DOMESTIC VIOLENCE LEAVE
As of August 2014, Massachusetts employers, including school districts and charter schools with 50 or more employees, must permit an employee to take up to 15 days off from work in any 12-month period if the employee, or a covered family member, is a victim of abusive behavior and the employee needs the time off for medical care, counseling, victim services, legal assistance or other issues directly related to the abusive behavior against the employee or family member. (M.G.L. Chapter 149, section 52E, or the Law). Employees must provide advance notice of the need for time off in the same manner as required by the employer’s leave policy unless there is a threat of imminent danger to the employee or the employee's family member.
Schools may request that an employee provide documentation within a reasonable amount of time evidencing that the employee or family member has been a victim of abusive behavior. Such documentation must be kept confidential by the employer, subject to exceptions set forth in the Law. Under the Law, employers cannot take negative actions against employees for unauthorized absences if, within 30 days of the last day of absence, the employee provides approved documentation that the absence was due to domestic violence.
The Law provides some flexibility for school committees and boards of trustees regarding implementation. For example, employees must exhaust all personal, sick, and vacation time before requesting domestic violence leave unless the employer waives the requirement. Furthermore, the Law states that employers have sole discretion to determine whether any leave taken under the Law shall be paid or unpaid. Accordingly, school committees and charter school boards of trustees have the authority, subject to the limitations of other laws and the requirements of collective bargaining agreements, to make these determinations. At this time there is some question whether this authority may be limited for in some cases based upon circumstances that would require the provision of paid sick leave pursuant to M.G.L. Chapter 149, section 148C which goes in to effect in July of 2015 (see below). We encourage you to consult with counsel prior to considering the waiver and payment alternatives. Notably, implementation of these decisions may require notice and bargaining with union representatives.
Importantly, employers covered by this Law are required to notify employees about its provisions. A recent Advisory from the Attorney General, the office responsible for enforcement of the Law, clarified that this notice may be provided in an employee handbook and by posting a notice in a "conspicuous place" in a manner consistent with the notice posting requirements of the minimum wage law. We recommend that you take steps immediately to comply with this notice requirement.
PAID SICK TIME
As a result of a ballot initiative, Massachusetts General Laws Chapter 149, section 148C (the Law) will go into effect in July, 2015. Under the Law, certain Massachusetts employers, including school districts with more than 11 employees in cities and towns that have voted for the Law or appropriated funds for it, will be required to provide paid sick time to employees beginning in July 2015. Although there is some ambiguity regarding coverage, we believe that all charter schools with more than 11employees are covered by this requirement for provision of paid sick leave as well, because they are granted charters from the Massachusetts Board of Education and thus not subject to the voting or appropriation requirement imposed on cities and towns. All other employers in Massachusetts with more than 11 employees will be required to provide unpaid sick time each year.
The Law requires covered schools with more than 11 employees to grant employees one hour of “earned sick time”, (either paid or unpaid as set forth above), for every 30 hours worked up to a maximum of 40 hours per year, so that both full-time and part-time employees are eligible to accrue such time off. Full-time professional and salaried employees are deemed to work 40 hours per week unless their normal workweek is less, in which case the school can use those normal hours to determine accrual of sick time. Employees must be permitted to carry over up to 40 hours of unused sick time into the next calendar year, but employees cannot use more than 40 hours of sick time in a calendar year. When applicable, “earned paid sick time” must be compensated at the employee’s hourly rate at the time the sick time is used.
Employees must be allowed to use their earned sick time when they are unable to work due to their own illness or because they must care for their child, spouse, parent, or parent of a spouse who is ill. They can also use their earned sick time to attend medical appointments for themselves or for their child, spouse, parent or parent of a spouse. Likewise, they can use such time for leave taken pursuant to the new Domestic Violence Leave statute described above.
Notably, schools are prohibited from using an employee's earned sick time as a negative factor in any employment action, including an evaluation, disciplinary action, or termination. This is similar to the prohibition in the federal Family & Medical Leave Act and the Domestic Violence Leave Act (see above) that preclude employers from using an employee's use of such time as a negative factor in the employee's performance assessment or discipline.
In addition, employers cannot require an employee to provide a doctor's note to substantiate the need for time off unless the employee is out of work for 24 consecutively scheduled hours. Unlike paid vacation time, employers are not required to pay out accrued but unused sick time upon an employee's termination.
Schools required to provide paid sick time under the Law should make sure their policies and collective bargaining agreements provide for the minimum required by the Law by July 1, 2015. Policies and collective bargaining agreement that already provide paid sick time that is at least as generous to employees in terms of total accrual, rate of accrual, and carryover as required by the Law do not need to make changes. For specific feedback concerning your school or district please contact us.
If you have any questions, please do not hesitate to contact us.
Stoneman, Chandler & Miller LLP
99 High Street
Boston, MA 02110
The foregoing has been prepared for the general information of clients and friends of Stoneman, Chandler & Miller LLP. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your Stoneman, Chandler & Miller LLP representative. This material may be considered advertising under certain rules of professional conduct.
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