Some Employers to Get Six-Month “Safe Harbor” Under Massachusetts Sick Leave Law

As we have previously reported, on November 4, 2014, Massachusetts approved Ballot Question 4, titled “Earned Sick Time for Employees.” The new law will take effect July 1, but state Attorney General Maura Healey announced yesterday that certain employers will qualify for a six-month “safe-harbor” that provides a partial, temporary reprieve.

During this six-month safe harbor period – from July 1 through December 31, 2015 – employers who offer at least 30 hours of paid time off to workers under an existing leave policy have additional time to amend their policies to fully comply with the law, as long as they adhere to the non-retaliation and non-interference provisions by July 1. The following statement was published yesterday by the Attorney General’s office:

For the period July 1 to December 31, 2015, any employer with a paid time off policy in existence as of May 1, 2015, providing to employees the right to use at least 30 hours of paid time off during the calendar year 2015 shall be in compliance with the law with respect to those employees and to any other employees to whom the use of at least 30 hours of paid time off under the same conditions are extended. To remain in compliance, any paid time off, including sick time, used by an employee from July 1 to December 31, 2015, must be job protected leave subject to the law’s non-retaliation and non-interference provisions. In all other respects, during this transition period, the employer may continue to administer paid time off under policies in place as of May 1, 2015. On or before January 1, 2016, all employers operating under this safe harbor provision must adjust their paid time off policy to conform with the earned sick time law.

Employers who do not qualify for the safe harbor must comply with all provisions of the law on July 1. But even employers who do qualify and who intend to delay full compliance until January 1, 2016, should do so cautiously and seek guidance because existing leave policies may still need to be modified – for example, eligibility criteria may need to be temporarily amended.

Earlier this month, Attorney General Healey had urged the state Senate to reject any requests to delay implementing the law. She explained that there was no reason to delay because the final regulations would be submitted in June, her office was working with employers to educate them about their obligations, and workers should not be made to wait any longer to take needed time off. Given her prior position, yesterday’s safe harbor announcement came as a pleasant surprise for employers.

Provisions of the sick leave law

The key provisions of the sick leave law are as follows:

• Beginning on July 1, 2015, employers with more than 11 employees must provide paid sick leave for all employees, including part-time employees.
• Leave must accrue at a minimum rate of one hour of sick time per 30 hours worked. Accrual must begin immediately upon an employee’s hire, but employers may prohibit new hires from using accrued time until they have worked for 90 days.
• Employers may limit annual accrual to 40 hours. However, they must allow employees to carry over unused sick time into the next year. Employers are not required to pay out unused sick time at an employee’s termination.
• Employers may not require that an employee present a doctor’s note or health care provider certification unless an employee uses sick time for more than 24 consecutively scheduled work hours. Employers may not delay the taking of sick leave, or the payment for the time taken, merely because they have not yet received a requested certification.
• Employers may ask employees to make a good-faith effort to give advance notice if use of earned sick time is foreseeable.

Proposed regulations and public hearings

On April 27, Attorney General Healey announced proposed regulations intended to clarify the practices and policies in the administration and enforcement of the law. The draft regulations define a number of terms and address various aspects of the new law, including the accrual of sick time, required notice by employees, acceptable documentation to substantiate the need for use of earned sick time, and employer recordkeeping and disclosure requirements.

The Attorney General’s office will hold six public hearings on the regulations during May and June, and written comments will be accepted until 5 p.m. June 10. Other information about the sick leave law is available on the Attorney General’s website.

We will continue to provide updates as additional guidance is provided by the Attorney General and the regulations are finalized.

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