1. SouthCoast Human Resources Council HOW TO COMPLY: LEAVE LAWS Jenifer M. Pinkham, Esq. Schlossberg, LLC 35 Braintree Hill Office, Suite 401 Braintree, MA 02184 781-848-5028 jpinkham@sabusinesslaw.com jpinkham@sabusinesslaw.com

2. LEAVE Parental Leave Parental Leave Domestic Violence Leave Domestic Violence Leave Sick Leave Sick Leave FMLA FMLA SNLA SNLA Military Leave Military Leave Civic Duty Leave Civic Duty Leave

3. PARENTAL LEAVE – NEW LAW Massachusetts Maternity Leave Act, M.G.L. c. 149, Section 105D IS Massachusetts Maternity Leave Act, M.G.L. c. 149, Section 105D IS NOW EXPANDED – in effect APRIL 7, 2015! Gender neutral - Both men and women are entitled to parental leave Gender neutral - Both men and women are entitled to parental leave Employer eligibility – law applies to employers with six or more employees Employer eligibility – law applies to employers with six or more employees Employee eligibility - only applies to employees who complete an initial probationary period set by the terms of employment, but which is not greater than 3 months Employee eligibility - only applies to employees who complete an initial probationary period set by the terms of employment, but which is not greater than 3 months Eight weeks - Up to eight weeks of parental leave – birth or adoption of a child under the age of 18 or under the age of 23 if the child is mentally or physically disabled Eight weeks - Up to eight weeks of parental leave – birth or adoption of a child under the age of 18 or under the age of 23 if the child is mentally or physically disabled Birth or adoption = same benefits Birth or adoption = same benefits Two employees/same employer - entitled to an aggregate of 8 weeks Two employees/same employer - entitled to an aggregate of 8 weeks 2 weeks notice - The law clarifies that an employee seeking leave must provide at least 2 weeks’ notice of the anticipated date of departure and the employee’s intention to return, but also permits the employee to provide notice as soon as practicable if the delay is for reasons beyond the employee’s control 2 weeks notice - The law clarifies that an employee seeking leave must provide at least 2 weeks’ notice of the anticipated date of departure and the employee’s intention to return, but also permits the employee to provide notice as soon as practicable if the delay is for reasons beyond the employee’s control

4. PARENTAL LEAVE (continued) With or without pay at the discretion of the employer With or without pay at the discretion of the employer Twins – considered two births – 16 weeks Twins – considered two births – 16 weeks Pregnancy = temporary disability Pregnancy = temporary disability Upon return, he or she must be restored to original position or similar one with same pay, benefits and seniority Upon return, he or she must be restored to original position or similar one with same pay, benefits and seniority Termination while on leave - If the employer provides longer than 8 weeks, the employer must reinstate the employee at the end of the extended leave unless it clearly informs the employee in writing before the leave and before any extension of that leave, that taking longer than 8 weeks of leave shall result in the denial of reinstatement or the loss of other rights and benefits Termination while on leave - If the employer provides longer than 8 weeks, the employer must reinstate the employee at the end of the extended leave unless it clearly informs the employee in writing before the leave and before any extension of that leave, that taking longer than 8 weeks of leave shall result in the denial of reinstatement or the loss of other rights and benefits The new law expands the notice requirements, mandating that employers keep a posting in a conspicuous place describing the law’s requirements and the employer’s policies as to parental leave The new law expands the notice requirements, mandating that employers keep a posting in a conspicuous place describing the law’s requirements and the employer’s policies as to parental leave

5. Maternity/Paternity Leave under the Family Medical Leave Act (FMLA) Federal Law Federal Law Employers with 50 or more employees Employers with 50 or more employees Employee is entitled to twelve (12) weeks of unpaid leave for birth or adoption of son or daughter Employee is entitled to twelve (12) weeks of unpaid leave for birth or adoption of son or daughter Applies to both female and male employees Applies to both female and male employees A husband and wife who work for the same employer are likely limited to 12 weeks in total A husband and wife who work for the same employer are likely limited to 12 weeks in total Twins – 12 weeks only Twins – 12 weeks only

6. Massachusetts Sick Leave Employees of an employer of 11 or more employees are entitled to earn and use up to 40 hours of paid sick time per calendar year. Employees of an employer of 11 or more employees are entitled to earn and use up to 40 hours of paid sick time per calendar year. Employees of an employer with fewer than 11 employees are entitled to earn and use up to 40 hours of unpaid sick time in a calendar year. Employees of an employer with fewer than 11 employees are entitled to earn and use up to 40 hours of unpaid sick time in a calendar year. Employers shall determine the average number of employees by counting the number of employees, including full time, part-time, seasonal, and temporary employees, on the payroll during each pay period and dividing by the number of pay periods. Employers shall determine the average number of employees by counting the number of employees, including full time, part-time, seasonal, and temporary employees, on the payroll during each pay period and dividing by the number of pay periods.

