by Susan G. Fentin
Massachusetts Attorney General (AG) Maura Healey recently issued final regulations for the state’s new earned sick time law that aren’t quite what employers were expecting. As a result, employers are scrambling to update their sick time policies before the July 1 compliance deadline.
Language in a “model notice” that the AG posted earlier in June turned out to be misleading in two significant ways:
1. Model notice: “Employees out of work for three consecutive days . . . may be required by their employer to provide documentation from a medical provider.”
Final regulations: “An employer may require written documentation for an employee’s use of earned sick time that (a) exceeds 24 consecutively scheduled work hours; [and] (b) exceeds 3 consecutive days on which the employee was scheduled to work. . . .”
2. Model notice: “The smallest amount of time that an employee can take is one hour.”
Final regulations: “For uses beyond one hour, employees may use earned sick time in hourly increments or in the smallest increment the employer’s payroll system uses to account for absences or use of other time.” (For example, if an employee takes 90 minutes off to go to the dentist, the employee has used only 90 minutes of sick time. If the employer counts time in smaller increments, it will have to allow employees to use sick time in those increments after the first hour of absence.)
Other significant changes
Intersection with other leave laws. Sick time may run concurrently with Family and Medical Leave Act (FMLA) leave, domestic violence leave, Small Necessities Leave Act leave, and parental leave. Although the regulations say that employers may require employees to use sick time if taking those types of leave, the Parental Leave Act specifically states that whether to use sick time is the employee’s choice, so employers shouldn’t require the exhaustion of sick time during parental leave.
Additional purpose. The final regulations add travel to and from an appointment, pharmacy, or other related location to the reasons an employee may take sick time.
Calculation of wages. When an employee earns two different hourly wages, employers may choose to pay either a blended rate or the rate the employee would earn during the missed hours of work, but the employer must use the same method for the entire benefit year. Employees on a piece rate may be paid a “reasonable calculation” of what they would have earned during the missed time, but it cannot be less than the minimum wage. Tipped employees must be paid the minimum wage for missed time. Employees who miss a shift that would have paid a differential must be paid the shift differential in addition to their regular rate.
Accrual of sick time. Employees accrue sick time only for hours actually worked, not during vacation, paid time off, or while using sick time.
Use of sick time. Employees may not accept a shift assignment with the intention of calling out sick for all or part of the shift. If an employee is late because of the use of sick time and is therefore forced to miss an entire shift but doesn’t have enough accrued sick time to cover the entire shift, the employer must provide him unpaid time off for the balance of the shift.
Payout of sick time. If an employer pays out more than 16 hours of sick time at the end of the benefit year, it must front-load 16 hours of sick time into the new benefit year. If the employer pays out less than 16 hours, it must front-load the amount paid out into the new benefit year.
Notice of use of sick time. Employers may require daily notice if an employee is absent for multiple days.
The final regulations are significantly longer and more detailed than the proposed regulations, and there are other provisions that could affect different employers. For example, there are specific definitions of “health care provider,” regulations that cover the accrual of sick leave by family childcare providers and adjunct faculty, different ways to calculate whether an employer has more than 10 employees, and regulations covering public employers during weather emergencies and healthcare employees during other declared emergencies.
Skoler Abbott attorneys Susan G. Fentin and David McBride will hold a Breakfast Briefing on Tuesday, June 30, to give more guidance on these complicated regulations. More information also will be available in future issues of Massachusetts Employment Law Letter.
Susan G. Fentin is a partner with Skoler, Abbott & Presser, P.C., in Springfield, Massachusetts. She can be reached at email@example.com.