Voters Approved a Ballot Measure Granting Workers Up to 40 Hours of Sick Leave Annually

HIGHLIGHTS:

  • Workers in Massachusetts will soon have the statutory right to earn and use up to 40 hours of sick time per calendar year. The effective date of the new law is July 1, 2015.
  • The new law is exceptionally broad, covering both public and private employers and all employees, whether full-time, part-time, temporary or seasonal. Employers should take steps now to ensure that their policies and practices comply with the new law.

With the approval of ballot Question 4 in the election on Nov. 4, 2014, workers in Massachusetts will soon have the statutory right to earn and use up to 40 hours of sick time per calendar year. The effective date of the new law is July 1, 2015.

New Law Applies to All Employers and Employees

The new law is exceptionally broad, covering both public and private employers and all employees, whether full-time, part-time, temporary or seasonal. Employers with 11 or more employees must provide paid sick time to their employees. For employers with 10 or fewer employees, earned sick time can be unpaid.

Employees can use earned sick time if they are required to miss work for any of the following reasons:

  • to care for a physical or mental illness, injury or medical condition affecting the employee or the employee's child, spouse, parent, or parent of a spouse
  • to attend to routine medical appointments of the employee or the employee's child, spouse, parent, or parent of a spouse
  • to address the effects of domestic violence on the employee or the employee's dependent child

How It Works: Earning, Paying and Certifying Sick Leave

Employees earn one hour of sick time for every 30 hours worked, beginning on the effective date of the legislation, July 1, 2015. Employees can start using earned sick time after 90 days of employment. Employees are required to make a good faith effort to provide advance notice of the need to use earned sick time, whenever possible.

If earned sick time is paid, it must be paid at the employee's normal hourly rate. Employees are entitled to carry over to the next calendar year up to 40 hours of unused, earned sick time; however, they are not permitted to use more than 40 hours of earned sick time in any given calendar year. Employers are not required to pay out earned, unused sick time upon an employee's termination.

Employers may require certification from an employee of the need to use sick time if the employee has used earned sick time for more than 24 consecutively scheduled work hours. What is unclear, however, is what action employers can take if the employee fails to provide the requested certification. The law expressly prohibits employers from delaying earned sick leave or withholding compensation during paid sick leave while awaiting certification.

Enforcement

Employers are prohibited from interfering with an employee's use of earned sick time or from retaliating against an employee for using earned sick time or supporting the rights of other employees to use earned sick time. The attorney general is empowered to enforce the new law, using the same enforcement procedures applicable under the Commonwealth's wage and hour laws. Employees are also afforded a private right of action to enforce their rights in court.

Unanswered Questions

The sick leave law raises many questions for the new attorney general to address in 2015 with guidance or regulations. These questions include the following:

  • What notice must employers post regarding the right to earned sick leave?
  • How does the law apply to businesses with workforces that fluctuate above and below the 11 employee threshold during the course of the year?
  • Must employers provide paid sick leave to Massachusetts workers if they have more than 11 employees in total, but fewer than 11 employees in Massachusetts?
  • How is paid sick leave calculated when the employees are paid mostly by commissions or tips?
  • What actions may employers take when an employee fails to submit a requested certification or in cases involving chronic tardiness?

Steps Employers Should Take Now

Employers should take steps now to ensure that their policies and practices comply with the new law as of July 1, 2015:

  • Revise policies to provide all Massachusetts employees with at least 40 hours of sick leave. Employers currently offering 40 or more hours of paid time off per year are not required to offer additional sick leave, provided that their policies allow employees to take paid time off for the same reasons listed in the new law.
  • Revise policies and practices to account for the accrual, usage, certification and carryover of earned sick time.
  • Look for guidance and regulations from the attorney general in 2015. In the meantime, employers are well-advised to seek legal counsel regarding application of the new law to their Massachusetts employees.