Locke Lord QuickStudy: Draft Regulations Answer Key Questions On Earned Sick Time In Massachusetts

Locke Lord LLP
May 15, 2015
Since November 4, 2014, when Massachusetts voters approved the state’s new earned sick time law, employers have been pondering changes to their sick leave and PTO policies.  Under the new law, Massachusetts employees are entitled to earn up to 40 hours of sick leave per calendar year to care for illness or injury, to attend routine medical appointments, or to address the effects of domestic violence on themselves or their children.  The law takes effect July 1, 2015, but several key issues remained unresolved by the statutory language.  Now, with the release of draft regulations from the Massachusetts Attorney General interpreting the new law, employers get insight into how their questions about earned sick time are likely to be answered. 

Which of My Employees Earn Sick Time?
On its face, the new statute provides sick time for “all employees who work in the Commonwealth.”  The draft regulations narrow the scope of this a bit.  Under the regulations, an employee will be eligible for sick time if his or her “primary place of work is in Massachusetts.”  This does not mean that an employee needs to spend a majority of his or her work time in Massachusetts, just more time working in Massachusetts than anywhere else.  All hours worked by an eligible employee will count toward sick time accrual, whether the work takes place in Massachusetts or not. 

As the summer internship season begins, employers should note that the regulations expressly include interns as employees eligible for earned sick time.

Do I Provide Paid or Unpaid Sick Time?
Under the new law, an employer must provide paid sick time if it has “eleven or more employees.”  The draft regulations offer guidance to employers who may hover near that threshold.  First, all of an employer’s employees count toward the total, whether they work in Massachusetts or not.  Second, an employer who maintained 11 or more employees in the preceding calendar year during 16 consecutive weeks or 20 or more non-consecutive weeks must provide paid sick time.  

An employee’s unused paid sick time does not convert to unpaid sick time if his or her employer drops below 11 employees, but he or she will accrue only unpaid sick time going forward.  An employee who has unused paid and unpaid sick time can choose to use either.

Does My Existing PTO Policy Comply?
The new law provides that employers need not grant additional sick time if their existing PTO, vacation, or other leave policies “make available an amount of paid time off sufficient to meet the accrual requirements” of the new law.  But is it enough to provide the requisite 40 hours of leave per calendar year, or must that leave also accrue at the statutory rate?  Under the draft regulations, employers may deviate from the statutory accrual rate so long as their policies are “more generous” than required by the law.  The regulations provide that a policy is more generous, for example, if it:

  • Provides more than 40 hours of sick leave;
  • Provides 40 hours of sick leave that accrues at a rate faster than required under the statute;
  • Provides 40 hours of sick leave and permits employees to use sick leave before it has accrued; or
  • Provides a lump sum of 40 hours of sick leave at the outset of employment and the start of each subsequent year.

Otherwise, an existing PTO policy will comply with the new law if:
  • Leave time accrues at the statutory rate;
  • Leave time is paid at the employee’s hourly rate;
  • Leave time can be used for the reasons listed in the statute;
  • Employees receive all notices required under the statute; and
  • Employees enjoy the job protections provided by the statute.

How Can I Monitor My Employees’ Use of Sick Time?
The statute requires employees to make a good faith effort to give notice before using earned sick time.  The draft regulations provide that notice may include compliance with an employer’s reasonable notification system for employee absences.  Employers without an existing notification system are required, under the regulations, to establish “a policy or procedure, preferably in writing” that allows employees “to effectively provide reasonable notice in a way that can be documented.”  

The draft regulations allow an employer to discipline an employee who uses sick leave for purposes unauthorized by the statute or who exhibits “a clear pattern of taking leave on days when the employee is scheduled to perform duties perceived as undesirable.”

How Do I Get Started?
The draft regulations define the period between July 1, 2015 and the beginning of an employer’s next calendar year as the “transition year.”  This refers to the task of squaring any sick leave or PTO used by employees in the first half of 2015 with the new accrual rules.  To make the process easier, the regulations clarify a few points:

  • Employees shall begin to accrue earned sick time under the statute on July 1, 2015;
  • Employers need not provide more than 40 hours of earned paid sick time during the transition year, and any paid leave given prior to July 1, 2015 will be credited toward this total;
  • Employees are only entitled to use up to 40 hours of paid sick time in 2015.  An employee who uses paid sick time prior to July 1, 2015, and as a result is unable to use all of the paid sick time he or she accrues after July 1, 2015, must be allowed to carry the unused balance over to the next calendar year; and
  • Employees who took unpaid sick leave prior to July 1, 2015 are still entitled to accrue and use up to 40 hours of earned paid sick time during the transition year.

The draft regulations give employers a meaningful idea of what they need to do to comply with the earned sick time law.  We will forward another alert when the regulations are finalized to let you know if there are any changes in the final rules.  With July 1, 2015 fast approaching, employers need to begin to get their leave policies in line. 

For more information on the matters discussed in this Locke Lord QuickStudy, please contact the authors.