On June 10, 2015, the Massachusetts Attorney General issued a Notice of Employee Rights (the "Notice") under the Commonwealth's new earned sick leave law, as well as a document clarifying the scope of the "safe harbor" exemption to that law.
The Notice must be posted in the workplace and distributed to employees. The wording of the Notice differs in a number of ways from the content of the regulations the Attorney General previously proposed, and includes some welcome language for employers concerned about the potential for employee abuse of their rights under the new law.
First, the Notice states that the smallest increment of sick leave that can be used is one hour. Second, the Notice warns employees that sick leave cannot be used as an excuse to be late for work without advance notice of a proper use, and except in an emergency, employees must notify their employer before using sick leave. Third, the Notice addresses employer concerns that employees might fraudulently use sick time after submitting a resignation notice. Specifically, the Notice states that employers may request certification from a health care provider for any use of sick leave within an employee's last two weeks of work. It is unclear whether these specific issues will be addressed with more specificity in the final version of the regulations, which are expected to be issued late next week.
The Attorney General also released a statement clarifying the scope of the previously issued safe harbor regulation. Under the safe harbor, employers with paid time off ("PTO") policies, including sick, personal, vacation, and/or combined PTO policies, that were in place as of May 1, 2015 and provide employees the right to use at least 30 hours of paid time off during calendar year 2015, are deemed to be in compliance with the new law from July 1, 2015 through December 31, 2015, even though they might not technically satisfy all of the requirements imposed by the new law. Employers with such existing policies for only some employees must expand coverage to all employees in order to qualify for the safe harbor.
In response to questions and comments from the public, the Attorney General clarified that to qualify for the safe harbor, an employer may extend coverage by ensuring that employees to whom the policy is extended accrue paid time off at the same rate of accrual as employees covered prior to July 1, 2015. Alternatively, employers who provide a lump sum of paid time off may halve the amount of paid time off and/or pro-rate the lump sum for employees working less than full time. For employees who are not paid on a salaried or hourly basis, an employer should approximate the number of hours worked to determine the proper lump sum. Importantly, although the "safe harbor" provision affords qualifying employers additional time within which to comply with the earned sick leave law, paid time off must be available for all covered purposes, on a job-protected basis, subject to the law's non-retaliation and non-interference provisions. The clarification also states that unused time must be available for carry-over into 2016. Employers that are eligible for the "safe harbor" must adjust their paid time off policies to comply with the new law on or before January 1, 2016.
As noted above, the Massachusetts Attorney General is expected to issue revised, final regulations concerning the earned sick leave law at the end of next week. We will provide additional information after those regulations are issued. In the meantime, employers with questions about the applicability and implementation of the Massachusetts earned sick leave law should consult with experienced employment counsel.