Massachusetts voters approved Ballot Question 4 during the election earlier this month. Question 4 creates new obligations for employers to provide employees leave for “sick time”, which is broadly defined in the new statute to include events that you may not at first consider “sick time”, such as:
(1) care for the employee’s child, spouse, parent, or parent of a spouse, who is suffering from a physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care; or
(2) care for the employee’s own physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care; or
(3) attend the employee’s routine medical appointment or a routine medical appointment for the employee’s child, spouse, parent, or parent of spouse; or
(4) address the psychological, physical or legal effects of domestic violence.
The new law will take effect on July 1, 2015, which will allow you time to review and, if needed, revise your policies and procedures for leave. We believe that the details of the sick time law will force many employers to change some of their policies and add record keeping obligations.
In general, the law will entitle most employees in Massachusetts to earn and use sick time. For businesses with fewer than 11 employees, employees will earn and may use up to 40 hours of unpaid sick time each calendar year. For businesses with 11 or more employees, workers will be allowed to earn and use 40 hours of paid sick time each calendar year. Employees can carry over unused sick time to the next year but cannot use more than 40 hours in a calendar year. To determine if an employer has 11 or more employees, all employees performing work for compensation whether on a full-time, part-time or temporary basis shall be counted.
Under the new law, employees will earn at least one hour of sick time for every 30 hours worked. Employees will begin accruing earned sick time commencing with their date of hire or July 1, 2015, whichever is later. Paid sick time must be compensated at the employee’s normal hourly pay rate. Employees may begin using earned sick time after 90 days of employment. Earned sick time shall be used by an employee 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”.
The new law also provides that the employer and the employee may agree “by mutual consent”, to allow the employee work an equivalent number of additional hours or shifts during the same or the next pay period as the hours or shifts not worked due to sick leave to “make up” the time. In such an event, an employee will not be required to use accrued earned sick time for the employee’s absence during that time period and the employer shall not be required to pay for the time the employee was so absent. It is important to note that an employer cannot require an employee to work additional hours to make up sick time under the new law unless the employee agrees. Moreover, employers cannot require an employee “to search for or find a replacement employee” to cover the hours during which the employee will utilize earned sick time.
Employees are, to the extent possible, required to make a “good faith effort” to give advanced notice that sick time will be used. In limited circumstances, employers may require certification of the need for sick time. However, employers cannot condition payment for paid sick time or delay approval of sick leave upon receipt of such certification and may not require that the certification explain the nature of the illness or the details of the domestic violence.
Furthermore, it will be unlawful for any employer to interfere with an employee taking earned sick time under the new law or treating it as a negative factor in any employment action such as evaluation, promotion, disciplinary action or termination, or otherwise subjecting an employee to discipline for the use of earned sick time. Employees may file complaints with the Attorney General and file law suits if employers violate the new law.
Unlike accrued unused vacation time, employers will not be required to compensate employees for unused sick time upon separation from employment.
If you have a policy that provides paid time off under a paid time off, vacation or other paid leave policy which meets the accrual and other requirements of the new law, you need not provide additional earned paid sick time. Given the requirements of the new law, a careful review of your current policies and the new law should take place to make sure that you are in compliance. There are significant potential fines and penalties for a violation of the new law such that you should be careful to insure compliance. Among other things, you should begin reviewing your existing sick time and leave policies to determine what changes, if any, you will be required to make. You should also consider developing procedures for tracking sick time use, processing sick time pay, and obtaining notification from employees concerning foreseeable sick time use. Finally, you should consider revising your employee manual and/or handbook to reflect all changes to existing sick time policies and practices.I would also be happy to review your current policies and procedures, to make recommendations and to draft any required changes.
The Attorney General may issue new guidelines in the future to clarify how to comply with the law and will provide a written explanation to be posted in the work place. We will post a series of blog articles on this topic. Please read the first blog New Massachusetts Law Granting Employees Earned Sick Time.