Employees Eligible to Accrue and Use Earned Sick
Time
(1) An employee is
eligible to accrue and use earned sick time if the employee's primary place of
work is in Massachusetts regardless of the location of the employer. An
employee need not spend 50% or more time working in Massachusetts for a single
employer in order for Massachusetts to be the employee's primary place of work.
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.
(2) If an employee is eligible to accrue and
use earned sick time, then all hours the employee works must be applied toward
accrual of earned sick time regardless of the location of the work and
regardless of the location of the employer.
Example: In a single year, an employee
of a catering company works 550 hours in Massachusetts, 350 hours in New
Hampshire and 200 hours in Maine. The caterer will accrue earned sick time on
all 1,100 hours worked for the catering company.
(3) Eligible employees permanently
transferred to another state but remaining with the same employer will no
longer accrue earned sick time but may use their accrued time.
Accrual of Earned Sick Time
(4) Employees accrue earned sick time on all
hours worked at a rate of one hour of earned sick time for every 30 hours
worked, including overtime hours, up to a cap of 40 hours per benefit
year.
(5) Employees accrue earned
sick time only on hours worked, not on hours paid when not working. For
example, employees do not accrue earned sick time during vacation, paid time
off, or while using earned sick time.
(6) Employees exempt from overtime
requirements under
29
U.S.C. §
213(a)(1)
shall be assumed to work 40 hours in each work week for purposes of earned sick
time accrual unless their jobs specify a lower number of hours per week, such
as salaried part-time employees. In such cases, earned sick time shall accrue
based on that specified number of hours per week.
(7) Employees paid on a piece work or
fee-for-service basis accrue earned sick time based on a reasonable measure of
the time the employees work, including established practices or billing.
(a) Adjunct faculty compensated on a
fee-for-service or per-course basis shall be deemed to work three hours for
each classroom hour worked.
(b)
Family Child Care Providers, as defined by M.G.L. c. 15D, § 17, shall be
deemed to work six hours for each part day worked and ten hours for each full
day worked.
(8) Once
employees have accrued 40 hours of earned sick time during the benefit year,
they do not continue to accrue more hours of earned sick time regardless of the
additional hours they work.
(9)
Once an employee possesses a bank of 40 hours of unused earned sick time, the
employer may opt to delay further accrual until the employee draws down the
bank of earned sick time to below 40 hours.
(10) At the end of the benefit year, an
employee may rollover up to 40 hours of unused earned sick time to the next
benefit year.
(11) Employers may
track accrual at an accrual rate of one hour of earned sick time for 30 hours
worked or any equivalent accrual rate with smaller increments of time
(
e.g. one minute of sick time per 30 minutes worked, two
minutes of earned sick time per hour worked).
Use of Earned Sick Time
(12) Employees have the right to use 40 hours
of earned sick time per benefit year if the employee works sufficient hours to
earn the time.
(13) An employee may
not use earned sick time if the employee is not scheduled to be at work during
the period of use.
(14) The
smallest amount of sick time an employee can use is one hour. For uses beyond
one hour, employees may use earned sick time in hourly increments or in the
smallest increment the employer's payroll system uses to account for absences
or use of other time.
Example: Chris takes his daughter to a
scheduled doctor's appointment during his regularly scheduled work time, but
the entire trip takes 50 minutes. Chris has used one hour of earned sick
time.
Example: A furniture company uses a
payroll system that tracks time in 15-minute increments. Anna, an employee,
goes to a dentist appointment and returns after 90 minutes. Anna has used 90
minutes of earned sick time.
(15) An employer may review with employees
the allowable purposes for which earned sick time may be used under M.G.L. c.
149, § 148C.
(16) Earned sick
time may not be invoked as an excuse to be late for work without an authorized
purpose under M.G.L. c. 149, § 148C.
(17) An employee may not accept a specific
shift assignment with the intention of calling out sick for all or part of that
shift.
