Caution: Are You Really Covered by the Sick Leave Law’s “Safe Harbor”?

The Massachusetts Earned Sick Time Law went into effect yesterday. We have recently discovered that some employers are operating under the mistaken belief that they are covered under the law’s Safe Harbor, which allows them to defer compliance until January 1, 2016. The Safe Harbor provisions in the final regulations are different from those originally published by the Attorney General. If you are relying upon Safe Harbor to excuse you from compliance with the Earned Sick Time Law, please check this email alert carefully.

There are a number of mandatory requirements for employers who want to take advantage of the Safe Harbor. You must be able to successfully meet all requirements in order to be covered under this exemption. Review this checklist to see if you are properly covered.

You are eligible for Safe Harbor if:

  • You had a policy that was in effect on May 1, 2015, that allowed employees to take at least 30 hours of paid time off/sick leave during 2015.
  • f there were employees who were not covered by that policy, including part-time, per diem, or temporary employees, you have created a policy that accomplishes one of the following two options:
    • If your May 1 policy was an accrual system, you have set up a system that allows any newly covered employees to accrue time off at the same rate as regular full time employees
      OR
    • If your May 1 policy was front loaded with a lump sum, you have provided those newly covered employees with a lump sum, pro-rated based upon their schedules and reduced by half to reflect the fact that they are covered as of July 1.
  • Under either scenario, you have notified your employees that they may take any leave that they have available to them for all five covered purposes under the statute and that they may roll over up to 40 hours of time into the next calendar year (unless you are going to front-load a new lump sum on January 1, 2016).
  • You are prepared to ignore some parts of your attendance policies if the absences are protected under the Earned Sick Time Law in order to avoid a claim that you have retaliated against employees for using Sick Time.
  • You plan to allow an employee who is taking leave under the Earned Sick Time law to return to his/her job at the end of the leave.

If you don’t meet all the criteria above, you are not covered under Safe Harbor and need to speak with an attorney at Skoler, Abbott & Presser to bring your company into compliance.

You should also have already posted the Attorney General’s Model Notice and distributed it to all employees (unless you published a new employee handbook with a sick time policy). We also recommend that you review all your handbook policies to see that they are in compliance with the final regulations.

If you need any assistance complying with the new sick time law, contact any of the attorneys at Skoler, Abbott & Presser.