On July 1, 2015, the Massachusetts Earned Sick Time law, M.G.L. c. 149, § 148C, goes into effect. The law, previously discussed here, requires employers to provide employees with sick time benefits. In preparation for the law going into effect on July 1, many employers began revising or creating their sick time policies based on the proposed regulations that had been issued by the Massachusetts Attorney General. The final regulations, issued on June 19, are unlikely to require significant changes to employer’s policies, but the final regulations do make some clarifications and provide additional guidance regarding the implementation of the law. Here is what employers should know about the final regulations:
Interaction with State and Federal Leave Laws: The proposed regulations provided that the time off provided under M.G.L. c. 149, § 148C was in addition to time off provided by other federal and Massachusetts leave laws. However, the final regulations state that time off under § 148C may run concurrently with other leave laws. Employees may choose to use, or employers may require employees to use, paid sick time under § 148C if leave under another Massachusetts law or federal law would otherwise be unpaid.
Who is an “Employee”: The final regulations add a number of exceptions to the definition of who is an employee under M.G.L. c. 149, § 148C. The following individuals are not employees covered by § 148C:
- An employee of the United States government;
- An employee of a city or town;
- An employee of a local public employer, such as a school committee;
- A student attending an institution of higher education in Massachusetts who is: o Participating in federal work study, or a substantially similar program; o Providing services to residents of a student residence; or o Exempt from FICA;
- A school-aged students under the Individuals with Disabilities Education Act (IDEA); and
- An adult client who resides in a Massachusetts licensed program and performs work duties within the program setting as part of bona fide educational or vocational training.
What is an Employee’s Same Hourly Rate: The final regulations provide significant detail regarding how the hourly rate of different types of employees is calculated. The regulations clarify how to calculate the hourly rate of employees who receive different pay rates for hourly work from the same employer, salaried employees, employees who perform piece work, employees paid on commission, and tipped employees.
Employees Permanently Transferred to Another State: The final regulations provide that when an employee is permanently transferred to work in another state but remains with the same employer, the employee will no longer accrue earned sick time under M.G.L. c. 149, § 148C, but may use any accrued time.
Rollover of Earned Sick Time: Under the final regulations, at the end of the benefit year, employees are allowed to rollover up to 40 hours of unused earned sick time to the next benefit year.
Limits on Employees’ Use of Sick Time: The final regulations specify several instances for which employees may not use earned 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;
- An employee may not invoke earned sick time as an excuse for being late to work without an unauthorized purpose;
- An employee may not accept a specific shift assignment with the intention of calling out sick for all or part of the shift;
- If an employee is committing fraud or abuse by engaging in an activity that is not consistent with allowable purposes for earned sick time under M.G.L. c. 149, § 148C, an employer may discipline the employee for misuse of sick leave.
Frontloading Unpaid Sick Time for Employers Who Pay Out Unused Earned Sick Time: Employers are not required to pay employees for unused accrued sick time at the end of the benefit year. However, the final regulations added a provision for employers who do pay out sick time at the end of the year instead of allowing employees to rollover any unused hours that they have accrued. If an employer pays out employees for 16 hours or more of unused sick time, the employer is required to frontload the employee with 16 hours of unpaid sick time at the beginning of the benefit year; the 16 hours of unpaid time is then replaced with paid sick time as it accrues. If the employer pays out employees for 16 hours or less of unused sick time, the employer must frontload the employee with unpaid sick time equivalent to the amount paid out; the frontloaded unpaid time is replaced with sick time as it accrues.
Use of Accrued Time for Employees who Have a Break In Service: The proposed regulations provided that employees who have a break in service of up to one year have the right to use any accrued time upon return to work. The final regulations are changed to provide that an employee who has a break in service of 4 to 12 months may only use accrued, unused sick time if the employee’s accrued time equals or exceeds 10 hours.
Safe Harbor for Employers with Existing Time Off Policies: The final regulations provide that employers with an earned time off policy in existence on May 1, 2015 are deemed to be in compliance with M.G.L. c. 149, § 148C until January 1, 2016 if the following conditions are met:
- Full-time employees have the right to earn and use at least 30 hours of paid time off between January 1, 2015 and December 31, 2015;
- On and after July 1, 2015, all employees not previously covered by the policy either: o Accrue paid time off at the same rate of accrual as full-time employees; or o Receive a pro rated lump sum allocation of paid time off based on the paid time off allocated to full-time employees;
- The paid time off is subject to the anti-retaliation provisions of M.G.L. c. 149, § 148C, is available for the allowed purposes of leave under § 148C, and may be rolled over after January 1, 2016 if it is not used before the end of 2015.
Documentation of Use of Earned Sick Time: The proposed regulations provided that an employer may request a written certification that use of earned sick time was for an authorized purpose when an employee is absent for more than 24 consecutive work hours. The final regulations add additional instances when an employer may require written certification:
- When an employee’s absences exceed 3 consecutive days on which the employee was scheduled to work;
- The absence occurs within 2 weeks prior to an employee’s final scheduled day of work before termination of employment;
- The absence occurs after 4 unforeseeable and undocumented absences within a 3 month period; or
- For an employee aged 17 and under, the absence occurs after 3 unforeseeable and undocumented absences within a 3 month period.
Additionally, health care providers and employers performing essential health and safety functions may require certification in other circumstances.
Time for Submitting Documentation of Use of Earned Sick Time: The proposed regulations provided that an employee had 30 days to submit documentation or certification of the need to use earned sick time. The final regulations provide that the documentation or certification must be submitted within 7 days. If the employee fails to submit the documentation in the required time without a reasonable justification, the employer may recoup the sum paid for the earned sick time from future pay.