(18) Where an employee's use
of earned sick time requires the employer to hire a replacement or call in
another employee and the employer does so, the employer may require the
employee to use an equal number of hours as the replacement or call-in employee
works, up to a full shift of earned sick time. If the employee lacks sufficient
accrued earned sick time to cover such time away from work, the employer must
provide sufficient job-protected unpaid leave to make up the difference in that
shift.
Example: A food broker's fleet departs
from the employer's principal place of business at 3:00 A.M. Monday through
Friday to ensure timely delivery of perishable items to scheduled customers.
The drivers' shifts vary slightly depending on the route, but average eight
hours with loading and unloading. The employee responsible for the upper Cape
Cod deliveries arrives at the employer's principal place of business at 5:00
A.M. after spending the night in the ER with a sick child. The employer was
notified by phone of the emergency, and called in an off-duty employee to cover
the upper Cape Cod deliveries for the absent driver's shift. In this example,
the employer may require the absent employee to use eight hours of earned sick
time.
Example: The employee, a maternity
ward nurse, is scheduled to report for her 12-hour shift at 8:00 A.M. but calls
her supervisor at 6:00 A.M. to report that she will not be available to work
until 12:00 P.M. that day due to a sudden illness in the family. The supervisor
is able to secure a replacement for the first four hours of the employee's
shift and must allow the employee to report for duty at 12:00 P.M. In this
example, the employer may not require the absent employee to use more than four
hours of her earned sick time.
(19) Where an employer does not hire a
replacement or call in another employee but the employee's use of earned sick
time results in the employee missing transportation to a work site, the
employer may require the employee to use earned sick time only until the
employee arrives at the work site.
Example: The employee, a landscaper,
calls his supervisor before the start of his six-hour shift at 8:00 A.M. to
report that he has to take an ill parent to the hospital. The landscaper's crew
leaves for a new job site and the employee is not replaced. The employee
arrives at the job site by 9:00 A.M. after finding a ride on his own. The
employee need only use one hour of earned sick time.
(20) An employer shall not require an
employee to make up time off from work as a condition of using earned sick
time. An employee and employer may, however, by mutual agreement arrange for
the employee to work additional hours during the same or next pay period to
avoid the use of, and payment for earned sick time.
(21) Employers and their fee-for-service
employees may arrange to make up hours during the same pay period or any future
pay period that is mutually agreeable.
(22) Employers and employees, by mutual
written agreement, may arrange for employees to use earned sick time before
accruing it and for employers to count the use against future
accrual.
(23) If an employee is
committing fraud or abuse by engaging in an activity that is not consistent
with allowable purposes for earned sick time under M.G.L. c. 149, § 148C,
an employer may discipline the employee for misuse of sick leave.
(24) If an employee is exhibiting a clear
pattern of taking leave on days just before or after a weekend, vacation, or
holiday, an employer may discipline the employee for misuse of earned sick
time, unless the employee provides verification of authorized use under M.G.L.
c. 149, § 148C.
Payment of Earned Sick Time
(25) Earned paid sick time is paid at the
same hourly rate listed in
940 CMR
33.02:
Same Hourly Rate.
(26) When used, earned paid sick time must be
paid on the same schedule as regular wages are paid. Employers may not delay
compensating employees for earned paid sick time.
(27) Employers shall have the option, but are
not required, to pay out employees for up to 40 hours of unused earned sick
time at the end of the benefit year or when the employee changes jobs within
the employer's employment. Employers paying out 16 hours or more shall provide
16 hours of unpaid sick time until the employee accrues new paid time, which
shall replace the unpaid time as it accrues. Employees paying out less than 16
hours shall provide an amount of unpaid sick time equivalent to the amount paid
out until the employee accrues new paid time, which shall replace the unpaid
time as it accrues.
(28) Employers
shall have the option, but are not required, to pay out unused earned sick time
upon separation from employment.
90-Day Vesting Period
(29) Employees begin accruing earned sick
time on the first date of actual work and may begin to use any accrued earned
sick time 90 days following their first dates of actual work, regardless of the
number of days worked during the 90-day period.
