On Election Day, Massachusetts voters decisively voted for a ballot referendum to require employers in the Commonwealth to allow employees to earn sick time. This citizen lead initiative bypassed years of frustration as similar legislation failed to garner enough support on Beacon Hill to become law. While this initiative is a huge step forward for Massachusetts employees, especially those working jobs that only pay minimum wage to just above minimum wage, there are still several unresolved issues. These issues will remain unresolved until Attorney General Elect Maura Healey takes office and has the opportunity to review the initiative and make recommendations on it. She will have time to do so as the new Earned Sick Time law does not go into effect in the Commonwealth until July 1, 2015. This blog post aims to provide a basic overview of what you, the employee, can expect to see under the new law.

Who does it apply to?

The common misconception of the new Earned Sick Time law is that it only applies to larger employers, employers with eleven or more employees. The law applies to all employers in Massachusetts, however, the requirements are different for employers with eleven or more employees.

The law takes into account full and part time, as well as temporary and seasonal, employees to reach the total number of employees. While the new law covers employees that work in both the private and public sectors, the law does exempt certain municipalities from following the new law. Nonetheless, these municipalities will be required to abide by the law if the state constitution requires it to, a local or state legislative vote makes the law applicable to the municipality, or the municipality appropriates sufficient funds to pay for the paid sick time.

What am I entitled to?

As an employee you will be entitled to earn sick time, however, whether or not it is paid sick time will depend on the size of your employer.

As alluded to in the previous section, the Earned Sick Time law applies to all employers, but the payment of the sick leave depends on the size of the employer. Employers of eleven or more employees will be required to provide at least forty hours of paid sick time every calendar year. You will be compensated for your paid sick time at your hourly rate at the time you use the sick time. If you work for an employer that has ten or fewer employees you are also entitled to earn sick time of at least forty hours per calendar year. Unfortunately, you will not be compensated for your sick leave as the law only permits compensation for what it considers the larger employers.

As the title of the law indicates, you as the employee will have to earn the sick time. The new law establishes that for every thirty hours an employee works, the employer is required to provide one hour of sick time. This rate of earning sick time is the same despite whether the employee is full or part time. Employees will begin to earn their sick leave on the employee’s date of hire or on July 1, 2015, depending on which one occurs later.

There are several questions that Attorney General Healey will have to answer upon taking office. The first major question is how the law will affect certain nationwide employers. There are several nationwide employers that employ less than ten employees in Massachusetts, but employ well over the necessary eleven nationwide. As of the posting of this blog, Attorney General Healey has not yet made any statements on this issue.

When and how can I use my time?

Upon being employed for ninety days, you as an employee can begin to use your earned sick time. Another provision of the new law is that employees may carry over from year to year up to forty hours of unused sick time.

As an employee you may use your earned sick time for a variety of reasons. The first is obvious; you may use it to treat any physical or mental illness, or any injury that you suffer. You may also use it to attend routine medical appointments, either with your primary care provider or any specialist that you require. The law also allows you to use the earned sick time to address any effects of domestic violence that you may suffer from. The new law also allows you to use your earned sick leave for the same reasons but to care for your child, spouse, parent, or parent of a spouse. It also permits you to use your sick time to ensure that your dependent child can receive treatment for the effects of domestic violence. Additionally, the new law also allows you to use the hours in blocks and not take a full day off. So, if you have your yearly checkup with your primary care provider and it only takes two hours, you can take two hours off and then work the remainder of the day.

While the employer must allow you to take the sick leave, you have an obligation to make a good faith effort to provide advance notice to the employer. In some situations this might not be possible as illnesses, especially to young children, can develop overnight, but it is always in your best interest to provide your employer with as much advance notice as physically possible. Another obligation that you may have to abide by is certifying your need for the sick time. If you use your sick time for more than twenty–four consecutively scheduled work hours, the new law permits your employer to require certification of the need for the time off. Nonetheless, they cannot delay you from taking the time off or paying you for earned sick time because they have not received your certification.

What if my employer has a plan already in place?

The new law establishes a baseline for what employers are required to provide. The law allows for current employers to continue using their current leave programs as long as it provides enough time as required by the law. The new law may affect your employer’s “paid time off” policy; however, how exactly these policies will conflict with the new law is yet to be determined as this is another area in which Attorney General Healey will need to settle before the July 1, 2015, effective date. One thing is clear, if your employer has a more generous policy than the law mandates that policy will continue to be effective. The employer is also not required to pay out unused sick time at the end of your employment. Nonetheless, if the employer’s current policy allows for what is called “buy-back” time, they will be required to pay any unused sick time that you earned through the course of your employment.

At Cohen Cleary, P.C., Raynham Attorneys,  we have extensive experience in successfully representing employees in employment law cases against their employers. We customize our strategy, as Raynham Employment Attorneys, based on the applicable law and facts of each case. If you or someone you know is faced with a situation where the new Sick Leave law is being violated, take steps to protect your rights and contact our office for a confidential case evaluation.

Contributing Authors: Tom Cleary and Lou D’Amarino