7. To be eligible, your primary place of work must be in Massachusetts. Employees include: Full-time employees Part-time employees Seasonal employees Temporary employees Note: Properly classified independent contractors are not employees. See M.G.L. c. 149, Section 148B. However, workers who have been misclassified as independent contractors by their employer risk being improperly denied access to earned sick time and other important workplace protections. 7 SICK LEAVE EMPLOYEES:WHO IS ELIGIBLE FOR SICK LEAVE

8. Sick Leave Primary Place of Work The location where the employee does most of his/her work for the employer is his/her primary place of work. It is not necessary to spend more than 50% of your working time in Massachusetts for it to be your primary place of work. The location where the employee does most of his/her work for the employer is his/her primary place of work. It is not necessary to spend more than 50% of your working time in Massachusetts for it to be your primary place of work. Example: A painter working for a single painting company works 40% of her hours in Massachusetts, 30% in New Hampshire and 30% in other states. Massachusetts is her primary place of work. Example: A painter working for a single painting company works 40% of her hours in Massachusetts, 30% in New Hampshire and 30% in other states. Massachusetts is her primary place of work. The employee DOES NOT have to reside in Massachusetts. The employee DOES NOT have to reside in Massachusetts. Telecommuter or Service Technician Telecommuter or Service Technician

9. What Can Sick Leave Be Used For? FOUR REASONS FOR SICK LEAVE 1.To care for a child, parent, spouse, or parent of a spouse who is suffering from a physical or mental illness, injury, or medical condition that requires home, preventative or professional care; 2.To care for the employee’s own physical or mental illness, injury, or other medical condition that requires home, preventative or professional care; 3.To attend the employee’s routine medical appointment or the routine medical appointment of the employee’s child, parent, spouse, or parent of spouse (including travel time); or 4.To address the psychological, physical, or legal effects of domestic violence as defined in the recently-enacted Massachusetts Domestic Violence Leave law. 9

10. 10 SICK LEAVE - ACCRUAL Sick time is accrued at the rate of 1 hour for every 30 hours worked. Sick time is accrued at the rate of 1 hour for every 30 hours worked. Employees begin accruing sick time from their first date of actual work. Employees begin accruing sick time from their first date of actual work. Employees are able to use sick leave following ninety (90) days of employment Employees are able to use sick leave following ninety (90) days of employment All hours worked by an employee including overtime and hours worked outside of Massachusetts count towards the accrual of earned sick time. All hours worked by an employee including overtime and hours worked outside of Massachusetts count towards the accrual of earned sick time. By mutual agreement with the employer in writing, employees may use earned sick time before accruing it. By mutual agreement with the employer in writing, employees may use earned sick time before accruing it. For accrual purposes, exempt employees will be assumed to work 40 hours per week unless their normal work week is less than 40 hours, in which case earned sick time will accrue based on their normal work week. For accrual purposes, exempt employees will be assumed to work 40 hours per week unless their normal work week is less than 40 hours, in which case earned sick time will accrue based on their normal work week.

11. SICK LEAVE - HOW MUCH TO PAY Employees must be paid what they would have earned if they had worked instead of using earned sick time. Employees must be paid what they would have earned if they had worked instead of using earned sick time. Calculating depends upon the nature of the employment. Calculating depends upon the nature of the employment. Workers using earned sick time do not receive overtime or other premium rates. Workers using earned sick time do not receive overtime or other premium rates. Hourly workers must be paid their hourly rate Hourly workers must be paid their hourly rate Blended Rate – two different hourly rates Blended Rate – two different hourly rates Employees paid on commission (whether base wage plus commission or commission only) must be paid the greater of the base wage or minimum wage Employees paid on commission (whether base wage plus commission or commission only) must be paid the greater of the base wage or minimum wage Tipped employees should be paid at their regular hourly rate or the minimum wage, whichever is higher. Tipped employees should be paid at their regular hourly rate or the minimum wage, whichever is higher. Regardless of the basis used, the same hourly rate shall not be less than the effective minimum wage Regardless of the basis used, the same hourly rate shall not be less than the effective minimum wage Reminder - On January 1, 2016, the minimum wage will be $10.00 per hour. On January 1, 2017, the minimum wage will be $11.00 per hour. Reminder - On January 1, 2016, the minimum wage will be $10.00 per hour. On January 1, 2017, the minimum wage will be $11.00 per hour. Earned paid sick time shall be paid on the same schedule as regular wages are paid. Employers may not delay compensating employees for earned paid sick time until they receive written verification or documentation of the use of earned sick time. Earned paid sick time shall be paid on the same schedule as regular wages are paid. Employers may not delay compensating employees for earned paid sick time until they receive written verification or documentation of the use of earned sick time.

