Will Massachusetts employers be required to provide paid sick days?



October 31, 2014

Employment Law Alert

Author(s): Jeffrey B. Gilbreth

When Massachusetts voters go to the polls on November 4, they will vote on whether to enact the so-called Massachusetts Paid Sick Days Initiative (“PSDI”). The PSDI would require all Massachusetts employers, regardless of size, to provide employees with up to forty hours of sick time each calendar year. For all but the smallest employers, this sick time would be paid. Employers would be prohibited from depriving employees of accrued sick time or penalizing employees for using sick time, among other restrictions. Employers will be required to comply with the PSDI if it is enacted, regardless of whether they already provide sick time benefits.

Supporters argue that approving the PSDI would: (i) put Massachusetts at the forefront of a national trend in favor of requiring employers to provide sick days to their workforces, (ii) benefit public health by discouraging people from going to work when ill, and (iii) provide stability for families when a child with a working parent or parents is sick.

Without taking a position on the ultimate wisdom of approving the PSDI, there are a number of provisions in the PSDI that are ambiguous and/or would overturn well-established employment law here in Massachusetts. These issues, several of which are discussed below, are sure to cause expensive headaches for employers and an increase in litigation in the courts. Employers should be cognizant of these issues if the PSDI is approved.

Summary of how the PSDI works

 

Effective Date if Passed:  July 1, 2015
Amount of Sick Time Available: Up to 40 hours per calendar year per employee.

Employees may roll over up to 40 hours of accrued but unused sick time to the next year, but may not use more than 40 hours per year, and are not entitled to payment for unused sick time when employment ends.

The PSDI does not define the calendar year for purposes of determining the 40-hour limit or roll-over rights. This issue may need regulatory or legislative clarification.

Paid/Unpaid:
  1. Employers with 11 or more employees: paid.
  2. Employers with fewer than 11 employees: unpaid.
Accrual Rate: One hour of sick time for every 30 hours worked, beginning July 1, 2015, or commencement of employment, if after July 1, 2015.
Waiting Period: New employees must work 90 days before using any accrued sick time.
May Be Used For:
  1. The employee’s own illness or injury;
  2. To care for the illness or injury of the employee’s child, spouse, parent or parent-in-law;
  3. To attend a routine medical appointment for the employee or one of the family members listed in (ii) above; and
  4. To address the effects of domestic violence.
Employer Restrictions:
  1. Cannot require an employee who uses sick time to work additional hours to make up for the absence.
  2. Cannot require an employee to find a replacement to cover the work time the employee misses when using his/her sick time.
  3. Cannot interfere with or restrain employees’ exercise of their rights under the PSDI.
  4. Cannot retaliate against an employee because the employee opposes practices that the employee believes to be in violation of the PSDI, or because the employee supports the exercise of sick time rights of another employee.
  5. Limitations on when the employer may request a medical provider certification (doctor’s note)—see below. 

Problematic provisions

The main argument we have heard in opposition to the PSDI is that if passed, it would negatively affect employers’ bottom lines by requiring payment of wages for up to 40 “non-productive” hours per year per employee. While this is certainly a bona fide concern for many employers, there are other problematic aspects of the PSDI, which are not readily apparent until one reads the proposed legislation and considers the practical impact that it will have on employers on a day-to-day basis.

The two provisions we find to be most problematic, which we discuss in detail below, are ambiguous and may cause significant administrative headaches, practical problems and an upending of established law.

Use of hourly or smaller increments for calculating sick time used

The PSDI provides that “[e]arned sick time shall be used in the smaller of hourly increments or the smallest increment that the employer’s payroll system uses to account for absences or use of other time.” A literal reading of this provision suggests that employers who use time clocks that round to the nearest minute to record employees’ work time must allow employees to use sick time in one minute increments. The practical realities of doing so are daunting.

Even if the minimum use of sick time is in one-hour blocks, employers will still face debilitating business gridlock where the absent employee is, for example, a key figure on a production line or an engineering project. For example, if the PSDI passes, an employee can call in sick for one or two hours (or even less if this ambiguous provision is interpreted to require leave be taken and tracked in smaller increments) and then show up to work after that one- or two-hour period. Similarly, an employee can leave early (and only use a few hours of sick time). In theory, an employee could even leave in the middle of the day for a few hours if “sick” and then return to work later that same day.

