New Mandatory Sick Time for Mass. Employees

Last week, Massachusetts voters approved Ballot Question Four, which amends the Massachusetts Wage Act and creates new mandatory sick time for Massachusetts employees. Beginning July 1, 2015, private employers must allow their Massachusetts employees to earn and use up to 40 hours of sick time per calendar year.

Whether the sick leave is paid or unpaid depends on the size of the employer. Employers with 11 or more employees must provide paid sick leave, while employers with ten or fewer employees must provide unpaid sick leave. Full-time, part-time, and temporary employees all count toward the 11-employee threshold. Unfortunately, the new law does not specify whether employees who work outside of Massachusetts should be included in the employee count.

Under the new law, sick time is to be earned at the rate of a minimum of one hour for every 30 hours worked, up to 40 hours per calendar year. For purposes of accrual, employees exempt from overtime under the Fair Labor Standards Act will be presumed to work 40 hours per week unless their normal workweek is less than 40 hours. Employees may only begin to use the accrued sick time after 90 days of employment. Employees may carry over up to 40 hours of earned sick time into the next calendar year, but may not use more than 40 hours of sick time in a given calendar year. Importantly, employers are not required to pay out earned, unused sick time upon termination of employment.

Employees may use earned sick time to: 1) care for the employee’s child, spouse, parent, or parent of a spouse with a physical or mental illness; 2) care for the employee’s own physical or mental illness; 3) attend routine medical appointments for the employee or the employee’s child, spouse, parent, or parent of a spouse; or 4) address the psychological, physical, or legal effects of domestic violence.

If the use of earned sick time is foreseeable, an employee must give his or her employer advance notice of it. An employer may require an employee to provide written certification from a relevant health care provider if the employee uses more than 24 consecutive scheduled work hours of sick time. However, the employer is not permitted to delay the employee’s use of earned sick time or delay paying for the period in which earned sick time was taken based on the employee’s failure to provide certification for the absence.

The Massachusetts Attorney General will enforce this new law, which also prohibits employers from interfering with an employee’s right to earn or use sick time and retaliating against an employee for supporting another employee’s exercise of such rights. Aggrieved employees can, after filing a complaint with the Attorney General, bring a private right of action in court for sick time violations. Complying with the new law is important because failure to do so entitles employees to mandatory treble damages, litigation costs, and attorneys’ fees for proven violations.

An employer with paid time-off policies equivalent to, or more generous than, those required under the new sick time law are not obligated to change their existing policies and/or provide additional paid sick time. However, in advance of the July 1, 2015 effective date, employers with Massachusetts employees should: ensure that they have the proper procedures in place to calculate, monitor, and document the accrual, use, and carry over of sick time; carefully evaluate and, if necessary, update their relevant paid time-off policies for compliance with the new law; and provide corresponding training to their managers and HR staff.

Authored by Shannon Lynch with help from Stephanie Cipolla and Faith Hill.