On January 9, 2010, the New York Knicks lost two important things: the night’s game and their starting point guard, Derrick Rose. Rose was what we in the employment law world call a “no-call no-show” for the game against the Pelicans, meaning that he didn’t show up, and he didn’t call to let anyone know that he wouldn’t be there, or why. Upon his January 10 return, Rose claimed he missed the game due to “family reasons.” Rose said that he had felt “emotionally” that he “had to be with [his] family,” at that time, specifically his mother Brenda.
According to reports, Rose apologized to his coaches, teammates, and the team’s ownership for his absence. When asked, coach Jeff Hornacek lamented that “if he would’ve just called us and let us know, [it would have been] fine.” Ultimately, the Knicks announced that they were fining Rose around $200,000 for the missed game.
Most employers don’t have the option of imposing hefty fines on employees who miss work. In fact, doing so would be unlawful in many cases. So what can employers do when faced with employee absences? Let’s start with a review of the various leave laws that apply to Massachusetts employers.
Massachusetts requires a range of leave options for employees dealing with “family issues,” and these options differ depending on the size of the employer and what particular issues are involved. Each law allows leave for its own specific purposes and has different legal requirements with regards to notice, reinstatement, and other job protections. Let’s take a quick look at each of these types of leave:
Earned Sick Leave (applies to all employers, regardless of size)
The Massachusetts Earned Sick Leave (“ESL”) law applies to any employer of Massachusetts employees (except the U.S. government and municipalities that have not voted to be subject to the law), regardless of where the employer is headquartered. Employees are entitled to accrue 1 hour of sick leave for every 30 hours worked. Employers must allow employees to carry forward up to 40 hours of accrued time, but employees may not use more than 40 hours of sick leave per year.
Employees may use sick time when the employee or the employee’s child, spouse, parent, or parent-in-law is sick, injured, has a medical appointment, or has to address the effects of domestic violence. Employers with 11 or more employees must provide paid sick time. Employers with fewer than 11 employees must provide earned sick time, but it does not need to be paid.
Employers may require employees to give notice before using sick time, except in an emergency. Employers may also require employees to fill out a form stating that they are using or have used sick time for a sick leave-related purpose. Employers may not, however, require a doctor’s note or other documentation except in limited circumstances, such as when an employee misses more than three consecutive workdays. Employers may never require information about the nature of the illness or the details of domestic violence.
Parental Leave (applies to employers with at least 6 employees)
The Massachusetts Parental Leave Act (“PLA”) entitles employees of either gender to eight weeks of unpaid parental leave. Under the law, parents are eligible for eight weeks of leave, per child, for the purpose of giving birth, or for the placement of a child under the age of 18 (or under the age of 23 if the child is mentally or physically disabled) for adoption. If both parents work for the same employer, they are only entitled to 8 weeks of leave, total, for the birth or adoption of the same child. Employers are not required to pay employees during parental leave.
Employees seeking to use parental leave must provide at least two weeks’ notice of the anticipated date of departure and the employee’s intention to return, or, if two weeks’ notice is not possible, as much notice as is practicable.
Family Medical Leave (50+ employees)
The federal Family Medical Leave Act (“FMLA “) entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.
Eligible employees are entitled to 12 workweeks of leave in a 12-month period for: (1) the birth of a child and to care for the newborn child within one year of birth; (2) the placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement; (3) to care for the employee’s spouse, child, or parent who has a serious health condition; (4) a serious health condition that makes the employee unable to perform the essential functions of his or her job; or (5) any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty.” Additionally, employees may be entitled to 26 workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, parent, or next of kin (this is known as military caregiver leave).
If possible, the employee must give the employer at least 30 days advance notice of the need to take FMLA leave. When the need for leave is unexpected, the employee must provide notice to the employer as soon as possible. In the case of the employee’s serious health condition, the serious health condition of a family member, military caregiver leave, or qualifying exigency leave, employers may request documentation demonstrating the employee’s need for leave.
Small Necessities Leave (50+ Employees)
The Massachusetts Small Necessities Leave Act (“SNLA”) provides eligible employees with 24 hours of unpaid leave, per year, for the following reasons: (1) To participate in school activities directly related to the educational advancement of the employee’s child; (2) To accompanying the employee’s child to routine health care appointments; (3) To accompany an elderly relative (age 60+) to routine health care appointments; or (4) To accompany an elderly relative to an appointment for professional services related to the relative’s care, such as interviewing at a nursing home or group care facility.
The 24 hours of SNLA leave are in addition to the 12 weeks of FMLA and may be taken intermittently or all at once. Employees may elect to use earned vacation or personal leave to receive pay during the otherwise unpaid SNLA leave period. If the need for the leave is foreseeable, the employee must give at least three days’ notice; otherwise, the employee must give notice as soon as practicable. Employers may require documentation of an employee’s need for SNLA leave.
Domestic Violence Leave (50+ Employees)
The Massachusetts Domestic Violence Leave Act (“DVLA”) provides covered employees with up to 15 days of leave in any 12-month period to deal with certain domestic-violence related issues, specifically to: (1) look for or receive medical care, counseling, victim services or legal assistance; (2) look for and move into new housing; (3) get a protective order from court or otherwise appear before a court or grand jury; (4) meet with a district attorney, the police or other law enforcement official; (5) attend child custody proceedings; or (6) deal with other issues directly related to the abusive behavior against the employee or a member of the employee’s family. The employer is not required to pay employees on DVLA leave.
Employees must provide appropriate advance notice of the need for leave, unless there is a threat of imminent danger. In such emergency situations, employees must inform their employer within three workdays of their absence that the leave was related to domestic abuse. Employers may request documentation supporting the employee’s need for leave, and employees must provide the documentation within 30 days of taking the leave.
HR professionals know that managing employee absences under all of these laws can be very challenging. Next week, we will discuss some of these challenges and how best to manage them.