Massachusetts Sick Leave Act in Effect as of July 1, 2015

In November an initiative petition entitled Earned Sick Time For Employees was endorsed by Massachusetts voters. The issue is currently before the state legislature and, with some tweaking will take effect on July 1, 2015.

The MSLA entitles eligible employees in Massachusetts to earn and use up to forty hours of sick time in each calendar year:

• For employers with 11 or more employees - Up to 40 hours of paid sick leave/calendar year may be accrued by employees. Smaller employers must allow the same accrual but sick time is unpaid.

• Employees earn one hour of sick time for every 30 hours worked. They begin accruing those hours on the date of hire or on July 1, 2015, whichever is later.

• Employees may begin to use earned sick time on the 90th day after hire.

• Earned paid sick time would be compensated at the same hourly rate that would have been paid to the employee when the sick time is used.

• The initiative petition describes an employee as “any person who performs services for an employer for wage, remuneration, or other compensation.”

• Overtime exempt employees are assumed to work 40 hours/workweek.

• Employees may take sick leave in increments as small as the smallest period for which the employer computes wage payments, e.g. ¼ hour.

• Earned sick leave may be used

o (1) to care for a physical or mental illness, injury or medical condition affecting the employee or the employee’s child, spouse, parent, or parent of a spouse;

o (2) to attend routine medical appointments of the employee or the employee’s child, spouse, parent, or parent of a spouse; or

o (3) to address the effects of domestic violence on the employee or the employee’s dependent child

• Employees may carry up to 40 hours of unused sick time into the next calendar year. But, they cannot use more than 40 hours of MSLA sick time in any calendar year.

• Employers do not have to pay employees for unused sick time upon separation from employment.

• Employees who take MSLA leave, but agree to make up the time lost in the same or next pay period, do not have to use earned sick time for the missed time, and the employer would not have to pay for that missed time.

• Employers may not require an employee to work additional hours to make up for missed time, or to find a replacement employee.

• Employers may only require medical certification of the need for MSLA sick time if an employee is absent for more than 24 consecutively scheduled work hours. The employer may not require an explanation of the nature of the illness or the details of the domestic violence. Nor may employers delay the taking of or payment for earned sick time because they have not received the certification.

• Employers are prohibited from interfering with or retaliating against an employee because of the employee’s exercise of earned sick time rights, or from retaliating against an employee who supports another employee’s exercise of such rights.

• Notice of the requirements of the MSLA must be posted.

Employees have an obligation under this Act to make a good faith effort to notify the employer in advance if the need for earned sick time is foreseeable.

Some of the concerns raised by the wording of the Initiative Petition that should be clarified by the final wording of the law or directives from the Office of the Attorney General include:

• What period of time determines whether an Employer employs 11 or more employees?

• If an employee with accrued time is laid off, is his MSLA time reinstated on his return?

• If the employee is working jobs paying two different rates, what rate applies to the sick time?

• If the employee is scheduled to work overtime on Saturday but calls in sick, what hourly rate should be paid the employee?

• Do Massachusetts employees working out of state accrue sick leave?

• How can Employers control chronic lateness or frequent partial day absences?

ACTION STEPS

• Establish procedure to maintain records of accrued MSLA sick time and track its use.

• Provide information concerning company and employee obligations under the MSLA to all managers and supervisors including guidelines for handling employee notifications regarding use of sick time.

• Develop company policy that comports with the requirements of the MSLA.

• Post Massachusetts Sick Leave Act poster when it is published.

Massachusetts Parental Leave Law in Effect as of April 7, 2015

The Massachusetts Maternity Leave Act applies to employers of 6 or more employees. It gives female employees up to 8 weeks of job protected leave in connection with the birth or adoption of a child under the age of 18 or the adoption of a child under the age of 23 if the child is mentally or physically disabled. Employees eligible for such leave must be full time employees who have completed the employer’s probationary period of no more than 6 months or, if none exists, 3 months of employment. Where possible, the employee must give at least two weeks’ notice of the date of the leave and of her intent to return to work. The Parental Leave Law extends the benefits of the MMLA to male employees and provides for such leave in the event of the placement of a child with an otherwise eligible employee pursuant to a court order. If both parents are employed by the same employer, the employees are entitled to only 8 weeks of leave. In the case of multiple adoptions or births, the employee is to receive 8 weeks per child.

Employees on parental leave have the right to be restored to their previous or a similar position with the same status and pay as of the date of the leave.

If the employer agrees to parental leave of longer than 8 weeks, restoration rights continue unless the employer provides written notification to the employees prior to the extension of an 8 week leave, that reinstatement will be denied.

ACTION STEPS

• Revise company policies to provide same benefits to males as are provided to females and to comply with other obligations set by law.

• Employers of over 50 employees covered by the FMLA must also provide Family Medical Leave Act leave to parents giving birth to or adopting children or caring for children who are under 1 year old.

Massachusetts Domestic Violence Leave

As of August 2014 Massachusetts employers with 50 or more employees in the Commonwealth must provide an employee with up to 15 days of time off in any 12 month period if the employee or a close family member is a victim of abusive behavior and the employee needs time off for medical care, counseling, victim services, legal assistance or other issues directly related to the abuse against either the employee or the employee’s family member.

“Family member” is defined as persons:

• married to one another,
• in a substantive dating relationship who reside together,
• who have a child in common,
• a parent, step-parent child, step-child, grandparent or grandchild
• or persons in a guardianship relationship.

The employee seeking leave is required to provide advance notice of the leave where required by the employer’s leave policies, except in cases of imminent danger to health or safety. But, the employee has 30 days following the leave to provide appropriate documentation of the cause of the leave. Payment for this leave is at the discretion of the employer.

Employers who are found to have violated this law are subject to mandatory triple damages and reasonable attorneys’ fees, which are the same damages mandated in Wage & Hour cases.
No poster has yet been issued, but employers should notify employees of their rights under this law.

If you have any questions, please do not hesitate to contact us.

Stoneman, Chandler & Miller LLP
99 High Street
Boston, MA 02110
617-542-6789 phone
617-556-8989 fax

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.

© 2015 Stoneman, Chandler & Miller LLP