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Massachusetts Employers Must Offer Sick Leave and Domestic Violence Leave to Employees

Nancy Puleo November 6, 2014

NEW SICK LEAVE LAW

Massachusetts is following the lead of California, Connecticut, and New York City in requiring that all Massachusetts employers offer sick leave to employees. The new law takes effect on July 1, 2015.

Entitlements

Employers with at least 11 employees (including both full-time and part-time employees) must allow employees to accrue a minimum of one hour of paid sick time for each 30 hours worked, up to a maximum of 40 hours of paid sick time per calendar year.  Employers with fewer than 11 employees must provide the same amount of sick leave; however, it can be provided on an unpaid basis.  Employees may use accrued sick time (i) to care for a physical or mental illness, injury, or medical condition affecting the employee or the employee’s child, spouse, parent, or spouse’s parent; (ii) to attend routine medical appointments of the employee or the employee’s child, spouse, parent, or spouse’s parent; or (iii) to address the effects of domestic violence on the employee or the employee’s child. 

Other highlights of this new benefit:

  • Although employees must begin accruing sick time immediately upon hire, they are not entitled to use the accrued sick time until they have completed 90 days of employment.
  • Employees may use accrued sick time in the smaller of hourly increments or the smallest increment the employer’s payroll system uses to account for absences or use of other time.
  • Employees have the right to carry over up to 40 hours of accrued unused sick time into the following calendar year. They are not entitled to use more than 40 hours of accrued sick time in a calendar year.
  • Unlike vacation time, accrued unused sick time is not compensable upon separation from employment.
  • Employers and employees may agree that employees can make up missed time, for reasons covered by the sick leave law, during the same or the next pay period instead of using accrued sick time.
  • Employees must make a good-faith effort to notify their employer before using accrued sick time, if the need for the time off is foreseeable.
  • Employers can require employees who used accrued sick time for more than 24 consecutive scheduled work hours to provide certification of the need for the extended sick time.
  • Employers are required to post a notice, to be prepared by the Attorney General, regarding the right to earned sick time in a conspicuous location and to provide a copy to employees.

Interplay with Existing Paid Time Off or Sick Leave Policies

The sick leave law sets forth only the minimum guarantees that employers must provide and does not override more generous policies.  Employers with more generous sick leave or paid time off policies, which include a sick leave component, may nonetheless have to revise their policies to comply with the specific requirements of this new law.  For example, an employer’s current sick leave policy may not allow employees to use their sick time for reasons unrelated to their own illness, which now it must do.

Retaliation Prohibited

The new law contains a prohibition against retaliation.  Employers may not take adverse action against employees due to their use of sick time.  Adverse action includes, but is not limited to, disciplinary warnings, negative evaluations, demotion, and termination.  The Attorney General will enforce the sick leave law using the same procedures applicable to the Massachusetts Wage Act.  Employees may also file private lawsuits to enforce their earned sick time rights. 

Recommendations

Employers that do not currently offer sick time to employees need to develop a policy that complies with this new law.  Employers that already provide sick time likely need to revise their current policies and practices to comply with the various requirements of the new law. Posternak’s employment attorneys continue to monitor developments in this area and are available to assist clients as they prepare for compliance in advance of the July 1st deadline.

DOMESTIC VIOLENCE ACT

The new Massachusetts Domestic Violence Act (the “Act”) requires that Massachusetts employers with 50 or more employees allow eligible employees to take up to 15 days of unpaid leave per year if they or their covered family members are victims of domestic violence.

Coverages

The Act, which is part of the Massachusetts Wage Act, defines “domestic violence” as abuse by a current or former spouse, a person with whom the victim shares a child, a person cohabitating with or has cohabitated with the victim, a relative, or a person with whom the employee or family member has or had a dating relationship.  Covered family members include the employee’s spouse, parent, step-parent, child, step-child, sibling, grandparent, and grandchild. Under the Act, leave may be taken to address issues directly related to the abusive behavior, such as seeking medical attention, counseling, victim services, legal assistance, to attend or appear in court proceedings, or to meet with a district attorney or law enforcement personnel.

Employer and Employee Requirements

Employers have discretion to decide whether leave under the Act is paid or unpaid.  Unless waived by the employer, employees are required to first exhaust all of their accrued paid time off, including sick time, vacation days, and personal days, before taking leave under the Act.  In general, employees must provide advance notice of their need for leave; however, this requirement does not apply if there is a threat of imminent danger to the employee or covered family member.  If an employee is unable to provide advance notice of the need for leave under the Act, the employer must receive notice within three business days of the absence(s) that the absence(s) related to domestic violence. 

Employers may require that employees provide documentation supporting the need for leave under the Act.  This documentation may consist of court documents, police reports, witness statements, medical documents, documents reflecting the perpetrator’s conviction or admission of guilt, medical documents, and/or a victim advocate’s or other helping professional’s sworn statement.  In lieu of these forms of documentation, an employee may also submit his or her own sworn statement signed under the pains and penalties of perjury.

Employees are entitled to return to the same or a substantially equivalent position once their leave has ended.  The Act contains an anti-retaliation provision that prohibits employers from taking adverse action against employees who exercise their rights under the Act.  For example, employees cannot be disciplined for taking leave under the Act if they provide documentation supporting the need for leave within 30 days of the last related absence.

Enforcement

As with other parts of the Wage Act, the Attorney General enforces the Act.  Employees may also bring private actions against employers, which if successful, entitle them to mandatory treble damages and recovery of their attorney’s fees.

Notice

Covered employers are required to notify employees of their rights under the Act.  To satisfy this requirement, employers should develop a written policy regarding domestic violence leave for inclusion in their employee handbooks or manuals.  Human resources personnel and managers should also receive training regarding this new category of job-protected leave.

If you have any questions or need additional information regarding this, please contact Nancy J. Puleo or any other attorney in our Employment Group.

This Alert is provided for information purposes only, and does not constitute legal advice.  According to Mass.SJC Rule 3:07, this material may be considered advertising. ©2014 Posternak Blankstein & Lund LLP.  All rights reserved.

 

 

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