New Earned Sick Time Notice and Updated Safe Harbor Regulation

By Alexandra D. Thaler

With just weeks to go before the Massachusetts Earned Sick Time law goes into effect on July 1, 2015, the Massachusetts Attorney General’s Office is continuing to issue guidance and documentation relevant to the law, including the required notice posting and an update to its safe harbor regulation.

The AGO’s current draft regulations provide that this Notice of Employee Rights (and not an employer-drafted alternative), must be both posted in a conspicuous location at Massachusetts worksites and distributed to employees.  The English language version of the required poster is now available here.  The AGO’s notice contains the basic outlines of the law’s requirements, including, among other things, minimal required rates of accrual and carry-over, permissible reasons for use, employee notice obligations, and contact information for the AGO (as required by the authorizing legislation).  It also reminds employees that sick time cannot be used as an excuse to be late for work, and that misuse of sick leave may result in discipline.

Initially published on May 18, 2015, the Safe Harbor regulation provided guidance to employers with existing time off policies seeking to understand their obligations for the remainder of 2015 and outlined the circumstances under which an employer may put off, until January 1, 2016, implementing certain changes otherwise required for full compliance with the law.  After fielding criticism relating to, among other things, lack of clarity around the amount of time off required for part time and newly hired employees, and the extent that protections specified in the law will be applicable in the transition year, the AGO revised the Safe Harbor regulation to address some of the expressed concerns.  In particular, the AGO’s revised Safe Harbor regulation, now available here, clarifies how time off under policies providing for a lump sum allocation can be prorated for part time and newly hired employees.  The revised provision also makes clear that only a maximum of 30 hours of time off needs to be provided in 2015 to full time employees, and that only those 30 hours – or a lesser amount based on accrual rates or pro-ration, as applicable – need to be made subject to the non-retaliation provisions, be permitted to be used for the reasons allowed under the law, and be carried over into 2016 if unused.

Final regulations have yet to be issued, but comments made by representatives of the AGO at the public hearings held throughout the state in recent weeks indicate that some significant changes and clarifications may be coming.  For example, we expect the AG’s office to clarify that Earned Sick Time can run concurrently with leave time available under other lase, such as the FMLA.  Stay tuned for an analysis of the final regulations, which we expect will be issued on June 19.