A Prescription for the New Massachusetts Sick Leave Law

A Prescription for the New Massachusetts Sick Leave Law

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On November 4, 2014, Massachusetts voters decisively approved a ballot question requiring employers to provide sick leave to employees, adding Massachusetts to a growing list of states (including Connecticut and California) and municipalities (including New York City, San Francisco and Seattle) requiring such leave. 

The law does not become effective until July 1, 2015. However, Massachusetts employers should review their practices and policies now, revise them accordingly, and train managerial and HR personnel to administer the new law. Below are answers to some commonly asked questions about the new law. Please note that the information below is for general guidance; for any questions about the application of the new law in any specific circumstance, please consult with a member of our Labor and Employment Practice. Additional guidance from newly elected Attorney General Maura Healey (formerly an attorney at WilmerHale) is expected before the new law goes into effect. 

A brief summary of the Massachusetts Sick Leave Law 

Effective July 1, 2015, all private sector employers in Massachusetts must provide up to 40 hours of sick leave to their employees. For employers with 11 or more employees, that leave must be paid. Employers with 1 to 10 employees must still provide sick leave, but they are not required to pay for the leave. 

How do I count employees? 

All employees, including full-time, part-time, temporary and seasonal employees, must be included in calculating headcount. Independent contractors and individuals providing services through a third-party agency are not included. However, the law does not specify the relevant “snapshot date” on which the employee count is to be taken or whether to include non-Massachusetts residents in the calculation. Companies with fluctuating workforces or that anticipate an upcoming influx of new employees may find it prudent to pay for the sick time off, at least until the Attorney General issues more guidance. 

How much sick leave will employees earn?

Under the new law, full-time and part-time (including seasonal) employees will accrue one hour of sick time for every 30 hours worked. Exempt employees are presumed to work 40 hours per week. However, if a company’s regular workweek is less than 40 hours (for example, company policy defines the regular workweek as 37.5 hours per week), then the amount of time off that exempt employees earn will be based on that normal workweek. 

New hires will begin accruing sick time immediately upon hire; however, employers can provide that new hires cannot use their sick leave until the 90th calendar day following their start date. 

How do the law’s new carryover rules work? 

The law requires that employees be allowed to carry over any unused sick time accrued as of the end of the year, up to a maximum of 40 hours. Therefore, existing policies that provide for the forfeiture of unused sick time at the end of the year will not comply with the new law when it goes into effect. Employees will not be entitled to use more than 40 hours of sick leave in any calendar year, but policies that require such time to be used by a certain deadline will need to be revised.

My company offers paid time off that is more generous than the sick leave law. Are we in the clear? 

Not necessarily. Employers that currently provide paid time off (which combines separate vacation time, sick time and/or personal time off into one policy) must review their policies to ensure that they comply with the law. For example, policies making temporary or part-time employees ineligible for paid time off, or that require employees to use paid time off in half-day increments, will not comply with the law. Indeed, the sick leave law requires that earned sick time be used “in the smaller of hourly increments or the smallest increment that the employer’s payroll system uses to account for absences or use of other time.” (emphasis added). Paid time off policies that include the forfeiture of unused time off at the end of a calendar year will also need to be revised. Employers with paid time off policies will also need to review their policies to ensure that leave can be taken for the purposes set forth in the law. 

Are there any other policies that might be affected by the new sick leave law?

Yes. Attendance policies need to be reviewed in light of the new law. The law prohibits an employer from requiring a medical certification for sick leave lasting less than 24 consecutively scheduled work hours; therefore, policies requiring a doctor’s note in all cases will need to be revised. Additionally, employers cannot delay paying for the leave until they have received the certification. Employers should also review their attendance policies to ensure that they do not run afoul of the law’s prohibition against interfering with or retaliating against an employee who has used earned sick time. Under the new law, employees must make “a good faith effort” to provide notice of the need for leave in advance, when the need is foreseeable. Until more guidance is issued on what represents “a good faith effort,” employers should be careful about disciplining employees for not providing sufficient advance notice. 

How does the law interact with the new Massachusetts domestic violence leave law? 

In August 2014, Massachusetts enacted the Domestic Violence Leave Act. This law was the subject of a previous client alert, New Massachusetts Law Requires Employers to Provide Domestic Violence Leave. The Domestic Violence Leave Act requires Massachusetts employers with 50 or more employees to provide employees with up to 15 days of unpaid leave in the event that the employee or a close family member is a victim of domestic violence or certain other abusive behavior. The new sick leave law expands the protections for domestic violence victims (and close family members), by requiring employers with fewer than 50 employees to provide time off for employees to address the psychological, physical or legal effects of domestic violence. For employers with 11 or more employees, that leave will have to be paid. 

For assistance in complying with the new law and/or updating employee handbooks or policies, please contact WilmerHale’s Labor and Employment Practice.

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