FINAL "MASSACHUSETTS SICK LEAVE" LAW REGULATIONS ISSUED BY ATTORNEY GENERAL, PROVIDING SOME SIGNIFICANT CHANGES AND CLARIFICATIONS TO THE LAW

Model Sick Leave Employee Verification Form Also Issued


by Attorney Leslie Lockard
The Law Office of Leslie Lockard, P.C.
P.O. Box 537
Walpole, MA 02081
Tel. 508 850-9800
FAX 508 850-9801
Email: Llockard@leslielockard.com
Website: www.LeslieLockard.com
July 1, 2015

After seeking public comment on its previously issued proposed "Sick Leave" Law Regulations, the Massachusetts Attorney General's Office issued its Final Regulations. The final regulations significantly change, clarify and to some extent simplify employer obligations. Almost all private Massachusetts employers must now comply with this new law. (However, employers who are eligible for and have chosen to use the compliance "safe harbor" can delay full compliance with many aspects of the law until January 1, 2016. See my previous Update on this topic).

The "Massachusetts Sick Leave law" requires private employers of every size to allow employees (including full time, part time, temporary, per diem and seasonal) to accumulate and use up to 40 hours of "sick time" per "benefit year"1 . Only employers of 11 or more employees must provide paid "sick time". New hires begin accruing "sick time" on their first day of employment, but cannot begin using it until 90 days after their start date. Employees who do not use all of their accrued "sick time" may carry over up to 40 hours into the next benefit year, but the law does not permit them to use more than 40 hours of "sick time" in any one benefit year.

Employees are eligible to accrue and use "sick time" if their primary place of work is Massachusetts, regardless of the location of their employer. Employees need not work more than 50% of their time in Massachusetts for it to be their primary place of work. For example, an employee who works 40% in Massachusetts, 30% in New Hampshire and 30% in other states works "primarily" in Massachusetts.

Among the more significant changes in the Final Regulations are the following:

1. A fifth purpose for which eligible employees can take "sick leave" has been added. Employers should include this fifth purpose when they list, in their "sick leave" policies, the reasons for which "sick time" can be used. The first four purposes remain the same:
  • To care for the employee's child, spouse, parent, or spouse's parent, who is suffering from a physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care; or
  • To care for the employee's own physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care; or
  • To attend the employee's routine medical appointment, or a routine medical appointment for the employee's child, spouse, parent, or spouse's parent; or
  • To address the psychological, physical or legal effects of domestic violence visited on the employee or the employee's dependent child
The new "fifth purpose" for which "sick time" may be used is: "to travel to and from an appointment, a pharmacy, or other location related to the purpose for which the "sick time" is taken".


2. Clarifications of Employer Option To Use Its Own Paid Sick Leave, Vacation Or "Paid Time Off" Policies To Comply With the "Sick Time" Law

The final regulations clarify the rules which permit employers to substitute their own "paid time off" policies, in lieu of a sick time policy that is designed exactly as specified in the "sick time " law. The new rules are as follows:

Employers can substitute their own paid time off, sick leave, vacation or other leave policies, rather than having a "paid sick time" policy designed exactly as specified in the "sick time" law, as long the policies fully comply with the "sick time" law. This would include complying with the law's requirements that all employees:
  1. Can use at least 40 hours2 of time, which accrues at a rate of at least one hour for every 30 hours of work;
  2. Can use the leave for the same five purposes for which "sick time" can be used under the sick leave law;
  3. Can use leave subject to the same notice and documentation rules set forth in the sick leave law;
  4. Can use leave with the same job protections as provided in the paid sick leave law; and
  5. Are paid in the amount that they would be under the sick leave law.
As long as these conditions apply, employers can also establish different paid leave policies for different groups of employees, eg, an employer could provide 40 hours of paid time off per benefit year to regular employees but have temporary employees accrue one hour for every 30 hours worked.

Employers that provide 40 or more hours of paid time off or vacation to employees that also may be used for "sick time" law purposes would not have to provide additional sick time to employees who have already used all their time for other purposes (i.e., vacation or personal time). For example, employees who have used their full amount of "paid time off" or vacation by the end of September would not have to be granted extra leave in November if they need time off for a purpose covered by the "sick time" law. However, to apply this rule, the employer must have clearly stated in its leave policies that once that leave is exhausted, additional time will not be provided.

