Earlier this year, in Mandatory Paid Sick Leave — What In-House Counsel and Employers Need to Know, I previewed some of the requirements of the Massachusetts Earned Sick Time Law. Final regulations were issued by the Attorney General’s office on June 22, 2015. Almost one month after the deadline for compliance, how are you doing in complying with the new law? If you’re like many employers, you may still be figuring it all out. Here are four key points all employers should be aware of.
1. Recognize When Sick Time Can Be Taken
Under the new Earned Sick Time Law, employees working in Massachusetts are entitled to accrue and use up to 40 hours of sick time each calendar year to:
- Care for a physical or mental illness, injury or medical condition affecting the them or their child, spouse, parent or parent of a spouse.
- Attend routine medical appointments or those of their child, spouse, parent, or parent of a spouse.
- Address the effects of domestic violence on them or their dependent child.
The child need not be biological or adopted, and this includes foster children, legal wards or children for whom the employee has assumed parental responsibility.
2. Post Notices and Update Policies
Employers are required to post the Attorney General’s new Earned Sick Time Law and regulations notice. Additionally, employers are required to provide an employee upon the start of their employment with written notice of what the “calendar year” will be for the purposes of the Earned Sick Time Law. Also, if the employer does not wish to pay out any earned sick time upon termination of employment, the employer must include this in its earned sick time policy. Employers should also consider putting in its earned sick time policy what procedure an employee must follow and what verification the employee is to provide when taking earned sick time and when an employee may be required to take time greater than he or she may have intended. The new law may also create conflicts with what was allowed under other laws, so employers should review their other policies with potentially overlapping obligations, such as the Small Necessities Leave policy.
3. Update Procedures for Tracking Accrual and Use of Earned Sick Time
For employers who have 11 or more employees in any 20 total weeks or in 16 consecutive weeks during the year, sick time must be paid. All employees must be counted, including those located outside Massachusetts and those that are part-time, seasonal or temporary. Employers who do not have at least 11 employees are still required to provide unpaid sick time. Employees are entitled to accrue sick leave at a rate of one hour of sick leave for every 30 hours that they work, up to a cap of 40 hours during a calendar year. A few additional things to consider:
- Exempt, full-time employees are considered to have worked forty 40 hours each week, while exempt, part-time employees are assumed to have worked the hours in a week that they are regularly scheduled. Non-exempt employee hours worked are actual hours worked, including those hours eligible for overtime payment.
- If an employee works for a company located both in and out of Massachusetts, then the total number of hours must be counted for purposes of accrual calculations.
- Employers should also make sure that their payroll systems reflect the use of earned sick time in the smallest increment used to account for other time, and that they are paying at the appropriate hourly rate. How hourly rates are calculated can be complicated, so it’s best to check with your legal counsel on what is the proper rate.
4. Make Sure Managers Handle Sick Leave Correctly
As with most laws addressing leaves, a critical piece of the Earned Sick Time Law is bringing the employee back to work. Also, discriminating or retaliating against employees for taking earned sick time or for complaining about the employer’s possible failure to comply with the law is prohibited. For instance, a manager who may be frustrated because he or she has to ask other employees to cover an employee’s last minute use of earned sick time may be tempted to take out their frustration in a performance review or in scheduling that employee for future shifts, or may push the employee to provide more information about the reason for using earned sick time than the employer may be entitled.
In some instances, employers already have policies that are more generous than what the Earned Sick Time Law requires. If you are one of those employers, keep in mind that you have until Jan. 1, 2016 to revisit your policies. This “safe harbor” applies only to those employers who had a paid sick time policy as of May 1, 2015, which allows for 30 or more hours of paid time off in the course of the 2015 calendar year. Even if the policy only applied to full-time employees, you may still fall under the “safe harbor” protections if you extend the policy to all employees or start complying with the new Earned Sick Time Law for employees who aren’t eligible for paid time off under the existing policy. Although the “safe harbor” gives additional time for employers to revisit their existing policies, every employer with Massachusetts workers should take time to review their sick time policies.