What employers need to know about the MA Sick Time Law

Published October 15, 2019

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Account Executive

The Massachusetts Earned Sick Time Law poses numerous challenges to employers and human-resource managers, particularly in implementing personnel policies and record-keeping to meet the state's new requirements. Attorney Timothy G. Kenneally spoke with Sylvia Group about what employers and managers can do to comply with these requirements.

Q&A with Attorney Timothy G. Kenneally

Q: Is the sick time accrual formula based on regular work hours only, or does it include OT?

A: The accrual formula (30 hours) is all hours worked, not just regular time.

Q: Is a half-hour for lunch deducted from the accrued time?

A: If lunch is not considered time worked, it is not included in the calculation. Only time worked is accrued.

Q: Is there a minimum number of hours an employee needs to work per week to be eligible for sick time? What if someone works less than 30 hours in a week?

A: No. The first hour of sick time will be accrued when the employee passes the 30-hour mark for the year.

Q: If a non-exempt employee works more than 30 hours, does the employer have to prorate?

A: No. The accrual is not based on hours worked in a week – just total hours for the year.

Q: We are a Massachusetts company. Do employees working out of state accrue sick time under this Massachusetts law?

A: The law does not speak to this issue directly. However, it appears that only the employees working in Massachusetts are covered by the law. The Attorney General will hopefully clarify this issue soon.

Q: Does the law cover minor children only or adult children as well?

A: The law is not limited to minor children; it applies to all children.

Q: Are co-op students eligible for sick-leave time?

A: The law applies to any employee who performs services for an employer for wages, compensation or remuneration. Therefore, if the co-op students are paid and treated as compensated employees, they are covered by the law.

Q: Does this law affect temporary-staffing agencies?

A: Yes, temporary-staffing agencies are covered by the law.

Q: How does the law affect a company that has a collective bargaining agreement with union employees? One of our contracts gives employees one sick day and two personal days, while another contract states that employees get three personal days. Does the CBA over rule the law?

A: The law exempts workers covered by a collective bargaining agreement IF the agreement provides equal or greater rights than required by the law. If the total package of time offered in a CBA (including vacation days) does not afford the employees up to 40 hours of time off to use for sick time, then the law will require the employer to increase the time off to meet the requirements of the law. In your example, if all that the employer provides for time off is one sick day and two personal days, with no vacation days, then the employer needs to increase the amount of time off for those employees. However, if those same employees also have one week of vacation, and the employees can use some of their vacation time for sick time consistent with the law, then the employer has exceeded the requirements of the law.

Q: Is there a difference between exempt and non-exempt employees?

A: The only difference is the method by which time is accrued. With exempt employees, the actual time worked is not the measure. The exempt employee’s normal work schedule is the measure. Therefore, if the exempt employee is tracked as a 40-hours-per-week employee for payroll purposes, then the employee accrues 40 hours per week toward the sick-time calculation. If the exempt employee is tracked as a 32-hours-per-week employee for payroll purposes, then the employee accrues 32 hours per week toward the sick-time calculation. The presumption is 40 hours per week for an exempt employee unless the actual regular schedule is different.

Q: Regarding compensation and non-union subcontractors who do some prevailing wage jobs: do we pay the sick leave based on the employee’s regular wage or at the wage at the time the sick leave is taken?

A: At the time the leave is taken.

Q: Many of our employees work on and off throughout the year. How does length of service play into compliance?

A: If an employee is terminated, the employee loses his or her unused accrued sick time. If the employee is later rehired, the employee does not recoup lost time from the prior employment but begins accruing new time.

Q: If an employee works varied shifts with some shifts getting a differential, is the differential amount in the sick pay?

A: Yes. The rate for sick time will be a blended rate.

Q: Can an employer limit sick time, such as before or after a holiday or to extend a vacation?

A: You cannot have blanket prohibition such as the ones you describe. However, you can investigate the absence to determine if it was truly for a reason permitted by the law. If an employee is abusing the system to create long weekends, and you can prove it, then you will be in a position to discipline the person. You need a clear prohibition in your policy against this type of abuse of time off.

Q: Can an employer require an hour minimum to use sick time?

A: Yes provided your existing system does not permit employees to take time off in smaller increments. If the existing system allows for shorter increments for time off, then the short increments must also be applied to sick leave.

Q: Do we need to separate sick time from our current overall paid time-off package, which starts with an accrual equal to 10 days paid during year one (excluding holidays) and increasing to six weeks (30 days) of paid time off at year four? Staff may use this as vacation or sick time, as needed.

A: The short answer is, “No.” However, separating the time from vacation may be of some benefit to the employee. At termination, employers must compensate employees for accrued unused vacation days but are not required to pay for accrued unused sick days.

Q: We have a PTO system that includes vacation and sick time. Right now, we list what is the vacation portion, and we add an additional 24 hours for the sick-time portion. Is that in compliance with the new law, or are we required to give more time, or do we have to document differently?