12. SICK LEAVE How Much Can be Used Earned sick time can be used in hourly increments or the smallest increment that the employer’s payroll system uses to account for absences or use of other time.Earned sick time can be used in hourly increments or the smallest increment that the employer’s payroll system uses to account for absences or use of other time. Smallest amount = 1 hour, then smallest increment on payroll system thereafter.Smallest amount = 1 hour, then smallest increment on payroll system thereafter. Where an employee’s absence from work at a designated time requires the employer to hire a replacement and the employer does so, the employer may require the employee to use up to a full shift of earned sick time.Where an employee’s absence from work at a designated time requires the employer to hire a replacement and the employer does so, the employer may require the employee to use up to a full shift of earned sick time.

13. Sick Leave Carry Over Employees may carry over up to 40 hours of unused earned sick time to the following calendar year. Employees may carry over up to 40 hours of unused earned sick time to the following calendar year. But, employees cannot use more than 40 hours of sick time in any one calendar year. But, employees cannot use more than 40 hours of sick time in any one calendar year. An employer is allowed to offer an employee a payout of up to 40 hours of unused earned sick time at the end of the employer’s calendar year, provided the employer makes available to the employee at least 16 hours of sick time at the beginning of the new calendar year. If an employee leaves the job, the employer may also pay out any unused time. An employer is allowed to offer an employee a payout of up to 40 hours of unused earned sick time at the end of the employer’s calendar year, provided the employer makes available to the employee at least 16 hours of sick time at the beginning of the new calendar year. If an employee leaves the job, the employer may also pay out any unused time.

14. Sick Leave - Notice by Employee If foreseeable, employees are required to make a good faith effort to give the employer advance notice of the need for sick time. If foreseeable, employees are required to make a good faith effort to give the employer advance notice of the need for sick time. An employee does not need to reference the law or the term “Earned Sick Time” to their employer in order to use their time. An employee does not need to reference the law or the term “Earned Sick Time” to their employer in order to use their time. Reasonable notice may include compliance with an employer’s reasonable notification system that the employee customarily uses to communicate with the employer for absences or requesting leave. If an employer does not have an existing policy and procedure for providing reasonable notice, the employer shall establish such a policy or procedure, preferably in writing. The policy or procedure should enable the employee to effectively provide reasonable notice in a way that can be documented. Reasonable notice may include compliance with an employer’s reasonable notification system that the employee customarily uses to communicate with the employer for absences or requesting leave. If an employer does not have an existing policy and procedure for providing reasonable notice, the employer shall establish such a policy or procedure, preferably in writing. The policy or procedure should enable the employee to effectively provide reasonable notice in a way that can be documented. Employers may require up to seven days’ notice if the employee has a pre-scheduled or anticipated time they plan to take off to use earned sick time. Employers may require up to seven days’ notice if the employee has a pre-scheduled or anticipated time they plan to take off to use earned sick time.

15. Sick Leave - Notice by Employee Multi-day absence - an employer may require notification on a daily basis from the employee or the employee’s surrogate unless the circumstances make such notification infeasible. Multi-day absence - an employer may require notification on a daily basis from the employee or the employee’s surrogate unless the circumstances make such notification infeasible. Written Verification - Employers may require employees to submit written verification that they used earned sick time for allowable purposes after using any amount of sick leave. In no event, however, may an employer request additional medical or other documentation unless the employee meets the requirements (identified in next slide) Written Verification - Employers may require employees to submit written verification that they used earned sick time for allowable purposes after using any amount of sick leave. In no event, however, may an employer request additional medical or other documentation unless the employee meets the requirements (identified in next slide) Discipline - If an employee is committing fraud or abuse by engaging in an activity that is not consistent with allowable purposes for leave (e.g. being sick, caring for an ill family member) or by exhibiting a pattern of taking leave on days when the employee is scheduled to perform duties perceived as undesirable, an employer may discipline the employee for misuse of sick leave. Discipline - If an employee is committing fraud or abuse by engaging in an activity that is not consistent with allowable purposes for leave (e.g. being sick, caring for an ill family member) or by exhibiting a pattern of taking leave on days when the employee is scheduled to perform duties perceived as undesirable, an employer may discipline the employee for misuse of sick leave.

16. Sick Leave - Written Documentation An employer may require written documentation for an employee’s use of earned sick time that: An employer may require written documentation for an employee’s use of earned sick time that: exceeds 24 consecutively scheduled work hours; exceeds 24 consecutively scheduled work hours; exceeds 3 consecutive days on which the employee was scheduled to work; exceeds 3 consecutive days on which the employee was scheduled to work; occurs within 2 weeks prior to an employee’s final scheduled day of work before termination of employment, except in the case of temporary employees (i.e. “temp workers”); occurs within 2 weeks prior to an employee’s final scheduled day of work before termination of employment, except in the case of temporary employees (i.e. “temp workers”); occurs after 4 unforeseeable and undocumented absences within a 3-month period; or occurs after 4 unforeseeable and undocumented absences within a 3-month period; or for employees aged 17 and under, occurs after 3 unforeseeable and undocumented absences within a 3- month period. for employees aged 17 and under, occurs after 3 unforeseeable and undocumented absences within a 3- month period.

