In November 2014, Massachusetts voters made paid sick leave mandatory for most employers through a ballot initiative, now known as the Earned Sick Time Law. While voters made clear that they favor the idea of paid sick leave, the language of the law posed many problems for Massachusetts employers, and particularly those which already have sophisticated leave policies in place. The Massachusetts Attorney General’s Office has now issued proposed regulations that, if enacted, will provide some clarity for employers, but ultimately leave certain questions unanswered.

The new law was primarily intended to ensure hourly wage and part-time workers – and particularly those in the food services industry – could take sick leave to protect the health and safety of their coworkers and customers. Now, however, it imposes far-reaching obligations on nearly all Massachusetts employers. Effective July 1, 2015, the new law requires employers with 11 or more employees to allow employees to accrue one hour of paid sick leave for every 30 hours worked. Employers with fewer employees must provide unpaid leave that accrues at the same statutory rate. The statute lacks guidance on several issues, however, including who qualifies as an employer and/or an employee, how to calculate sick time pay for certain workers, how the new law interacts with other leave laws, and how the law affects employers’ policies designed to prevent abuse of paid leave.

Recognizing the concerns created by the Earned Sick Time Law, the Massachusetts Attorney General’s Office proposed regulations on Friday, April 24 to clarify many of its confusing provisions and provide much-needed guidance for areas the statute fails to address. For example, the new law requires that workers be paid their “same hourly rate” when taking earned sick leave, but fails to explain how employers should calculate the sick leave pay rate for employees who are not paid by the hour. The proposed regulations clarify that, for employees paid on a piece work basis, salary, or any other fee basis, employers should calculate their sick pay by dividing the employees total earnings in the previous pay period by the total hours worked during the previous pay period, excluding overtime.

The proposed regulations also address the increments by which an employee may take sick leave. While the statute provides that sick leave can be taken in the smallest increment allowed by the employer’s payroll system, the regulations explain that an employer may require an employee to use up to a full shift of earned sick time when the employee’s absence requires the employer to hire a replacement (and, of course, the employer actually does so). This clarification provides a small break to employers and may help to deter potential abuse, such as employees attempting to use a few hours of sick time on a Friday to extend their weekend.

The regulations still leave questions for employers, however. For example, the regulations provide no further guidance on how the new law applies to collective bargaining agreements. Employers may have to renegotiate certain provisions of collective bargaining agreements with unionized employees in place if they do not meet the law’s requirements. Further, while the regulations provide an employer may discipline an employee for sick leave misuse, the statute limits an employer’s ability to request documentation for an absence. The regulations do not clearly explain how an employer can lawfully identify abuse.

Other notable components of the proposed regulations include the following:

  • Earned sick leave must be provided in addition to leave provided by FMLA, the Massachusetts Parental Leave Act, the Massachusetts Domestic Violence Leave Act (another new state leave law), and the Small Necessities Leave Act.
  • The regulations also clarify who qualifies as a Massachusetts employee. To be eligible for earned sick time, an employee’s primary place of work must be in Massachusetts, although the employee does not have to spend more than 50% of their working time in Massachusetts. For example, if 40% of the employee’s work is in Massachusetts, 30% in New Hampshire, and 30% in other states, Massachusetts is the primary place of work.
  • To calculate whether an employer has 11 or more employees, all employees must be counted, including those outside of Massachusetts. This means that an employer with 10 employees in New Hampshire and one in Massachusetts must provide the Massachusetts employee with paid sick leave, rather than unpaid leave.
  • Employees who take a sabbatical or break in service up to one year maintain the right to use their accrued sick time upon their return to work.
  • Employers and employees may agree for the employee to “make up” their missed hours to avoid use of paid sick time, subject to federal wage and hour laws.
  • Attendance incentive policies that reward employees for good attendance are permissible under the new law, and an employee’s inability to earn a reward because of earned sick time use is not an “adverse action.”
  • Recognizing that this new law goes into effect in the middle of many employers’ fiscal and/or calendar years, the regulations contain guidance for calculating earned sick leave during the 2015 “transition year.”

The Attorney General’s office will hold six public hearings throughout May and June at which comments on the proposed regulations can be made, and will also accept written public comments until June 10, 2015.