State law does not protect more than 40 hours of accrued and used sick leave in each 12 month period. A year can be defined as any 12 month period by the employer. However, employers must provide notice to employees upon hire of hour the year is defined. If a change is made to the year, then it cannot affect any previously earned sick leave of the employees.

Covered Employees under Mass. Earned Sick Time.

All employees whose primary work is in the State of Massachusetts are considered covered. This is defined as employees who work more in Massachusetts than any other state. This does not mean that the employee has to spend 51% of their time in Mass., but rather that if they work in multiple states, that Mass. is the state they spend and perform the majority of their work in. Additionally employees who transfer into the state are considered eligible on their first date of work in Mass.

Also specifically covered are full-time, part-time, temporary and seasonal employees. Employees are defined as any person who performs services for an employer for wage, remuneration, or other compensation.

Exclusions to Paid Earned Sick Time

Employers are required to payout sick leave at the employee’s standard rate. There are no exceptions to earned sick time. All employees who work the majority of their job in Massachusetts are covered. However, employers who maintain an average of less than 11 employees are not required to provide paid sick leave. Yet, those small businesses must still provide an unpaid sick leave to their employees. Businesses must count all of their employees, even those employees who work outside the state of Massachusetts.

Additionally the US Federal Government is excluded. City, County and other Public employers are also exempt from the Sick Law unless the law is accepted by a vote. This would include school committees, regional schools and other organizations. Additionally work-study students, and work aged students under the age of 20 are exempt from the sick leave law. Students who work in a dorm or residency in exchange for reduced or free housing are also exempt from the law. Lastly, adult clients who perform duties under a Mass. licensed program for educational or vocational training are also exempt.

Sick Leave Pay Amount

Employees earn sick leave at their regular rate. However, if an employee’s hourly wage differs then, the employer has two choices. They can pay the employee for the amount the employee would have earned for the hours missed or they can pay a blended rate. The blended rate would be based on the weighted average pay rate the employee earned in the prior pay period. Employers must choose a method and evenly apply it across all employees. Its also important to note that differential pay rates such as night pay are not considered premium rates and must be included when calculating the employee’s hourly sick pay. Tipped employees must receive the service rate of $9.00 an hour. Other commission, bonus, overtime, holiday or premium pay rates are not calculated in the sick leave pay.

How is a business’s employee count taken?

Businesses whose employee size fluctuates must look at the number of employees on payroll for each week in the current and preceding year. If any 16 concurrent weeks out of the current or previous calendar years included 11 or more employees, then the employer must pay sick leave to their employees. Likewise, if any non-concurrent 20 weeks of the preceding or calendar year included 11 or more employees, then the employer is also considered to be a large business and must pay out sick leave time.

Probationary Period

Employees start earning sick leave on the first day of employment. However, employers can restrict the usage of sick leave during a probationary period of the first 90 days of employment. After 90 days, the employee is eligible to use their accrued sick leave.

Allowable Uses for Earned Sick and Safe Time Leave

Employees are allowed to use sick leave for themselves or for a family member. The specific relationships that are defined by the State of Massachusetts are Parent, Child, and Parent-in-law. State law also recognizes all biological, foster, adopted, step, legal wards relationships. In the case of a child, the state also recognizes any child in loco parentis, or for whom the employee has assumed the responsibilities of parenthood for. There are four main reasons and employee can take sick leave.

1. To care for themselves or a family member’s physical or mental illness, injury or medical condition, injury or medical condition. Sick leave can be used for preventative, home, or professional care.
2. For the employees or family member’s routine medical appointment.
3. To address the psychological, physical, or legal effects of domestic violence for either the employee or the employee’s child.
4. For travel time related to the purpose for which the sick leave was taken.

Family Member Definition

Massachusetts allows for specific individual relationships for employees to use accrued sick time. The family member definitions are more limited than many surrounding state’s definitions, but employers can choose to have a more flexible sick leave policy than is required by law. Employees can take time off for a child, parent or a spouse. Additionally they can take time off for a spouses parent. Children include biological, adopted, foster, step, legal wards, or any child that the employee as assumed the responsibilities of parent for.

• Child: biological, adopted, foster, step, legal ward, and in loco parentis
• Parent: parent in law and parents
• Spouse

Sick Leave Time Usage

Mass. Law allows for employees to use sick leave in a minimum of 1 hour uses. After 1 hour the employee’s sick leave would be used in the smallest allotments allowed by the employer’s timekeeping and payroll system. If an employee used 50 minutes of sick leave, then under Mass. law, that employee would be counted as using 1 hour of sick leave. If the employees uses 1 hour and 19 minutes and the employer’s payroll system pays for 5 minute increments, then the employee would be counted as having used 1 hour and 20 minutes of sick leave. If, however, the employer’s payroll system uses 15 minute increments, then the employee would be counted as having used 1 hour and 30 minutes of sick leave time.

Sick Leave Bank and Payout

Massachusetts has a sick leave back that lasts for 12 months. When an employee leaves an employer, the employer is not required to pay out earned, but unused sick leave. If the employee has less than 10 hours of unused sick leave and returns to the employer within four months of the date of their last date of employment, then all accrued sick leave must be reinstated to them and available immediately. If the employee has earned and unused sick leave totalling 10 or more hours, then that employee has 12 months from the date of last employment to reinstate with the same employer for a reinstatement of their previously earned sick leave.

