The new Massachusetts Earned Sick Time Law takes effect on July 1, 2015, and will likely lead to the next wave of ‘wage and salary’ type lawsuits in Massachusetts. Your business needs to comply or it could be subject to civil citations of up to $25,000 per violation and individual lawsuits or class action lawsuits with severe punishments in the form of treble damages plus attorney’s fees and costs.
Mass Sick Leave Law Requirements for Businesses:
Beginning July 1, 2015, the Massachusetts Earned Sick Time Law ( M.G.L. c. 149 § 148C ) becomes effective. The following set forth the key requirements of the law for most employers. Nevertheless, you should contact your corporate counsel to confirm the requirements for your business:
- The MA Earned Sick Time Law requires an employer with 11 or more employees to provide paid sick time leave. An employer with less than 11 employees is not required to provide paid sick leave, but must at least provide unpaid sick time leave.
- All employees including those that may work outside of Massachusetts, are counted when calculating employer size. So if your business has only 5 employees is Massachusetts but 20 employees in a handful of other states, then your business has 25 employees for purposes of determining whether you must provide paid or unpaid sick leave.
- Every Massachusetts employee is entitled to sick time leave, including part time staff, per diems, and interns.
- An employee earns 1 hour of sick time leave for every 30 hours worked. A maximum of 40 hours of sick time leave may be earned each calendar year.
- Employees must be allowed to carry over unused sick time hours to the next calendar year. However, employers are not required to permit the accrual of more than 40 hours of sick time leave.
- Additionally, and perhaps one of the most business-friendly aspects of the new law, employers are not required to pay employees unused accrued sick leave upon separation from employment (i.e. upon firing or voluntary termination of employment).
- Employers are required to pay the same hourly rate to the employee as the employee receives at the time the sick leave is taken. This can be problematic for companies that pay an employee at different rates. See the MA AG guidance below.
Personnel software and/or payroll software companies will likely implement – if they haven’t already – a simple way to track and apply these requirements when the sick leave is taken. We suggest employers take advantage of that if possible.
With the enforcement of the Massachusetts Earned Sick Time Law M.G.L. c. 149 § 148C quickly approaching, the MA AG has released [proposed regulations] with additional guidance:
- If an employee is part of a company with 11 or more employees, and works in multiple states, but works in Massachusetts more than any other state, then the employee is entitled to paid sick time leave. However, for purposes of the MA Sick Time Law, are the hours calculated the total hours worked or only the hours worked while in Massachusetts? For compliance purposes, where an employee works in Massachusetts more than any other state, employers should allow sick time to accrue for all hours worked, not only the hours worked in Massachusetts.
- The hourly rate an employee is entitled to is dependent on the type of payment a employee usually receives. Usually, an employee is entitled to the same hourly rate as he is paid at the time of the sick leave. However, in the instances that is not applicable, employers should use the calculations below to determine the hourly rate they are entitled to:
(a) If an employee receives different hourly rates from the same employer then the same hourly rate is the weighted average of all rates during the previous pay period.
(b) If an employee is paid on piecework, salary, or fee basis, the same hourly rate is the total earnings from the previous pay period divided by the total hours worked.
(c) If an employee is paid by commission, the same hourly rate is the greater of the base rate (if applicable) or minimum wage.
(d) Commissions, bonuses, overtime, holiday pay and other incentive pay are not included in the same hourly rate.
Employees must be able to use sick time in the smaller of hourly increments or the smallest increment the employer’s payroll system uses. So if an employer pays pro-rated wages by the quarter hour, then sick leave may be taken in quarter hour increments. However, if an employer is forced to hire a replacement while the employee takes sick leave, then the employee can be required to use up to a “full shift” of sick time.
Employee Requirements Under the MA Sick Leave Time
The Massachusetts Earned Sick Time Law requires employees to make at least a ‘good faith effort’ to notify their employers of their intent to use sick time.
Some proposed regulations provide that employees must give employers up to 7 days notice if the sick leave time is foreseeable, multi-day absences may require daily notification to the employer, and employees may be required to submit written verification (like a doctor’s note) that they have used earned sick time for allowable purposes.
In the event that an employer believes an employee has misused sick time, they have the option to take disciplinary action.
If an employee uses more than 24 consecutively scheduled hours of sick time, a certification from their health care provider is required, (within 30 days of the sick leave) to verify their use of sick time was for a valid purpose.
If an employee fails to produce certification within the 30 days without “reasonable justification”, it may result in delay or denial of future sick time until certification is produced.
During the transition year, any paid leave provided before July 1, 2015 should be credited. However, employers are not required to provide more than the 40 hours of sick time during this transition year.
If you are a business and would like to consult an attorney with respect to your requirements under the MA Sick Leave Time OR if you are an employee that has been deprived of sick leave time, please call The Jacobs Law at 1-800-652-4783 or email us at ContactUs@TheJacobsLaw.com.