Earned Sick Time Breakdown

In June 2015, the Massachusetts Attorney General issued final regulations for Earned Sick Time.  There were many updates from the draft regulations.  Attorney Bill Hoch outlines the significant changes of which an employers should be aware below.

Thankfully, the final regulations contain helpful language to address employer concerns about abuse of sick time and the administrative problems with accrual and carryover.

This summary assumes you are familiar with the general terms of the sick time law that gives all employees in Massachusetts up to 40 hours of protected sick leave each year. This leave can be paid (11 or more employees) or unpaid (10 or fewer employees) depending on the size of the employer.

No Additional Leave Needed If You Give Sufficient Vacation Or Other Paid Time Off.  The regulations confirm that employers who already offer 40 hours of paid time off that can be used for sick time do not need to offer additional paid time off as long as your current policy offers at least the same protections and terms as required by the state law.

Sick Time Runs Concurrent With Other Forms Of Leave.  The regulations confirm that the Massachusetts sick time can be run concurrently with other forms of leave like Family and Medical Leave, Domestic Violence Leave, Parental Leave, or Small Necessities Leave.

Sick Time May Be Used For Travel To Appointments.  Sick time can be taken to cover medical appointments and travel to and from the appointment.  The draft regulations did not include travel time.

Definition of Employee.  The following are not considered covered employees entitled to sick time: federal employees; city and town employees (unless the law is adopted by the city or town); employees of local or regional government entities (for example, a regional school district) unless the entity adopts the law, students on work study or working for their school to reduce tuition, and students working under the federal Individuals with Disabilities Education Act.

However, the law does cover employees whose primary place of work is in Massachusetts even if the company is located outside of Massachusetts.  An employee who transfers outside of Massachusetts will stop accruing time off but can still use accrued time even after they leave Massachusetts.

Issues Related To Accrual.  Since accruing one hour for every 30 hours worked can be an administrative problem, the regulations offer a number of new rules for different accrual schedules.  For example, the regulations offer an approved table to set a lump sum monthly accrual based upon hours worked.  So, if an employee works 37.5-40 hours a week, you can offer 8 hours of sick time each month for five months; if an employee works 30 hours a week, you can offer 5 hours of sick time each month for 8 months; if an employee works 24 hours a week, you can offer 4 hours of sick time for 10 months; etc.  Employers using these schedules will be in compliance even if an employee’s hours vary from week to week.

Stop Accruing Once You Hit 40 Hours.  Once an employee earns 40 hours of sick time, an employer can stop accruing sick time until the employee drops below 40 hours accrued.  Therefore, you never have to allow an employee’s sick bank to exceed 40 hours.

Unlimited Sick Leave Policies.  Employers that have an unlimited sick leave policy will not be required to track accrual of sick leave or allow any rollover, provided that such leave is otherwise consistent with the new sick time law.

No Carry Over If You Give 40 Hours At The Beginning Of The Year.  Employers that provide employees with a lump sum of 40 hours or more of sick leave or paid time off at the beginning of each benefit year do not need to track accrual or allow any rollover, provided that such leave is otherwise consistent with the sick time law.

No Additional Time Off If You Already Give 40 Hours of Vacation or PTO.  Employers that provide 40 or more hours of paid time off or vacation to employees that also may be used as earned sick time, consistent with the sick time law, will not be required to provide additional sick leave.  Even if an employee uses all of his or her PTO and then needs sick time, the employer does not have to offer additional time off as long as the leave policies make clear that additional time will not be provided.

Ways to Limit Abuse of Sick Time.  Under the new regulations, employees must use at least an hour of sick time for the first hour used and cannot use sick time to cover being late to work.  So, an employee cannot use sick time if they need to be 30 minutes late to work.  After the first hour, the employee can use smaller increments of sick time if needed and the payroll system tracks smaller increments.  The regulations clearly state that earned sick time may not be invoked as an excuse to be late for work unless the employee truly meets the terms of the law.

In addition, an employer has the right to ask the employee to identify why sick time is being used.  An employer can review the appropriate reasons to use sick time and ask the employee to identify why he or she needs sick time.

If an employee is exhibiting a clear pattern of taking leave on days just before or after a weekend, vacation, or holiday, an employer may discipline the employee for misuse of earned sick time, unless the employee provides verification of proper use under the sick time law.

If an employee fails to provide documentation of the need for leave, the employer may recoup the amount paid for deny future leave.  See more below under Proof of Need of Sick Time.

Break in Service.  If an employee has a break in service of up to 4 months, the employee keeps all accrued sick time and can use it when he or she returns.  If an employee takes a break of 4-12 months, the employee only keeps accrued sick time if the employee has 10 hour or more of accrued sick time.   If an employee takes a break in service of over 12 months, the employee keeps no accrued time but can start accruing and using time as soon as the employee returns.  There is no 90 day vesting period for any employee who returns after a break.

How To Count To 11 Employees.  The new regulations change the method of counting your employees.  Under the new regulations, an employer counts the number of people in each pay period, totals those numbers for the entire year, and divides by the number of pay periods to determine the average number of employees employed during the year.  The Attorney General eliminated the language about counting during a 20 or 16 week pay period.

Notice of Use of Sick Time.  The final regulations confirm that 7 days is a reasonable notice period to require when an employee knows he or she will be out of work.  Where an employee does not have 7 days’ notice, the employee must give notice as soon as practical.

Proof of Need of Sick Time.  Employers may require employees to personally verify in writing that they have used earned sick time for allowable purposes after using any amount of sick leave, provided that the employee shall not be required to explain the nature of the illness or the details of the domestic violence.

After 24 consecutive work hours of absence or 3 work days of absence, an employee may be required to provide written justification of the absence.  In addition, if an employee takes sick time within two weeks of their final day of employment, the employer may require proof of need for sick time. Finally, if an employee uses sick time after 4 unforeseeable or undocumented absences in three months, an employer may require proof of need for sick time.

If an employee fails to provide proof, within seven days (draft regulations said 30 days), the employer may refuse to pay for the sick leave or, if already paid, the employer may recoup the amount paid from a future paycheck as an over-payment.  If the leave is unpaid, and the employee fails to provide proof, the employer may deny future use of an equivalent amount of sick leave.

Record Keeping.  Employers must keep records pertaining to the use of sick time for three years and allow employees to inspect their own records.

Notice and Posting.  Employers must post the Attorney General’s Sick Leave Poster conspicuously in all work places.  In addition, employers must distribute the poster or include sick time policy/paid time off policy in a handbook available to all employees.  Employers can distribute policies or the poster in hard copy or electronically.

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