On June 19, 2015, Attorney General (AG) Healey published final regulations relating to the recently enacted Earned Sick Time (EST) law. The AG recently announced a safe harbor on the law and published draft regulations (see the June 2, 2015, and May 5, 2015 editions of Compliance Corner, respectively). The final regulations provide additional clarifications and changes from the draft regulations.
Regarding employer size, the final regulations clarify that employer size should be calculated based on the prior January 1 – December 31 calendar year for employers that use multiple start dates for the benefit year (such as employee anniversary dates). All employees—including full-time, part-time and seasonal—are included in the count, as are those working or living outside Massachusetts. Importantly, employees furnished through and paid by a temporary staffing agency are counted as employees for both the agency and the employer.
Regarding covered employees, regardless of the employer’s location, full-time, part-time and seasonal employees whose primary place of work is in Massachusetts are eligible. In addition, an employee is not required to spend 50 percent or more of working time in Massachusetts in order for it to be the primary place of work.
Regarding the difference between calendar and benefit years, the final regulations clarify that the employer may use any consecutive 12-month period as the calendar year, and that “calendar year” and “benefit year” may be used interchangeably.
Regarding EST leave accrual, the regulations state that employees may accrue EST based on all hours the employee works, even if those hours are worked in another state. That said, hours paid when not working (e.g., PTO, vacation or sick time) do not count toward the accrual. Once an employee has accrued 40 hours during a benefit year, the employer may delay further accrual until the employee actually uses some of those 40 hours. Employers may frontload the full 40 hours of EST leave at the beginning of the benefit year, in which case the employer would not be required to allow carryover of unused time into the subsequent benefit year.
Regarding EST leave use, employees hired on or before April 2, 2015, may use EST as it accrues, whereas those hired after that date may use accrued sick time once they reach 90 days of employment (regardless of the number of days actually worked during that initial 90 days). The smallest increment of sick time an employee may use is one hour. Special rules apply for employers that want to pay employees for unused EST at the end of the benefit year or upon transfer within the company.
Regarding the EST’s interaction with other leave laws, the final regulations state that time off provided under the EST law may run concurrently with FMLA and other Massachusetts state leave (rather than in addition to FMLA leave, as the draft regulations provided). Employers may require employees to use EST when taking other statutorily authorized leave that would otherwise be unpaid.
Regarding notice requirements, employers must post a model notice in a conspicuous location for all employees to see, and must also either provide a copy (either in paper or electronic form) to all eligible employees or include the EST policy in an employee manual or handbook. As for employee notice requirements, employers may require employees to provide up to seven days advance notice for foreseeable sick leave, although only reasonable notice may be required for unforeseeable leave. The regulations clarify that employers may require notice of the expected duration and may require daily updates (if the expected duration is unknown).
Overall, employers should work with outside counsel in implementing leave policies that comply with the EST law, particularly since the EST law implicates other non-benefits employment issues, such as labor and employment law.
MA EST Law Final Regulations »