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sick timeOn November 4, 2014, Question #4 was asked to Massachusetts Voters… The question regarded the mandate of paid sick time for MA employers. The resounding vote was YES!  This new law is set to go into effect on July 1, 2015, and Massachusetts employers should be prepared to meet the MA Sick Time Law regulations despite talks of a delay. When voted upon the law was set to go into effect on 7/1/15 but since November there has been some discussion about delaying it until January. Attorney General, Maura Healy is pushing hard against any delay and did recently release some guidance on how the law will be administered, here are some highlights:

Employees eligible to accrue and use earned sick time:

  1. An employee is eligible to accrue and use earned sick time if the employee’s primary place of work is in Massachusetts. An employee need not spend more than 50% of working time in Massachusetts for it to be his or her primary place of work.
    Example: A painter with a single employer works 40% of her hours in Massachusetts, 30% in New Hampshire and 30% in other states. Massachusetts is her primary place of work.
  2. If an employee is eligible to accrue and use earned sick time then all hours the employee works regardless of location of the work must be applied toward accrual of earned sick time.
    Example: In a single year, an employee of a catering company works 900 hours in Massachusetts and 150 hours in other states. The caterer will accrue earned sick time on all 1,050 hours worked for the catering company.

Rate of accrual:

  1. Employees accrue earned sick time through working at a rate of not less than one hour of earned sick time for every 30 hours of work, including overtime hours.
  2. Employees who are exempt from overtime requirements under 29 U.S.C. § 213(a)(1) shall be assumed to work 40 hours in each work week for purposes of earned sick time accrual unless their job specifies a lower number of hours per week, such as a salaried part-time employee. In such a case, earned sick time shall accrue based on that specified number of hours per week.

90-day vesting period:

  1. Employees begin accruing earned sick time on the first date of actual work and may begin to use any accrued earned sick time 90 calendar days after the first date of actual work, regardless of the number of days worked during the 90 calendar day period.
  2. Employees who have been employed by their employer for at least 90 calendar days as of July 1, 2015, begin accruing earned sick time as July 1, 2015, and may use earned sick time, whether paid or unpaid, as it accrues.
  3. Employees who have been employed by their employer for less than 90 calendar days as of July 1, 2015, begin accruing earned sick time on July 1, 2015, and may use earned sick time, paid or unpaid, when they have been employed for 90 days.
  4. Employees who commence employment after July 1, 2015, begin to accrue earned sick time as of their first day of actual work, and may use accrued earned sick time, paid or unpaid, when they have been employed for 90 calendar days.

Break in service:

  1. Upon a return to work, an employee shall maintain the right to use any accrued earned sick time after a break in service of up to one year from the last date of actual work.
  2. If an employee returns to an employer after a break in service of up to one year from the last date the employee worked for the employer, the date of commencement of their employment shall be their first date of actual work prior to the break or breaks in service from the employer.
    Example: An employee has accrued 20 hours of earned sick time and then goes on an unpaid sabbatical for 11 months.  Upon the employee’s return to employment, 11 months from the date of the employee last worked for the employer, the employee shall have the right to use the 20 hours of earned sick time accrued before the start of the sabbatical.

Increments of earned sick time use:

  1. Employees shall be entitled to use earned sick time in hourly increments or in the smallest increment the employer’s payroll system uses to account for absences or use of other time.
  2. Where an employee’s absence from work at a designated time requires the employer to hire a replacement and the employer does so, the employer may require the employee to use up to a full shift of earned sick time.
    Example: A food broker’s fleet departs from the employer’s principal place of business at 3:00 AM Monday through Friday to ensure timely delivery of perishable items to scheduled customers.  The drivers’ shifts vary slightly depending on the route, but average 8 hours with loading and unloading.  The employee responsible for the upper Cape Cod deliveries arrives at the employer’s principal place of business at 5:00 AM after spending the night in the ER with a sick child. The employer was notified by phone of the emergency, and called in an off-duty employee to cover the upper Cape Cod deliveries for the absent driver’s shift.  In this example, the employer may require the absent employee to use an entire 8-hour shift to cover the sick time used for that day.

Alternatives to use of earned sick time:

  1. An employer and employee by mutual agreement may arrange for the employee to work additional hours during the same or next pay period to avoid the use and payment of earned sick time. Any additional hours worked to avoid the use and payment of earned sick time are subject to state and federal wage and hour laws, including payment of overtime.
  2. An employer shall not require an employee who has used earned sick time to make up time off from work.
  3. At the end of the calendar year, an employee may carry over up to 40 hours of unused earned sick time to the next calendar year.
  4. An employer shall have the option but is not required to offer an employee a payout of up to 40 hours of unused earned sick time at the end of the employer’s calendar year, provided the employer makes available to the employee at least 16 hours of sick time at the beginning of the new calendar year. Employers shall have the option but are not required to payout unused earned paid sick time upon separation from employment.
  5. An employer is not permitted to payout sick time as it accrues during the employer’s calendar year or otherwise cause a forfeiture of an employee’s right to accrued sick time.

Allowable Substitution of Employers’ Paid Leave Plans

  1. Employers may deviate from the accrual rate of earned sick time so long as their sick leave (or other paid leave) policies are more generous than what is required under the M.G.L. c. 149, § 148C.
  2. An employer’s sick leave policy is more generous, for example, if it:
    • provides more job protected sick time than the 40 hours of earned sick time required under the statute;
    • provides an accrual of job protected sick time at a faster rate than that required under the statute and provides at least 40 hours of earned sick time each calendar year;
    • provides a lump sum of 40 hours of job protected earned sick time at the outset of employment and at the start of each subsequent calendar year rather than tracking the accrual of earned sick time over time;
    • provides employees with at least 40 hours of job protected paid time off that may be used without restriction and accrues as least as fast as the one hour per 30 hours worked rate;
    • permits employees to use job protected sick time before it has been accrued and provides at least 40 hours of earned sick time each calendar year; or
  3. In order for paid time off, vacation or other policies (PTO) to be substituted for the time off from work provided under the statute, the following requirements must be met. The time off provided by the PTO must:
    • accrue at a rate of no less than one hour of PTO for every 30 hours of work;
    • be paid at the employee’s same hourly rate, as defined in 940 CMR 33.02 above;
    • be accessible on the same basis, meaning time may be taken for the authorized uses under the statute;
    • come with the same notice requirements to employees; and
    • be afforded the same job protections.

Be sure to review the full guidance at the Attorney General’s Earned Sick Time page.

Contact Us

434 Route 134
South Dennis, MA 02660

Phone: 508-619-4545

Fax: 877-816-2156

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