sick timeOn November 4, 2014, Massachusetts residents went to the ballot box and by a wide margin voted “Yes” on Question #4, which concerns a law mandating paid time in Massachusetts.

When will this go into effect?

The new law takes effect July 1, 2015.

Which employers will be impacted?

The new law requires companies with 11 or more employees to provide paid sick time and requires companies with 10 or fewer employees to provide up to 40 hours of unpaid sick time.

How does the law define “employees”?

The term “employee” under the law is defined as “any person who performs services for an employer for wage, remuneration, or other compensation.”Thus, the law applies to full-time, part-time, temporary and seasonal workers. Exempt employees are presumed to work 40 hours in a week for purposes of the law, unless they are regularly scheduled for a different number of hours.

What will the law require?

Impacted employers will need to provide up to 40 hours of sick time each calendar year to all employees.  Employers are not required to pay out unused earned sick time upon separation from employment (as opposed to earned but unused vacation pay, which must be paid out upon separation).  Time off designated as vacation time or personal time will not satisfy the new law. The days must be designated in the paid time off bank as sick time afforded in compliance with the new law. Employers are prohibited from retaliating against an employee who exercises his or her rights under the law.

 How will the sick time be calculated?

The new law states, “employees shall begin accruing earned sick time commencing with the date of hire of the employee or the date this law becomes effective, whichever is later, but employees shall not be entitled to use accrued earned sick time until the 90th calendar day following commencement of their employment.” The sick time law mandates that employees will earn one hour of sick time for every 30 hours worked, up to a total of 40 hours per year.

How are the employees allowed to use this paid time off? Are there any restrictions?

Under the law, employees are permitted to use the sick time for their own illness or that of a family member, and employers are prohibited from taking adverse action against the employee for properly using the time. By intent of the law, employees are not supposed to use these days for vacation, but this of course adds another layer of supervision. Some legal professionals recommend specifying in your company’s sick time policy that the days are intended for illnesses not vacation. Employees can carry over up to 40 hours of unused sick time to the next calendar year, but cannot not use more than 40 hours in any calendar year.

Is there anything an employer should consider to prepare for the implementation of this law?

The law also states that employers who provide paid time off to employees under a paid time off, vacation or other paid leave policy that provides for the same or better accrual for reasons covered by the new law are not required to provide additional earned paid sick time. Employers who believe the new law will adversely impact their business financially should explore amendments to their existing “time-off” benefits. Employers with PTO or sick time policies who will continue those policies should review their policies to determine if such policies comply with the new law.

All employers should implement a sick time policy, if they do not yet have one. In the policy the employer should explain (1) the new law, (2) the calculation of days, (3) the purpose of the days, (4) the proper method for using the days and (5) potential penalties for misuse of the days.

What happens if an employer does not comply?

Among other things, the law empowers the Massachusetts Attorney General’s Office to enforce its provisions, but also provides for a private right of action by aggrieved individuals. The private right of action provision provides for the recovery of mandatory triple damages and attorneys’ fees.


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