The Law @ Work

Massachusetts Earned Sick Leave: Attorney General Announces “Safe Harbor” for Employers with Existing Paid Time Off Policies

by Kimberly A. Klimczuk

In response to concerns from employers struggling to bring their policies in compliance with Massachusetts’ new Earned Sick Leave law by the effective date of July 1, 2015, Attorney General Maura Healey has announced that any employer with a paid time off policy in existence as of May 1, 2015 that provides employees with at least 30 hours of paid time off during calendar year 2015 shall be considered to be in compliance with the earned sick leave law with respect to those employees who have received benefits under such time off policy, as well as any other employees to whom the employer extends at least 30 hours of paid time off for the remainder of calendar year 2015.  Such employers will be required to bring their paid time off policies into full compliance with the law by January 1, 2016.

In order for the paid time off policy to be in compliance for the remainder of 2015, the time off provided must be job-protected leave subject to the law’s non-retaliation and non-interference provisions (in other words, employees may not be penalized for taking the leave).  However, in all other respects, employers may continue to administer their paid time off policies through the transition year (such as by enforcing the employer’s normal call-out procedures).

Although this announcement is intended as a compromise for those who had hoped the effective date of the law would be moved until next year, this “safe harbor” announcement may be of little practical use for employers with part-time, temporary, per diem or seasonal employees.  In order for employers to be able to take advantage of the safe harbor with respect to these employees, it would have to provide them with 30 hours of paid time off between July 1, 2015 and December 31, 2015, which is more than those employees likely would accrue at the accrual rate required by the law.  Therefore, unless employers want to provide part-time and per diem employees with 30 hours of leave for the second half of 2015, they will have to bring their policies into compliance with all of the provisions of the sick leave law by July 1, 2015; and if they are doing that for part-time and per diem employees, they may as well do it for their full time employees as well.   However, for employers with a primarily full-time workforce that already provide at least 30 hours of paid time off per year, this will give them some extra time to bring their paid time off and related policies into full compliance with the law.

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