Ever since Massachusetts voters approved the new Earned Sick Time Law last November, employers have been asking questions about how the law will be implemented, and what effect it will have on existing paid time off policies. Some of these questions are finally being answered. Last Friday, Attorney General Maura Healey filed draft regulations with the Secretary of State spelling out her proposal for how the technical details of the law will work.
The proposed regulations, which are available on the AG’s website, set out in great detail – over eleven pages of text – the specifics about how earned sick time will accrue, how it can be used, how it will be paid, how it will be tracked, and the protections provided to employees. The following are some of the highlights of the proposed regulations.
- Employers may choose any consecutive twelve-month period as the “calendar year” for purposes of accruing, using and carrying over earned sick time. (For purposes of determining whether an employer must provide earned paid sick time, however, the number of employees will be measured on a January 1 through December 31 calendar year.)
- All of an employer’s employees, whether working in Massachusetts or not, will be counted in determining whether the employer must provide earned paid sick time.
- Employees must be provided with 90 days’ written notice of a change in the employer’s requirement to provide earned paid sick time (i.e., due to an increase or decrease in the number of employees), and any earned sick time accrued prior to the change will remain paid or unpaid, as the case may be.
- An employee whose “primary place of work” is in Massachusetts will be eligible to accrue and use earned sick time.
- All of the time worked by an eligible employee, whether that work is performed in Massachusetts or elsewhere, will be counted toward accrual of earned sick time.
- Earned sick time under the law is in addition to leave provided under the Family Medical Leave Act, the Massachusetts Parental Leave Act, the Massachusetts Domestic Violence Leave Act, and the Massachusetts Small Necessities Leave Act.
- Earned paid sick time must be paid at the same hourly rate that the employee earns at the time the earned paid sick time is used, except that overtime, holiday pay or premium rates need not be paid. Employees who perform work at different rates for the same employer will be paid a “blended rate” for earned paid sick time.
- Employees may use earned sick time in increments of one hour, or any smaller increment used by the employer’s payroll system to account for absences or use of other time. However, when an employee’s absence from work at a designated time requires the employer to hire a replacement worker, the employee can be required to use up to a full shift of earned sick time.
- If an employer has a written policy so requiring, employees may be required to provide up to seven days of advance notice of foreseeable uses of earned sick time.
- Employees returning to work after a break in service of up to one year will retain their rights to accrued and carried-over earned sick time.
- Employers may require employees to provide written verification that earned sick time was used for allowable purposes, but employers may not request medical or other documentation substantiating the need for the leave unless the employee has used more than 24 consecutive work hours of earned sick time.
- Employers will be able to discipline employees for misuse of earned sick time. Such misuse could include taking leave for a purpose not consistent with the statute, or a clear pattern of taking leave at times when the employee is scheduled to perform duties perceived as undesirable.
- The proposed regulations specify the requirements that an employer’s paid time off policy must meet in order to comply with the Earned Sick Time Law. The earned time off under the PTO policy must:
- accrue at a rate of no less than one hour of PTO for every 30 hours of work;
- be paid at the employee’s same hourly rate;
- be accessible on the same basis, meaning time may be taken for the authorized uses under the statute;
- come with the same notice requirements to employees; and
- be afforded the same job protections.
- The proposed regulations also answer questions about how the law will work in the 2015 “transition year.”
- Current employees with at least 90 days of service will begin accruing earned sick time on July 1, and may begin using it as it is accrued.
- Employers will not be required to provide more than 40 hours of earned paid sick time in 2015, and any paid leave given prior to July 1 will be credited.
The AG has indicated that she will be issuing a written notice of the Earned Sick Time Law and the final regulations, to be posted by employers, as well as a model form for requesting medical certification from employees using more than 24 consecutive work hours of sick time.
The AG has planned a series of Listening Sessions and Public Hearings throughout the state in May and early June, and will accept public comments until June 10. The AG’s office says that it expects final regulations will be filed “this summer.” Even if this happens before the law’s July 1 effective date, employers will not have much time to make any changes to their policies and procedures necessary to comply with the law.