FINAL REGULATION 940 C.M.R. 33.00 - EARNED SICK LEAVE:

SOME CONSESSIONS FOR EMPLOYERS

By Timothy G. Kenneally, Esquire

tim@foleylawpractice.com

508-548-4888

"I always arrive late at the office, but I make up for it by leaving early." 
 Charles Lamb

      On June 19, 2015, the Massachusetts Attorney General, Maura Healey, issued the "final" regulation regarding earned sick time - 940 C.M.R. 33.00.  This final version contains some changes to and some clarifications of the "proposed" regulation Attorney Healy issued on April 24, 2015.  All employers and their payroll providers should take a renewed look at the regulation before final implementation of whatever policy they are using to comply with the law.  Here is a brief summary of some key changes in the regulation:

USE OF SICK LEAVE

The final Regulation contains some clarification related to the use of sick leave.  Some clarifications are less burdensome to employers than the proposed regulation, but others are not. 

 1.                  An employee will only be paid sick leave when missing actual work time.  In other words, an employee cannot request paid sick leave if the employee has not actually missed scheduled work.

 2.                  Available Sick Leave is not an excuse to be late or take long weekends or extended holidays/vacation.  An employer can discipline employees for "abuse" of sick leave.  The employer must show a "clear pattern" of abuse.

 3.                  An employee cannot accept a shift assignment with the intention of calling out sick and getting paid sick leave.

 4.                  The smallest amount of sick leave an employee may use is 1 hour.  If an employee uses sick leave of less than 1 hour, the time used may be rounded up to 1 hour by the employer.  For sick leave that exceeds one hour, the employee's sick leave must be tracked using the smallest increments of time that the employer's time system uses to track other time off.

5.                  When required by the needs of the business, an employer can (1) bring in a replacement employee to cover whatever hours an employee misses for sick leave and (2) require the employee missing time to use corresponding sick leave.  That said, the Attorney General provided an example in the final Regulation that places a limitation on the right to use a replacement.  When the employer knows in advance that an employee will miss less than a full shift, the employer must seek a replacement employee for just that portion of the shift that the employee is scheduled to miss.  It appears that the employee using sick leave for part of a shift must be allowed to work the balance of the shift whenever possible.  Here is the example given by the Attorney General:

Example: The employee, a maternity ward nurse, is scheduled to report for her 12-hour shift at 8:00 A.M. but calls her supervisor at 6:00 A.M. to report that she will not be available to work until 12:00 P.M. that day due to a sudden illness in the family. The supervisor is able to secure a replacement for the first four hours of the employee's shift and must allow the employee to report for duty at 12:00 P.M. In this example, the employer may not require the absent employee to use more than four hours of her earned sick time.

REGULAR RATE OF PAY

Most of the regular rate of pay provisions remain the same.  However, there are two new ones in the final regulation:

1.                  Employers are given an option for the hourly rate of an employee who is paid at different regular rates during the same pay period.  The employer can either use a blended rate or use the rate applicable to the shift when the time was missed.  However, the employer must use the same system for all employees throughout the "benefit year".  ("Benefit year" means whatever 12-month year the employer is using to track sick time.)

 2.                  Employers are expected to use a "reasonable calculation" of the rate for employees who are compensated through a piece-rate or as fee for service.

CALCULATING 11 OR MORE EMPLOYEES 

The Law (MGL c. 149, §148C) requires employers of 11 or more employees to provide paid sick time to its employees.  One uncertainty presented by the voter-approved law is when in time should the employer determine its status as an employer of 11 or more employees. By its terms, the Law seemed to suggest that one should calculate the 11 employees at the time of the sick leave.  The Attorney General however has decided that employers must calculate their average number of employees during the prior benefit year in order to assess whether or not the employer has to allow accrual of paid sick leave in the current benefit year. The math is as follows: Employers must count each employee in their employ during each pay period of the prior benefit year, add up the number for each payroll period and then divide by the number of payroll periods to gain the average. 

If the employer is using multiple benefits years, for example an employer who uses the employee's anniversary date to start and end the benefit year, then the employer must use the prior calendar year (January 1 to December 31) to calculate the average number of employees.

The Attorney General altered and clarified the ramifications of an employer moving from 11 or more employees to less than 11 employees.  According to the final Regulation, employers must give 30 days (previously 90 days) advance notice to the employees that the employer is changing from paid sick time to unpaid sick time based upon the employer's size.  In addition, all time accrued while an employer had 11 or more employees remains paid time until used and all time accrued when an the employer has less than 11 employees remains unpaid time until used.

TRANSFER TO PRIMARY PLACE OF WORK OUTSIDE MASSACHUSETTS

If an employee earns sick leave time while employed primarily in Massachusetts and then transfers to another of his/her employer's workplaces outside of Massachusetts, the employee keeps the earned time and can use it even while working outside of Massachusetts.

BREAK IN SERVICE

In the proposed Regulation, the Attorney General added a "break-in-service" provision that was not in the voter-approved Law.  In the final Regulation, the Attorney General has modified the break-in-service provision to be slightly less burdensome to employers.  Under the final "break-in service provision", there are two categories of returning employees. 

1.                  An employee who separates from an employer, voluntarily or involuntarily, and returns within 4 months, will be entitled to all the unused sick leave that the employee earned previous to the break-in-service. 

2.                  An employee who separates from an employer, voluntarily or involuntarily, and returns between 4 and 12 months later, will be entitled to all the unused sick leave that the employee earned previous to the break-in-service only if the employee has 10 or more hours of accrued unused sick leave. 

The break-in-service provision remains is a significant expansion of the voter-approved Law.

RELATIONSHIP BETWEEN LEAVES

Paid sick leave may be run concurrent with an unpaid leave such as FMLA or parental leave, at the option of either the employer or the employee.

NOTICE FROM THE EMPLOYEE

The Attorney General revisited the issue of notice in the final regulation.  The new provisions give more protections to employers than either the Law or the proposed Regulation.

1.                  Absent an emergency that prevents notice, all employees using sick leave must give prior notice of an absence to their employer. 

 2.                  If an absence is unforeseeable and the employee is prevented from providing notice that complies with an employer's reasonable notice requirements, the employee must give notice as soon as reasonably possible under the circumstances. 

 3.                  An employer can require prior notice of up to 7 days for a pre-planned sick leave absence.

According to the Regulation, the employer has the right to maintain a "reasonable notification system ... provided that [its system does] not interfere with the purposes of the leave."  Accordingly, an employer can request that an employee provide notice in a specific manner and at a specific time, but the employer cannot have a zero tolerance notice policy. The employee must be afforded the opportunity to explain his or her failure to comply with the notification system.  If the employee was unable to comply because of the circumstances surrounding the sick leave, the employer will have to excuse the failure.  The Attorney General has directed employers to implement a written policy regarding its notification system. 

DOCUMENTING THE LEAVE

According to the Regulation, the employer may require an employee to submit "written verification" that the employee has used sick time for a purpose allowed under the law.  The employer may use the Attorney General's proposed verification form or one created by the employer.  If the employer uses its own form, the employer must not require the employee to disclose the nature of the illness, injury or the cause(s) for the leave of absence.   However, the phrase written verification is vague.  Both the Law and the Regulation expressly prohibit an employer from requesting (or demanding) "medical or other documentation"

The employer can require verification and documentation of a sick leave to be produced within 7 days of the leave. 

If an employee fails to provide reasonable and timely documentation of a sick leave, the employer can treat payment made to the employee for the sick leave as an overpayment of wages. The employer can also prohibit an employee's use of additional paid sick leave until the employee provides proper documentation related to the prior leave.