With New Paid Sick Leave Law, All Massachusetts Employers Must Carefully Review Sick Leave Policies.

On November 4, 2014, Massachusetts voters approved a ballot question providing sick leave rights to all private employees (and most public employees). The new law will go into effect July 1, 2015. Given the law's specifications regarding the accrual of sick leave and when an employer can require a physician's note, the law, as a practical matter, requires all Massachusetts employers to revise their current sick leave policies.

The new law will apply to all Massachusetts employers (except some cities and towns). For those employing 11 or more employees, the new law requires the payment of paid sick leave; for those with less than 11 employees, the law requires unpaid sick leave. Aside from the paid/unpaid distinction, the law applies equally to all employers. For determining whether an employer has 11 or more employees, the term "employee" is defined broadly, and includes all full-time, part-time, and temporary employees. The law will be enforced by the Massachusetts Attorney General and directs the Attorney General to issue regulations prescribing the obligations of employers to make and maintain records under the new law. The law also authorizes the Attorney General to adopt regulations necessary to carry out the law. Maura Healey, the incoming Attorney General, does not take office until January and it is unclear as to when she will issue the regulations. Hopefully, she will clarify several questions which have arisen, such as what happens if an employer has 11 or more employees during only part of the year or has 11 or more employees nationally but less than 11 in Massachusetts, and what is the rate of paid sick leave for tipped employees or employees who receive commissions.

Rate of Accrual. The new law specifies that employees, regardless of being full-time, part-time or temporary, will earn one hour of sick leave for every 30 hours worked. The employer can set a maximum of 40 hours of sick time in one calendar year. Employees will start accruing earned sick time on July 1, 2015 or their date of hire, whichever is later. Employees who are exempt from overtime requirements under the federal Fair Labor Standards Act (FLSA), typically, salaried employees, will be deemed to have worked the lesser of 40 hours per week or the number of hours in their normal work week.

Using Earned Sick Time. Beginning on July 1, 2015, all employees will begin accruing sick time. Employees may use the sick time as it accrues, except that an employee cannot use sick time until after being employed for 90 days. Employees are not required to allow more than 40 hours of earned sick time in a calendar year.

Sick time may be used if the employee, or the employee's "close family member" is ill, injured, or has a medical condition affecting him or her. Sick time may also be used for the employee to attend his or her own or close family member's routine medical appointment. The term "close family member" includes an employee's children, spouse, parents, and a spouse's parents. Employees may also use earned sick time for the treatment of the psychological, physical, or legal effects of domestic violence. Employees are required to make a good faith effort to notify the employer in advance if the need to use the sick time is foreseeable.

Sick time may be taken in the smaller of hourly increments or in the smallest increment that the employer uses for its payroll system.

Compensation. Earned paid sick time is to be paid at the employee's current hourly rate and must be paid in the payroll cycle when the sick time is used.

Carrying Over Sick Time. Employers must allow employees to carry over up to 40 hours of unused earned sick time to the next calendar year, but are not required to allow employees to use more than 40 hours in one calendar year. Therefore, employees may start a new calendar year with a "bank" of accrued sick time to use immediately.

Making Up Time to Preserve Sick Leave. Employers may not require employees to work additional hours to make up for the missed time, nor may employers require the employee to find a replacement to cover the missed time. However, an employer and employee may agree that the employee will work additional hours in the same or next pay period in lieu of using paid sick leave. In such a situation, the employer will not have to pay for the sick time off but that time off does not diminish the employee's amount of earned sick time. Such an agreement does not have to be in writing.

Medical Documentation. Employers may only require medical certification of the need for sick time if an employee has used more than 24 consecutively-scheduled hours of sick leave. For instance, only after an employee misses three straight, eight hours shifts, may the employer require the employee to submit a medical certification of the need for continued leave. The statute does not specify requirements for medical documentation, except that a medical professional must "indicate the need for earned sick time." Moreover, while an employer may request such certification in such circumstances, it may not delay or deny sick leave because it has not yet received medical certification. One question the Attorney General hopefully will clear up is can an employer terminate or discipline an employee who refuses to provide medical certification after taking 24 consecutive hours leave? Given that medical certification can only be required after 24 hours of sick leave, employers will have very little ability to second guess the employee who calls in "sick" for being hung over or who simply does not feel like working. The risk of abuse is particularly so given that sick leave can be taken in hour increments.

Termination. Unlike for accrued, unused vacation time, employers are not required to pay accrued unused sick time at the end of employment.

Retaliation Prohibited. Employers may not interfere with an employee's exercise of his or her rights under the law and may not retaliate against an employee for taking sick leave or for opposing any practice which the employee believes is in violation of the law. Employers may also not retaliate against employees who support another employee's exercise of rights under the law. Given this prohibition, employers must be extremely careful about disciplining an employee who it believes has called in sick baselessly.

Employers May Have More Favorable Policies. The new law permits employers to adopt or maintain paid sick time policies that are more generous than the requirements of the law. For instance, employers may allow an employee to use paid sick leave within the first 90 days of employment, may have sick time accrue at a rate greater than one hour for every 30 hours worked, or allow employees to carryover more than 40 hours of sick time at year end. Additionally, this law does not diminish an employer's obligations under an existing contract, collective bargaining agreement, or employment benefit program or plan that provides employees with more generous paid sick time.

Combined "PTO" Policies. Employers may combine their sick time policies into a general Paid Time Off (PTO) policy, so long as that policy complies with the law. Given the new law's requirements concerning the accrual of sick time (one hour for every 30 hours worked) and that employers must allow end of the year carryover of sick time of up to 40 hours, care must be taken that PTO policies comply with the law. One benefit of maintaining separate sick leave and vacation policies is that accrued sick leave need not be paid at the time of termination. However, a carefully thought out PTO policy, which complies with the law, may provide a disincentive for an employee to abuse sick leave as, in essence, the employee would be losing a vacation day by calling in sick. Regardless, an unintended consequence of the new law may be that employers will cut back on their awards of paid vacation and paid personal days.

Posting Requirements. The Attorney General will issue a written notice regarding the law's requirements which employers will be required to post in a conspicuous, accessible location in each location where employees work, as well as to provide a copy to all employees.

Private Right of Action. In addition to the Attorney General having the power to enforce the law, any employee whose rights under the law have been violated will have the right to sue his or her employer. If successful, the employee will be entitled to three times the amount of his or her damages, including lost wages, plus recovery of his or her reasonable attorney fees.

What Can Employers Do to Be Compliant with this Law? Employers must carefully assess their existing sick leave policies to make sure that they conform with the requirements of the new law. Unfortunately, most current employer policies will not fully comply. Even employers who already provide for up to five full paid sick days per year will be in violation of the new law if the policies do not have sick time accrue at the rate of at least one hour for every 30 hours worked. If an employer's existing policy does not full comply or if the employer is unsure, the employer should seek the assistance of counsel to draft a sick leave policy which complies. Additionally, employers should notify managers, supervisors, and the human resources about the requirements of the new law and take steps to assure that their payroll can properly keep track of employees' accrued and used sick leave.

Posted December 14, 2014