Massachusetts AG Issues Long-Awaited Final Earned Sick Time Regulations

Last November, 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. Under the new law, 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.

Final Earned Sick Time Regulations

On June 19, 2015, the Massachusetts Attorney General issued the long-awaited Final Earned Sick Time Regulations, 940 CMR 33.00 et seq., which can be accessed here.

The Final Regulations contain a number of revisions and clarifications of earlier proposed versions, including:

  • Employers may require employees to use earned paid sick time to receive pay when taking other authorized leave that would otherwise be unpaid, such as FMLA leave or Massachusetts Parental Leave.
  • Employees can use earned sick time for travel to and from an appointment, a pharmacy, or other location related to the purpose for which the time was taken.
  • Further clarification on breaks in service relative to the use of accrued sick time and vesting periods.
  • The circumstances under which an employer can require documentation in support of an employee’s use of earned sick time have been expanded. For example, an employer can require documentation if an employee takes earned sick time within 2 weeks of the employee’s last day of employment.
  • Employees must submit requested documentation related to the use of earned sick time within 7 days after the earned sick time is taken, unless they demonstrate good cause for not doing so. (The earlier proposed regulations had a 30-day timeframe for producing documentation.)
  • If an employee fails to provide the required documentation related to the use of earned sick time without reasonable justification, the employer may recoup the earned sick time paid to the employee from future pay, as an overpayment. However, employers must put employees on notice of this practice.

Safe Harbor for Employees with Existing Paid Time Off Policies

The Attorney General has created a “Safe Harbor” for qualifying employers to help them comply with the new law. Under the Safe Harbor provision, employers with a paid time-off or sick leave policy that has been in existence since at least May 1, 2015 do not have to implement a new sick time policy, provided the existing policy provides for sick time comparable to that required under the new law. Employers that qualify under the Safe Harbor have until January 1, 2016 to bring their PTO/sick time policies into full compliance with the earned sick time law. In addition to the Final Regulations, information about the Safe Harbor can be found here.

Notice Obligations

On or before July 1, employers are required to post the Attorney General’s notice regarding Earned Sick Time in a conspicuous place accessible to employees in every location where eligible employees work. The required notice can be accessed here. Employers are also required to provide a hard copy or electronic copy of this notice to all eligible employees or include the employer’s earned sick time policy in any employee handbook.

Next Steps

  1. No later than July 1, 2015, employers should determine whether they can rely on the Safe Harbor through December 31, 2015, or whether they need to update their paid time off policies. Employers that qualify for the Safe Harbor need to ensure that their paid time off policies are fully compliant with the Earned Sick Time Law by January 1, 2016.
  1. No later than July 1, 2015, employers should post the AG’s workplace notice and either distribute copies of the notice or include their relevant paid time off policies in their employee handbook.
  1. Employers need to ensure that their revised paid time off policies are consistent with their related policies including, but not limited to, attendance, tardiness, and call-in procedures.

The attorneys at Beck Reed Riden are available to assist businesses in complying with the new Earned Sick Time Law.

Authored by Shannon Lynch.

DOL Issues Updated FMLA Forms

The U.S. Department of Labor (the “DOL”) recently issued new forms for use when an employee requests or has need for leave under the Family and Medical Leave Act (the “FMLA”). Employers can access the forms on the DOL website or at the links below.

The most significant change to the FMLA forms is the inclusion of safe-harbor language in the requests for medical information to ensure compliance with the restrictions under the Genetic Information Nondiscrimination Act of 2008. The new safe-harbor language is as follows, “[d]o not provide information about genetic tests, as defined in 29 C.F.R. § 1635.3(f), genetic services, as defined in 29 C.F.R. § 1635.3(e), or the manifestation of disease or disorder in the employee’s family members, 29 C.F.R. § 1635.3(b).”

Employers are not required to use the DOL forms as long as they do not request more information than allowed under the FMLA regulations. However, many employers prefer the convenience of the DOL standard forms, and now those employers will not have the additional burden of adding GINA safe-harbor language to DOL forms and/or cover letters.