The Law @ Work

Beyond the FMLA and ADA – Employer Leave Obligations in Massachusetts and Connecticut (Part 1)

By Amelia J. Holstrom

Employers nationwide struggle with meeting various leave obligations, including those under the Family and Medical Leave Act, and, many times, the Americans with Disabilities Act.  Whether it be an employee with never-ending intermittent FMLA leave or an employee who requests repeated extensions of a block leave of absence, employers are often faced with difficult questions related to complying with their federal leave obligations.  And, as if an employer’s federal leave obligations are not enough, employers must also comply with various leave obligations under state laws as well.  Massachusetts and Connecticut both have extensive leave-related laws that employers operating in those states must be aware of and must follow. 

On March 26, 2019, from 12:00 p.m. to 1:00 p.m., I will present a complimentary, informative webinar to discuss an employer’s leave obligations under Massachusetts law, trends at the state and federal level, and common leave management mistakes.  You can register for this webinar here:

Leave Law Obligations and Lesser Known Massachusetts Leave Laws

For those of you in Connecticut, my colleague John S. Gannon will present a complimentary webinar on Connecticut leave laws on March 28, 2019, from 12:00 p.m. to 1:00 p.m.  Keep an eye on our blog later this week for a preview of those leave laws.  You can register for this webinar here:

Leave Law Obligations and Lesser Known Connecticut Leave Laws

In the meantime, here’s a preview of some of the leave laws in Massachusetts.

Jury Duty

Massachusetts law requires all employers to provide employees with a leave of absence for jury duty.  Employers must pay employees their regular wages for their first three days of state juror service.  Thereafter, the leave may be unpaid.  Jurors will be paid a daily stipend by the state for their jury duty beginning on the fourth day of service.  At its option, an employer may choose to implement a policy in which it pays an employee the difference between his/her regular wages and the state-issued stipend for some or all of the employee’s juror service beyond the first three days.

Employers should adopt policies in which they require employees to notify them immediately after receiving a summons and may also ask an employee who is impaneled on a jury how long the employer can expect the employee to be absent.  Typically, jurors are provided with an estimated length of juror service once selected for a jury.  An employee cannot force an employee to reschedule jury duty or use vacation, sick or personal days to cover the duration of juror service.

There are also special rules for employees who work the night shift.  Employees who work a night shift are not required to work beyond midnight on the night before their first day of juror service.  Additionally, they may not work during their juror service and cannot be required to work on their last day of service, unless they are released from such service before 4:00 p.m.

For employees who do not work the night shift, if the employee is released early from juror service, the employee must tell the employer and return to work if s/he has enough time to get there.  The employer, however, must factor time required to return home and change, if applicable, would leave the person enough time to return to work and engage in some work. If it would not, the employee cannot be required to return to work.

Victim/Witness Leave

An employee who is a victim of a crime and must serve as a witness cannot be subject to penalty, including discipline and discharge, due to his/her absence to serve as a witness.  Similarly, a person who is subpoenaed to testify as a witness in a criminal action also cannot be subject to penalty for such service so long as the employee provided notice to the employer of the subpoena prior to the day of required attendance.

This leave does not cover absences beyond criminal matters.  For example, employees are not entitled to leave to attend hearings related to their own civil divorce proceedings. Many employers, however, allow employees time for those purposes and require employees to use their available vacation time to cover those absences if available.

Memorial Day/Veterans Day

All private employers in Massachusetts are required to grant leave to a veteran employee to observe Veterans Day so long as the employee does not provide services that “are essential and critical to the public health or safety and determined to be essential to the safety and security of such an employee’s employer or the property of the employer.”

Additionally, all private employers must grant veteran employees leave of sufficient time to participate in a Memorial Day exercise, parade or service that takes place in the veteran’s community of residence.

Leave for Veterans Day and Memorial Day may be paid or unpaid at the discretion of the employer.

Parental

In his final few weeks as Governor of Massachusetts, Deval Patrick signed a bill that amended the state’s Maternity Leave Act and replaced it with the Parental Leave Act.  Now, full-time male and female employees are entitled to up to eight week of unpaid leave for the birth or adoption of a child.  The law also clarified that parental leave is available after three months of employment, or completion of the employee’s introductory period, whichever period is shorter.  If two parents are employed by the same employer, they may only take a combined eight weeks of leave. The law applies to employers with six or more employees. For more information about parental leave, check out one of our earlier posts on the topic.