17. Medical Documentation If the employee is absent for medical reasons, the employer may require a statement from a health care provider that the absence was for a purpose covered by the law. If the employee is absent for medical reasons, the employer may require a statement from a health care provider that the absence was for a purpose covered by the law. Documentation may be submitted to an employer in hand or by any reasonable method, including e-mail. Documentation may be submitted to an employer in hand or by any reasonable method, including e-mail. Employees must submit such documentation within 7 days after the taking of earned sick time. Employees must submit such documentation within 7 days after the taking of earned sick time. If an employee fails to comply, the employer may recoup the sum paid for earned sick time from future pay, as an overpayment. Employees must be put on notice of this practice. If an employee fails to comply, the employer may recoup the sum paid for earned sick time from future pay, as an overpayment. Employees must be put on notice of this practice. If the employee fails to provide documentation for unpaid earned sick time, the employer may deny the future use of an equivalent number of hours of accrued earned sick time until documentation is provided, but may not otherwise take adverse action. If the employee fails to provide documentation for unpaid earned sick time, the employer may deny the future use of an equivalent number of hours of accrued earned sick time until documentation is provided, but may not otherwise take adverse action.

18. Sick Leave - Domestic Violence If the employee is absent from work due to domestic violence, the employer must accept any of the following: If the employee is absent from work due to domestic violence, the employer must accept any of the following: a restraining order or other order issued by a court; a restraining order or other order issued by a court; a police record documenting the abuse; a police record documenting the abuse; a document showing that the abuser has been convicted of a violent crime against a family or household member; a document showing that the abuser has been convicted of a violent crime against a family or household member; medical documentation of the abuse; medical documentation of the abuse; a statement provided by a counselor, social worker, health worker, member of the clergy, shelter worker, legal advocate or other professional who has assisted the individual in addressing the effects of the abuse on the individual or the individual's family; or a statement provided by a counselor, social worker, health worker, member of the clergy, shelter worker, legal advocate or other professional who has assisted the individual in addressing the effects of the abuse on the individual or the individual's family; or a signed, written statement from the individual that abuse took place. a signed, written statement from the individual that abuse took place. An employer may never require further information about the employee’s medical condition or details of the domestic violence. An employer may never require further information about the employee’s medical condition or details of the domestic violence.

19. Sick Leave – other provisions Leave of Absence/Break in Service Leave of Absence/Break in Service Up to 4 months – maintain bank Up to 4 months – maintain bank 4 to 12 months – if more than 10 hours in bank – maintain bank 4 to 12 months – if more than 10 hours in bank – maintain bank No vesting requirements No vesting requirements Change in Size – 30 day notice Change in Size – 30 day notice Make up time - an employer shall not require an employee who has used earned sick time to make up time off from work. Make up time - an employer shall not require an employee who has used earned sick time to make up time off from work. An Employee may work additional hours or shifts instead of using sick time but only if both employer and employee voluntarily agree to this arrangement. An Employee may work additional hours or shifts instead of using sick time but only if both employer and employee voluntarily agree to this arrangement. Replacement - an employer cannot require an employee to find a replacement if the employee needs to use sick time. Replacement - an employer cannot require an employee to find a replacement if the employee needs to use sick time. Recordkeeping - Employers have to maintain records of the sick time that employees accrue and use for at least three years. Employers must give employees access to their own earned sick time records. Recordkeeping - Employers have to maintain records of the sick time that employees accrue and use for at least three years. Employers must give employees access to their own earned sick time records. Post Notice - employers must post a notice of the EST law in each workplace and give a copy of the notice to each employee. The notice must be posted where employees are likely to see it. The notice will be available on the Attorney General’s website at www.mass.gov/ago/earnedsicktime. Post Notice - employers must post a notice of the EST law in each workplace and give a copy of the notice to each employee. The notice must be posted where employees are likely to see it. The notice will be available on the Attorney General’s website at www.mass.gov/ago/earnedsicktime.www.mass.gov/ago/earnedsicktime

20. Termination – Sick Leave Due Employers shall not be required to pay out unused earned sick time upon the separation of the employee from the employer. Employers shall not be required to pay out unused earned sick time upon the separation of the employee from the employer. Unlike paid “vacation” time in MA – which is deemed to be wages earned and must be paid out upon termination. Unlike paid “vacation” time in MA – which is deemed to be wages earned and must be paid out upon termination.

