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On June 19, 2015, the Massachusetts Attorney General posted on her office's website final regulations relating to the Commonwealth's recently-enacted Earned Sick Time Law.¹ A copy of the new regulations is here.

This new guidance reflects extensive public input on the draft regulations proposed by the Attorney General in April of this year. Like the underlying statute, the regulations take effect on July 1, 2015.

Key parts of the Earned Sick Time Law already have received considerable attention. Anyone working primarily in Massachusetts (except for certain students and trainees) becomes eligible for earned sick time by performing services for a private sector employer for wage, remuneration, or other compensation. One hour of sick time will accrue for every 30 hours worked, up to a cap of 40 hours of sick time per benefit year. Ninety days after their first day of work, employees will be able to use the sick time for any purpose authorized by the statute.² And employers with eleven or more employees will have to pay the employee during the time off.

The final regulations now provide additional clarification on points such as these: 

• Time off under the Earned Sick Time Law can run concurrently with time off provided by the Family Medical Leave Act, the Massachusetts Parental Leave Act, the Massachusetts Domestic Violence Leave Act, the Massachusetts Small Necessities Leave Act, and other leave laws that allow employees to make concurrent use of leave for the same purposes.³ 
• Employees may choose to use, or employers may require employees to use, concurrent earned paid sick time, as provided under the Earned Sick Time Law, to receive pay when taking other statutorily-authorized leave that otherwise would be unpaid.⁴
• Employees accrue sick time only on hours worked, not on hours paid when not working. Earned sick time thus does not accrue during vacation, paid time off, or while using earned sick time.⁵
• Once 40 hours of earned sick time are accrued during the benefit year, the employee does not accrue additional earned sick time regardless of the additional hours worked.⁶ 
• Once an employee possesses a bank of 40 hours of unused earned sick time, the employer may delay further accrual until the bank is drawn down to below 40 hours.⁷ 
• An employee may rollover up to 40 hours of earned sick time to the next benefit year.⁸ 
• The smallest amount of Earned Sick Time an employee can use is one hour. For uses beyond one hour, employees may use earned sick time in hourly increments or in the smallest increment the employer's payroll system uses to account for absences or use of other time.⁹ 
• An employer may require certain specified types of written documentation for an employee's use of earned sick time that exceeds 24 consecutively scheduled work hours, exceeds three consecutive days on which the employee was scheduled to work, occurs after four unforeseeable and undocumented absences within a three-month period, or meets other specified criteria.¹⁰ 
• If an employee exhibits a clear pattern of taking leave on days just before or after a weekend, vacation, or holiday, an employer may discipline the employee for misuse of earned sick time, unless the employee provides verification of authorized use under the Earned Sick Time Law.¹¹
• Employers may have their own sick leave or paid time off policies, so long as all employees can use at least the same amount of time, for the same purposes, under the same conditions, and with the same job protections provided in the Earned Sick Time Law.¹² 
• Employers that provide employees with 40 or more hours of paid time off or vacation that also can be used as earned sick time consistent with the Earned Sick Time Law are not required to provide additional sick leave to employees who use all their time for other purposes (i.e., vacation or personal time), provided that the employers' leave policies make clear that additional time will not be provided.¹³ 
• Employers that had a policy in existence on May 1, 2015, that provided paid time off or paid sick leave will have a temporary "safe harbor," in the sense that they will be deemed in compliance with the Earned Sick Time law until January 1, 2016, provided certain criteria are satisfied.¹⁴ 
• Employers must post a notice of the Earned Sick Time Law prepared by the Attorney General in a conspicuous place in every location where eligible employees work.¹⁵ A copy of the notice is here.
• Employers also must do at least one of the following: (a) provide a hard or electronic copy of the Attorney General's notice to all eligible employees, or (b) include their policy on earned sick time (or their allowable substitute paid leave policy) in their employee manual or handbook.¹⁶

¹ See 940 C.M.R. 33.00; M.G.L. c. 149, § 148C.

² The sick time may be used for (a) care for the employee's child, spouse, parent, or parent of a spouse suffering from a physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care; (b) care for the employee's own physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care; (c) attend a routine medical appointment or a routine medical appointment for the employee's child, spouse, parent, or parent of spouse; (d) address the psychological, physical or legal effects of domestic violence; or (e) travel to and from an appointment, a pharmacy, or other location related to the purpose for which the time was taken. See 940 C.M.R. § 33.02 (adding an implicit fifth category to the four sets of circumstances set forth in M.G.L. c. 149, § 148C(c)).

³ 940 C.M.R. § 33.01(3).

⁴ 940 C.M.R. § 33.03(14).

⁵ 940 C.M.R. § 33.05.

⁶ 940 C.M.R. § 33.03(8).

⁷ 940 C.M.R. § 33.03(9).

⁸ 940 C.M.R. § 33.03(10).

⁹ 940 C.M.R. § 33.03(14).

¹⁰ 940 C.M.R. § 33.06.

¹¹ 940 C.M.R. § 33.03(24).

¹² 940 C.M.R. § 33.07(1).

¹³ 940 C.M.R. § 33.07(5).

¹⁴ 940 C.M.R. § 33.03(36).

¹⁵ 940 C.M.R. § 33.09(3).

¹⁶ 940 C.M.R. § 33.09(4).

This advisory was prepared by David C. Henderson, a member of the Labor, Employment and Benefits practice group at Nutter McClennen & Fish LLP. For more information, please contact David at 617.439.2345 or your Nutter attorney at 617.439.2000.

This advisory is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.