The new Massachusetts Sick Leave Law (also known as the “Earned Sick Time Law”) became effective on July 1, 2015. Essentially, the Sick Leave Law gives employees the opportunity to accrue and use “earned sick time” – that is, time off for the purpose of caring for the employee’s own medical issue or that of an immediate family member, as well as to attend routine medical appointments.Employees earn sick time under the new law at the minimum rate of one (1) hour for every thirty (30) hours worked (up to forty (40) hours yearly.)
Here are five additional things that both employers and employees should know about the new law.
1. Many mistakenly assume that the law applies only to larger employers. This assumption is not correct. The Sick Leave Law applies to all employees and employers (except certain government employees and excluding a few other narrow categories.) It is only those employers with eleven (11) or more employees (including part-time and temporary employees – not just full-time employees) that are required to provide paid sick time (once earned.) Smaller businesses are still required to allow employees to accrue and use earned sick time (albeit unpaid), and are subject to the record-keeping and anti-retaliation provisions of the law (described below.)
2. The Sick Leave Law may apply to employees even if the employer is located outside of Massachusetts. If an employee’s “primary place of work” is in Massachusetts, then the Sick Leave Law applies to that employee regardless of where the employer is located. This provision is significant, particularly where many now work “remotely” from home offices (sometimes for an out-of-state employer or an employer with no “brick and mortar” office location.) An employee’s “primary place of work” could be Massachusetts even if the employee spends less than fifty percent (50%) of her time in Massachusetts. The Attorney General’s regulations on the Sick Leave Law provide the following examples:
Example: A painter with a single employer works 40% of her hours in Massachusetts, 30% in New Hampshire and 30% in other states. Massachusetts is her primary place of work.
Example: A retail clerk relocates from New York to Massachusetts and takes a job at the employer’s Boston store. Upon the first date of actual work at the Boston store, Massachusetts becomes the clerk’s primary place of work.
If Massachusetts is an employee’s “primary place of work” and the Sick Leave Law applies to that employee, the employer must count all hours worked – not only those worked in Massachusetts – for the purpose of accruing earned sick time.
3. Time accrued under the new Sick Leave Law may run concurrently with other mandated leave. This includes time that employees are allowed to take under the Federal Family and Medical Leave Act (often referred to as “FMLA Leave”), if applicable (the FMLA applies to employers with 50 or more employees), or other similar Massachusetts legislation (such as the Massachusetts Parental Leave Act, formerly known as the Maternity Leave Act.) This means that an employer can require its employee to take – or the employee may choose to use — accrued paid sick time to receive pay when taking other statutorily-authorized leave that would otherwise be unpaid.
4. Earned sick time can be carried over from year to year and employers must track the time. It is up to the employer – not the employee – to track the sick time that each employee earns and uses (similar to an employer’s responsibility to track hours and overtime worked for the purpose of complying with the Massachusetts Wages Statute.) These records must be maintained for at least three (3) years, and the employer must provide copies within ten (10) days to any employee requesting his/her records. Employees may carry over up to forty (40) hours of unused earned sick time to the next calendar year, but are not entitled to use more than 40 hours in one calendar year. Also, employers do not have to compensate departing employees for earned but unused paid sick time (which is slightly different from the position the Attorney General has taken on, for instance, accrued but unused vacation time under the Massachusetts Wages Statute.)
5. Employees can sue for violations of the Sick Leave Law and, if successful in their lawsuits, will be awarded attorneys’ fees and three times their actual damages. The new Sick Leave Law has teeth – and they are very sharp. Specifically, the Sick Leave Law provides that:
It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under or in connection with this section, including, but not limited to, by using the taking of earned sick time under this section as a negative factor in any employment action such as evaluation, promotion, disciplinary action or termination, or otherwise subjecting an employee to discipline for the use of earned sick time under this section.
It shall be unlawful for any employer to take any adverse action against an employee because the employee opposes practices which the employee believes to be in violation of this section, or because the employee supports the exercise of rights of another employee under this section.
This means that employees can sue their employers for violations of the Sick Leave Law and, if an employee is successful in her lawsuit, the Court is required to award the employee three times her actual monetary damages and the attorneys’ fees and costs that the employee incurs in connection with her lawsuit against the employer. This means employers could potentially be on the hook for serious money if the Sick Leave Law is violated and causes an employee significant monetary loss.
Personally, I predict that – as has been the trend in other areas of employment law – most of the litigation over the Sick Leave Law will involve the above so-called “anti-retaliation provision” (likely in conjunction with unpaid sick time and against employers who mistakenly believe the law does not apply to them.) For instance, suppose Employee A occasionally uses earned sick time to care for an ill child and, shortly thereafter, Employee A’s performance review negatively comments on her “attendance.” Suppose further that the employer passes Employee A over for a promotion that would have increased her salary by $15,000 yearly – in favor of Employee B, who is slightly less-qualified but has a “perfect” attendance record – and the evidence establishes that Employee A’s absences (in which Employee A used her earned sick time) directly contributed to the employer’s decision to not promote her. Arguably, in my opinion, the employer in this scenario has violated the anti-retaliation provisions of the Sick Leave Law. Over the course of a year, Employee A has lost $15,000 (the loss of increase in her salary.) If Employee A is successful in a lawsuit against her employer for violating the Sick Leave Law, then the Court must award Employee A $45,000 in damages (three times the $15,000 loss of salary) plus any attorneys’ fees and costs that Employee A incurs in connection with her lawsuit.
I represent individuals and businesses in a variety of employment matters, including claims for unemployment benefits, cases involving violations of wage and hour laws, gender, disability and other forms of discrimination, failure to accommodate and retaliation claims.
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