21. Sick Leave - Employment Action The law provides that use of earned sick time may not be used as a negative factor in any employment action, such as evaluations, promotions, disciplinary actions, termination, or otherwise subjecting an employee to discipline for using earned sick time. The law provides that use of earned sick time may not be used as a negative factor in any employment action, such as evaluations, promotions, disciplinary actions, termination, or otherwise subjecting an employee to discipline for using earned sick time. No Retaliation, which includes any threat, discipline, discharge, demotion, suspension, or reduction in employee hours, or any other adverse employment action against any employee for exercising or attempting to exercise any right guaranteed under the law. No Retaliation, which includes any threat, discipline, discharge, demotion, suspension, or reduction in employee hours, or any other adverse employment action against any employee for exercising or attempting to exercise any right guaranteed under the law. However, if an employee is committing fraud or abuse by engaging in an activity that is not consistent with allowable purposes for leave (e.g. being sick, caring for an ill family member) or by exhibiting a pattern of taking leave on days when the employee is scheduled to perform duties perceived as undesirable, an employer may discipline the employee for misuse of sick leave. Or taking leave before or after a weekend, vacation or holiday, an employer may discipline the individual for misuse. However, if an employee is committing fraud or abuse by engaging in an activity that is not consistent with allowable purposes for leave (e.g. being sick, caring for an ill family member) or by exhibiting a pattern of taking leave on days when the employee is scheduled to perform duties perceived as undesirable, an employer may discipline the employee for misuse of sick leave. Or taking leave before or after a weekend, vacation or holiday, an employer may discipline the individual for misuse. Also, employees may not use sick leave as an excuse to be late to work. Also, employees may not use sick leave as an excuse to be late to work. Can continue to use good attendance rewards or holiday pay incentives. Can continue to use good attendance rewards or holiday pay incentives.

22. Paid Time Off/Vacation Employers may use PTO/Vacation policies to satisfy the Sick Leave Employers may use PTO/Vacation policies to satisfy the Sick Leave BUT BUT Employees must be able to use the PTO (such as vacation time or personal leave) for the same purposes and with the same rights that they would be able to use earned sick time. An employer may substitute their existing plan so long as employees: Employees must be able to use the PTO (such as vacation time or personal leave) for the same purposes and with the same rights that they would be able to use earned sick time. An employer may substitute their existing plan so long as employees: accrue at the rate of at least one hour of PTO for every 30 hours worked; accrue at the rate of at least one hour of PTO for every 30 hours worked; may use up to 40 hours per year of PTO; may use up to 40 hours per year of PTO; are paid at least the amount that would be required for earned sick time; are paid at least the amount that would be required for earned sick time; can use PTO for the same purposes as earned sick time; can use PTO for the same purposes as earned sick time; receive a notice of their rights under the law; and receive a notice of their rights under the law; and receive the same job protections. receive the same job protections.

23. Violation of Sick Leave Law The law and regulations will be enforced by the Attorney General and a private right of action is also available. The law and regulations will be enforced by the Attorney General and a private right of action is also available. Violations of the earned sick time law may subject employers to civil penalties up to $25,000 per violation. Additionally, employees may file civil suits against employers for violations of this law and may recover treble damages, the cost of litigation and reasonable attorneys fees. Violations of the earned sick time law may subject employers to civil penalties up to $25,000 per violation. Additionally, employees may file civil suits against employers for violations of this law and may recover treble damages, the cost of litigation and reasonable attorneys fees.

24. ** Domestic Violence Leave ** New law – effective AUGUST 8, 2014 New law – effective AUGUST 8, 2014 Applies to employers with 50 or more employees Applies to employers with 50 or more employees Must permit their employees to: Must permit their employees to: take up to fifteen (15) days of leave, take up to fifteen (15) days of leave, in any twelve (12) month period whenever the employee or the employee’s family member is a victim of abusive behavior, in any twelve (12) month period whenever the employee or the employee’s family member is a victim of abusive behavior, and the leave is used to (a) seek or obtain medical attention, counseling, victim services, or legal assistance; (b) secure housing; (c) obtain a protective order from a court; (d) appear in court or before a grand jury; (e) meet with a district attorney or other law enforcement official; (f) attend child custody proceedings; or (g) address other issues directly related to the abusive behavior against the employee or family member. and the leave is used to (a) seek or obtain medical attention, counseling, victim services, or legal assistance; (b) secure housing; (c) obtain a protective order from a court; (d) appear in court or before a grand jury; (e) meet with a district attorney or other law enforcement official; (f) attend child custody proceedings; or (g) address other issues directly related to the abusive behavior against the employee or family member.

