Alert May 28, 2015

Massachusetts Attorney General Announces Safe Harbor for Earned Sick Time for 2015

Summary

The Massachusetts Attorney General has established a safe harbor for compliance with the new Massachusetts Earned Sick Time Law (ESTL) for the period from its July 1, 2015 effective date until the end of 2015, under which employers in Massachusetts with paid time off policies may satisfy the ESTL for that period for all employees who have the right to use 30 hours of paid time off in 2015.

In November 2014, Massachusetts adopted a new Earned Sick Time Law (ESTL) by a ballot initiative. An overview of the ESTL is in the Goodwin Procter Client Alert dated November 14, 2014, which is available here.

The ESTL goes into effect on July 1, 2015. Under the ESTL, employees will accrue one hour of paid sick leave for every 30 hours worked, with the right to use up to 40 hours of paid sick leave per year. Although the law permits employers to substitute paid time off under their existing paid time off, vacation and other paid leave policies in place of paid sick leave under the ESTL, there are a number of requirements governing paid sick leave under the ESTL that may not be compatible with current paid leave policies. In addition, there remain outstanding questions concerning some aspects of the ESTL. Regulations are expected to be finalized before the ESTL takes effect, but even with the benefit of those regulations, employers will still face hurdles to implementing the ESTL. Among the questions that employers have had concerning implementation of the ESTL is how the mid-year effective date affects the employers’ rights to use their own paid leave policies to satisfy the ESTL in 2015, including paid leave that may have already been accrued and used in 2015.

Massachusetts Attorney General Maura Healey recently issued a “safe harbor” notice to employers with paid time off policies for the transitional period of July 1 to December 31, 2015. The notice applies to employers with a paid time off policy in effect on May 1, 2015. The notice states that if an employee has the right under a paid time off policy to use at least 30 hours of paid time off during calendar year 2015, the employer “shall be in compliance” with the ESTL. An employee’s accrual and use of some or even all of that 30 hours in 2015 but before July 1 apparently will not diminish the employer’s right to apply the safe harbor standard in 2015. An employer may extend this safe harbor protection to other employees who would not otherwise qualify by extending to them the right to accrue and use at least 30 hours of paid time off in 2015. This safe harbor applies only to 2015. 

The notice specifies that paid time off must be treated as job-protected leave. In other words, an employee may not be subject to retaliation or other action interfering with the right to use paid time off.

The notice does not specifically state whether employers will be subject to all of the standards regarding notice, documentation and use during the six months of 2015 when the ESTL will be in effect. However, by stating that paid leave policies that provide 30 hours of paid leave to employees in 2015 “shall be in compliance” with the ESTL, the notice appears to indicate that no additional standards concerning the use of paid leave need to be incorporated into paid leave policies by July 1, at least for purposes of enforcement by the Attorney General. This understanding is supported by quotations of Attorney General Healey in the press stating that this safe harbor provides “much-needed breathing room for employers” and that it “gives the businesses and non-profits that have already been offering earned sick time to their employees slightly more time to update their systems without fear of legal action.” (Katie Johnston, Paid leave requirements delayed for employers that offer sick time, Boston Globe, May 18, 2015.)  Of course, it is clear that for those employees who are not within the safe harbor, all of the ESTL’s standards will apply beginning on July 1, 2015.

The safe harbor notice and the proposed regulations concerning the ESTL can be found at www.mass.gov/ago. The proposed regulations are subject to public comment until June 10, 2015.