State Court Joins Federal Court to Uphold Earned Sick Time Law, Employers Try to Navigate New Law Effective July 1, 2015

By: Curtis B. Dooling

A Massachusetts District Court judge upheld the earned sick time law on Monday (July 13), the second court to uphold the new law after construction contractors unsuccessfully challenged the law. A U.S. District Court judge dismissed their claims last week.

The earned sick time law, which requires nearly all Massachusetts employers to provide earned sick time to their employees, was approved by  voters last  November and  went into effect  July 1, 2015.

Basic Summary of Sick Time Law

Employees who work for employers having eleven or more employees can earn and use up to 40 hours of paid sick time per calendar year, while employees working for smaller employers can earn and use up to 40 hours of unpaid sick time per calendar year. Employers must provide all employees, including part-time and seasonal employees, one hour of sick time for every 30 hours worked. The maximum amount of sick time an employee can accrue in one year is 40 hours.

An employee can use earned sick time if required to miss work for the following reasons: (1) to care for a physical or mental illness, injury or medical condition affecting the employee or the employee’s child, spouse, parent, or parent of a spouse; (2) to attend routine medical appointments of the employee or the employee’s child, spouse, parent, or parent of a spouse; or (3) to address the effects of domestic violence on the employee or the employee’s dependent child.

Employees can carry over up to 40 hours of unused sick time to the next calendar year, but cannot use more than 40 hours in a calendar year. Employers are not required  to pay employees for unused sick time at the end of their employment. If an employee misses work for a reason eligible for earned sick time, but agrees with the employer to work the same number of hours or shifts in the same or next pay period, the employee will not have to use earned sick time for the missed time, and the employer will not have to pay for that missed time. Employers may not interfere with, restrain or deny the exercise of an employee’s rights under the law and employers may not retaliate against employees for exercising their rights under the law.

The Massachusetts Attorney General’s Office (“AGO”) has issued final regulations (available at http://www.mass.gov/ago/docs/regulations/940-cmr-33-00.pdf) regarding the interpretation and enforcement of the law.

A Brief Summary of the AGO’s Final Regulations For  Employers and Employees

• An employer’s paid time off policy already in place may be substituted for earned sick time as long as 40 hours of time off under the policy complies with the following:
• Accrual at the rate of no less than one hour for every 30 hours of work;
• Pay at the employee’s same hour rate;
• Access to time off for all uses authorized under the law;
• Availability with the same rules concerning notice and documentation;
• Offers the same job protections.

• Employees must be paid at the “same hourly rate” when using earned sick time, with specific carve-outs for tipped employees, employees paid on commission and salaried employees.
• Employees may accrue and use their time if their primary place of employment is in Massachusetts.
• The smallest increment of sick time employees may use is one hour.
• Employees may not use sick time as an excuse to be late for work. If an employee engages in a clear pattern of taking leave on days just before or after a weekend or vacation, an employer may discipline the employee for misuse of sick leave time unless the employee provides proof or verification of authorized use of sick leave.
• Employees may retain earned sick time when they are terminated and rehired with certain restrictions.
• Employees must provide notice to their employers when using sick time except in cases of emergency.
• Employers can require written documentation (within seven days, with certain exceptions) for an employee’s use of sick time in the following circumstances:
• if the leave exceeds 24 consecutively scheduled work hours;
• exceeds three consecutive days on which the employee was scheduled to work;
• occurs within two weeks before an employee’s final scheduled day of work, except in cases of temporary employees;
• occurs after four unforeseeable and undocumented absences within three-month period;
• for employees aged 17 and under, occurs after three unforeseeable and undocumented absences within a three-month period.

Understandably, many employers are concerned with the daunting task of implementing a sick leave policy that fully complies with the statute and the newly-enacted regulations. Pierce & Mandell’s experienced employment law attorneys are here to guide employers through this process. We strongly encourage employers to contact us in order to proactively implement compliant sick leave policies.

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