The Massachusetts Attorney General recently released final regulations clarifying the Earned Sick Time law, a ballot initiative that passed in November 2014 guaranteeing employees paid sick leave. As discussed in our previous post on the new law, beginning July 1, 2015, employers with more than 11 employees must allow their employees to accrue 1 hour of paid sick leave for every 30 hours worked, up to a total of 40 hours of paid sick leave per year. Although the new regulations should be reviewed in their entirety as they contain extensive details regarding the requirements under the law, there are a few clarifying provisions to note in particular:

  • All employees, including full-time, part-time, seasonal, and temporary employees, shall accrue paid sick leave.  However, public employers and students in work-study programs are generally excluded from the requirements of the law.
  • All employees who primarily work in Massachusetts are eligible to earn paid sick leave for all hours worked, regardless of the location of the work or the location of the employer. An employee need not spend more than half of his or her time working in Massachusetts for a single employer in order for Massachusetts to be the employee’s primary place of work.
  • Employers may qualify for a “safe harbor” until January 1, 2016.  An employer will be deemed compliant with the new law until January 1, 2016 if it provides full-time employees with the right to earn and use at least 30 hours of paid time off between January 1, 2015, and December 31, 2015, and if it allows any employees not previously covered by a paid leave policy to have the opportunity to accrue paid time off at the same rate as covered full time employees. The 30 hours of paid time off must be job-protected subject to the law’s anti-retaliation provisions, available for the allowed purposes under the Earned Sick Time law, and available to the employee after January 1, 2016 if unused during the transition year.
  • Employers must post a notice in conspicuous workplace areas, and must also provide a hard copy or electronic copy of the notice to all eligible employees.

Furthermore, employers should pay special attention to the following provisions which explicitly alter and expand the language of the original ballot measure:

  • In addition to allowing employees to use their paid sick leave to care for their own or their family member’s physical or mental illness, to attend routine medical appointments, or to address the effects of domestic violence, the regulation clarifies that employees may also use paid sick leave to travel to and from appointments or pharmacies.
  • The ballot measure originally required employees only to make a good faith effort to give advance notice of foreseeable use of paid sick leave.  However, the regulations now clarify that employees must give notice, except in particular situations in which advance notice might be infeasible. For unforeseeable absences, the employee must give notice that is reasonable under the circumstances.
  • The ballot measure only permitted employers to request documentation from a health care provider if an employee used paid sick leave for more than 24 consecutively scheduled work hours.  However, the regulations permit an employer to request documentation if the employee uses paid sick leave and: is absent for more than 24 consecutively scheduled work hours, is absent on 3 consecutive days on which the employee was scheduled to work, is absent 2 weeks prior to an employee’s last day before termination of employment, or is absent after 4 unforeseeable/undocumented absences (or 3 unforeseeable/undocumented absences for employees under age 17) within a 3 month period.

In light of the numerous requirements and clarifications established by the new regulations, employers should be sure to consult with counsel to ensure that their current policies align with the requirements of the law and its accompanying regulations, or, alternatively, to draft new and compliant leave policies.

This post was drafted with help from Alexandria Martin, a Summer Associate in the Boston office. 

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Photo of Mark W. Batten Mark W. Batten

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters…

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters and discrimination claims. Ranked by Chambers USA, Mark is hailed as “a fabulous lawyer, handling interesting and complex cases.” Clients “highly recommend him to anyone seeking litigation counsel in the Boston area,” as well as note “he is responsive, pragmatic and team-oriented, and offers excellent legal advice.”

He assists clients with all aspects of employment policies and practices, including hiring, termination, leaves, accommodation of disabilities, and other matters. Mark also handles diverse civil litigation, including litigation of noncompetition agreements, ERISA matters, discrimination and wrongful termination litigation in federal and state courts; proceedings before the Massachusetts Commission Against Discrimination; wage and hour matters; and labor arbitrations. He is also an experienced appellate attorney both in employment cases and other civil litigation, handling appeals at all levels in the state courts and in the United States Courts of Appeals.

Mark also has substantial experience with traditional labor matters. He regularly represents employers in a variety of industries, including a number of newspaper and media companies, in collective bargaining, practice before the NLRB, labor arbitrations, union organizing campaigns, and day-to-day advice on administration of collective bargaining agreements. He regularly advises clients in both union and non-union settings on diligence matters in corporate acquisitions and financings. He also has experience on behalf of securities firms in arbitrations before the NASD and NYSE of customer and employee complaints.

Mark also practices on behalf of newspapers and other media in newsroom litigation, including libel defense and representation of reporters under subpoena, and has substantial experience in litigation involving access to sealed records and judicial proceedings on behalf of media companies.

Before joining Proskauer, Mark was a trial attorney in the Civil Division of the U.S. Department of Justice in Washington, where he was lead counsel in major litigation for over two dozen federal agencies, ranging from the U.S. Air Force, the CIA, and the U.S. Secret Service to the Department of Housing and Urban Development and the National Endowment for the Arts.

Mark regularly writes and lectures on employment-related matters, including, for instance, MCLE’s Representing Clients Before the Massachusetts Commission Against Discrimination.

In his spare time, Mark is an experienced computer programmer, conversant in C, C++, and other languages. He has ported software between computer operating systems and has published several commercial computer games.