Fact sheet/summary of the new Earned Paid Sick Time Regulations issued by the MA Atty. General’s office
- Wednesday, June 24, 2015
MA AG RELEASES FINAL EARNED SICK TIME REGULATIONS
On Friday, June 20 the MA Attorney General’s office released its final version of Earned Sick Time regulations 940 CMR 33.00 that follow the law approved by voters of the Commonwealth last November and goes into effect July 1, 2015. The new required poster can be accessed by clicking here. Important requirements of the regulations include:
“Break in Service” - A period of time extending from the date an employee last worked for an employer until the employee’s return to employment with that employer, whether the separation was voluntary or involuntary. Originally the regulations called for a period of time up to one year extending from the date an employee last worked for an employer until the employee returns to employment a break in service within a year’s period. The new regulations place no restrictions on return to employment, as long as the following conditions are met: (31) Following a break in service of up to four months, an employee shall maintain the right to use any unused earned sick time accrued before the break in service. (32) Following a break in service of between four and 12 months, an employee shall maintain the right to use earned sick time accrued before the break in service if the employee’s unused bank of earned sick time equals or exceeds 10 hours.
Example: An employee has accrued 20 hours of earned sick time and then goes on an unpaid leave of absence for 11 months, starting June 1, 2016. Upon the employee’s return to employment on May 1, 2017, eleven months from the date of the employee last worked for the employer, the employee shall have the right to use the 20 hours of earned sick time accrued before the leave of absence began. (33) Following a break in service of up to twelve months, employees maintain their vesting days from the employer and do not need to restart the 90-day vesting period;
“Earned Sick Time/Earned Paid Sick Time” – For employee’s paid on an hourly rate, earned paid sick time is paid at the normal hourly rate, which does not include overtime, holiday or other premium rates. Employees accrue earned sick time at one hour for every thirty hours worked (including overtime), with a maximum of forty hours earned/available for every 12 month period that can be used for purposes outlined in the regulations: care or doctor’s visits for their ill child, spouse, parent; care or doctor’s visits for their own illness or condition; to address issues arising from domestic violence and/or pharmaceutical visits. Employees accrue earned sick time only on hours worked, not on hours paid when not working. For example, employees do not accrue earned sick time during vacation, paid time off, or while using earned sick time;
“Smallest amount of earned sick time allowed to be used” – is one hour. For uses beyond one hour, employees may use earned sick time in hourly increments or in the smallest increment the employer’s payroll system uses to account for absences or use of other time. Earned sick time may not be invoked as an excuse to be late for work without an authorized purpose;
“Massachusetts based employees” – Employees are eligible to earn and use earned sick time if the employee’s primary place of work is in Massachusetts regardless of the location of the employer. An employee need not spend 50% or more time working in Massachusetts for a single employer in order for Massachusetts to be the employee’s primary place of work;
“Tracking earned sick time” - Employers may track accrual at an accrual rate of one hour of earned sick time for 30 hours worked or any equivalent accrual rate with smaller increments of time (e.g. one minute of sick time per 30 minutes worked, two minutes of earned sick time per hour worked);
“Replacement of an employee out on sick leave” - Where an employee’s use of earned sick time requires the employer to hire a replacement or call in another employee and the employer does so, the employer may require the employee to use an equal number of hours as the replacement or call-in employee works, up to a full shift of earned sick time. If the employee lacks sufficient accrued earned sick time to cover such time away from work, the employer must provide sufficient job-protected unpaid leave to make up the difference in that shift. (19) Where an employer does not hire a replacement or call in another employee but the employee’s use of earned sick time results in the employee missing transportation to a work site, the employer may require the employee to use earned sick time only until the employee arrives at the work site.
Employees taking leave before/after holidays, weekends, etc. - (24) If an employee is exhibiting a clear pattern of taking leave on days just before or after a weekend, vacation, or holiday, an employer may discipline the employee for misuse of earned sick time, unless the employee provides verification of authorized use under M.G.L. c. 149, § 148C.
Paying employees for unused earned sick time - (27) Employers shall have the option, but are not required, to pay out employees for up to 40 hours of unused earned sick time at the end of the benefit year or when the employee changes jobs within the employer's employment. Employers paying out 16 hours or more shall provide 16 hours of unpaid sick time until the employee accrues new paid time, which shall replace the unpaid time as it accrues. Employees paying out less than 16 hours shall provide an amount of unpaid sick time equivalent to the amount paid out until the employee accrues new paid time, which shall replace the unpaid time as it accrues. (28) Employers shall have the option, but are not required, to pay out unused earned sick time upon separation from employment.
Transition Year (July 1, 2015 – December 31, 2015) - (34) Employees shall begin to accrue earned sick time beginning on July 1, 2015 and shall be eligible to use their earned sick time 90 days after their first date of actual work, should a qualifying need arise. (35) An employer shall not be required to provide more than 40 hours of earned paid sick time during the transition year, and any paid leave given in the benefit year prior to July 1, 2015, will be credited. Example: An employee used 15 hours of paid leave time as of July 1, 2015.The employer must allow the employee to earn and use up to 25 hours of earned paid sick time in the remainder of the benefit year.
Section 33.05 (1) Notice of Use of Earned Sick Time - Employees must notify their employers before they use earned sick time, except in an emergency. b) For foreseeable or pre-scheduled use of earned sick time, the employer may have a written policy requiring up to seven days’ notice, except where the employee learns of the need to use earned sick time within a shorter period.
Substituting time off for earned sick time - (3) An employer’s own paid time off, vacation, sick leave, or other policy may be substituted for earned sick time so long as 40 hours of time off provided under the policy, or such lesser amount as each employee might earn if the employer were not using the substitute policy
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