Alert 11/14/2014 12:00:00 AM

Massachusetts Ballot Measure Passes Requiring Paid Sick Time for Employees

Summary

On November 4, 2014, Massachusetts voters approved a ballot measure that will require covered employers to allow employees to earn at least one hour of paid sick time (“Sick Time”) for every 30 hours worked, up to a maximum of 40 hours of Sick Time per calendar year. Sick Time may be used for various personal and family member health-related purposes. The new law is referred to below as the “Earned Sick Time Act,” the “ESTA,” or the “Act.”

When will the Earned Sick Time Act take effect?

The ESTA will take effect on July 1, 2015.

What employers and employees will be covered by the ESTA?

Employers with 11 or more employees will be required to provide Sick Time. Employers with fewer than 11 employees will also be covered by the ESTA, but will be obligated only to provide unpaid sick time. Unpaid sick time will accrue in the same manner as Sick Time, as described below.

All employees of any employer will be eligible regardless of their hours of work, period of service, and exempt or nonexempt status.

How much Sick Time may employees accrue and use?

Employees will accrue one hour of Sick Time for covered reasons for every 30 hours worked. Employees will not be entitled to accrue or use more than 40 hours of Sick Time in a calendar year (i.e., the equivalent of five working days for full-time employees). Employees will be entitled to carry over up to 40 hours of unused Sick Time into the next calendar year, but they will still remain subject to the 40 hour per calendar year cap on using Sick Time. As with other provisions of the Act, employers may provide greater rights to accrue and use Sick Time than are available to employees under the Act.

In measuring time for accrual and use of Sick Time, an employer must use the smallest increment used by its payroll system (and in any event no larger an increment than an hourly increment).

When will accruals of Sick Time begin?

Accruals of Sick Time will begin on the later of July 1, 2015 or the employee’s date of hire. Note that this means that if an employer relies on its current paid sick leave or paid time off policy to satisfy the ESTA, it will need to ensure that employees who exhaust their paid leave rights earlier in the year will have the right to accrue Sick Time under ESTA.

How soon after hire may an employee begin using accrued Sick Time?

An employee may begin using accrued Sick Time 90 days after the employee’s first day of work.

How will accrual and use of Sick Time be measured for exempt employees?

If an employee is exempt from overtime eligibility under the Fair Labor Standards Act and has a normal workweek of 40 hours or greater, the employee will be assumed to work 40 hours per week for the purpose of Sick Time accrual. If the employee has a normal workweek of fewer than 40 hours, the employee’s normal workweek will be used to measure accrual of Sick Time. Thus, for example, if an exempt employee has a normal workweek of 30 hours, the employee will be presumed to work 30 hours per week for the purpose of measuring accrual of Sick Time.

For what reasons will an employee have the right to use Sick Time?

An employee will have the right to use Sick Time to:

  • care for his or her 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 preventive medical care; or
  • care for his or her own physical or mental illness, injury or medical condition that requires home care, professional medical diagnosis or care, or preventive medical care; or
  • attend his or her own routine medical appointments or those of his or her child, spouse, parent or spouse’s parent; or
  • address the psychological, physical or legal effects of domestic violence.

Will employees be required to provide notice before using Sick Time?

If the need for Sick Time is foreseeable, an employee will be required to make a “good faith effort” to provide advance notice to his or her employer of the need to use Sick Time.

When may an employer require an employee to provide documentation to support the use of Sick Time?

An employer may require an employee to provide documentation to support the use of Sick Time only if the period of the Sick Time covers more than 24 consecutively scheduled work hours (i.e., three consecutive workdays for full-time employees).

What documentation may be required?

When the use of Sick Time exceeds the threshold of 24 consecutively scheduled work hours and the use of Sick Time is due to an employee’s or a family member’s health-related reason other than domestic violence, the employee may satisfy a request for documentation by providing any reasonable documentation signed by a health care provider. Diagnostic information may not be required.

When the use of Sick Time exceeds the threshold of 24 consecutively scheduled work hours and the use of Sick Time is due to domestic violence, any of various forms of documentation identified in the domestic violence provision of the Massachusetts Unemployment Insurance Law may be used. That list of documents is similar to the list of acceptable documents under the new Domestic Violence Leave Act. It includes, among other alternative documents, “a sworn statement from the individual attesting to the abuse.” An employer may not require an employee to provide details of the domestic violence.

In the case of any documentation requirement, neither time off nor pay may be delayed while the employer awaits documentation.

May employers require an employee who uses Sick Time to make up the equivalent number of additional hours or shifts or find a replacement employee to cover him or her?

No. An employer may not require an employee who uses Sick Time to make up for hours or shifts missed or to find a replacement employee.

However, the Act permits an employer and an employee to mutually agree that the employee will make up for hours or shifts missed for one of the four covered reasons described above. In the event that such a mutual agreement is reached, the employer may not count an employee’s hours or shifts missed as a use of Sick Time and the employer is not required to pay the employee for such hours or shifts missed. Nothing in the Act, however, limits a non-exempt employee’s right to overtime pay for working more than 40 hours in a week, even if the employee does so to make up for work time missed due to the use of Sick Time.

Will employers be required to pay out accrued but unused Sick Time upon a separation from employment?

No, employers will not be required to pay out accrued but unused Sick Time upon a separation from employment.

If an employer provides vacation or paid time off rights that exceed the Sick Time rights under the ESTA, will that satisfy the ESTA?

Yes. If an employer provides vacation time or paid time off that may be used for the same purposes as Sick Time, the employer is not obligated to provide additional Sick Time under the ESTA. However, employers should note three considerations:

  • The ESTA will apply to all employees. Therefore, vacation or paid time off may satisfy the ESTA requirements only for those employees who have a vacation or paid time off accrual rate that equals or exceeds the ESTA accrual rate.
  • If an employer has any restrictions on use of vacation time or paid time off, those may not be applied to the use of Sick Time, except to the extent that they are authorized under the ESTA.
  • According to the Massachusetts Attorney General, vacation time (including any paid time off that can be used for any purpose) must be paid to an employee upon termination of employment. Therefore, if an employer expands vacation or paid time off rights to some employees to cover Sick Time rights under the ESTA, the employer will be obligating itself to pay those employees for accrued paid time off to which they would not be entitled under the ESTA.

What obligations will employers have to provide notice to employees of their rights under the ESTA?

The ESTA states that the Massachusetts Attorney General is to provide language for a posting, which employers will be required to post in their workplaces. The Massachusetts Attorney General may well be providing other guidance concerning the ESTA as well.

Will employers be subject to any prohibitions related to Sick Time?

Employers may not interfere with an employee’s use of Sick Time, except to encourage advance notice and require documentation as provided in the Act, and may not discriminate or retaliate against an employee for using Sick Time or supporting the exercise of Sick Time rights by others.

What will be the consequences of a violation of the Act?

Current and former employees will be able to sue employers under the Act and obtain the value of any lost wages and benefits due to the employer’s violation of the Act, injunctive relief, and mandatory treble damages, attorneys’ fees and costs. (The Act affords employees these remedies by incorporating the remedial provisions of the Massachusetts Wage Act.) The Attorney General will also have the authority to enforce the Act and in so doing may seek injunctive and equitable relief.