On November 4, 2014, Massachusetts voted in favor of a ballot initiative that requires employers with 11 or more employees to provide their employees with paid sick time. Massachusetts is now the third state in the nation to enact paid sick time protection for employees. The new law, which goes into effect on July 1, 2015 and will be enforced by the Massachusetts Attorney General’s Office, provides a significant benefit and protection against retaliation or interference with taking protected earned sick time for a number of workers across the Commonwealth.
The law will require employers with 11 or more employees to provide one hour of paid time off to employees for every 30 hours worked, with a maximum of 40 paid hours in a year. In determining the number of employees, all employees performing work for compensation on a full-time, part-time or temporary basis are counted. The paid sick time may be used in several different circumstances: 1) to care for the employee’s own physical or mental illness; 2) to care for the employee’s sick family member, including a child, spouse, or parent; 3) to attend or accompany a family member to a routine medical appointment; or 4) to deal with the physical, psychological, or legal consequences of being a victim of domestic violence.
Employees will begin to accrue earned sick time at the date of hire or when the law goes into effect. Newly-hired employees will not be permitted to use accrued earned sick time until after the 90th day of their employment. The employee is required to make a good faith effort to provide notice of the need for sick time in advance when such a need is foreseeable. If the employee takes more than 24 hours consecutively scheduled work hours for sick time, an employer may require certification signed by a health care provider indicating the need for such an absence. However, an exception for domestic-violence related leaves has been carved out of the law. The employer will not be permitted to delay the taking of earned sick time or the pay for the period in which the sick time was taken if the certification has not been received. The new law specifically does not discourage or prohibit employers from continuing to apply or adopting more generous sick time policies.
Importantly, the law also provides workers with significant protections against employer retaliation or interference with taking protected earned sick time. Specifically, employers may not penalize employees for their use or attempt to use protected earned sick time by using such action “as a negative factor in any employment action such as evaluation, promotion, disciplinary action or termination, or otherwise subjecting an employee to discipline for the use of earned sick time under this section.” The law also deems it unlawful for “any employer to take any adverse action against an employee because the employee opposes practices which the employee believes to be in violation of this section, or because the employee supports the exercise of rights of another employee under this section.” These retaliation provisions may be particularly helpful in employment cases in other contexts where employees have been criticized or disciplined for attendance or tardiness due to the need to take sick leave when in fact the real motive behind the employer’s actions is discrimination. When the new law is enacted, employees in these contexts may also have independent protection against retaliation if they are taking earned sick leave.
The Attorney General’s Office will enforce the law using the same enforcement procedures under the Massachusetts Wage Act. This means that, effective July 1, 2015, employees who have been aggrieved under this law can file complaints with the Attorney General’s Office and receive a right to sue letter to enforce their rights in court. Employees who prevail in court shall be awarded treble damages, lost wages and other benefits, the costs of litigation, and attorneys’ fees. The steep penalties available in wage and hour actions have been an important tool in our firm’s wage cases. We expect that Massachusetts’ new paid sick time provisions will have a similar impact.