Attorney General’s Earned Sick Time Notice Suggests Major Changes in Mass. Sick Leave Provisions

The Massachusetts Attorney General has published its model notice that employers may use to fulfill their obligations to notify their employees of the new earned sick leave law, which goes into effect on July 1, 2015. Although we do not yet have the final regulations implementing the law (which are scheduled to be published on June 19), the model notice contains information that suggests the final regulations will include significant changes from the proposed regulations. In addition, the Attorney General has issued a new “Safe Harbor” notice that makes it easier for employers to take advantage of the safe harbor protection, which would give qualified employers until January 1, 2016 to bring their paid time off and related policies into full compliance with the sick leave law.

Model Notice

Effective July 1, 2015, the earned sick leave law requires employers to post a notice of the earned sick leave law to employees and also to provide employees with a copy of the notice. The Attorney General, as promised, has now issued a model notice that employers can use to fulfill this obligation. The notice includes information on employees’ rights under the law, but also includes information that signals some significant changes from the proposed regulations, and even the statute itself. For example, the sick leave law and the proposed regulations state that employers must track sick leave in the smallest increment that their payroll system uses to account for absences or use of other time. The AG’s model notice, however, states that “[t]he smallest amount of sick time an employee can take is one hour.”

In addition, despite the law’s clear language stating that employers may not require documentation of an employee’s need for leave unless the employee has been absent for more than 24 consecutively-scheduled work hours, the model notice provides that employers may require documentation if an employee is out of work for 3 consecutive days or uses
any sick time within two weeks of leaving their job.

The model notice also clarifies that sick time “cannot be used as an excuse to be late for work without advance notice of a proper use.”

Although we will have to wait for the final regulations to learn the full extent of these and other potential changes, the model notice indicates that the Attorney General has responded to the testimony of employers and individuals such as Skoler Abbott’s Kimberly Klimczuk, who testified at the Attorney General’s May 29 public hearing in an effort to bring client concerns regarding the sick leave law to the attention of the Attorney General and her staff.

Safe Harbor

As we previously reported, the Attorney General had issued a “safe harbor” policy for employers with existing paid time off policies, which would allow such employers to continue their existing policies until January 1, 2016, as long as they provided at least 30 hours of paid time off for all employees in 2015. That announcement was helpful for employers with a primarily full-time workforce who already received at least 30 hours of paid time off per year, but for employers with non-benefit-eligible employees, it meant employers were faced with the option of either providing all such employees (including per diem, temporary and seasonal employees) with 30 hours of paid time off for the second half of 2015, or coming into full compliance with the law with respect to those employees effective July 1, 2015.

The new safe harbor announcement makes it easier for employers with part-time, temporary or per diem employees to take advantage of the safe harbor. Specifically, employers with a policy in existence on May 1, 2015 that provides paid time off or paid sick leave shall be deemed to be in compliance with the earned sick leave law until January 1, 2016, provided:

  1. Full-time employees on the policy have the right to earn and use at least 30 hours of paid time off/sick leave in 2015; and
  2. Effective July 1, 2015, all employees not previously covered by the policy, including part-time 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/sick leave to covered full-time employees. Such lump sum allocations may:
      1. 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
      2. Be proportionate for part-time employees.
  3. If an employee is not compensated on an hourly or salaried basis, the employee must accrue or receive lump sum allocations based on a reasonable approximation of hours worked.

In order to qualify for the safe harbor, the leave must be available for all sick leave law purposes and must be job-protected subject to the law’s non-retaliation provisions, but in all other respects employers may continue to implement their normal paid time off policies until January 1, 2016. Employers who take advantage of the safe harbor must allow employees to carry over up to 30 hours of paid time off/sick leave into 2016.

As always, we will continue to update you on any developments on the sick leave law. If you have any questions about the model notice, the new safe harbor announcement, or any other aspect of the sick leave law, please do not hesitate to contact any of the attorneys at Skoler Abbott.

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