On November 4, 2014, Massachusetts voters passed Ballot Question 4, providing earned paid sick leave for employees. Effective July 1, 2015, employers with 11 or more employees will be required to allow all employees to accrue and use up to 40 hours of paid sick leave per calendar year.

As it now stands, for purposes of municipal employers, the statute is not yet the law because cities and towns are not considered “employers” unless the municipal legislative body (city council, town meeting or town council) votes to accept the law, the Massachusetts Legislature enacts it by a two-thirds vote of each house present and voting, or the Massachusetts Legislature funds the costs to municipalities.

The Attorney General is expected to promulgate regulations to help clarify the provisions of the new law prior to July 1, 2015. Until then, here is a summary of the information employers should know to comply with this new law.

For What Purposes Can Sick Time Be Used?

Employees may use earned sick leave to:
• Care for a physical or mental illness, injury or medical condition affecting the employee or the employee’s child, spouse, parent, or parent of a spouse;
• Attend a routine medical appointment for the employee, or the employee’s child, spouse, parent or parent of a spouse; or
• Address the psychological, physical or legal effects of domestic violence.

How Is The Sick Time Earned?

Employees earn a minimum of one hour of sick leave for every 30 hours worked. For purposes of earning sick time, employees who are exempt from overtime requirements under the Fair Labor Standards Act are assumed to work 40 hours per work week, unless their normal work week is less than 40 hours. Employees may earn up to 40 hours of sick time per calendar year, and may carry over up to 40 hours of earned but unused sick time to the next calendar year.

Employees begin accruing sick time on July 1, 2015 or their date of hire, whichever is later. Employees may begin using earned sick time after 90 days of employment.

May An Employer Require Documentation Relating To The Need For Sick Time?

An employer may only require verification of the employee’s need for sick time if the employee uses sick time for more than 24 consecutively scheduled work hours. As a result, there will be a number of circumstances where employers cannot require such documentation, as employees may use their earned sick time intermittently, either in hourly increments or in the smallest increments the payroll system uses to account for absences. The employer may not delay or deny sick leave for lack of medical documentation and may not require that the documentation detail the nature of the illness or circumstances involving domestic violence.

How Does This Law Impact Other Types of Leave?

The Family and Medical Leave Act (FMLA) and Small Necessities Leave Act (SNLA) only apply to employers with 50 or more employees, and employees may not take leave under those Acts until they reach 12 months of employment, as opposed to the 90 day requirement for the new paid sick time. Further, the FMLA and SNLA only provide for unpaid time, where the new sick leave law provides for paid leave. Where leave taken for a permissible purpose under the earned sick time law also constitutes qualified leave under the FMLA or SNLA, the law may run concurrent with leave taken under the FMLA or SNLA.

The new Massachusetts Domestic Violence Leave Law provides employees with up to 15 days of unpaid leave to seek relief from or address issues related to domestic violence. The Domestic Violence Leave Law requires employees to exhaust all of their annual and paid leave prior to taking leave under the law, but provides that an employer may waive the requirement that all annual and paid leave be taken first. How the employer approaches this issue will determine whether leave pursuant to the new earned sick time law must be exhausted first or can run concurrently with leave under the Domestic Violence Leave Law, where circumstances constitute qualified leave under both laws.

Are Employees Entitled To Compensation For Their Accrued But Unused Sick Time When The Employment Relationship Terminates?

No. Employees are not entitled to compensation for earned but unused sick time as they are for earned but unused vacation time.

How Should Employers Proceed?

First and foremost, realize that this ballot question is not yet the law for public employers, and is not applicable unless locally accepted or unless voted by a supermajority of the Legislature. Otherwise put, the political question whether to apply this law to public employers, who already grant as much as three times the sick leave of this law to most employees, is still unanswered.

If this law becomes applicable to a city or town, the employer should review its policies (paid time off, vacation, and other paid leaves) and collective bargaining agreements to determine whether they will have to provide any of their employees with additional paid sick leave.
If employees are already provided with forty hours (or more) of paid time off pursuant to a relevant sick leave policy or other policies, the employer is not required to provide employees with additional paid leave. Still, employers should review their current policies to ensure that they meet the accrual requirements of this law and permit employees to take paid leave for the same reasons and the same conditions as the law.

Contact counsel to review and revise your policies to ensure compliance with these requirements.