Massachusetts Sick Leave Law – Does Your Business Need A Check-up?

Massachusetts Sick Leave Law – Does Your Business Need A Check-up?

We hope for good health for ourselves and others. Sickness and injury may come to us all,  but when employees sicken, your business needs a sick time leave policy. Employers must provide paid sick leave if they have more than 10 employees – full time, part-time, and seasonal.  For those with 10 or fewer employees, the leave is unpaid. Our sick leave law was effective on July 1, 2015 for all businesses, charities, and their employees. While it is balanced and reasonable, the regulations are complex and a headache for business owners without an HR Dept. Businesses are required to provide and employees need to know their rights. We can help minimize mental pain for those businesses needing to set up or update a written policy under the Massachusetts earned sick time law. The law requires time off, paid or unpaid, as accrued for routine or emergency medical visits and travel time to care for an ill family member or to address domestic violence. It requires provision for 40 hours per year of leave.  Not doing so is risky: an ounce of “legal preventive medicine” immunizes against a nasty case of legal “flu.” Enforcement is under the state’s Wage Act with a fever inducing mandatory triple damages and attorneys’ fees.
The Attorney General’s June 19, 2015 Regulations provide for notice rules, acceptable documentation of leave and disciplinary steps. Reading them will cure your insomnia! They prohibit employees’ inappropriate use before or after vacations, or tardiness. Leave may  run concurrently with other leave such provided by the FMLA, the Massachusetts  Parental Leave Act, the Massachusetts Domestic Violence Leave Act, the Small Necessities Leave Act and other laws that may allow employees to make concurrent use of leave for the same purposes. The FMLA  applies to companies with 50 or more employees. See our blog article with FMLA basics: There is a required AG (Attorney General) poster for notice – which would be on a commercial employment laws poster with notice of all State and Federal employment laws requiring posters. We can provide you with a copy of the Regulations and FAQs.
Employees earn 1 hour of sick leave for every 30 hours of time worked from day one.
Hourly workers are to be paid their “regularly hourly rate,” but not less than the MA minimum wage. For those paid a salary, the same hourly rate means the employee’s salary in the previous pay period divided by the total hours worked in the employee’s the previous pay period. For determining total hours worked during the pay period, executive, administrative and professional employees shall, and other salaried non-exempt employees may, be assumed to work 40 hours in each week unless their normal work week is less than 40 hours. In that case, earned sick time shall accrue and the same hourly rate shall be calculated based on the employee’s normal work week.

Overtime-exempt employees are considered to earn sick leave based on a 40 hour work week. Employees are allowed to accrue and use up to 40 hours in a year. After they have earned 40 hours in a year, they do not continue to accrue additional hours. Once an employee has accrued 40 hours during the benefit year, the employer may delay further accrual until the employee draws down the bank of earned sick time to below 40 hours. Unearned sick time must be rolled over to the following year.

Sick Leave Pay Amount and Earned Sick Pay Calculations. Employees earn sick leave at their regular rate. However, if an employee’s hourly wage differs then, the employer has two choices. They can pay the employee for the amount the employee would have earned for the hours missed or they can pay a blended rate. Employers must choose a method and evenly apply it across all employees. It is also important to note that differential pay rates such as overtime, holiday, and night pay are not considered premium rates and must be included when calculating the employee’s hourly sick pay.

Tipped employees must receive the service rate of $9.00 an hour. Commission, bonus, overtime, holiday or premium pay rates are not calculated in the sick leave pay. All employees who work the majority of their job in Massachusetts are covered and count all of your employees, even those employees who work outside the state of Massachusetts in determining the 11 employee+ paid  / 10 or less unpaid employee threshold.

Exemptions & Calculations – Number of Employees. The United States government, Massachusetts cities and towns, and certain other local public employers, such as school committees, including regional schools and educational collaboratives are exempt, but “not for profits” are not. Employers shall determine once a year whether it has 11 or more employees by counting the number of employees, including full time, part-time, seasonal, and temporary employees, on the payroll during each pay period of the benefit year and dividing by the number of pay periods

Sick Leave Bank and Pay.  The law allows a sick leave bank that lasts for 12 months. When an employee leaves an employer, the employer is not required to pay out earned, but unused sick leave. If the employee has less than 10 hours of unused sick leave and returns to the employer within four months of the date of their last date of employment, then all accrued sick leave must be reinstated to them and available immediately

Employees notice of the need for leave. When the need is foreseeable, employees must try to provide notice of up to seven days (e.g. under an employer’s existing system if it meets the purposes of the law.) An employer without an employee notice policy must adapt one.** If the leave is not foreseeable, employees can give notice ASAP.
Seven Steps for Employers: 1) Review / adopt a written sick leave policy with a notice system that employees can use for needed sick leave / family care / domestic violence leave, 2) Determine whether employees will be entitled to paid versus unpaid leave based on the 11-employee test, 3) Adapt carryover, cap, and use, attendance and anti-retaliation provisions, 4) Determine if your present leave policies, for example, existing sick leave, paid time off comply, 5) Post /Provide employees  the required notice issued by the Attorney General, 6) The above steps are best best through a new or amended existing Employee Handbook,   7) Ensure systems are set up to calculate & track earned and used – unused sick leave  leave time (your payroll company should do this) & 7) Train managers, HR and payroll about the requirements.
Our “plain language” Employee Handbook to meet the needs of small businesses should “inoculate” your company with a sick leave policy provided you follow it and the detailed regulations.  Upcoming articles will feature protective details, including other essential handbook policies required by law.


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