Employment Law Advisor

Final Regulations on Earned Sick Time Provide Helpful Guidance and Flexibility to Employers

June 1, 2015

Just in time, the Massachusetts Attorney General has issued the final Earned Sick Time Regulations.  These regulations answer many questions and provide some additional flexibility for employers.  Please note that the effective date of the Earned Sick Time Law (the “Law”) – July 1, 2015 – has not changed, despite the many changes from the draft regulations.

As of July 1, employers with 11 or more employees must allow all employees (including part-time and temporary) to earn at least one hour of paid sick time for every thirty hours worked.  Employers with fewer than 11 employees must provide unpaid time.  Employers may take advantage of a safe harbor provision for the remainder of 2015 if:  (1) they have a policy in place which provides employees with the right to earn and use at least 30 hours of paid sick time during 2015; (2) they extend such policy to all employees; (3) leave may be used for the purposes allowed by the Law; and (4) unused leave may be carried over to 2016. 

Among the most significant changes from the draft regulations are the following:

Relationship to Other Laws. The time off provided by the Law may run concurrently with time off provided by other laws such as the Family and Medical Leave Act, the Massachusetts Parental Leave Act, the Massachusetts Domestic Violence Leave Act, and the Small Necessities Leave Act. 

Accrual Cap. The regulations clarify the rules regarding capping accrual of time:  time accrued may be capped at 40 hours per benefit year.  Once employees have accrued 40 hours of earned sick time, they do not continue to accrue sick time regardless of the additional hours they work.  Once an employee possesses a bank of 40 hours of sick time, the employer may opt to delay further accrual until the employee draws down the bank to less than 40 hours.

Lump Sum Policy. Employers that provide employees with a lump sum of 40 hours or more of sick time or paid time off (“PTO”) at the beginning of each year do not need to track accrual or allow any rollover, provided that such leave is otherwise consistent with the Law.

Unlimited Leave Policy. Employers that have an unlimited sick leave or PTO policy do not need to track accrual or allow any rollover, provided that such leave is otherwise consistent with the Law.

Existing PTO Policy. Employers that provide 40 or more hours of PTO or vacation to employees that may also be used as sick time consistent with the Law shall not be required to provide additional sick leave to employees who use all their time for other purposes, provided that the employers’ leave policies make clear that additional time will not be provided.  Employers that wish to maintain separate use policies for paid time off in excess of 40 hours may do so, provided that they allow employees to designate which time is taken as earned sick time.

Piece Rate or Fee for Service. For employees paid on a piece rate or fee for service basis, the hourly rate they receive for sick time means a reasonable calculation of the wages or fees the employee would have received for the piece work, service, or part thereof, if the employee had worked; it shall not be less than the minimum wage.  Such employees accrue sick time based on a reasonable measure of the time the employees work, including established practices or billing.

Use of Sick Time.

  • An employee may not use earned sick time if the employee is not scheduled to be at work during the period of use.
  • The smallest amount of sick time that may be used is one hour.  If an employee uses less than one hour, one hour of sick time will be credited.  For amounts over one hour, employees may use sick time in hourly increments or in the smallest increment the employee’s payroll system uses to account for absences or use of other time.
  • Earned sick time may not be invoked as an excuse to be late for work without an authorized purpose under the Law.
  • If an employee is committing fraud or abuse by engaging in an activity that is not consistent with the authorized purposes under the Law, an employer may discipline the employee.  Similarly, if an employee is exhibiting a clear pattern of using leave on days just before or after a weekend, vacation, or holiday, an employer may discipline the employee for misuse of sick time, unless the employee provides verification of authorized use.

Breaks in Service. The regulations change the requirement with regard to breaks in service:  following a break in service of up to four months, the employee shall maintain the right to use any sick time accrued before the break in service.  Following a break in service of between four and 12 months, an employee shall maintain the right to use sick time accrued before the break only if the time accrued was at least 10 hours.  Following a break in service of up to 12 months, an employee maintains his or her vesting days and does not need to restart the 90 day vesting period.

The regulations also provide further guidance on payout of accrued sick time; giving notice of use of sick time (including that the employer may have a written policy requiring up to seven days’ notice for foreseeable use of sick time, except when the employee learns of the need to use sick time within a shorter period); documentation which may be required from the employee for use of sick time; a schedule of accrual for employers who prefer not to track accrual of sick time; and examples of adverse actions which are prohibited by the non-retaliation provisions of the Law.

Employers should be sure to post the required notice by July 1.  Employers must also provide a hard copy or electronic copy of the notice to all eligible employees, or include the employer’s policy on earned sick time or compliant PTO policy in any employee handbook.

If you would like more information on how the final Earned Sick Time regulations will affect your current policy, please contact any member of the Employment Law Group.

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