If an employer wants to pay out an employee for unused sick leave at the end of each year, then the Mass. law allows for that. However, an employer must provide the same number of sick hours to the employee at the beginning of the next year in unpaid hours up to 16 hours. Thus if an employer pays an employee out for 8 hours of earned sick leave, then that employee is eligible for 8 hours of unpaid sick leave at the beginning of the year. This is to provide the employee with sick leave until they can earn paid sick leave. The employee still continues to earn paid sick leave. If the employer pays an employee out for 40 hours of sick leave, then they are only required to provide 16 hours of unpaid sick leave to that employee.

Front Loading

The final provisions of the Mass. Earned Sick Leave Laws allows for employers to front load employees with the full 40 hours of sick leave. If employers choose to front load employee’s sick leave, they must provide the full 40 hours of sick leave at the beginning of the year. However, if employers do choose to front load sick leave, then they are not required to roll over any sick leave time from the previous year.

Another option that employers have is to provide a monthly allotment of sick leave time each month based on the average number of hours worked for the employee. Under this allotted schedule a full time employee would earn

Reasonable Notice

State law allows employers to require up to 7 days notice in foreseeable situations. However, when an employee’s sick leave is used unexpectedly or in the case of an emergency, the employer must allow those situations. When an employee is gone for multi-day absences, the employer can request a daily notice by the employee or by a surrogate when possible.

Reasonable Documentation

Employers who suspect that employees who are abusing sick leave and are under the age of 17 may seek verification from parents to confirm the proper use of sick leave. Additionally once an employee has used up 3 days or 24 hours of consecutive sick leave, the employer is allowed to ask for reasonable documentation that the sick leave is used in accordance with state law. This is also the case when sick leave is used within the last 2 weeks prior to an employee’s termination date or when the employee has had 4 unforeseeable absences within a 3 month period.

Written documentation can include a doctor’s note or other signed written documentation. In the case of domestic violence a police report, restraining order, documentation of conviction, medical documentation, or statement by a counselor, social worker, health worker, clergy, legal advocate, shelter worker or other professional employee who has assisted the employee. Additionally a signed written statement by the employee attesting to the abuse is also acceptable.

All information obtained by the employer regarding the use of sick leave is confidential and cannot be released without a written consent for disclosure from the employee. Also, employers cannot condition the use of sick leave on obtaining documentation. If the employee fails to provide documentation, then Mass. allows the employer to recoup the amount paid for sick leave from future earnings or to deny future use of sick leave until documentation is obtained.

Correlation with Existing Sick Leave policies

Employers who already offer paid time off can use that paid time off to satisfy the Massachusetts sick leave laws if the paid time off is earned at the same rate of 1 hour for every 30 hours worked up to 40 hours a year. Additionally, the employer must allow the employee to use sick leave in accordance with the Mass. Earned Sick Leave Laws allowable uses. Further, the unused sick leave should be rolled over according to state law. In this case, the employer would not need to provide additional sick leave for the employee.

Anti Retaliation

Mass. protects employees who uses or exercises their sick leave rights. The employer may not take any adverse action against the employee. Adverse action is defined as:

1. Denying use or delaying payment of earned sick leave
2. Terminating an employee
3. Reducing or taking away work hours
4. Negatively altering the terms or conditions of employment
5. Disciplining an employee under the employer’s attendance policy
6. Giving the employee undesirable assignments or schedule changes
7. Giving false negative references for future employment
8. Making false criminal reports to authorities about the employee
9. Reporting an employee to immigration authorities
10. Threatening an employee with any adverse action listed in 940 CMR 33.08

Employers can have attendance policies that reward good attendance and work after holidays as long as employees who exercise sick leave does not have adverse action taken against them.

Fines and Remedies provided by the Sick and Safe Time Ordinance

If an employer unintentionally violated Earned Sick Time Law, then the first violation can be fined up to a maximum of $7,500. If the violation was intentional, then the first violation is fined up to $15,000. Repeat violations can be fined up to $25,000. The Attorney General can consider if the employer has had repeat violations, how many employees are involved, the total monetary extent of the violations and amount of payroll involved. Lastly the Attorney General can consider the employer’s intent to violate the Earned Sick Leave Law.

Additionally, the Attorney General can seek a civil citation or a criminal indictment to the employer. Civil citations Employees may also seek civil lawsuits against employers who violate the Earned Sick Leave law. In civil lawsuits, employers are required to pay triple the damages to the employee.

Notification and Records

Employers are required to post notice of the Earned Sick Leave Law in a conspicuous place where the employee’s work. They must also provide a written copy of the notice to all employees including the employer’s policy.

Additionally employers are required to keep records of the employee’s earned sick leave for three years. The employer has 10 days to provide employees with a copy of their records upon request.

Let SwipeClock Help

Businesses who have employees in Massachusetts have to comply with the Earned Sick Leave Law. Additionally, these businesses have to also comply with Federal Overtime Laws, the Family Leave Medical Act and any other national or local laws that are enacted. SwipeClock provides a comprehensive array of workforce management and time tracking tools that can help businesses to more easily stay in compliance with local and national laws. Records are effortlessly kept for years and accrual is automatically tracked and reported to employees according to the state and city laws. Additionally, with geo-timekeeping clocks, businesses can effortlessly track time worked in specific cities to ensure compliance.