Cough Today, Get Paid Tomorrow

Mandatory Paid Sick Leave on the Horizon for Many Employers

By JOHN S. GANNON

This November promises to be an exciting — and important — time for the Commonwealth. The state will elect a new governor, a Massachusetts seat in the U.S. Senate is up for grabs, and a ballot question will ask voters whether they want to vote down a 2011 law allowing resort casinos to operate in the state. Given these hot ticket items, it’s easy to overlook other voting initiatives.

However, employers should pay particular attention to Question 4, the Massachusetts Paid Sick Days Initiative.

If approved by voters, the measure will require employers to provide certain employees with several sick days each year. Various federal and state laws already require unpaid job-protected leave, such as the Family Medical Leave Act, the Massachusetts Maternity Leave Act, and the Small Necessities Leave Act. The difference with this new measure is that most employers would be required to pay employees for their time off.

History of Paid Sick Leave

Connecticut made history in 2011 when it became the first state in the country to require employers to provide paid sick leave. However, the law did not reach all employers or employees.

Employers with fewer than 50 employees were exempt from the law. In addition, paid leave was required to be provided only to non-exempt service workers. The law was predominantly focused on protecting low-wage workers in the service and retail industries. Since then, many cities have adopted similar measures. There are currently sick-leave laws on the books in San Francisco, Seattle, Washington, D.C., and New York City.

In Massachusetts, similar versions of paid-sick-leave laws were proposed in the Legislature, but none reached a final vote. This year, sick-leave supporters abandoned the legislative route in favor of a ballot strategy. They delivered enough signatures to the State House to get a question about paid sick leave on the 2014 ballot.

The Ballot Question

The law proposed on the statewide ballot would entitle employees in Massachusetts to earn and use up to 40 hours of sick time. The amount of time off, and whether it needs to be paid, varies depending on the size of the employer.  Individuals working for smaller businesses with fewer than 11 employees would be able to earn and use up to 40 hours of unpaid sick time. Employers with 11 or more employees would have to provide these 40 hours of sick time as paid leave. Unlike Connecticut, the law generally applies to all employees regardless of job duties.

The law provides three scenarios where an employee could use earned sick time. Leave could be used (1) 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; (2) to attend routine medical appointments of the employee or the employee’s child, spouse, parent, or parent of a spouse; or (3) to address the effects of domestic violence on the employee or the employee’s dependent child. Employees would earn one hour of sick time for every 30 hours worked, and would begin accruing those hours on the date of hire or on July 1, 2015, whichever is later. Employees could begin to use earned sick time after working 90 days.

Carryover of unused sick time to the next calendar year would be permitted, but the employee could not use more than 40 hours in a calendar year. Unlike unused vacation, employers would not have to pay employees for unused sick time at the end of their employment.

Do They Have to Prove It?

One issue that concerns employers is whether employees have to back up their need for time off. The new law states that employers can require certification of the need for sick time if an employee uses more than 24 consecutive hours of sick leave.

Any “reasonable documentation” signed by a healthcare provider must be accepted as sufficient certification of the need for leave, and employers are prohibited from demanding that the documentation explain the nature of the illness. However, it is unclear whether employers can require medical documentation for shorter absences pursuant to company policy.

Finally, when employees are aware in advance of the need for earned sick time, they must make a good-faith effort to notify the employer beforehand. The law does not suggest how much advance notice should be provided.

Bottom Line

Many employers, particularly small businesses, oppose the sick-time mandate.  Some are already operating on thin margins, and paid-leave requirements would undoubtedly add to growing labor expenses. Those in favor of the law contend that employees should not have to choose between coming to work sick and getting paid.

Recently, the debate has transcended employer groups. Last week Democrat Martha Coakley criticized gubernatorial rival Republican Charlie Baker for his opposition to the ballot question.

If you need assistance revising or adopting your employee-leave policies, contact experienced labor and employment counsel.

John S. Gannon is an associate with Skoler, Abbott & Presser, P.C., and practices in the firm’s Springfield office. Since joining the firm in 2011, he has defended employers against claims of discrimination, retaliation, harassment, wrongful-termination claims, as well as actions arising under the Family Medical Leave Act and wage-and-hour laws. He also has experience with lawsuits seeking to enforce restrictive covenants and protect trade secrets; (413) 737-4753; [email protected]