E-Alerts

Mandatory Paid Sick Time: Coming Soon To Massachusetts?

[October 30, 2014]  Under a ballot question to be decided by Massachusetts voters on November 4, employers in the Commonwealth with at least eleven employees could soon be required to provide annual paid sick time to employees. Smaller employers would be obligated to allow employees to take unpaid sick time.

The proposed sick time measure is significant. Employers with at least eleven employees would need to shoulder the financial burden of providing up to 40 hours of sick time per year for each employee. And while employers with fewer than eleven employees would not be required to provide paid sick time, many such employers could face scheduling challenges or difficulty finding qualified substitutes when unpaid sick time is used.

Recent polls indicate that this proposed legislation, which would go into effect on July 1, 2015, is likely to be approved. Thus, Massachusetts employers should carefully review the proposed sick time measures and begin preparing to comply with them.

The Chief Provisions

Accrual. Massachusetts employers with at least eleven employees (including full-time, part-time, and temporary employees) would be required to permit employees to accrue a minimum of one hour of paid sick time for each 30 hours worked. Employees would have a right to accrue and use up to 40 hours of paid sick time per calendar year. For employers with fewer than eleven employees, these same obligations would apply, except that sick time could be provided on an unpaid basis.

Permitted Uses. The proposed law would allow an employee to use accrued sick time (i) to care for a physical or mental illness, injury, or medical condition affecting the employee or the employee’s child, spouse, parent, or spouse’s parent; (ii) to attend routine medical appointments of the employee or the employee’s child, spouse, parent, or spouse’s parent; or (iii) to address the effects of domestic violence on the employee or the employee’s child.

Incremental Use Of Sick Time. Employees would be entitled to use accrued sick time in the smaller of hourly increments or the smallest increment that the employer’s payroll system uses to account for absences or use of other time.

Waiting Period Before Using Sick Time. Employees would be entitled to begin accruing sick time immediately upon hire. However, an employee would have a right to use accrued sick time only after 90 days of employment.

Makeup For Missed Work Time. Where an employee missed work for a reason covered by the law, the employee could make up the missed work time during the same or the next pay period, in lieu of using accrued sick time. However, both the employer and the employee would need to voluntarily agree to such an arrangement.

Carryover. Significantly, employees would have a right to carry over up to 40 hours of accrued, unused sick time into the following calendar year. They would not, however, be entitled to use more than 40 hours of accrued sick time in a calendar year. Employers would not be obligated to pay employees for accrued, unused sick time upon separation from employment.

Notice And Certification. An employee would be obligated to make a good-faith effort to notify his or her employer before using accrued sick time, if the need for the time off were foreseeable. Similarly, an employer could require an employee who used accrued sick time for more than 24 consecutive scheduled work hours to provide certification of the need for this sick time.

No Adverse Action. Finally, employers would be prohibited from taking adverse action (e.g., disciplinary warnings or negative performance evaluations) against employees as a consequence of their using accrued sick time.

Implications And Recommendations

The proposed legislation, if passed, would significantly impact Massachusetts employers. As of next July, employers that have not previously offered sick time to employees would be required to do so, and for employers with eleven or more employees, this would need to be on a paid basis. Further, employers that already provide sick time may need to revise their current policies and practices to comply with the various requirements of the new law.

Accordingly, we recommend that Massachusetts employers:

• Carefully review the provisions of the proposed mandatory sick time law;
• Begin analyzing, in consultation with experienced employment counsel, how their current policies and practices regarding sick time may need to be changed if the ballot question passes; and
• Continue to monitor developments in this area.

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Please don’t hesitate to contact us if you have any questions about the proposed Massachusetts sick time law and its potential implications for employers.