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Frequently Asked Questions about the new Earned Sick Time Law

Blog, Employment Attorneys

Posted in on February 4, 2016

Attorneys Susan Molinari and Theresa Barbadoro Koppanati have been hosting presentations to different business groups to discuss the new Massachusetts Earned Sick Time Law, M.G.L. c. 149, § 148C, and its accompanying regulations, 940 CMR 33.00 which went into effect on July 1, 2015. The new law and regulations can be daunting, but there are a few things that each business should know. Below is a list of frequently asked questions that have been raised at each of the presentations that will provide you with several highlights of the new Earned Sick Time Law.

Q: Does the new Earned Sick Time Law effect my business?

A: Yes! This law effects all businesses in the Commonwealth of Massachusetts including non- profits. The exception would be government and municipal employers.

Q: What is the purpose of the Earned Sick Time Law?

A:  The new law entitles Massachusetts employees to earn up to 40 hours per year of sick leave to address certain personal and family needs.

Q: Do I have to pay my employees for leave under the Earned Sick Time Law?

A: Only business that have 11 or more employees must provide paid leave under the new law. Employers with 10 or less employees need to provide leave pursuant to the law, but they do not have to provide paid leave. Calculating the number of employees can be difficult given turnover, seasonality and other factors. Owners and officers on the payroll count towards the number of employees. Employer size should be determined once a year. Please contact us for help in determining whether your business will be deemed to have 11 or more employees.

Q: Are all of my employees eligible to earn sick leave?

A:  For the most part, yes. All full-time, part-time, temporary, seasonal and per-diem employees that have a primary work place in Massachusetts are eligible. There are certain employees, such as government and municipal employees and students earning credit for the employment, that are not eligible, for those exemptions please contact us to discuss.

Q: How are hours accrued?

A: An employee earns 1 hour of Earned Sick Time for every 30 hours worked. All hours including overtime hours worked outside of Massachusetts count towards the accrual of earned sick time.

Q: How many hours of earned sick time can an employee use per year?

A: Up to 40 hours.

Q: When can an employee begin using their earned sick time?

A: An employee can begin using their earned sick time on the 90th calendar day after the employee begins working for the company, however, note that the employee begins accruing earned sick time on their first day of employment with the company.

Q: What can earned sick time be used for?

A: Earned sick time can be used to care for the employee’s child, spouse, parent, or parent of a spouse who is suffering from a physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care. It can also be used to address the psychological, physical or legal effects of domestic violence. For a full explanation as to what constitutes proper use of earned sick time please contact us to discuss.

Q: If I have to pay my employees for their earned sick time, how much do I have to pay?

A: The simple answer is that employees must be paid what they would have earned if they had worked instead of using earned sick time. However this answer is really not that simple, as the answer depends on the type of business you have. Please contact us if you need assistance in determining the proper wages due to your employees.

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Q: Do I have to payout unused earned sick time at the end of a year or when the employment relationship is terminated?

A: No.

Q: When do I need to implement the new earned sick leave law into my business?

A: All employers are now subject to the provisions set forth in the new Sick Leave Act. If you have not yet implemented this law into your business or if you would like a review of your implemented policy please contact us, we would be happy to review your policy with you.

Q: My company has an existing paid time off (PTO) policy, will this satisfy our obligation to provide earned sick time?

A: It depends. PTO policies can be set up correctly to comply with the Earned Sick Leave Act, however, they should be carefully reviewed to be sure that they meet all of the obligations under the law. Please contact us for help in implementing a PTO policy that will satisfy the Earned Sick Leave requirements.

Q: Do employees need to notify their employers before they use earned sick time?

A: Yes. Employees should make notify their employer in advance for scheduled medical appointments.

Q: Can an employer require written verification from employees when they have used earned sick time?

A: An employer may not request additional medical or other documentation, like a doctor’s note, from an employee substantiating the need to use earned sick time until the employee uses more than 24 consecutive hours or 3 days of earned sick time, the employee is absent for three consecutively-scheduled work days, the employee’s absence occurs within two weeks prior to an employee’s final scheduled day of work before termination of employment, except in the case of temporary workers, or the employee’s absence occurs after four unforeseeable and undocumented absences within a three-month period..

Q: Can I discipline an employee or terminate an employee for misuse of earned sick time

A: Yes. If an employee is committing fraud or abuse by engaging in an activity that is not consistent with allowable purposes for earned sick time an employer may discipline the employee for misuse of earned sick time, such discipline may include termination. If you believe you have an employee that is abusing your sick leave policy, contact us to discuss the violations and the course of discipline. Employers must be sure not to retaliate against employees for their legitimate use of earned sick time.

Q: Do I have to keep track of the sick time employees earn and use?

A: Yes, if your company policy provides earned sick time that is separated from any other time off, you need to keep track of the employee’s use and accrual of earned sick time. These records need to be maintained for at least three years. Employers are not required to provide earned sick time information on paychecks.

The above is not intended to be a complete rendition of the new Earned Sick Leave Law or its accompanying regulations. This law applies to different businesses and employee classes in varying ways, therefore it is important to seek counsel to understand how it directly affects your specific business. Susan Molinari and Theresa Barbadoro are part of the employment lawyers team at Baker, Braverman & Barbadoro, P.C., a full service Quincy law firm. If you wish to have your employee handbook reviewed to ensure your sick leave policy is up to date, or if you wish to set up a seminar for your business, please contact either Susan or Theresa at 781-848-9610.