Massachusetts Earned Sick Time Law Mass. Gen. Law chapter 149, §148C James F. Grosso, Esq. Miranda S. Jones, Esq. O’Reilly, Grosso & Gross, P.C.

When does the law go into effect? July 1, 2015 Safe Harbor Provision Employers with comparable policy in effect as of May 1, 2015, deemed in compliance until January 1, 2016

What Can Sick Time Be Used For? Time used to care for employee, his spouse, child, parent or parent of spouse For physical or mental illness, injury or medical condition that requires home care, professional medical diagnosis or care, preventative medical care, or routine medical appointment Or to address psychological, physical or legal effects of domestic violence

Who is entitled to sick time? All employees whose primary work place is the Commonwealth of Massachusetts Full-time, part-time, seasonal and temporary employees An employee is any person who performs services for an employer for wage, remuneration, or other compensation (excluding employees of cities & towns and federal employees)

Primary Place of Work Employee may accrue and use earned sick time if the employee’s primary place of work is in Massachusetts Employee need not work more than 50% of time in Massachusetts for a single employer for Massachusetts to be his primary place of work If eligible, then all of employee’s hours, including work performed outside Massachusetts, are counted toward earned sick time Eligible employees permanently transferred to another state with same employer will no longer accrue but may use accrued time.

Which employers must pay for earned sick time? Only employers employing an average of 11 (eleven) or more employees on the payroll during the preceding year An employer’s total number of employees includes full- and part-time, seasonal and temporary* employees, regardless of where employees work Employer must provide 30 day advance written notice if sick time changes from paid to unpaid due to change in size of employer Employees of a temporary agency are counted towards the 11 employee limit even though they also count toward the limit for the temp agency.

Regular Hourly Rate The wages the employee would have been paid for the hours absent Or a blended rate if employee works at more than one rate Excludes: Benefits under FLSA 29 USC § 297(e) – health, welfare, pension or any employee benefit plan Overtime, holiday pay or premium rates But where a differential rate is the regular rate of pay, that differential rate is not considered a premium rate. Commissions, drawing accounts, bonuses, or other incentive pay. Must be paid on same schedule as regular wages Shift premiums are not considered a “premium rate” and must be paid for the sick time taken.

How is sick time earned? Employer must provide a minimum of 1 hour of earned sick time for every 30 hours actually worked Employee begins accruing sick time on first date of hire or on July 1, 2015 (which ever date is later) Employee is eligible to use accrued sick time 90 calendar days after first date of hire, regardless how many days he actually worked for employer* By mutual written agreement, employer may arrange for employee to use earned sick time before it is accrued and for employer to count the use against future accrual Any employee on your payroll on or before April 1, 2015 can begin accruing and taking earned sick time in July.

Accrual of Sick Time All employees may use up to 40 hours of sick time per benefit year All employees may carry over up to 40 hours of unused sick time to the next benefit year Once employee accrues 40 hours of sick time for the benefit year, he does not continue to accrue additional sick time regardless of additional hours worked At end of benefit year, employee may roll over up to 40 hours of unused sick time into next benefit year

Break In Service Up to 4 months, employee may use any unused earned sick time accrued before the break in service, upon his return. Between 4 and 12 months, employee may use earned sick time accrued before break if the employee’s unused bank equals or exceeds 10 hours. Following 12 month break in service, employee may not use earned sick time accrued before break but retains right to use sick time earned and accrued upon his return. Employers may, but are not required to, pay out unused sick time upon employee’s departure from employment.

Use of Sick Time Employee may not use sick time if employee is not scheduled to work Smallest amount allowed is one hour Sick time may not be invoked as an excuse to be late for work without an authorized purpose Employee may not accept a specific shift assignment with the intention of calling out sick for all or part of shift Where employer is required to hire replacement to cover employee using sick time, employer may require employee using sick time to use up to a full shift of sick time hours

How to track sick time? Employers may track accrual at a rate of one hour of earned sick time for 30 hours worked or any equivalent accrual rate with smaller increments of time By mutual consent, if employee works equivalent number of additional hours/shifts as he took for sick time, during same or next pay period, employee shall not be required to use accrued sick time and employer is not required to pay for the time absent.

