The new legislation adds to employer requirements and now provides for sick leave, increased minimum wage, domestic violence victim leave, and unemployment changes.
Paid Sick Leave
Massachusetts voters recently approved a ballot question on sick leave that will become law on July 1, 2015. Whether the sick time is paid will depend on an employer’s size. Employees who work in Massachusetts for companies with 11 or more employees will now earn one hour of paid sick time for every 30 hours worked, not to exceed 40 hours per calendar year. Employees who work for an employer with fewer than 11 employees will earn up to 40 hours of unpaid, job-protected sick time per calendar year. Employees will begin accruing hours on July 1, 2015 or on their date of hire, whichever is later. New hires will need to wait 90 days to use accrued time. The legislation specifies that all employees who perform work, whether full time, part time, or temporary, will be counted toward the total employee count.
Earned sick time may be used (1) to care for a physical or mental illness, injury, or medical condition affecting an employee or an employee’s child, spouse, parent, or spouse’s parent; (2) to attend routine medical appointments of an employee or an employee’s child, spouse, parent, or spouse’s parent; or (3) to address the effects of domestic violence on an employee or an employee’s dependent child. Employers may request certifications from employees who take sick time for more than 24 consecutive scheduled hours. The law also includes notice and carry-over requirements. Employees will be able to carry over up to 40 hours of unused sick time into the next calendar year but will be capped at using more than 40 hours in a calendar year. Additionally, employers will not be required to pay employees for unused sick time at termination.
The law vests the Attorney General with enforcement power and directs that office to promulgate regulations necessary to carry out the law’s purpose and provisions. In particular, the Attorney General is tasked with creating a notice that employers will be required to post and provide to employees, adopting regulations that address how an employer would request a certification from an employee who does not have a medical provider, and adopting regulations that address the manner in which employer size is determined. How employer size is determined will be significant because the law fails to specify whether employee totals are limited to those employed within the Commonwealth or whether the sum extends beyond the Massachusetts border.
Minimum Wage Increase
Massachusetts will have the highest minimum wage in the United States as of January 1, 2017. On June 26, 2014, Massachusetts Governor Deval Patrick signed into law a bill that will raise the current minimum wage from $8.00 per hour to $11.00 per hour over the next three years. Specifically, the minimum wage will increase to $9.00 per hour on January 1, 2015; $10.00 per hour on January 1, 2016; and $11.00 per hour on January 1, 2017.
Domestic Violence Victim Leave
On August 8, Governor Patrick signed into law a comprehensive bill reforming the Commonwealth’s domestic violence law, effective immediately. Massachusetts employers should take note that one component of the newly created Massachusetts General Laws chapter 149, section 52E, implements new leave requirements for public and private employers with 50 or more employees in Massachusetts. These employers must now allow employees to take up to 15 days of leave in any 12-month period if the employees or their family members are victims of domestic violence or abuse. Employees may use this leave to seek or obtain medical attention, counseling, victim services, or legal assistance; secure housing; obtain a protective order from a court; appear in court or before a grand jury; meet with a district attorney or other law enforcement official; attend child custody proceedings; or address other issues directly related to the abusive behavior against the employee or employee’s family member. The employer may elect to designate such leave as paid or unpaid and may require employees to furnish documentation of the domestic violence, such as a protective order, court document, police report, police witness statement, medical record, or sworn statement. Unless the employer agrees otherwise, employees must first exhaust all annual/vacation, personal, and sick leave prior to requesting leave under the law. Employers also must provide employees with notice of their rights and responsibilities under the law. Examples of proper notice include the following: inclusion in an employee handbook; an addendum to an existing employee handbook; a memorandum to employees; or letters/emails to employees. A detailed explanation of the law can be found in the Massachusetts Attorney General’s recently published advisory.
Governor Patrick also signed into law various bills affecting several unemployment statutes as part of a broad unemployment insurance reform. Notably, an amendment to Massachusetts General Laws chapter 151A, section 47, now provides retaliation protection to employees based on participation or testimony in an unemployment hearing. Effective December 25, 2014, a rebuttable presumption of employer retaliation will occur if (1) an employee participated in an unemployment proceeding by providing evidence or testifying at a hearing and (2) the employer either substantially altered the terms of employment or terminated the employee within six months after the employee’s participation in the proceeding or hearing. The presumption of retaliation may be defeated only by showing clear and convincing evidence that the employer’s actions were not a reprisal against the employee and that the employer has sufficient justification independent of the action. Under the new law, the retaliation action may be remedied through rescission of any adverse alterations in the terms of employment, reinstatement, or damages, with costs and attorney fees paid by the employer.