On November 4, 2014, Massachusetts voters approved by a decisive margin (approximately 60 percent in favor) a new measure requiring employers to provide sick leave to all employees (with certain limited exceptions regarding federal or municipal employers). The new law further provides for paid sick leave for workers employed by employers of 11 or more employees. The new law takes effect on July 1, 2015. While many employers provide sick leave (paid or unpaid) to their workers, approximately one-third of Massachusetts employees are not covered by such voluntary programs. As such, this new law will have a significant impact on these employers, and the new statutory scheme impacts employers that currently provide sick leave as well.

Use and Accrual

Under the new law, employees would accrue a minimum of one hour of earned sick time for every 30 hours of work performed (regardless of the employee’s status as full-time or part-time). New hires would not earn sick time until the 90^th calendar day following commencement of employment. Workers will be eligible to use up to 40 hours of earned sick time per calendar year. With respect to employers of 11 or more employees (part-time or full-time), workers can use up to 40 hours per years of earned, paid sick time per calendar year. Paid sick time must be paid at the same hourly rate in effect as of the date the sick time is used. Although the statute is silent on how exempt employees must be paid sick time, presumably employers will be obligated to compensate them at their base salary.

Reasons for Sick Leave

Earned sick time may be used for the following reasons:

1. to care for the employee’s immediate family member (child, spouse, parent, or parent-in-law) who is suffering from a physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative care;
2. to care for the employee’s own physical or mental illness, injury, or medical condition;
3. to attend to the employee’s routine medical appointment or that of the employee’s immediate family member; or
4. to address the psychological, physical, or legal effects of domestic violence.

Minimum Increment of Earned Sick Time

Notably, the statute is silent on the minimum increment of earned sick time that may be used by employees (but presumably the minimum increment would be one hour as the statute discusses accrual provisions in hourly increments).

Notice to Employers

Employees must provide advanced notice of the need to take earned sick time when the use of such time is foreseeable. Employers may require employee certification of the need to take earned sick time when the use of earned sick time covers more than 24 consecutively scheduled work hours. No specific format of documentation is necessary under the new law. Rather, any “reasonable documentation” signed by a “healthcare provider” (as defined by the Family and Medical Leave Act) will suffice. The employer may not require that such documentation provide the details of the nature of the medical circumstances or domestic abuse that necessitated the time off.

Carry Over and Pay Out

Employees may carry over up to 40 hours of unused but earned sick time to the following year. Employers obligated to provide paid earned sick time will not be required to pay out any earned but unused sick time upon termination of employment.

Notice to Employees

Employers must provide notice to employees of their rights under this new law. The statute directs the attorney general to prepare a notice form and requires that employers post such notice in a conspicuous location accessible to all employees. Notice must include information (i) describing rights to earned sick time, (ii) about notices, documentation and other requirements imposed on employees in order to exercise their rights under the law; (iii) that describes employee protections under the law; and (iv) about filing an action under the law.

Best Practices

The new law raises some potentially challenging issues for employers. The law states that employers that have existing policies that provide employees with as much (or more) earned sick time as the new law provides need not provide employees with additional sick time—on the condition that these existing policies make sick time available to employees for the same purposes and conditions as provided by the new law. Most employers’ existing policies, however, are not as specific as the new statute. So it is possible that such policies do not meet the statutory requirement that sick time may be used “for the same purposes and under the same conditions.” Accordingly, employers are advised to review their existing policies and consider updating them to meet these new obligations.

Further, the statute provides that an employer may not use the fact that an employee has used earned sick time “as a negative factor in any employment action” (such as an evaluation, discipline, or termination). Employers utilize various policies and forms of discipline to limit absenteeism, such as no-fault policies, point accruals for absences, and general policies against excessive absenteeism. These employers should consider reviewing their policies and discipline practices to ensure that they do not run afoul of this new statutory protection for employees.

The statute may be enforced by the attorney general, who may seek injunctive relief, as well as significant criminal or civil penalties. Moreover, employees claiming violations of the new law may seek mandatory treble (triple) damages and attorneys’ fees for alleged violations. This is particularly noteworthy given that the statute permits employees to file claims for wrongful discharge for use of earned sick time.

Finally, the statute states that the Attorney General may adopt rules and regulations to carry out the purpose of the new law. We do not anticipate that regulations or guidance (if any) will be issued soon. However, such regulations may be helpful in clarifying some of the provisions of the law so we will update this post once any such regulations are released.