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Mandatory Sick Time Law Takes Effect On July 1, 2015
June 30, 2015
On November 4, 2014, Massachusetts voters approved a ballot question mandating that employers with 11+ employees provide up to 40 hours of paid sick time per year. Employers with 10 or less employees must provide the same amount of unpaid sick time. Massachusetts is the third state to mandate a paid sick leave benefit. Approximately 18 cities have similar laws on the books. The Earned Sick Time Law (“ESTL”) takes effect on July 1st, and with the final regulations issued just over one week ago, the business community is scrambling towards compliance.
Although most employers already provide a paid sick leave benefit, often in the form of a paid time off policy that combines sick, vacation and personal time, the ESTL requires changes to existing policies, even those that provide more than 40 hours per year. For example, employees must be allowed to use sick time in one-hour increments and carryover up to 40 hours of unused sick time from year to year. In addition, employers cannot request a note from a medical provider to verify an absence until an employee is absent for 24 consecutive work hours unless the sick time is used within 2 weeks prior to resignation. Most employers must also begin tracking and recording sick time accruals and usage.
The most troublesome aspect of the ESTL for employers is the anti-retaliation component. Employers must revise their policies to include information concerning anti-retaliation. The Attorney General’s model notice, which all employers must post in a conspicuous place as of July 1, 2015, states the following:
“[E] mployees using sick time cannot be fired or otherwise retaliated against for exercising or attempting to exercise rights under the law.”
While innocuous on its face, this provision, and anti-retaliation provisions in general, may lead to employee abuse based on the misconception that once “sick time” is invoked, the employee is immune from discipline. The reality is the ESTL is far more nuanced and the regulations enable employers to discipline employees who abuse sick time, for example, those who have a pattern of calling in sick before or after weekends or holidays. Going forward, employers must tread carefully when making employment decisions concerning employees who have used earned sick time.
Safe Harbor Delays Full Implementation of ESTL Until January 1, 2016 for Certain Employers
Although the ESTL takes effect on July 1, 2015, there is a safe harbor for qualifying employers that delays full implementation of the law until January 1, 2016. To qualify for the safe harbor for the “transition year” ending December 31, 2015, employers must have had a paid time off or paid sick time policy in place as of May 1, 2015, and:
- The policy must allow full-time employees to earn and use at least 30 hours of paid time off or sick time in 2015;
- Starting on July 1st, the employer must permit all employees not previously eligible for its paid time off or sick time policy (typically part-time, temporary, per diem, and seasonal workers) to earn paid time off or sick time at the same accrual rate as full-time employees or receive a pro-rated lump sum allocation (if the employer’s policy so provides) based on the provision of lump sum allocation to covered full-time employees;
- If an employee is not compensated on an hourly or salaried basis, the employee must accrue or receive lump sum allocations based on a reasonable approximation of hours worked;
- At least 30 hours of paid time off or sick time, or such lesser amounts as are earned by employees, is job-protected, subject to the ESTL's anti-retaliation provision, available for usage for all of the purposes enumerated in the ESTL, and any unused portion of the time is carried over as of January 1, 2016 (unless lump sum allocation method is used).
Violations of the ESTL
There are no criminal sanctions associated with the ESTL. The Attorney General may issue a civil citation to an employer for a violation. The ESTL allows an aggrieved employee to file a private civil action against an employer. If the employee prevails, he/she is entitled to recover mandatory treble damages, costs, and reasonable attorney’s fees.
Next Steps for Employers
Employers should consider whether they qualify for the safe harbor to satisfy their obligations under the ESTL for the remainder of 2015. Even if they qualify for the safe harbor, some employers may elect to implement all of the ESTL’s requirements now given that certain policy changes must be made even with utilization of the safe harbor. Employers who take advantage of the safe harbor should begin preparing to make additional policy changes to comply with the ESTL with as little disruption to their current policies as possible at year end.
For questions or assistance with policy revisions, please contact Nancy J. Puleo or any other attorney in our Employment Group.
This Alert is provided for information purposes only, and does not constitute legal advice. According to Mass. SJC Rule 3:07, this material may be considered advertising. ©2015 Posternak Blankstein & Lund LLP. All rights reserved.