(30) Employees who have been employed for at
least 90 days as of July 1, 2015, meaning their first dates of actual work
occurred on or before April 2, 2015, may use earned sick time, whether paid or
unpaid, as it accrues.
Example: Jasper's first date of actual
work as a salesperson at a shop is October 1, 2016. Jasper will be eligible to
use any accrued earned sick time 90 days later, which is December 30,
2016.
Break in Service
(31) Following a break in service of up to
four months, an employee shall maintain the right to use any unused earned sick
time accrued before the break in service.
(32) Following a break in service of between
four and 12 months, an employee shall maintain the right to use earned sick
time accrued before the break in service if the employee's unused bank of
earned sick time equals or exceeds ten hours.
Example: An employee has accrued 20
hours of earned sick time and then goes on an unpaid leave of absence for 11
months, starting June 1, 2016. Upon the employee's return to employment on May
1, 2017, eleven months from the date of the employee last worked for the
employer, the employee shall have the right to use the 20 hours of earned sick
time accrued before the leave of absence began.
(33) Following a break in service of up to 12
months, employees maintain their vesting days from the employer and do not need
to restart the 90-day vesting period.
Transition Year
(34) Employees shall begin to accrue earned
sick time beginning on July 1, 2015 and shall be eligible to use their earned
sick time 90 days after their first date of actual work, should a qualifying
need arise.
(35) An employer shall
not be required to provide more than 40 hours of earned paid sick time during
the transition year, and any paid leave given in the benefit year prior to July
1, 2015, will be credited.
Example: An employee used 15 hours of
paid leave time as of July 1, 2015. The employer must allow the employee to
earn and use up to 25 hours of earned paid sick time in the remainder of the
benefit year.
Transition Year: Safe Harbor for Employers with Existing
Policies Providing Paid Time off
(36) Employers with a policy in existence on
May 1, 2015 that provides paid time off or paid sick leave, shall be deemed in
compliance with the Earned Sick Time law until January 1, 2016 provided:
(a) Full-time employees on the policy have
the right to earn and use at least 30 hours of paid time off/paid sick leave
between January 1, 2015 and December 31, 2015;
(b) On and after July 1, 2015, all employees
not previously covered by the policy, including part-time employees, seasonal
employees, temporary employees, new employees, and per diem employees must
either:
1. accrue paid time off at the same
rate of accrual as covered full-time employees; or
2. if the policy provides lump-sum
allocations, receive a prorated lump-sum allocation based on the provision of
lump sum paid time off/paid sick leave to covered full-time employees. Such
lump-sum allocations may:
a. where lump sums
of paid time off are provided annually, be halved for employees who receive
coverage as of July 1, 2015, and proportionately reduced for employees hired
after July 1, 2015; and/or
b. be
proportionate for part-time employees;
If an employee is compensated other than on an hourly or
salaried basis, the employee must accrue or receive lump-sum allocations based
on a reasonable approximation of hours worked; and
(c) 30 hours of paid time off/paid
sick leave or such lesser amounts as are earned or used by employees under 940
CMR
33.03 must be:
1. job-protected leave
subject to the law's anti-retaliation provisions;
2. available for the allowed purposes of the
leave under M.G.L. c. 149, § 148C; and
3. available to the employee after January 1,
2016 if unused during the Transition Year unless the policy provides lump sum
allocations that make rollover unnecessary.
(37) In all other respects, during this
transition period, employers may continue to administer paid time off under
policies in place as of May 1, 2015.
(38) Employers with the option to utilize the
safe harbor may also choose full compliance with M.G.L. c. 149, § 148C,
and
940 CMR
33.00 beginning July 1, 2015 for some or all
employees.
(39) On or before
January 1, 2016, all employers operating under this safe harbor provision must
adjust their policies providing paid time off/paid sick leave to conform to
M.G.L. c. 149, § 148C, and
940 CMR
33.00.
