What’s the Prognosis?

A Primer on the New Law Requiring Employers to Provide Sick Leave

By JEFFREY TRAPINI and HUNTER KEIL

Through a ballot intitiative in the November election, voters in Massachusetts decided to require employers to provide sick-time benefits to all workers. The law passed by a margin of approximately 60% to 40%, and it goes into effect on July 1, 2015.

Here what employers need to know about this measure and how it will impact their business.

What the Law Requires

The law applies to all employers, regardless of size. If the employer has 11 or more employees, then the sick time must be paid, and if the employer has fewer than 11 employees, it may be unpaid.

Regardless of the size of the employer, the law has the same requirement for accrual. Employers must provide a minimum of one hour of sick time for every 30 hours worked by an employee, up to a maximum of 40 hours of sick time per year. The law applies to both full-time and part-time employees, although obviously part-time employees will not accrue sick time as quickly as full-time employees. Employees who are exempt from overtime requirements are presumed to work 40 hours per week for the purposes of accrual, unless their normal work week is fewer than 40 hours, in which case it will accrue based on their normal work week.

Employees are allowed to carry up to 40 hours of sick time accrued in one calendar year over to the next calendar year, but employers are not required to allow employees to use more than 40 hours of sick time in one year. For that reason, this carry-over provision affects when an employee can take his or her sick time, but not the total amount of time that can be taken in a year.

Sick time may be used by employees for a number of reasons. In addition to caring for an employee’s own health, it can be used for caring for the employee’s child, spouse, parent, or parent of a spouse. Sick time can be used for both unforeseen illnesses and for routine medical appointments. If the use of earned sick time is foreseeable, the employee is required to make a good-faith effort to provide notice to the employer. Finally, sick time can be used to address the psychological, physical, or legal effects of domestic violence.

Employees will begin accruing sick time under this law on July 1, 2015 or on the date of their hire, whichever is sooner. Although employees begin accruing sick time upon hire, there is a 90-day waiting period for use of the sick time. Therefore, employees cannot use accrued sick time until they have been employed for 90 days or more by the employer, but they begin accruing it immediately.

The law does not require accrued sick time to be paid to an employee upon termination or resignation. Employers should be careful, however, if they have a paid-time-off (PTO) policy that grants employees a certain amount of paid time off that can be used as either vacation or sick time. The law does not require an employer to provide paid sick time in addition to PTO, provided that the PTO policy meets the minimum criteria of the law.

The Massachuetts Wage Act, however, requires employers to pay employees for all of their accrued vacation time upon termination or resignation. If an employer does not differentiate between vacation time and sick time, then it arguably must pay all accrued PTO at the time of the employee’s departure. If a policy is unclear, the courts may construe it against the employer, so it would be wise for an employer to make sure it is clear on this point.

The Law Is a Floor

The new law, which will be codified as Chapter 149, §§ 148C, 148D, acts as a floor below which employers may not drop, but nothing in the law forbids employers from granting more benefits to employees than the law requires. If an employer’s existing policy grants more generous sick-time benefits to its employees than the law requires, the employer does not need to modify its policy in reaction to this law. However, employers should be cautious in assuming that their policy is in compliance with the law, and it would be prudent to seek advice.

While an employer’s sick-time policy may be generous, it may still have details that are not in compliance with this law. For example, an employer may grant more than 40 hours of sick time per year, but if it does not allow up to 40 hours per year to be rolled over to the next calendar year, it may not be in compliance. Likewise, if an employer does not provide benefits, including sick time, to part-time employees, it will not be in compliance with the law regardless of how generous its sick-time policy may be for full-time employees.

Potential Liability for Employers

Both individual employees and the Massachusetts attorney general have the right to enforce the provisions of the law. Like other statutes relating to employment discrimination and wages, employers may be sued for interfering with or denying an employee from using earned sick leave, or for retaliating against employees for asserting their rights to sick leave or for supporting the rights of another employee. If the employer is found to have engaged in such conduct, it can be liable for any lost wages or other damages resulting from the adverse employment action. Further, it also appears that an employer’s decision maker may also be liable to the employee.

Employers should take special note of the retaliation provision of the statute. Where damages are awarded, they must be automatically tripled, and the employee may also recover attorney fees and costs. The mandatory tripling of damages and the availability of attorney fees for a successful plaintiff pose the possibility of surprisingly large awards, creating an incentive for attorneys to represent employees in these cases. It would be wise for employers to be meticulous in ensuring that their sick-time policies comply with the law, and that their policies are uniformly followed.

Attorney General Regulations

The law requires the attorney general to promulgate regulations on a number of the provisions in this law. These regulations will clarify ambiguities, and employers will have to make sure that they are in compliance with these as well. Employers should be aware that further modifications to their policies may be necessary when this occurs.

Jeffrey Trapani and Hunter Keil are attorneys with Springfield-based Robinson Donovan, specializing in employment law and litigation; (413) 732-2301.