Notice of Use of Sick Time Employee must notify employer before using sick time, except in case of emergency For foreseeable or planned use of sick time, employer may have written policy requiring up to 7 days’ notice, except where employee learns of need for use of sick time within shorter time frame Reasonable notice for unforeseeable absences depends on circumstances For multi-day absences, employer may require notification of expected duration of absence, unless circumstances make notice unreasonable

Documentation – When? An employer may require written documentation when length of earned sick time period: Exceeds 24 consecutively-scheduled work hours Exceeds 3 consecutive days of scheduled work Occurs within 2 weeks prior to employee’s final scheduled day Occurs after 4 unforeseeable or undocumented absences within 3 months For employee under 17, occurs after 3 unforeseeable absences within 3 months Employer may not delay taking of sick time or delay pay on the basis that employer has not received documentation

Documentation – Type Documentation can be any reasonable document signed by a health care provider indicating the need for sick time, except: In circumstances of domestic violence, permissible documentation can be any type allowed under M.G.L. c. 151A(1)(g1/2). Employer may not require employee to explain nature of absence Documentation may be submitted in hand or by any reasonable method Employer may require employee to personally verify sick time use

Documentation – Employer Recourse Employee must submit documentation required within 7 days of taking sick time If employee fails to provide documentation without reasonable justification, employer may recoup from future pay as an overpayment or may deny the future use of an equivalent number of hours of accrued sick time until documentation is provided Employer may require a fitness-for-duty certification if such certification is customarily required and consistent with industry practice, safety practice and reasonable safety concerns exist regarding employee’s ability to perform duties

Employee Discipline If employee is committing fraud or abuse by engaging in activity that is not consistent with allowable purposes, employer may discipline If employee is exhibiting clear pattern of taking leave on days just before or after weekend, vacation or holiday, employer may discipline, unless employee provides verification of authorized use

Retaliation/Non-interference It is unlawful for an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under the law, including using the taking of earned sick time as a negative factor in any employment action It is unlawful for an employer to take any adverse action against an employee because the employee opposes practices which the employee believes to be in violation of the law or because employee supports the exercise of rights of another employee under the law Section 33.08(3) in the AG regulations lists examples of prohibited adverse employment actions

Record Keeping and Disclosure Employer must keep true and accurate records of accrual and use of earned sick time, unless: Employer has comparable paid time off policy Maintain records for 3 years Upon employee’s demand, employer must provide records within 10 business days Employers must post notice of law in conspicuous place in every location employees work Employer must provide hard or electronic notice to all employees

Allowable Substitute Policies Employers may have alternate sick, vacation or paid time off policy so long as all employees can use at least the same amount of time, for the same purposes, under same protections and conditions as the Earned Sick Time Law Employers that provide a lump sum of 40 hours or more at the beginning of the year, or have an unlimited sick time policy, do not have to track accrual or allow any rollover

Penalties for Violations Under M.G.L. c. 149, §27C(b) Fines 1st violation – Lacking specific intent - not more than $7500 With specific intent – not more than $15K Subsequent violations – not more than $25K Each pay period constitutes a violation Restitution (wages owed) Right to Appeal to administrative hearing before Division of Administrative Law Appeals (DALA) Failure to pay citation timely or after unfavorable DALA adjudication may result in criminal sanctions under MGL c. 149, §27C(a)

Private Right of Action Under M.G.L. c. 149, §150 Employee may file private civil lawsuit against employer If employee prevails, employee entitled to: Mandatory treble damages Reasonable attorney’s fees Costs of litigation

Collective Bargaining Agreements Earned Sick Time Law does not diminish or impair obligations under a collective bargaining agreement or employment benefit program that creates greater earned sick time rights Union employee can file grievance under his respective CBA Contractors signatory to CBA’s can be subject to arbitration procedure, in addition to Attorney General enforcement action(s) and/or a private right of action

Contact Information for Questions Jim Grosso – (508)620-0055 jgrosso@ogglaw.com Miranda Jones – (508)620-0055 mjones@ogglaw.com Attorney General’s Office – AAG Mike Firestone - (617)963-2027 earnedsicktime@state.ma.us http://www.mass.gov/ago/doing-business-in-massachusetts/labor- laws-and-public-construction/earned-sick-time/