While half- or full-day absences that are timely reported might permit the employer to cost-effectively seek a replacement employee, absences of one, two or even three hours will normally preclude an employer from meaningfully replacing the absent worker. Unfortunately for employers, it does not appear that the PSDI will allow them to require that employees take sick time in half or full day increments.

This problem is compounded by other language in the PSDI that requires an employee to provide advance notice of the need for sick time only when “foreseeable.” Thus, an employer could get a call just a few minutes before a shift starts in which an employee informs the employer that he just started feeling ill, will be using accrued sick time and is not sure whether he will be able to work later that day or not. While the employer might be able to scramble and find a replacement (something that frequently occurs under the current legal regime), the sick employee could, then report for duty (or call in willing and ready to work) later that same day. While the employer could likely explain to the employee that his shift has been covered and he is not needed, under the PSDI, the employer could only “charge” the employee’s accrued sick time bank for the portion of the day he was too sick to work. Thus, while the employer has borne the expense of a full day’s absence (by paying another replacement employee for a full day of work), it is still on the hook to pay the employee for the unused sick time hours if and when they are used later.

The obvious solution to these problems would be to amend the PSDI, if and after it passes, to permit employers to require that sick time be used in no less than half- or full- day increments.

No doctor’s note until 24 consecutive hours of sick time absence

Another problematic provision of the PSDI provides that “an employer may require certification when an earned sick time period covers more than 24 consecutively scheduled work hours.” Although the PSDI does not say so directly, the implication of this language is that an employer may not require certification for shorter absences. If this is how the provision is ultimately construed by the attorney general or the courts, it would be a complete upending of existing law in this area.

Currently, employers have an absolute right to request that an employee provide a basic certification from a medical provider to establish that an absence was for a legitimate medical reason. While certain laws and other considerations will often restrict the detail of the information requested and/or provided, an employer can always ask that the employee provide medical documentation (i.e., a doctor’s note) indicating that his or her absence was for a legitimate medical reason. Some employers require such documentation as a matter of policy for each sick day; others only request them for extended absences or if they suspect foul play. In any event, the employer’s basic ability to obtain medical certification that the employee is using the sick time for legitimate reasons—even for a single day’s absence—has never been questioned.

Under the PSDI, however, employers may be precluded from requesting such documentation unless and until an employee is absent for “more than 24 consecutively scheduled work hours.” This would permit employees to use sick time to take three paid workdays off (assuming an 8-hour workday) without permitting the employer to verify that the absence is legitimate. For unscrupulous employees, the PSDI would permit them to use their sick time to extend vacations, create three-day weekends and stay home around the holidays with impunity and without providing any mechanism for the employer to confirm the need for the absence with a doctor. For example, the language of the PSDI suggests that if an employee has a track record of using his/her PSDI in questionable ways around the holidays (e.g., the day before Thanksgiving, New Year’s Eve, the Friday before Memorial Day), the employer, which reasonably suspects foul play, cannot require the employee to provide documentation supporting his/her use of sick time for such absences. While the employer may have other avenues to protect against such misconduct (hiring a private investigator, looking for evidence online or in social media posts), these measures are far more expensive, time-consuming and invasive of employee privacy than simply requiring (as is currently permitted) that the employee certify the legitimacy of each absence through documentation from a medical provider.

The drafters of the PSDI appear not to have accounted for the practical issues the current language will inevitably create. One reasonable alternative approach would be for the PSDI to prohibit employers from denying employees’ use of accrued sick time or withholding pay while waiting on a medical certification, but to permit employers to request such certification regardless of the length of the employee’s absence. Such a structure would ensure that employees receive the sick days and pay to which they would be entitled under the PSDI, while also ensuring that employers can continue to police the use of sick time effectively and ensure it is not being abused.

Conclusion

If the PSDI does pass, it would be behoove the Massachusetts Legislature—or the attorney general, who would have regulatory power over the PSDI—to review these issues and consider legislative or regulatory fixes before the PSDI’s effective date of July 1, 2015.

In any event, all Massachusetts employers should be aware of the PSDI and its practical implications on their day-to-day business.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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