Massachusetts Sick Leave Law Delayed For Some Employers
[May 22, 2015] Massachusetts employers that had paid time off policies in place as of May 1, 2015, now have more time to comply with the new sick leave law due to a “safe harbor” announced by Attorney General Maura Healey earlier this week. You can read the provision here.
As a reminder, the sick leave law requires employers with eleven or more employees to provide up to 40 hours of paid sick leave per year. Employers with fewer than eleven employees must provide the same amount of unpaid sick leave.
The safe harbor allows some employers until January 1, 2016, to comply with the new sick leave law. The sick leave law takes effect on July 1, 2015, for employers not eligible for the safe harbor.
The Attorney General’s office is currently holding public hearings on the proposed sick leave regulations issued on April 27, 2015, and anticipates issuing final sick leave regulations prior to the July 1, 2015, effective date.
Safe Harbor Provisions
1. “Paid Time Off Policy” In Effect As Of May 1, 2015
Specifically, to take advantage of this safe harbor, an employer must have had a “paid time off policy” in existence as of May 1, 2015, that provides for at least 30 hours of paid time off during the 2015 calendar year. (Only 30 hours are required for the remainder of 2015, as opposed to the 40 hours required by the paid sick leave law, because it is a partial year.)
While the safe harbor provision applies to employers with a “paid time off policy” already in place, it is not clear whether such a policy must provide paid sick time, or whether an existing vacation policy is sufficient. Based on the plain words used, arguably any policy providing for paid time off is sufficient. Thus, employers with a vacation policy, but no paid sick time policy, may be eligible for the safe harbor.
However, a statement by Attorney General Healey accompanying the safe harbor explained that the provision “gives the businesses and non-profits that have already been offering earned sick time to their employees slightly more time to update their systems without fear of legal action” (emphasis added). Given the lack of clarity with regard to the meaning of “paid time off policy,” employers with only a vacation policy in place on May 1, 2015, but no paid sick time policy, should carefully consider whether or not to rely on the safe harbor. Although there is a good argument that a vacation policy is a “paid time off policy” and, therefore, is covered by the safe harbor provision, there is clearly an argument on the other side. Of course, the most conservative approach is to comply with the new law by July 1, 2015.
2. Covered Employees
Employers that currently offer paid time off to some but not all employees may take advantage of the safe harbor by extending 30 hours of paid time off to all employees, including the currently ineligible employees, “under the same conditions,” from July 1 to December 31, 2015. For example, if an employer’s current paid time off policy applies to full-time employees but not part-time employees, the employer should amend its policy to provide 30 hours of paid time off to all employees, and communicate the change to all employees.
3. Job-Protected Leave
In addition, under the safe harbor, any paid time off, including sick time, used by an employee from July 1 to December 31, 2015, must be job protected leave subject to the sick leave law’s non-retaliation and non-interference provisions. Because most paid time off policies, including vacation policies, do not contain non-retaliation and non-interference provisions, employers must ensure that their human resources representatives are aware of these requirements.
Recommendations For Employers
We recommend that employers seeking to take advantage of the safe harbor:
- Ensure that the paid time off provided by a paid time off policy in effect on May 1, 2015, is extended to all employees by July 1, 2015;
- Ensure that all employees have the right to use at least 30 hours of paid time off during calendar year 2015. (Pro-rating the amount of paid time off for part-time employees is permissible so long as all employees receive at least 30 hours of paid time off);
- Train human resources representatives and other employees that administer paid time off on the non-interference and non-retaliation requirements;
- Be on the lookout for the final sick leave regulations; and
- Revise the current paid time off policy to conform with the sick leave law and regulations by January 1, 2016.
We recommend that employers who do not qualify for the safe harbor:
- Carefully consider the proposed regulations for the sick leave law;
- Prepare a policy that complies with those regulations and will go in effect by July 1, 2015; and
- Carefully review the final regulations when they are issued, and make any necessary changes to the policy.
Please feel free to contact us if you have any questions about the sick leave law or safe harbor or need assistance with any related compliance or litigation matters.