Attorney General's Office Releases Final Regulations That Clarify Earned Sick Leave Policies

HIGHLIGHTS:

  • The new Massachusetts Earned Sick Time Law outlines regulations that govern sick time accrual and use as it relates to student workers and faculty.
  • The final regulations exempt most student workers from coverage under the law. Therefore, in most cases, Massachusetts-based higher education institutions are not required to provide their student workers with paid sick time benefits.
  • Under the law, all full-time, part-time and adjunct faculty are entitled to earn and accrue paid sick leave.

The Massachusetts Earned Sick Time Law (M.G.L. ch. 149, §148C), takes effect today, July 1, 2015. In broad terms, the law obligates covered Massachusetts employers to provide certain paid sick leave benefits to covered employees. A summary of the law’s general coverage may be accessed here: Massachusetts Voters Approve New Sick Leave Law.

In an effort to promote employer compliance with the law, the Massachusetts attorney general has published final regulations that clarify relevant standards and set specific enforcement rules under the law. The Final Regulations, issued on June 19, 2015, carry the force of law, and compliance is required. See Holland & Knight's alert, "Attorney General Provides Final Regulations for Massachusetts Earned Sick Time Law," June 30, 2015, for a summary of the final regulations.

Of particular note for higher education institutions are provisions of the final regulations that govern the treatment of student workers and faculty under the law. Those rules are discussed below.

Student Workers

The final regulations exempt most student workers from coverage under the law. In other words, in most cases, Massachusetts-based higher education institutions are not required to provide their student workers with paid sick time benefits.

For purposes of this rule, an "exempt" student worker is defined as any student who is enrolled at, and who performs work for, a Massachusetts-based college or university, and who:

  • participates in a federal work-study program or similar financial aid or scholarship program
  • provides support services to residents of a residence hall, dormitory or other residence operated by the institution (i.e., a resident advisor or resident assistant) in exchange for a waiver or reduction of room, board, tuition or other education-related expenses
  • performs work while concurrently enrolled in classes and is exempt from the Federal Insurance Contributions Law (FICA) tax under applicable IRS standards

As such, most traditional student workers, work study students, student resident advisors and students working on campus while enrolled in classes are not entitled to paid sick leave benefits under the law.

It should be noted, however, that not all student workers fit neatly into the three-part definition provided in the final regulations. For instance, a student who works for her college during the summer, without being enrolled in summer classes, may not fit the criteria for the student worker exemption. Accordingly, that student worker might be entitled to accrue paid sick leave during her summer job.

Given the complexity of the final regulation on this point, and the penalties for non-compliance, we recommend that higher education institutions seek legal advice if there is any question as to whether a student worker is exempt from the law.

Faculty

Under the law, all full-time, part-time and adjunct faculty are entitled to earn and accrue paid sick leave, at a rate of one hour of paid sick leave for every 30 hours worked. The benefit is capped at 40 hours of paid sick leave per benefit year.

The final regulations recognize that faculty are generally not compensated on an hourly basis and provide the following accrual methods specifically for faculty:

  • Regular faculty are assumed to work 40 hours in each work week for purposes of earned paid sick time accrual, unless their jobs specify a lower number of hours per week, such as salaried part-time faculty. In such cases, earned sick time shall accrue based on that specified number of hours per week.
  • Adjunct faculty who are compensated on a fee-for-service or "per course" basis are assumed to work three hours for each "classroom hour worked." In other words, an adjunct faculty member earns and accrues one hour of paid sick leave for every 10 hours of classroom work.

There may be some faculty who do not fit neatly into the standards set forth in the final regulations. It is recommended that higher education institutions seek legal counsel if there are questions concerning the accrual of paid sick leave benefits for faculty.