Love ’Em or Leave ’Em:
The New Massachusetts Leave Laws

By Anita Lichtblau, Esq. & Stephen M. Perry, Esq.

It has been a busy time for human resources professionals and employment lawyers in Massachusetts. Just in the past year, four state laws related to employee leaves have been enacted or amended:

• Sick leave
• Domestic violence leave
• Maternity leave
• Domestic worker protection

Here is a summary of some of the key provisions of the first three of these laws and regulations, including the final sick leave regulations issued on June 19, 2015.[1] These summaries are not comprehensive descriptions of all of the requirements. The bottom line is that all employers should carefully review their existing leave policies and practices and, in consultation with their legal counsel, determine whether revisions are required in order to fully comply with the new laws. It is likely that most employers will need to make some adjustments to their leave policies and practices.

Sick Leave

Law effective July 1, 2015, but see below for Safe Harbor notice; final regulations issued June 19, 2015
 
This is the most significant of the new laws. The recently-issued final regulations (which are significantly revised from the proposed version) are quite detailed and provide clarification on a number of issues.  Some key provisions of the law and regulations[2] are:

• Beginning on the first day of work, or for existing employees, on July 1, 2015, all employees earn 1 hour of leave for every 30 hours worked, up to a cap of 40 hours per year
  • Instead of accruing leave throughout the year, employers may give employees all of their leave at the beginning of the year or may provide lump sums of leave on a monthly basis according to a schedule set out in the regulations
  • Employers may maintain separate use policies for paid time off in excess of 40 hours if they permit employees to designate which time is taken as earned sick time
• For employers with 11 or more employees (working inside or outside Massachusetts), the required leave must be paid; for employers with fewer than 11 employees, the leave may be unpaid
  • Employees furnished to an employer and paid by a temporary staffing agency are counted as employees of both the staffing agency and the employer
• Employees become eligible to use their leave on the 90^th calendar day after the first day of work
  • Employer may cap the amount of leave used at 40 hours per year
• If leave is accrued, the employee must be permitted to carry over up to 40 hours of unused time to the following year but is entitled to use a total of only 40 hours of leave in any year
• The employer must permit the leave mandated by the statute (whether it is called sick leave, PTO, or some other leave) to be used for any of the following purposes:
  • Care for illness, injury, or medical condition of child, spouse, parent, or in-law
  • Care for employee’s own illness, injury, or medical condition
  • To attend routine medical appointments of employee or his or her child, spouse, parent or in-law
  • To address domestic violence issues
• Employees must provide prior notice of the need for leave except in emergencies
• Employers may not request documentation of use of leave until the employee uses more than certain specified amounts of leave, including 3 consecutive days
• If employee fails, without reasonable justification, to document use of sick leave in accordance with regulations, employer may recoup amount paid from future pay as overpayment if employees are put on notice of practice
• Sick leave under the new law runs concurrently with (not in addition to) rights to leave under other statutes, such as FMLA
• Employers must post in a conspicuous location a notice created by the Office of the Attorney General (OAG) concerning the sick leave law and provide a copy of the notice to all eligible employees or include the employer’s policy on earned sick time or allowable substitute paid leave policy in any employee manual
  • The OAG issued the notice on June 10, 2015, available at: http://www.mass.gov/ago/docs/workplace/earned-sick-time/est-employee-notice.pdf.

Do not assume that policy revisions are not necessary just because you already provide at least 5 days (40 hours) of leave per year. Here are some issues that may come up:

• Your current policy does not offer leave to part-time or temporary employees
• If you accrue, the rate of accrual is slower than the rate required by the new law
  • You may need to revise the accrual rate from one that is applied evenly throughout the year to a higher rate that is then capped or suspended once the employee has accrued 40 hours in a single year
• If you accrue, your existing policy doesn’t permit carryover of leave
• Your current policies on notice and medical documentation differ from those required by the new law

On June 10, 2015 the OAG issued a revised Safe Harbor Notice delaying full implementation of the sick leave law until January 1, 2016 for certain employers that meet certain requirements. The Safe Harbor applies to employers that have a policy in place as of May 1, 2015 that meets the following minimum requirements:

• Full-time employees have the right to earn and use at least 30 hours of paid time off during the calendar year 2015
• ​On and after July 1, 2015, employees not previously covered under the employer’s paid time off policy, such as part-time and new employees, must either accrue paid time off at the same rate as covered full-time employees if the policy is to accrue time off, or if the policy is to provide lump sum allocations, be provided such allocations on a pro-rated basis
• The 30 hours of leave, to the extent used after July 1, 2015, must be available for any of the purposes described in the sick leave statute, job-protected, and subject to the law’s non-retaliation provisions
• The portion of the 30 hours of leave that is not used in calendar year 2015, if any, must be available for use in 2016

The Safe Harbor Notice also provides that an employer may take advantage of the safe harbor for some employees while complying fully with the statute and regulations for others.

Domestic Violence Leave

Effective August 8, 2014

Employers with at least 50 employees must provide employees with up to 15 days per 12-month period of job-protected paid or unpaid leave for purposes of addressing issues directly relating to abusive behavior, including domestic violence, against the employee or his or her family member. The employee must exhaust all annual or vacation leave, personal leave and sick leave already available prior to requesting or taking leave under this law, unless the employer waives this requirement. The employer may require certain documentation.

Employers must notify employees of their rights under the law.

Parental/Maternity Leave

Amendments effective April 7, 2015
 
This law was amended to, among other things, cover fathers as well as mothers, turning the leave from maternity leave to parental leave. The previous state statute that, for example, treated adoptive mothers differently than adoptive fathers, was rather clearly unlawful under federal law. Another important revision to note is that if the employer agrees to provide parental leave for longer than eight weeks, the employer must reinstate the employee at the end of the extended leave with full rights and benefits unless it clearly informs the employee in writing before the leave and before any extension of that leave, that taking longer than eight weeks of leave will result in the denial of reinstatement or the loss of other rights and benefits. The purpose of this change was to reverse a court decision that held that a woman who was granted a leave of longer than eight weeks lost any protection under the state statute.
 
Given all of these changes, we recommend a thorough review of existing policies as soon as possible. Employers who already provide paid time off to their employees may have more time, until January 1, 2016, to fully implement the sick leave law if they adjust their practices to ensure that they come within the Safe Harbor Notice.
This advisory is not intended as legal advice. For more information or advice in reviewing or revising your policies, please contact your Casner & Edwards attorney or any of our Employment Law team:
 
Anita S. Lichtblau 
Lichtblau@casneredwards.com

Stephen M. Perry
Perry@casneredwards.com
 
Christopher Maffucci
Maffucci@casneredwards.com

Michael F. Zullas
Zullas@casneredwards.com

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