Sick Leave

Back in November 2014, Massachusetts residents voted to implement Paid Sick Leave in the state.  Thereafter, the Attorney General issued clarifying regulations. The law requires all employers to provide earned sick leave to employees.  For employers with 11 or more employees the leave must be paid.  Earned sick leave must accrue at a rate of at least one hour for every 30 hours worked, up to 40 hours per benefit year.  Employees can use earned sick leave to: care for the employee’s child, spouse, parent or parent of a spouse who is suffering from a physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care or preventative medical care; care for the employee’s own physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care or preventative medical care; attend the employee’s routine medical appointment or a routine medical appointment for the employee’s child, spouse, parent, or parent of spouse; address the psychological, physical or legal effects of domestic violence; or  travel to and from an appointment, pharmacy, or other location related to the employee’s need for Sick Leave.  Employees are eligible to use earned sick leave after 90 days of employment.  However, an employee begins to accrue earned sick leave on their first day of work.  Employees who use earned sick leave for an authorized purpose cannot be subject to any penalty for use of the time.  For example, employers cannot hold an absence that was covered by available earned sick leave against an employee under an attendance policy.  The law is complex and has many additional provisions, including notice requirements, limits on requesting documentation, and carry over of unused time from one year to the next.

SNLA

Employers in Massachusetts who have 50 or more employees must provide 24 hours of Small Necessities Leave to eligible employees. The 24 hours of leave in any 12 month period is in addition to the 12 weeks of Family and Medical Leave Act leave under federal law.  For purposes of determining the number of employees, the statute includes all employees of the same employer working within 75 miles of the worksite of the employee requesting the leave.   Furthermore, like the FMLA, in order to be eligible, an employee must have worked for the employer for at least 12 months and worked for at least 1,250 hours during the previous 12-month period. 

Small Necessities Leave may be taken: (1) to participate in school activities directly related to the educational advancement of a son or daughter of the employee, such as parent-teacher conferences or interviewing for a new school; (2) to accompany the son or daughter of the employee to routine medical or dental appointments, such as check-ups or vaccinations; (3) to accompany an elderly (60 or older) relative of the employee to routine medical or dental appointments or appointments for other professional services related to the elder’s care, such as interviewing at nursing or group homes.  The leave may be taken in a block or intermittently.

Employers may require that an employee taking such leave substitute any accrued vacation, personal, or sick leave, where applicable, for SNLA leave.

Domestic Violence Leave

Employers with 50 or more employees must allow an employee who is the victim of abusive behavior or has family member who is the victim of abusive behavior up to 15 unpaid days of leave during any 12-month period for certain purposes. Abusive behavior includes anything that constitutes domestic violence, stalking, sexual assault, or kidnapping.   Family members who are victims of abusive behavior for which an employee may take leave include a spouse, persons in substantive dating or engagement relationship who live together, persons with a child in common, a parent or step-parent, a child or step-child, sibling, grandparent or grandchild, or person in a guardianship relationship.

Leave may be taken to: seek or obtain medical attention, counseling, victim services or legal assistance; secure housing; obtain a protective order from a court; appear in court or before a grand jury; meet with a district attorney or other law enforcement official; attend child custody proceedings; or address other issues directly related to the abusive behavior against the employee or family member of the employee.

Employers are allowed to require an employee to exhaust all available paid leave before taking advantage of this leave. Employers can require reasonable advance notice of the need for leave except in cases of imminent danger to the health or safety of the employee or the employee’s family member.  In a case of imminent danger, the employee is required to give notice within 3 workdays of taking the leave that the leave was domestic violence leave. An employer may require certain documentation from the employee related to the leave.  As we’ve discussed in an earlier post, the statute has a number of additional provisions and details that employers must comply with.

Voting Leave

Under Massachusetts law, employees working in manufacturing, mechanical, or mercantile establishments are entitled to time off to vote during the first two hours that polls are open.  In order to be eligible for the time, the employee must request such time off in advance.  The leave may be unpaid.  Although the statute seems to apply only to certain employers, it is not as it seems.  Under the statute, mechanical establishment means any establishment where “machinery is employed.”  Further, at least one court in Massachusetts has held that a computer is machinery.  Accordingly, the statute has been interpreted to apply broadly to almost all employers in Massachusetts.

Bottom Line

As you can see, employers in Massachusetts have extensive leave obligations.  Be sure to sign up for our webinar on March 26, 2019.  We will discuss these topics and give you a chance to ask us questions about complying with these laws.

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