25. Domestic Violence Leave Employers may determine whether such leave will be paid or unpaid – sick leave implication. Employers may determine whether such leave will be paid or unpaid – sick leave implication. Employee is required to provide advance notice of the leave unless there is a threat of imminent danger to health or safety, the employee can notify the employer within three (3) workdays that domestic violence leave was or is being taken. Employee is required to provide advance notice of the leave unless there is a threat of imminent danger to health or safety, the employee can notify the employer within three (3) workdays that domestic violence leave was or is being taken. May request documentation – see slide in sick leave May request documentation – see slide in sick leave Employers cannot discharge or discriminate against an employee for exercising domestic violence leave rights. The taking of domestic violence leave cannot result in the loss of any employment benefit accrued prior to the date on which the leave commenced. Employers cannot discharge or discriminate against an employee for exercising domestic violence leave rights. The taking of domestic violence leave cannot result in the loss of any employment benefit accrued prior to the date on which the leave commenced. Upon the employee’s return from domestic violence leave, he or she is statutorily entitled to restoration to his or her original job or an equivalent position. Upon the employee’s return from domestic violence leave, he or she is statutorily entitled to restoration to his or her original job or an equivalent position. UPDATE HANDBOOK UPDATE HANDBOOK

26. Family and Medical Leave Act (FMLA) Requires employers with more than 50 employees to provide eligible employees up to 12 weeks of unpaid leave for their own serious illness, the birth or adoption of a son or daughter, or the care of a seriously ill son or daughter, spouse or parent Requires employers with more than 50 employees to provide eligible employees up to 12 weeks of unpaid leave for their own serious illness, the birth or adoption of a son or daughter, or the care of a seriously ill son or daughter, spouse or parent FMLA defines “son or daughter” as “biological, adopted or foster child, stepchild, legal ward, or child of a person standing in loco parentis who is under 18 or over 18 and incapable of self-care due to mental or physical disability FMLA defines “son or daughter” as “biological, adopted or foster child, stepchild, legal ward, or child of a person standing in loco parentis who is under 18 or over 18 and incapable of self-care due to mental or physical disability Serious health condition – inpatient care, continuing treatment by a health care provider – two or more visits in 30 days or chronic condition Serious health condition – inpatient care, continuing treatment by a health care provider – two or more visits in 30 days or chronic condition Cosmetic treatments, common cold, flu, routine dental work – not FMLA Cosmetic treatments, common cold, flu, routine dental work – not FMLA

27. FMLA Employee Eligibility Employed by covered employer Employed by covered employer Worked at least 12 months Worked at least 12 months Have at least 1,250 hours of service during the 12 months before leave begins Have at least 1,250 hours of service during the 12 months before leave begins Employed at a work site with 50 employees within 75 miles Employed at a work site with 50 employees within 75 miles

28. FMLA Qualifying Family Members Parent - A biological, adoptive, step or foster father or mother, or someone who stood in loco parentis to the employee when the employee was a son or daughter. Parent for FMLA purposes does not include in-laws. Parent - A biological, adoptive, step or foster father or mother, or someone who stood in loco parentis to the employee when the employee was a son or daughter. Parent for FMLA purposes does not include in-laws. Spouse - A husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including common law marriage and same-sex marriage. Spouse - A husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including common law marriage and same-sex marriage. Son or Daughter - For leave other than military family leave, a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis who is either under 18 years of age, or 18 or older and incapable of self-care because of a mental or physical disability. Son or Daughter - For leave other than military family leave, a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis who is either under 18 years of age, or 18 or older and incapable of self-care because of a mental or physical disability.

29. FMLA Intermittent Leave Employee is entitled to take intermittent or reduced schedule leave In calculating the amount of leave, employer must use the shortest increment the employer uses to account for other types of leave, provided it is not greater than one hour In calculating the amount of leave, employer must use the shortest increment the employer uses to account for other types of leave, provided it is not greater than one hour

30. Employer Responsibilities Provide notice Provide notice Maintain group health insurance Maintain group health insurance Employer may require that Employee pays for health insurance while on leave – employee must be notified of any termination due to non- payment of premium Employer may require that Employee pays for health insurance while on leave – employee must be notified of any termination due to non- payment of premium Restore the employee to same or equivalent job and benefits Restore the employee to same or equivalent job and benefits Employer may require employee use earned paid time off – must be in writing Employer may require employee use earned paid time off – must be in writing Maintain records Maintain records