Employers who want to have separate use policies for paid time off in excess of 40 hours may do so, as long as they allow employees to designate which time they are taking as "sick time".


3. Options For Employers To Avoid or Simplify Tracking Sick Time Accrual

The final regulations provide some options for employers who want to avoid the administrative burdens of tracking "sick time" accrual for their employees. First, employers who provide employees with a lump sum of 40 hours of sick leave or paid time off at the beginning of each "benefit year" do not need to track accrual or allow any rollover into the next benefit year, so long as the leave is otherwise consistent with the "sick time" law's requirements. Employers may also use the following schedule for providing lump sums of sick leave or paid time off to their employees. Employer can use these accrual schedules even if an employee's hours vary from week to week. Employees accruing sick time on these schedules will have the right to roll over up to 40 hours of their "sick time " into the following benefit year.

For employees working an average of:
  1. 37.5 – 40 hours per week, provide 8 hours per month for 5 months.
  2. 30 hours per week, provide 5 hours per month for 8 months.
  3. 24 hours per week, provide 4 hours per month for 10 months.
  4. 20 hours per week, provide 4 hours per month for 9 months.
  5. 16 hours per week, provide 3 hour per month for 10 months.
  6. 10 hours per week, provide 2 hours per month for 10 months.
  7. 5 hours per week, provide 1 hour per month for 10 months.

4. Paid Sick Leave Can Run Concurrently With Other Leave Laws

The Final Regulations clarify that "sick leave" can run concurrently with leave taken for similar purposes under the federal Family and Medical Leave Act and three state laws: the Parental Leave law, the Small Necessities Leave law and the Domestic Violence leave law. Employees can choose to use, or employers may require employees to use, "paid sick time" concurrently with leave taken under these other laws so that employees receive pay for leave that would otherwise be unpaid.


5. Changes To Rules About Sick Time Accrual And Use

The Final Regulations clarify that "sick time" accrues only on hours employees actually work, and not on time for which they may be paid but do not work, such as vacation or personal time or while using "sick time".

Once an employee has a bank of 40 hours of unused sick time, the employer may opt to delay further accrual until the employee draws down the bank of sick time to below 40 hours.

If an employee works "primarily" but not entirely in Massachusetts, the employee is entitled to accrue "sick time" on all hours the employee works in any state.

Employees cannot use "sick time" if the employee is not scheduled to be at work during the period of use.

Employers do not have to allow employees to use "sick time" in increments of less than an hour, as had been stated in the proposed version of the regulations. For uses greater than one hour, the employer would have to allow employees to use sick time in the smallest increment the employer's payroll system uses to account for absences or use of other time. Thus, employees who take 20 minutes of "sick time" can be counted as having used one hour of their accrued "sick time", but employees who take one hour and 20 minutes of "sick time" would generally have to be counted as having used just 1.20 minutes of "sick time", not two hours.

When an employee's use of "sick time" requires the employer to hire a replacement or call in another employee, the employer may require the employee to use an equal number of hours as the replacement or called-in employee works, up to a full shift of "sick time". According to examples provided in the regulations:
  • If a truck driver needs to use two hours of "sick time" at the start of his eight hour (on average) shift, and the employer needs to use a replacement to cover the driver's route that day, the employer may require the driver to use eight hours of his accrued sick time, even though the employee in actuality only needed to use two hours.
  • If a nurse needs to take four hours of "sick time" at the start of her shift, and the employer is able to find a replacement to work those four hours, the employer must allow the nurse to come in to work four hours late, and could require her to use just those four hours of sick time.
By written agreement, an employer and employee may agree that the employee can use "sick time" before accruing it, and the employer can count the use against future accrual.

Employers cannot require employees to make up time they take as "sick time", but an employer and employee can agree that the employee will work additional hours during the same or next pay period to avoid the use of, and payment for, "sick time". However, employers who want to minimize overtime pay costs may not want to grant make up time to non-exempt employees if doing so would result in their working more than 40 hours in that work week.


