The Earned Sick Time Law goes into effect in Massachusetts on July 1, 2015. The law applies to all Massachusetts employers – regardless of size – so it is time to update policies and employee handbooks. If third party vendors are handling your payroll process, you must ensure that they are prepared to comply with the new law and its tenets.
Who does it apply to?
The law clarifies that all employers, regardless of their size, must provide sick leave to the employees. However, employers with 11 or more employees must provide paid sick leave.
Calculating Sick Leave:
The law proposes a minimum of one hour sick leave for every 30 hours worked, up to a maximum of 40 hours per calendar year.
Calendar Year: The calendar year for the purpose of leave accrual could be designated by the employer covering any period of 12 consecutive months. Employers are required to issue a written notice specifying the “calendar year” for the purposes of sick leave calculation to the employees. An employer cannot make any changes to the calendar year retroactively or make any employee lose or forfeit any leave already accrued by them.
Exempt Employees: Exempt employees would be deemed to have worked for 40 hours per week, unless their normal work week is less than 40 hours.
Attrition/Termination/Break in Service: Employers are not required to pay out accrued but unused leave, should an employee leave voluntarily or be terminated. But, any sick leave earned in a previous assignment would be available for immediate use to an employee who returns to work within a year of leaving.
Encashment: Under the law, employees can use 40 hours of sick leave per calendar year but can carry over up to up to 40 hours of unused hours to the next calendar year. However, the employee cannot use more than 40 hours in any given calendar year.
Existing Accruals: Employers currently offering a sick leave policy can continue to offer their existing policy if it is more generous than the Sick Leave law. Employers with a more generous program in place do not have to offer both programs.
Applicable Rate: The applicable rate for paid sick time would be the same hourly rate being earned by the employee at the time of the usage of sick leave. If the employee happens to be paid different hourly rates, am employer may use a weighted average of all the rates at which the employee was previously paid. For employees who are paid a salary, or other project/execution-based methods; a base rate may be worked out from their previous gross pay and the number of hours worked. Should the employee be paid a commission, whether as base wage plus commission or commission only, the hourly rate is taken as the base wage or the effective minimum wage; whichever is greater.
The law excludes all amounts paid as commissions, bonuses, or other incentive pay or overtime, holiday pay, or other premium rates from the paid sick leave calculation.
Notice Period: The law itself mentions the need to provide a reasonable notice, whenever possible, to the employer and requires employers to establish a notification system, which the employees can follow when they need to provide notice that they need leave.
A scheduled sick leave requires seven days’ notice, but unforeseen sickness can only be reported as soon as practicable by the employee or an immediate family member. The law allows an employer to request doctor’s certification only when an employee was absent for more than 24 consecutive hours of scheduled work. The employer cannot insist on a certificate before approving leave and cannot delay payment. In these situations, the employee must provide a medical note excusing the employee from work within a period of 30 days.
Employers should review their existing notification system or adopt a new one so employees can communicate their need to use sick leave.
Attendance and Discipline Policies: Employers cannot interfere with a worker’s right to avail sick leave, or require them to find a replacement first or make up the hours later. The need for sick leave may not form the basis for any negative employment decision.
Posting of Notice: Employers need to post a multi-lingual notice and also provide employees with copies of the notice.
So, for employers in Massachusetts, it is time to revise existing leave policies and start training supervisory and managerial employees, and HR and payroll personnel, on the new law’s requirements.
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