Sean O’Connor
By now, most employers should know that the Massachusetts earned sick time law, which was first approved by Massachusetts voters in the November 2014 election, went into effect on July 1, 2015. Through the law, Massachusetts joins California, Connecticut and Oregon, as well as a number of municipalities throughout the country, in requiring employers to provide earned sick time to employees. Unfortunately for employers, questions about the law still remain unanswered even after the Office of the Attorney General issued the final regulations governing its application on June 19, 2015. As a result, many employers are still scrambling to ensure their compliance with this new, ground-breaking law.
The law, in short, provides that employees may use up to 40 hours of sick time per year, accruing at least one hour of sick time for every 30 hours worked. If an employer has 11 or more employees, the sick time must be paid; otherwise, the sick time may be unpaid. Aside from a few narrow exceptions, all full-time, part-time, seasonal and temporary employees are entitled to earn and use sick time if Massachusetts is their primary place of employment. Covered employees are permitted to carry over up to 40 hours of sick time at the end of the benefit year, though employers can cap employees’ accrual at a total of 40 hours during any benefit year.
The regulations contain many other obligations and requirements, but also provide employers with various options in an attempt to afford some level of flexibility. For example, employers that prefer not to track accrual of sick time can instead offer a lump sum of benefit time that is pro-rated based upon employees’ average hours worked. Employers who want to incentivize employees to avoid unnecessary use of sick time can also provide cash payouts for accrued but unused sick time at the end of the year, though there is no requirement that they do so.
Employers with pre-existing sick leave or paid time off policies are also permitted to modify their current policies instead of adopting entirely new policies so long as they provide for the same protections and rights as employees would get under the earned sick time law. The Office of the Attorney General even provided a “safe harbor” for 2015 to employers with such pre-existing policies. There is no one-size-fits-all approach for employers in designing their new earned sick time policies.
Employers also face significant challenges with the implementation and enforcement of their policies. Earned sick time is not supposed to be a get-out-of-work-free pass for employees, as they are only allowed to use it for certain reasons covered under the law (e.g. to care for the employee’s own physical or mental illness). However, the reality is that employers have been left in a troublesome situation when it comes to protecting against employees’ abuse of sick time. Under the law’s strict anti-retaliation provisions, employers are prohibited from taking any adverse actions against employees for proper use of their earned sick time. Instead, employers are only permitted to discipline employees who are found to commit fraud or abuse of their sick time. Employers face an uphill battle in trying to meet that standard.
A Number Of Challenges
In theory, the final regulations attempt to provide some protection to employers; however, in practice employers should tread carefully as challenges to employees’ use of sick time will undoubtedly be met with complaints to the attorney general or civil lawsuits. According to the regulations, abuse of sick time can be inferred where employees exhibit a clear pattern of using it on days just before or after a weekend, vacation or holiday. The regulations also provide that sick time is not supposed to be invoked as a general excuse to be late for work.
However, employers need to exercise significant caution because an employee’s absence or tardiness must still be excused – and the employee cannot be disciplined – if it is actually related to one of the law’s permissible reasons for leave (e.g. when employees are unexpectedly sick, causing them to be late or absent for work). In most situations, employers will also be unable to ask for proof of why employees miss work because the regulations contain stringent restrictions on when employers can require documentation to substantiate employees’ use of sick time. Consequently, employers are left with few resources to assist with the difficult task of discerning when an employee has misused sick time.
Overall, the earned sick leave law is presenting a number of challenges for employers thus far. Attorney General Maura Healey is charged with enforcement of the law and we are hopeful that she will take a reasonable approach as employers attempt to comply. Still, employees can also seek enforcement through civil lawsuits – and they aren’t always as understanding.
Sean P. O’Connor is a partner at Morgan, Brown & Joy LLP, representing employers in a variety of labor and employment matters. He can be reached at (617) 788-5057 or at
soconnor@morganbrown.com