6. Notice Requirements For Employees Who Want To Use "Sick Time" Strengthened

Employees must notify their employers before they use "sick time", except in an emergency. For foreseeable or pre-scheduled use of sick time, employers may have a written policy requiring up to seven days' notice, except when the employee learns of the need to use "sick time" less than seven days before. For multi-day absences, an employer may require notification of the expected duration of the leave or, if unknown, on a daily basis from the employee or the employee's surrogate (e.g. spouse, adult family member or other responsible party), unless the circumstances make such notice unreasonable.

Employees need not specifically state that they want to use "sick time" as long as the employer is on notice that the employee intends to use accrued time for a purpose covered by the "sick time" law.


7. Written Verification Can Be Obtained from Employees Affirming That They Are Using Accrued Sick Time for A Purpose Covered By The Sick Time Law

Employers can require employees to sign a written verification affirming that they are using accrued "sick time" for one of the five purposes for which the law allows "sick time" to be taken. Such verification can be obtained for any "sick time" use, however short or long. The Attorney General has now provided a model form that employers can use for this purpose. (The form is available on the AG website, www.mass.gov/ago/earnedsicktime under the heading: SAMPLE VERIFICATION—AUTHORIZE USE OF EARNED SICK TIME). Employers may draft their own employee sick time verification forms, rather than use the AG Model form, but they cannot require more information than is included in the Model.


8. Documentation To Substantiate The Need To Use " Sick Time" Can Be Sought In More Circumstances

Employers can seek written documentation (such as from a health care provider) to substantiate an employee's use of sick time in more circumstances than had been permitted in the proposed regulations. Documentation can be sought if the use of accrued "sick time"
  1. exceeds 24 consecutively scheduled work hours;
  2. exceeds 3 consecutive days on which the employee was scheduled to work;
  3. occurs within 2 weeks prior to an employee's final scheduled day of work before departure from employment, except in the case of temporary employees;
  4. occurs after 4 unforeseeable and undocumented absences within a 3-month period
An employee can submit "sick leave" documentation to the employer in hand or by any reasonable method, including e-mail.

Employees must submit requested "sick time" documentation within 7 days after taking the sick time, unless, for good cause shown, they require more time to provide the documentation.

If an employee fails to comply without reasonable justification with the employer's documentation requirements, the employer may recoup the sum paid for "sick time" from future pay, as an overpayment. However, to exercise this right, employers must have put employees on notice of this practice.

If the employee fails to provide documentation for unpaid "sick time", the employer may deny the future use of an equivalent number of hours of accrued sick time until documentation is provided, but may not otherwise take adverse action.

If documentation is required by the employer, employees who do not have health insurance may satisfy that requirement by providing their own signed, written statement affirming their need to use "sick time" (without being required to explain the nature of the illness), in lieu of providing documentation by a health care provider.

Employers may never require, as a condition of granting, using, or verifying sick time, that an employee provide documentation to explain the nature of the illness or the details of the domestic violence.

All evidence of domestic violence experienced by an employee, including the employee's statement and corroborating evidence, cannot be disclosed by the employer unless written consent for disclosure is given by the employee at the time the evidence is provided.


9. New Rules To Deter "Sick Time" Abuse

The Final Regulations include some new provisions which are apparently intended to deter "sick time" abuse:
  • Employees cannot use "sick time" as an excuse to be late for work, absent a need to take time for one of the five authorized "sick time" purposes.
  • Employees cannot accept a specific shift assignment with the intention of calling out sick for all or part of the shift.
  • If an employee is exhibiting a "clear pattern" of taking sick leave on days just before or after a weekend, vacation, or holiday, an employer may discipline the employee for misuse of "sick time", unless the employee provides verification that the "sick time" was legitimately taken. NOTE: The Final Regulations do not state that employers can deny holiday pay to employees who use "sick time" the day before or after a holiday, without fear of being deemed to have taken an "adverse action" against an employee for using "sick time". There had been reports that the Final Regulations would so state, but they do not.