31. FMLA – Employer Responsibilities Employers must give four types of notices: Employers must give four types of notices: General notice General notice Eligibility notice Eligibility notice Rights and responsibilities notice Rights and responsibilities notice Designation notice Designation notice Five business days to give written notice of eligibility Five business days to give written notice of eligibility Employers also required to provide the following information: Employers also required to provide the following information: If employee is not eligible, provide him/her reason why If employee is not eligible, provide him/her reason why Rights and responsibilities regarding substitution of accrued paid leave Rights and responsibilities regarding substitution of accrued paid leave Rights and responsibilities relative to maintenance of benefits Rights and responsibilities relative to maintenance of benefits Whether the employee will be required to present a fitness for duty certificate and a list of the essential functions of the employee’s position Whether the employee will be required to present a fitness for duty certificate and a list of the essential functions of the employee’s position Employee obligated to request leave – does not need to say FMLA Employee obligated to request leave – does not need to say FMLA LIABILITY - Employers cannot discriminate against employees for asserting their FMLA rights and corporate officers are exposed to individual liability for violations. Liability for compensation and benefits lost, interest, attorneys’ fees and civil money penalties LIABILITY - Employers cannot discriminate against employees for asserting their FMLA rights and corporate officers are exposed to individual liability for violations. Liability for compensation and benefits lost, interest, attorneys’ fees and civil money penalties

32. Prohibited Employment Actions FMLA Employers cannot: interfere with, restrain or deny employees’ FMLA rights interfere with, restrain or deny employees’ FMLA rights discriminate or retaliate against an employee for having exercised FMLA rights discriminate or retaliate against an employee for having exercised FMLA rights discharge or in any other way discriminate against an employee because of involvement in any proceeding related to FMLA discharge or in any other way discriminate against an employee because of involvement in any proceeding related to FMLA use the taking of FMLA leave as a negative factor in employment actions use the taking of FMLA leave as a negative factor in employment actions

33. Medical Certification FMLA Employers may (and should) request that employees provide certification from the health care provider stating that the leave is medically necessary Employers may (and should) request that employees provide certification from the health care provider stating that the leave is medically necessary Employer (not employee’s direct supervisor) may contact health care provider to: Employer (not employee’s direct supervisor) may contact health care provider to: Authenticate: Verify that the information was completed and/or authorized by the health care provider; no additional information may be requested Authenticate: Verify that the information was completed and/or authorized by the health care provider; no additional information may be requested Clarify: Understand handwriting or meaning of a response; no additional information may be requested beyond what is required by the certification form Clarify: Understand handwriting or meaning of a response; no additional information may be requested beyond what is required by the certification form Second and third opinions (at employer’s cost) Second and third opinions (at employer’s cost) If employer questions the validity of the complete certification, the employer may require a second opinion If employer questions the validity of the complete certification, the employer may require a second opinion If the first and second opinions differ, employer may require a third opinion that is final and binding If the first and second opinions differ, employer may require a third opinion that is final and binding

34. Fitness for Duty FMLA For an employee’s own serious health condition, employers may require certification that the employee is able to resume work For an employee’s own serious health condition, employers may require certification that the employee is able to resume work Employer must have a uniformly-applied policy or practice of requiring fitness-for-duty certification for all similarly-situated employees Employer must have a uniformly-applied policy or practice of requiring fitness-for-duty certification for all similarly-situated employees If state or local law or collective bargaining agreement is in place, it governs the return to work If state or local law or collective bargaining agreement is in place, it governs the return to work Not permitted for intermittent or reduced schedule leave unless reasonable safety concerns exist Not permitted for intermittent or reduced schedule leave unless reasonable safety concerns exist Authentication and clarification Authentication and clarification Employee responsible for any cost Employee responsible for any cost

35. Small Necessities Leave Act Massachusetts Law Employers subject to FMLA – more than 50 employees Employers subject to FMLA – more than 50 employees Provide 24 hours of unpaid leave during any 12 month period to Provide 24 hours of unpaid leave during any 12 month period to Participate in school activities of a child of the employee Participate in school activities of a child of the employee Accompany child to medical or dental appointment Accompany child to medical or dental appointment Accompany elderly relative of the employee to medical or dental appointment Accompany elderly relative of the employee to medical or dental appointment

36. SNLA Employers may not force an employee to take more SNLA leave than is needed. So, for example, if the employee needs to take off 2 hours in the morning to attend a parent-teacher conference, the employer may not have a policy that provides that an employee must take off time in blocks of half days or full days. That being said, an employer may (but need not) require the employee to take leave in increments of not less than 1 hour. Employers may not force an employee to take more SNLA leave than is needed. So, for example, if the employee needs to take off 2 hours in the morning to attend a parent-teacher conference, the employer may not have a policy that provides that an employee must take off time in blocks of half days or full days. That being said, an employer may (but need not) require the employee to take leave in increments of not less than 1 hour. Even though the leave is unpaid, covered employees may elect (or an employer may require) to substitute accrued paid time off. Even though the leave is unpaid, covered employees may elect (or an employer may require) to substitute accrued paid time off. The employee need not use the phrase "Small Necessities Leave Act" when requesting a leave of absence. Therefore, HR must use its best judgment when categorizing leave requests, and be certain to document, in the employee's personnel record, all leave taken within the determined 12-month period. The employee need not use the phrase "Small Necessities Leave Act" when requesting a leave of absence. Therefore, HR must use its best judgment when categorizing leave requests, and be certain to document, in the employee's personnel record, all leave taken within the determined 12-month period. Employers are given the option to require certification for leave requests. If the employer uses this procedure, the employer must place all such certificates, along with any written requests, in the employee's personnel record. Employers are given the option to require certification for leave requests. If the employer uses this procedure, the employer must place all such certificates, along with any written requests, in the employee's personnel record. If an employee submits any type of medical documentation or information in connection with a leave request or certification, the employer must treat those records as confidential, and must maintain those records separate from the employee's personnel record. If an employee submits any type of medical documentation or information in connection with a leave request or certification, the employer must treat those records as confidential, and must maintain those records separate from the employee's personnel record.

