Earned Sick Time Law

Earned Sick Time (M.G.L.c. 149, s. 148C) (940 CMR 33.00) (MA Guide) (FAQs) (Sample Policy)

As of July 1, 2015, most workers in Massachusetts have the right to earn and use up to 40 hours of job-protected sick time per year to take care of themselves and certain family members. Workers must earn at least one hour of earned sick leave for every 30 hours worked. Workers may use earned sick time if they are ill or injured or have a routine medical appointment. They can also use earned sick time for their child, spouse, parent or spouse's parent for the same purposes. In addition, workers may use earned sick time to deal with domestic violence involving themselves or their children. (M.G.L.c. 149, s. 148C(c) & (d)(1))

Covered employers do not include the U.S. government or cities and towns that have not accepted this statute. (M.G.L.c. 149, s. 148C(a))

Employees who are exempt from overtime requirements under the Federal Fair Labor Standards Act are assumed to work 40 hours in each work week for purposes of earned sick time accrual unless their normal work week is less than 40 hours, in which case earned sick time shall accrue based on that normal work week. (M.G.L.c. 149, s. 148C(d)(3))

Employers may cap the amount of earned sick time hours accrued at 40 hours, regardless of the additional hours worked by an employee. (M.G.L.c. 149, s. 148C(d)(4))

An employee may begin using earned sick time on the 90th calendar day after an employee starts working for the employer. (M.G.L.c. 149, s. 148C(d)(1))

Earned sick time can 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. (M.G.L.c. 149, s. 148C(d)(7))

Workers using earned sick time do not receive premium rates but do accrue earned sick time when working overtime or on a Sunday. (940 CMR 33.03(4))

Employers with 11 or more employees must provide paid sick time. Employers with fewer than 11 employees must provide earned sick time, but it does not need to be paid. (M.G.L.c. 149, s. 148C(d)(4) & (6))

Employers shall determine whether the employer has 11 or more employees by counting the number of employees, including full time, part-time, seasonal and temporary employees, on the payroll during each pay period of the benefit year and dividing by the number of pay periods. When determining employer size, employers are to count all employees in all locations. (M.G.L.c. 149, s. 148C(d)(4))

Workers may need to tell their employers before they use sick time, except in an emergency. (M.G.L.c. 149, s. 148C(g))

Employers can ask for a doctor's note or other documentation only in limited circumstances. For example, they can ask for a doctor's note when an employee misses more than 3 consecutive workdays. Employers are not allowed to ask for information about the illness or the details of the domestic violence. (M.G.L.c. 149, s. 148C(f))

Workers may need to fill out a form stating that they are using sick time for a covered purpose. (940 CMR 33.06)

An employee's use of earned sick time may be counted toward concurrent leave under federal or state law, such as the Family Medical Leave Act (FMLA). (940 CMR 33.01(3))

If the employee is provided earned sick time via the hourly accrual method or if the employee is provided earned sick time in a lump sum allocation at the beginning of each month, then the employer is obligated to allow an employee to carry over at least 40 hours of unused earned sick time into the next year. (M.G.L.c. 149, s. 148C(d)(7))

Employers may have their own sick leave policy or other paid time off policy that employees use as sick leave, as long as the policy provides the same benefits and protections that the law requires, or better. (940 CMR 33.07)

Employers must post the Notice of Employee Rights in the workplace and either: give a copy of the notice to each worker or include the employer's sick time policy in any handbook or manual. (940 CMR 33.09(3) & (4))
Employers are not required to pay out unused earned sick time when an employee leaves but may do so voluntarily. (M.G.L.c. 149, s. 148C(d)(7))
Employers who use a vacation policy to meet the requirements of the earned sick time law should note that Massachusetts law requires unused vacation to be treated as any other wages. Employees must be paid for all earned but unused vacation time upon termination of employment. (M.G.L.c. 149, s. 148)
An employer cannot retaliate against an employee for exercising or attempting to exercise rights under this law, including: using the taking of earned sick time as a negative factor in any employment action such evaluation, promotion, disciplinary action, or termination, or otherwise subjecting an employee to discipline for the use of earned sick time; taking any adverse action against an employee because the employee opposes practices which the employee reasonably believes to be a violation of this law, or because the employee supports the exercise of rights of another employee under this law. Excersing such rights include but are not limited to filing an action or instituting any proceeding related to this law; providing or intending to provide any information in connection with any inquiry or preceeding related to this law, or testifying or intendng to testify in any proceeding related to this law. (M.G.L.c. 149, s. 148C (h)&(i)) (940 CMR 33.08)
Examples of adverse actions include but are not limited to:

denying use or delaying payment of earned sick time;
terminating an employee;
taking away work hours;
negatively altering the terms or conditions of employment;
discipling an employee under the employer's attendance policy;
giving an employee undesirable assignments or schedule changes;
giving false negative references for future employment;
making false criminal reports to authorities about the employee;
reporting an employee to immigration authorities; or
threatening an employee with any of the adverse actions listed here. (940 CMR 33.08(3))

Employees who have not been paid for their "sick leave" or who have been retaliated against can file an online complaint with the Massachusetts Attorney General, choosing as the reason for filing "Sick leave" and/or "Retaliation" and then receive from the Attorney General a "private right of action" letter, allowing an employee so aggrieved who prevails in court to be awarded treble damages, as liquidated damages for any lost wages and benefits, the costs of the litigation and reasonable attorneys' fees. Such court actions must be brought within 3 years of the violation. (M.G.L.c. 149, s. 150)

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