by Kimberly A. Klimczuk
Employers with operations in Massachusetts can finally get a look at proposed regulations concerning the earned sick time law that goes into effect July 1.
The new law requires employers with at least 11 employees to provide paid sick leave. Employees will accrue paid sick leave at the rate of one hour for every 30 hours worked, for a maximum of 40 hours a year. Employers with fewer than 11 employees must allow them to accrue and use up to 40 hours of unpaid sick time per year.
The law, which was passed by referendum on November 4, 2014, entitles employees to take leave for their own illness, injury, or health condition or the illness, injury, or health condition of a child, spouse, parent, or parent-in-law. Employees also may use the leave to attend routine medical appointments for themselves or for their child, spouse, parent, or parent-in-law.
Employers will need to closely examine their policies to make sure they are in compliance with the law since it applies to all employees, whether full-time, part-time, temporary, seasonal, or per diem. It also imposes a number of restrictions that mean many common employer policies will have to change. For example, the law prohibits employers from interfering with an employee’s use of the sick leave. Therefore, holiday pay policies requiring employees to work their regularly scheduled hours before and after a holiday will violate the new law.
While the proposed regulations don’t resolve every ambiguity, they do provide clarification on a number of areas. Here’s a look at key areas covered in the proposed regulations:
Definition of hourly rate. The law requires that paid sick time be paid “at the same hourly rate as the employee earns . . . at the time the employee uses the paid sick time.” The proposed regulations clarify that for employees paid on an hourly basis, the “hourly rate” to be paid when an employee takes sick time includes base-rate wages “and any other benefits paid or accrued on an hourly basis if the individual works.” So, unlike for most leaves, the language suggests that employees will accrue additional sick leave while they are using their sick leave.
For employees who receive different rates of pay at different times, employers are to use a “blended rate” to determine the hourly rate. Overtime, holiday pay, or other premium rates aren’t included in this calculation. For employees not paid hourly, such as those paid on a salary, fee-for-service, or piece-work basis, the hourly rate is determined by dividing the employee’s total earnings in the previous pay period by the total hours worked during that pay period. Commissioned employees must receive their base wage or minimum wage, whichever is greater. If an employee is paid only commissions, she must be paid minimum wage.
Breaks in service. One of the ambiguities in the law concerns what happens to an employee’s accrued sick leave if she leaves employment but then returns, whether because of termination or seasonal employment. The proposed regulations clarify that employees who have a break in service are entitled to use sick leave they accrued during their previous period of employment as long as they return to work within one year of the last date of work.
Covered employers and employees. The regulations clarify that the law applies to any employer of Massachusetts employees (except the U.S. government and municipalities that have not voted to be subject to the law), regardless of where the employer is headquartered. The regulations suggest that Massachusetts will be considered the employee’s primary place of employment if she spends more time working in Massachusetts than in any other state.
To determine whether an employer has 11 or more employees, all employees are counted regardless of whether they work in Massachusetts. Also, an employer must provide paid sick leave if it had 11 or more employees during at least 20 weeks during the current or preceding calendar year or if it had 11 or more employees during at least 16 consecutive weeks during the current or preceding calendar year.
Accrual year. Although the statute had suggested that employers would need to track sick leave according to the calendar year, the regulations clarify that employers can track accrual or use of sick leave based on any 12-month period they choose, such as by fiscal year.
Certification. The law enables employers to obtain certification for an employee’s need for leave if the employee has been absent for more than 24 consecutively scheduled work hours. The proposed regulations specify that the certification is only to verify the need for leave and that employers may not require documentation to explain the nature of any illness or the details of any domestic violence.
Transition year. The proposed regulations address concerns by employers about whether—if they already provided sick leave to employees in the first half of 2015—they would have to provide an additional 40 hours of paid leave after the law’s July 1 effective date. The proposed regulations state that paid sick leave provided to employees before July 1 will count for all of 2015, so the employer won’t be required to provide more than 40 hours of paid leave in 2015.
If an employer with 11 or more employees allowed employees to take unpaid leave in the first half of 2015 but didn’t provide any paid leave benefits, it must allow them to accrue and use up to 40 hours of earned paid sick time in addition to the unpaid sick time already used.
Kimberly A. Klimczuk is an attorney with Skoler, Abbott & Presser, P.C., in Springfield, Massachusetts. She can be reached at kklimczuk@skoler-abbott.com. More information on the new earned sick time law will be available in future issues of Massachusetts Employment Law Letter.