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Every private employer in the Commonwealth must be aware of the new Massachusetts law on sick leave. From the employer that already provides paid sick leave, to the employer of a single employee, this new Statute, which will be codified at General Law Chapter 149, Sec. 148C, will affect everyone when it goes into effect on July 1, 2015. Employees will be allowed to start taking sick leave on September 29, 2015 or 90 days after their start date if hired after July 1, 2015.

Ignore the Statute at your peril, as the result could be a claim against your company for triple damages and attorneys’ fees, or an enforcement action by the Attorney General, even if you already provide paid sick leave.

For Employers Under 11 Employees

The good news is that you do not have to provide paid sick time. After July 1st of next year, however, you will have to allow all employees to earn up to 40 hours of unpaid sick leave a year. This includes part-time and temporary employees. No one is excluded.

For Employers with 11 Employees or More

After July 1st of next year, all employees will earn up to 40 hours of paid sick leave a year. Even if you already provide such paid sick leave, your policy will likely need some tweaking because (1) the statutory sick leave is likely broader than your policy, and (2) your certification requirements might be more stringent than allowed under the Statute.

Part-time and temporary employees count towards the 11 employee threshold. The Statute is silent about what happens if you downsize in the middle of the calendar year from 11 employees to 10 employees or less. My best guess would be that employees would not lose sick time that was already accrued, but that they would stop accruing sick time when you downsized. Hopefully, the Attorney General will address this issue before the statute takes effect.

If you have more than 50 employees, you will have to coordinate this leave with the FMLA and the Massachusetts Small Necessities Leave Ace.

How Sick Leave Is Earned?

All employees will earn sick leave at the rate of 1 hour for every 30 hours worked, up to a maximum required 40 hours. Most full-time employees will earn the full 40 hours. Exempt employees paid on salary will normally be presumed to work 40 hours per week. Part-time workers might not earn the full 40 hours, but they may not need to. Sick time must be earned starting with the first day of work, although you need not allow any leave until after 90 days.

For What Can Sick Leave Be Taken?

This is where your current policy may be in conflict with the new statute. Under the new statute, an employee will have a right to take sick leave to care for a child, spouse or parent or parent of a spouse, including to attend the employee’s or family member’s medical appointment. Sick leave is also available for mental illness or preventive medical care. Sick leave may also be used to address the psychological, physical or legal effects of domestic violence, which could include going to court. The term “sick leave” could be a misnomer in many circumstances.

To make matters worse, sick leave can be taken in hourly increments (or smaller, depending on your policy for tracking time). On one hand, this makes sense because sick leave can be taken for a routine medical appointment. On the other hand, it may create a “get out of jail free” card for employees who simply over sleep and are late. The employee could claim that he or she felt ill and take an hour of sick leave. Theoretically, an employee could show up an hour late once a week, claim sickness, and be protected from punishment.

What About a Doctor’s Note Requirement?

This is another issue that may conflict with your current policy. The statute states that an employer “may require certification” when an employee takes more than 24 consecutive hours of earned sick time. A fair reading of this provision is that an employer may not otherwise ask for certification. So if an employee takes 2.5 days of sick time leave, the employer is apparently supposed to just take the employee’s word for it. The employer may not require that the certification explain the nature of the illness or the details of the domestic violence. Even where certification is required, the employer cannot delay providing the leave or paying for the leave on the basis that it has not yet received the certification.

What Penalties Are Available Under the Statute?

Employers are prohibited from interfering with an employee’s rights under the statute, or using the fact that an employee took earned leave as a negative factor in any employment action or otherwise disciplining the employee for using earned sick time. Employers are also prohibited from retaliating against any employee who opposes practices which the employee believes is in violation of the statute or supports another employee’s exercise of his rights under the statute.