10. Rules As to How "Sick Time" Must Be Paid Are Simplified
  • For Hourly Employees, paid "sick time" must be paid at the employee's regular hourly rate. (Gone is the confusing additional phrase from the proposed regulations "plus any other benefits paid or accrued on an hourly basis"). An hourly employee's "regular hourly rate" would include any regularly paid differential rates, such as higher rates paid for working the night shift.
  • For Salaried Employees, the "regular hourly rate" is determined by dividing the employee's total earnings in the previous pay period by the number of hours the employee worked in that pay period. However, employers can assume for this calculation that salaried employees work 40 hours each work week, or if the employee normally works fewer than 40 hours in a work week, that lower number of hours can be used.
  • Tipped Employees who ordinarily receive the "service rate" under state law (currently $3.00 plus tips), are to be paid for "sick time" the minimum wage (currently $9.00 per hour).
  • Commissioned Employees (whether paid a base wage plus commissions, or commissions only) are to be paid their base wage rate, or the state minimum wage, whichever is greater.
The regulations also specify how "paid sick time" is paid to other types of employees, such as those who work at two different hourly rates, and those paid on a piece work or fee- for- service basis.

In determining an employee's regular rate of pay for paid sick time purposes, the following are not counted:
  • commissions, drawing accounts, bonuses, or other incentive pay based on sales or production
  • overtime, holiday pay or other premium rates of pay
  • irrevocable contributions made by an employer to an old age, retirement, life, accident, health insurance or other employee benefit plan

11. Fitness For Duty Certifications

An employer may require an employee to provide a fitness-for-duty certification, a work release, or other documentation from a medical provider before an employee returns to work after an absence during which "sick time" was used if:

"such a certification is customarily required and consistent with industry practice or state and federal safety requirements and reasonable safety concerns exist regarding the employee's ability to perform duties". "Reasonable safety concerns" means a reasonable belief of significant risk of harm to the employee or others.


12. Rules Regarding "Breaks In Service" Tightened:

Employees who return to work after a break in service of up to four months (not a year, as in the Proposed Regulations) may use any "sick time" they had accrued before the break began. (A "break in service" could be, for example, seasonal work, a temporary layoff or an unpaid leave of absence).

Following a break in service of between four and twelve months, an employee has the right to use sick time accrued before the break only if the employee had accrued 10 or more hours.

Employees with breaks in service of up to twelve months maintain their vesting days, and do not need to restart the 90-day vesting period as if they were a new hire.


13. Rules For Counting Whether the Employer Has 11 or More Employees (And Thus Must Provide Paid Sick Time) Are Simplified

Employers can now determine their average number of employees by counting the number of full time, part-time, seasonal, and temporary employees on the payroll during each pay period and dividing by the number of pay periods. Employees supplied to the employer and paid by a temporary staffing agency must be counted too, as must employees who work outside of Massachusetts. If an employer uses multiple start dates for its sick leave benefit year, such as dates based on employees' anniversaries of hire, the employer should calculate employer size based on the previous January 1 to December 31 calendar year.


14. Record Keeping and Written Sick Leave Notice/Policy Requirements

Employers must keep for three years records of the accrual and use of "sick time". However, if an employer uses its own paid sick leave, vacation or "Paid Time Off" policies to comply with the "Sick Leave" law (see Section 2 above) , the employer is not required to track and keep a separate record of accrual and use of sick time.

Employees who request records concerning their own "sick time" accrual and use must be provided a copy of these records within ten business days.

Employers must post the Attorney General's "Earned Sick Time Notice of Employee Rights" in a conspicuous place accessible to employees in every location where employees work. This Notice is available on the AG website, in English, Spanish, Portuguese, Haitian Creole, Russian and other languages.

Employers must also either provide a hard copy or electronic copy of this notice to all eligible employees, or include the employer's own written "sick time" policy in its employee handbook.

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1 The term “benefit year” is new in the Final regulations. An employer can pick as its “benefit year” for “sick time” accrual, any consecutive 12 month period, including January 1 through December 31, or its tax year, fiscal year or employee anniversary years.

2 or such lesser amount as the employee would be eligible for under the sick leave law







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Contact Info

Attorney Leslie Lockard
The Law Office of Leslie Lockard, P.C.
P.O. Box 537
Walpole, MA 02081
Tel. 508 850-9800
FAX 508 850-9801
Email: Llockard@leslielockard.com
Website: www.LeslieLockard.com