Hunton Employment & Labor Perspectives

Last month, the voters of Massachusetts passed Ballot Question 4, which entitles all Massachusetts employees to earn and use sick leave (time).  In doing so, Massachusetts became the third state to guarantee sick leave, following California and Connecticut.  The Massachusetts law takes effect on July 1, 2015.

Who is covered?  
Employers who have 11 or more employees must provide up to 40 hours of paid sick time in a calendar year.  Employers with less than 11 employees must provide up to 40 hours of unpaid sick time per calendar year.  All employees are included in the head-count, even if they work part time, on a temporary basis or seasonally. 

How is the sick time earned and compensated if it is paid time?
Beginning July 1, 2015, or the date of hire, whichever is later, an employee accrues 1 hour of sick time for each 30 hours actually worked.  Earned paid sick time is compensated at the same hourly rate paid to the employee when the sick time is used.

Is there a limit on the amount of sick time that can be earned and used in a year?
Yes.  Employers can cap the time earned and used to 40 hours in a year, but employees can carry over up to 40 hours of unused sick time to the next calendar year. 

How can the sick leave be used?
An employee must first accrue the time before it can be used.   An employee can use earned sick time (1) to care for a physical or mental illness, injury or medical condition affecting the employee or the employee’s child, spouse, parent, or parent of a spouse; (2) to attend routine medical appointments of the employee or the employee’s child, spouse, parent, or parent of a spouse; or (3) to address the effects of domestic violence on the employee or the employee’s dependent child.  Employees can begin to use earned sick time on the 90th day after hire.

Employees can use earned sick time in hourly increments or the smallest increment the employer’s payroll system uses to account for absences, whichever is smaller.

By agreement between the employee and employer, the employee can work the same number of hours or shifts in the same or next pay period instead of using earned sick time for the missed time, and the employer would not have to pay for that missed time.

Employers cannot require an employee to work additional hours to make up for missed time or to find a replacement employee.

No advance notice is required, but employees must make a good faith effort to provide advance notice when the need for earned sick leave is foreseeable.

Can employers require certification for the need for sick leave?
Yes, but only if an employee used sick leave for more than 24 consecutively scheduled work hours.  Employers cannot delay the taking of or payment for earned sick leave because they have not received the certification. 

Can an employer use an existing time-off plan?
Yes, if at a minimum the policy or policies provide as much paid time off, usable for the same purposes and under the same conditions. 

Are there other employer requirements?
Yes.  A multilingual notice concerning the right to earned sick time must be posted in a conspicuous location and a copy provided to employees. To date, the notice is not available.  Employers will have to track earned sick time earned and taken.  

Are there questions remaining about the law?
Yes.  It is unclear if an employer must count both Massachusetts and out-of-state employees in determining its number of employees.  It is also unclear if the employer must have 11 employees for a whole year or for some interval of time during the year. Additional guidance  is expected  from the Massachusetts Attorney General.