The Statute will be enforced by the Massachusetts Attorney General, which has not yet issued any regulations or Advisory. The Attorney General can get an injunction against any employer violating the statute. Penalties, including potential criminal prosecution are available to the Attorney General. Additionally, the Statute has been incorporated into General Law Chapter 149, Section 150, which provides for a private right of action for triple damages and attorneys’ fees. It is not expressly clear if an employee would be entitled to recover for lost backpay in the event of a wrongful termination, or, if so, if the backpay would be tripled.

Other Statutory Provisions.

An employer is not required to pay out unused sick time upon separation of employment. This could get tricky if you combine a policy with paid time off or vacation pay.

Employees can carry over unused, earned sick time from year to year, but may not use more than the maximum 40 hours per year (unless the employer allows).

Employees must give notice if the need for leave is foreseeable.

Employees can make up the sick time by working another shift during the same pay period or the next pay period if both employer and employee agree. In that situation, the employer need not pay for the missed time, and the employee does not need to use earned sick time.

However, an employer cannot require an employee to work additional hours to make up the missed time, or require that the employee to search for or find a replacement employee to cover the hours during which the employee uses earned sick time.

Employers will be required to post notice of the rights under the statute.

Observations

The new Statute will impact all employers, some much more than others. The economic impact is potentially huge. If you have 100 employees earning an average of $40,000 per year, this new Statute potentially just added $80,000 to your yearly expenses, or $80,000 in lost productivity depending on how you look at it. Given the breadth of the statute and the anti-retaliation provisions, there will be little reason for any employee to not use his five days of sick leave a year. The likely result is that some employers will be forced to cut down on paid vacation and personal days. Sick leave will become the new personal day/vacation leave for many employers. In fact, the statute states that if you provide paid time off that meets the same parameters as the statute, you don’t need to provide additional sick time.

Worse yet, the statute arguably prevents an employer from rewarding attendance, as it could be deemed to be a de facto punishment to employees who took leave.

Problem employees will find a lot of room to abuse this statute. Virtually every termination becomes actionable by employees because virtually every employee will have taken sick time in the recent past. It will be the worst employees who will abuse the new law. The result will be that firing these worst employees will become risky. Employers who terminate unreliable or chronically late employees who are adept at gaming the system will risk exposure.

Employers will need to make (sometimes expensive) contingency plans to cover for sick workers. No longer can an employer place the responsibility on the employee to find someone to cover the shift. This will be a big change for some industries, such as the restaurant industry. It is not clear whether an employer can require an employee who is going to use a few hours of leave to be out for the entire shift. Although the statute does not expressly prevent this, it could be considered retaliatory and subject the employer to suit under the statute. The statute arguably requires employers to allow employees to take a few hours off and then show up and work their shift. Some jobs do lend themselves to allowing an employee to take a few hours off, such as a driver, a home health worker, etc. Some employers will face additional costs by being over-staffed to account for being under-staffed (keep in mind that if a replacement employee must report to work, they must be paid at least three hours).

Virtually every term in the statute is defined broadly in favor of the employee, so employers will have to err on the side of caution. For example, a “parent” includes any “person who assumed the responsibilities of parenthood when the employee or employee’s spouse was a child.” Another example is that leave is allowed for “preventive medical care.” Could this include acupuncture? Massage? Dental cleanings? Leave is allowed for medical conditions and mental illness,” so employees who are depressed, have anxiety, or sleep disorders are likely allowed to take leave.

Employers will have the additional burden of calculating sick time earned, especially for part-time, temporary or new employees. You may want to consider simply providing your full time workers the full 40 hours at the beginning of each calendar year, although this creates the possibility that the employee could use days that are not earned.

Be careful about paying people as independent contractors. This is very risky in Massachusetts anyway. Curiously, the sick leave Statute does not use the statutory definition for employee, but simply defines an employee for private employers as “any person who performs services for an employer for wage, remuneration, or other compensation.” Presumably, the Attorney General and the Courts will use the definition contained in the previous section of the Statute, General Law Chapter 149, Section 148B, which is also strict, but which does provide a working definition to distinguish between employees and independent contractors.

As always, the above is not considered legal advice, but is general information only.

By Adam P. Whitney

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