37. Military Leave State Statute Massachusetts has a leave statute that protects employees (other than persons employed in a temporary position) who serve in a military reserve unit. Specifically, any covered employee who is a member of such a unit is entitled to a leave of absence of up to seventeen days to fulfill annual training and other service-related requirements. Massachusetts has a leave statute that protects employees (other than persons employed in a temporary position) who serve in a military reserve unit. Specifically, any covered employee who is a member of such a unit is entitled to a leave of absence of up to seventeen days to fulfill annual training and other service-related requirements. Employers should note the following: Employers should note the following: The employer has the discretion to make this a paid or unpaid leave. The employer has the discretion to make this a paid or unpaid leave. The leave may not adversely affect the employee's status, seniority, pay, vacation, sick leave, bonus, advancement, or any other advantages of employment. The leave may not adversely affect the employee's status, seniority, pay, vacation, sick leave, bonus, advancement, or any other advantages of employment. To trigger such a leave, the employee must provide notice of the dates of departure and return from this military leave. To trigger such a leave, the employee must provide notice of the dates of departure and return from this military leave.

38. Military Leave Federal Statute - Uniformed Services Employment and Reemployment Rights Act (USERRA) Under this federal law, an employee in a non-temporary position has certain rights to be re-employed after performing military service for a period of up to five years (and longer if the employee is engaged in involuntary active duty). Under this federal law, an employee in a non-temporary position has certain rights to be re-employed after performing military service for a period of up to five years (and longer if the employee is engaged in involuntary active duty). Employers should note the following about this federal statute: Employers should note the following about this federal statute: The employee must give advance written or oral notice of impending service to the employer. In most instances the employee must apply to be reemployed within 90 days of returning from military service. The time limit may be extended if the individual was injured or was hospitalized. The employee must give advance written or oral notice of impending service to the employer. In most instances the employee must apply to be reemployed within 90 days of returning from military service. The time limit may be extended if the individual was injured or was hospitalized. Once an employee has been reinstated, the employee may not be terminated, except for cause, for six months in circumstances where the employee completed more than 30 days of military service, or for one year where the employee completed more than 180 days of military service. Once an employee has been reinstated, the employee may not be terminated, except for cause, for six months in circumstances where the employee completed more than 30 days of military service, or for one year where the employee completed more than 180 days of military service. The federal statute does contain a safety valve provision: reemployment is not required if the "employer's circumstances have so changed as to make such reemployment impossible or unreasonable," or if reemployment would impose an undue hardship on the employer. The federal statute does contain a safety valve provision: reemployment is not required if the "employer's circumstances have so changed as to make such reemployment impossible or unreasonable," or if reemployment would impose an undue hardship on the employer.

39. Civic Duty Leave Voting Leave - Employees are allowed to vote in any Federal, State or Municipal election and may request unpaid leave for time off to vote within the first two hours after polls open in their precinct. Being paid for this time is up to the employer's discretion Voting Leave - Employees are allowed to vote in any Federal, State or Municipal election and may request unpaid leave for time off to vote within the first two hours after polls open in their precinct. Being paid for this time is up to the employer's discretion Jury Duty- Massachusetts law requires that employees called for jury duty be given time off from work to serve. A person cannot be discharged or disciplined for serving as a juror. Employers are required to pay the employee for the first three days of jury service. This includes full-time, part-time, temporary assignment, or casual employees. Jury Duty- Massachusetts law requires that employees called for jury duty be given time off from work to serve. A person cannot be discharged or disciplined for serving as a juror. Employers are required to pay the employee for the first three days of jury service. This includes full-time, part-time, temporary assignment, or casual employees.

40. QUESTIONS? Jenifer M. Pinkham, Esq. Schlossberg, LLC 35 Braintree Hill Office, Suite 401 Braintree, MA 02184 781-848-5028 jpinkham@sabusinesslaw.com jpinkham@sabusinesslaw.com