As indicated in a recent blog post in the Harvard Business Review, entitled “Who Has Paid Sick Leave, Who Doesn’t, and What’s Changing,” paid sick leave traditionally was a benefit that only some employers provided, and in some cases only to certain employees. In recent years, however, increasing numbers of cities and states have begun mandating that employers provide this traditionally voluntary benefit. In fact, if President Obama makes good on his promise from his State of the Union address, there will be a national standard for mandatory paid sick leave. With the fast-changing landscape of rules and regulations related to paid sick leave, in-house counsel and employers need to keep alert. In Massachusetts, for instance, voters approved a ballot measure which goes into effect on July 15, 2015. Key points of the new Massachusetts law are:Employers with 11 or more employees, including part-time and temporary employees, are required to provide paid sick time. One hour of paid sick time is earned for every 30 hours worked. Paid sick time is earned after completing 90 days of employment. There is a maximum of up to 40 hours of paid sick time to be earned each year. Employers must track earned paid sick time. Employers may require medical verification only after the employee has been absent for 24 consecutively scheduled work hours. Paid sick leave can be used for an employee’s own illness, to care for an ill family member, or attend the employee’s or employee’s family member’s medical appointments. Upon termination of employment, unused accrued paid sick time is not required to be paid out to the employee.
Additionally, for employers with fewer than 11 employees, employees are entitled to earn one hour of unpaid sick time for every 30 hours worked. The Massachusetts law also requires that paid sick time be allowed to be used for job-protected leave under the new Massachusetts domestic violence leave law, which I discussed in NFL Could Learn From New MA Domestic Violence Law.
Questions remain about the pay rate applicable for paid sick time, among other things. Although the questions are likely to be addressed by regulations, newly elected Governor Charlie Baker has placed a temporary moratorium on the issuance of any regulations, so clarity on paid sick time may not come until close to the effective date of the new law.
In-house counsel for companies with existing paid sick leave policies should carefully review the new law, even if their current policies provide more generous amounts of leave, because the accrual rate and the application to part-time and temporary employees may not be consistent with the new requirements. Further, in-house counsel and all employers should be aware of the other overlapping laws protecting medical conditions, such as whether an employee qualifies for leave under the Family and Medical Leave Act of 1993 (as amended), or an accommodation under disability discrimination laws, or for compensation under a short or long term disability insurance policy or workers compensation insurance.
Massachusetts is not the only place where paid sick leave laws have arisen. As of this writing, paid sick leave is required by law in California; Connecticut; Massachusetts; the District of Columbia; Eugene, Oregon; various cities in New Jersey; New York City; and Seattle, Washington. Many more locations have pending initiatives to require paid sick leave, but the threshold number of employees to be covered under a given sick leave law, the accrual rates for paid sick time, the reasons for using paid sick time, and who is considered a “family member” for using paid sick time can vary so widely. The National Partnership for Women & Families has a helpful chart on state and local action related to paid sick leave. Because paid sick leave requirements vary widely from location to location, in-house counsel and all employers should be aware of the paid sick leave laws that affect their own workforce, especially if that workforce is in several states and cities.