A: You need to provide available time off that amounts to at least 40 hours per year for any employee on your staff who works at least 1,200 hours per year. If you afford that amount of time off, regardless of what you call the time off, and if the employee can use the time off for sick leave consistent with the statute, you are in compliance. However, you need to explain to the staff by means of your written policy that they can use the time in their bank (including their vacation time) as sick time under the same terms and conditions as required by the law. You need to tell your staff that the time off you are giving them is intended to comply with the sick-leave law.

Q: If our policy currently allows for one week of vacation and three sick days, is it OK to state in a revised policy that this complies with the law?

A: The short answer is “Yes,” provided the employees are permitted to use up to 40 hours of their paid time off for sick time in accordance with the law. You will need to clearly spell out your position on this issue to the staff so they understand that you view up to 40 hours of their eight (8) paid days off as complying with the new law. You may, however, encounter some disgruntled employees. You are in essence telling the staff that their employer expects them to use some of their vacation time as sick time if and as needed. While in practice this may already be the case, some employees may feel as though they no longer have 5 vacation days.

Q: If employees want to make up time in another pay period, do we not pay the time until they have that opportunity? And if they work full-time (40 hours) now, will they be paid overtime if they make up the time in a subsequent pay period? Can the employer keep the hours made up to a maximum that meets the wages lost by taking the sick time off?

A: The “makeup provision” of the law is presented in terms of “by mutual consent” between the employer and the employee. Therefore, if the employer does not want to permit the employee to make up the time missed, perhaps because it will result in overtime, the law affords the employer that right. If the employer allows the employee to make up the time, then the employer will not have to pay out the sick time when taken. It seems a good idea to fully document the agreement with the employee at the earliest possible time.

Q: Please further define “24 consecutive hours.” Do you mean three eight-hour days?

A: The law says “24 consecutively scheduled hours.” Therefore, the law is not speaking about eight-hour days or shifts, per se. The certification portion of the rule will apply if an employee misses two consecutive 12-hour shifts, three consecutive eight-hour shifts, four straight six-hour shifts and so on.

Q: How is carryover time handled if the employer is providing a bucket of time at the beginning of the year?

A: If the bucket of time provided January 1 gives the employee the same or more time off than the 40 hours required by the law, the employer can treat any accrued unused time from the prior year as lost time. The law says that an employer can cap the sick-time bank at 40 hours. Therefore, the employer does not need to allow a carryover of time if the bank would then exceed 40 hours. The employer can elect to permit a carryover and add the accrued time to the new time in the bucket, but the employer is not required to permit the carryover when the time in the bank meets or exceeds 40 hours.

Q: If all time off is included in one bucket and the employee leaves, how do you determine what gets paid out and what doesn't?

A: If the time in the bucket is not designated, then the law will deem it vacation and require the employer to pay it all to the employee at termination. Therefore, if an employer does not want to pay out all the accrued unused time off as vacation upon termination, the employer must clearly explain to the employees what portion of the bucket is vacation time and what portion is other.

Q: Is there a significant difference between giving sick-time credit at the employee’s hire date vs. accrual?

A: This is likely a business decision for the employer and will vary case by case. If the employer does not want to deal with the accrual process, the employer simply needs to grant the employees a bucket of time off that meets or exceeds the requirements of the law.

Q: If you can carry up to 40 hours over to next year but can only use 40 hours per calendar year, how do you ever use all the time?

A: Circumstances will vary. The maximum one can accrue in a year is 40 hours. If, for example, an employee has a bad illness and misses a full week of work, the employee may use all of his or her sick time and not be able to accrue more until the following year.


About Julia Jennings and Sylvia Group

Julie_Jennings_cropped.jpgWith more than 30 years’ experience as a health insurance professional, Julia Jennings is nationally recognized not only for her expertise but also for her service initiatives to improve the health insurance market. A Registered Health Underwriter (RHU) and Licensed Insurance Advisor (LIA) who has earned certifications in Long-Term Care (LTC), Consumer-Driven Health Care (CDHC) and the Patient Protection and Affordable Care Act (PPACA), Julie is a recipient of the National Association of Health Underwriters’ most prestigious honor, the Distinguished Service Award, for her lifetime commitment to her profession and her community.

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Voted "Best Insurance Agency" in both years of the SouthCoast Media Best of the Best Awards program, Sylvia Group helps businesses and individuals protect their future by designing insurancebenefits and financial planning programs. We’re a locally owned agency known for our commitment to our clients and our community, as well for our industry expertise. Founded in New Bedford, MA, in 1950, headquartered in neighboring Dartmouth, and serving businesses and individuals throughout Massachusetts, Rhode Island and beyond, Sylvia Group is certified as a Woman Owned Business Enterprise with the Massachusetts Supplier Diversity Office and has the distinction of being the first six-time recipient of the Five Star designation awarded by the Massachusetts Association of Insurance Agents (MAIA) for all-around agency excellence.

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