January 5, 2015

The new ‘sick leave’ law

November's election brought an early Christmas "gift" for Massachusetts employers: the new sick leave law. The law, which will take effect July 1, requires paid sick leave and may impact many different employer policies, including vacation, attendance, and holiday pay policies, to name a few.

How employees gain ‘sick time’

The new law will affect all Massachusetts employers. Those with at least 11 employees must provide paid sick leave to all of them. Employers with fewer than 11 employees must also provide sick leave, but it can be unpaid. Under the law, employees will accrue paid sick leave beginning July 1 at the rate of one hour for every 30 hours worked, up to a maximum of 40 hours per calendar year. However, employees will not be eligible to take the paid leave until they have worked for the employer for at least 90 days. The law permits employees to carry over up to 40 hours of accrued sick leave from one year to the next, but they're not entitled to use more than 40 hours in any calendar year.

What the law allows

The law permits employees to take leave for their own illness, injury or health condition, or that of a child, spouse, parent or parent-in-law. Employees may also take paid leave to attend routine medical appointments for themselves or any of those relatives, or to address the psychological, physical, or legal effects of domestic violence. When the need for leave is foreseeable, an employee need only make a "good faith effort" to provide notice "in advance."

The employer and the law

So, how do you know an employee is taking leave for one of these reasons? Most times, you have to take his word for it. Under the law, an employer may only require certification from an employee's health care provider to verify the need for leave if an employee uses earned sick time for more than 24 consecutively scheduled work hours.

Most importantly, the law prohibits retaliation against any employee for requesting or using earned sick leave, for opposing practices he believes to be in violation of the law, or for supporting a co-worker's exercising of his rights under the law. Additionally, the use of leave cannot be considered a factor in any employment action such as an evaluation, promotion, discipline or termination.

The law leaves open a number of questions, including when to determine employer size and what constitutes "advance notice." The attorney general is expected to issue regulations and address these issues, as well as others. In the interim, employers need to update impacted policies and have them reviewed by labor and employment counsel for compliance with the new law.

Amelia J. Holstrom is an associate attorney at Skoler, Abbott & Presser, based in Springfield and Worcester. She can be reached at (413) 737-4753 or at aholstrom@skoler-abbott.com.


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