On July 1, 2015, the Massachusetts mandatory earned sick
time law is supposed to go into effect, but the regulations to implement this
new law are still a work in progress. The Attorney General recently issued
proposed regulations and is accepting public comment on these draft regulations
through June 10.
Generally, the law requires employers to provide
Massachusetts employees with up to 40 hours of job-protected sick time each
year, accrued at the rate of one hour for every thirty hours worked, to be used
for illness or routine medical appointments for the employee or the employee’s
family members or for issues related to domestic violence.
This sounds simple enough, but there are features of this
new law that will present challenges for all employers, even for employers who
already have generous sick leave or PTO polices. Among the aspects of the new
law or proposed regulations that are of most concern include the following:
- The
proposed regulations would require employers to provide the statutory sick time in addition to time provided under a number of laws, including the Family and
Medical Leave Act (FMLA) and the Massachusetts Parental Leave Act. Thus, employers who require FMLA time to run
concurrently with sick time — i.e., most employers — would need to revamp
their FMLA polices as well as their sick time policies. - The
proposed regulations would severely restrict employers’ abilities to question
employees about their sick time absences. Employers would be able to require
employees to affirm in writing that the sick time that they have taken is for
allowable purposes, but employers would not be able to request any additional
medical or other documentation unless an employee has used more than 24
consecutive hours of earned sick time. After an employee’s absences exceed this threshold, employers would be
able to require written certification from a healthcare provider — or from the
employee, if there is no healthcare provider — that the leave was taken for an
allowable purpose. Significantly, employers would "never" be allowed
to require documentation to explain the nature of the illness. - The
proposed regulations would require employers to establish customary call-in
procedures and to excuse noncompliance with these procedures when there are
"situations such as accidents or sudden illness for which such
requirements might be unreasonable or infeasible."
As a result of the interplay between many of these
provisions, the major challenge for employers will be in preventing fraudulent
use of sick time. To illustrate the problem, imagine an employee who comes in
30 minutes late, or leaves work early, and tells you to mark the time off as
"sick time." What can you do if you suspect abuse? It appears, not
much. You would not be able to ask the employee’s healthcare provider for
information, because the proposed regulations would allow you to obtain
information from the provider only after the employee is out of work for over
24 consecutive hours. You may have no way of determining whether the employee’s
condition warranted the sudden absence, or any pattern of absences, because the
regulations would also prohibit you from asking for documentation about the
nature of the illness. Now imagine that this employee is habitually late and
each time the employee says to you, "sick time." Under these circumstances, the new sick leave
law, which requires employers to provide sick time in one hour increments (or
even less if your policies allow for shorter absences) could be the equivalent
of a "get out of jail free" card, prohibiting you from disciplining
the employee for tardiness. The proposed regulations acknowledge that employees
may be disciplined for fraud or abuse in connection with their sick time usage,
but does not seem to allow any mechanism to obtain information to establish
abuse. For employees who take off the
mandated forty hours in full-day increments, the potential for abuse will be
minimized, but not reduced — as where, for example, an employee calls in
"sick" every Friday in the month of July. It is unclear whether the
final regulations will address this problem, which, will be of concern for
employers in implementing the new law.
We will know shortly whether any of these issues will be
addressed in the final regulations. Once the regulations are issued, employers
will need to familiarize themselves with required changes and act promptly in
revising their policies to ensure compliance.
If you have any questions about the information presented
here, or have any employment law concerns, please contact Laurie F. Rubin, at
617 456 8020 or [email protected], the author of this alert, or Daniel S.
Tarlow, chair of the firm’s Employment Practice Group at 617 456 8013 or
[email protected].