Massachusetts Earned Sick Time Law: What it Does and Who it Covers

In 2014 voters in the Commonwealth approved a ballot measure that created the Massachusetts Earned Sick Time Law (G.L.c. 149 § 148C) (MESTL), which guarantees most Massachusetts workers up to 40 hours of earned sick time per year. Last month the coverage of the law expanded to cover physical and mental health needs arising from pregnancy, surrogacy, assisted reproductive technology, or adoption loss.

Who does the law apply to?

The law applies to almost employees whose primary place of work is Massachusetts. The regulations under the law define “primary” place of work as a place the employee works more than any other place; for an employee who works in multiple states it is the state in which she spends the most of her time. For example, if an employee works remotely for a company, and spends 40% of her time working from Massachusetts, 30% working from Florida, and 30% working from California, Massachusetts would be the primary place of work.

The law does not apply to the following employees:

Federal employees;

City or town employees unless the city or town has adopted the law;

Other public employees (e.g. teachers at regional schools) unless the public entity had adopted the law;

College and university students engaged in work-study or similar programs, or serving as a resident assistant at the college or university where they are enrolled;

A school-age student;

A client who lives in a licensed program and performs work duties within the program.

What does the law guarantee?

The law guarantees employees one hour of earned sick time for every thirty hours worked, and employees can start using the sick time. Note that hours worked does not include all hours paid – sick time does not accrue while an employee is on vacation or otherwise being paid but not working, but does include overtime hours.

What can employees do with sick time?

Sick time can be used for the following reasons:

To care for an employee’s illness, injury, or medical condition;

To care for the employee’s child, spouse, parent, or spouse’s parent who is suffering from an illness, injury, or medical condition;

To attend medical appointments for the employee or the employee’s child, spouse, parent, or spouse’s parent;

To address the effects of domestic violence;

To travel to and from locations related to an approved sick leave purpose (e.g. to go to a pharmacy to pick up medication); and

To address their own or their spouses physical or mental health needs if the employee or spouse experiences pregnancy loss or failed assisted reproductive technology, adoption, or surrogacy.

When can earned sick time be used?

An employee can start using sick time 90 days after beginning work. The law requires employers to allow employees to roll over up to 40 hours of earned sick time from one year into the next.

If an employee has a break in service of up to 4 months, they can use sick time accrued before the break upon their return. If they have a break of 4-12 months they can use sick time accrued before the break if they had at least 10 hours accrued.

Is the earned sick time paid?

Employers with 11 or more employees are required to provide paid sick time. The number of employees is assessed as the average number of employees in the preceding year, including full, part-time, and temporary employees. While earned sick time is paid, an employer is not required to pay out accrued but unused sick time when an employee leaves the job. Even where an employer has a policy of paying out unused sick time, the SJC has held that the sick time payment is not considered “wages” under the Wage Act, which makes it harder for employees to assert their rights to these payments, as we previously described on this blog.

Do employees have to give their employers notice before using sick time?

Employees must provide notice before using earned sick time except in the case of emergency, and for planned absences employers can require up to seven days’ notice.

What kind of documentation can employers require?

Employers can require written documentation of the use of sick time in certain circumstances including:

If an absence exceeds 24 consecutively scheduled work hours or three days on which the employee was scheduled to work;

The use occurs within two weeks of an employee’s scheduled last day of work;

The use occurs after four “unforeseeable or undocumented” absences within a three-month period;

For employees aged 17 and under, the use occurs after three “unforeseeable or undocumented” absences within a three-month period.

Documentation for health-related sick leave must be a written notice signed by a health care provider stating that the employee needed the leave. In the case of leave for domestic violence, various forms of documentation are accepted. (Massachusetts also has a separate law granting leave for victims of abuse). An employer cannot require an employee to disclose the nature of their illness or details about domestic violence.

Employers can require employees to provide fitness-for-duty or other work release upon returning to work from a sick leave if such paperwork is consistent with industry practices and there is a reasonable safety concern about the employee’s ability to do their job.

How is the law enforced?

The law prohibits interference with employees’ right to take sick leave, or retaliation against employees for taking protected leave, and uses the same enforcement procedures as the Wage Act. This means that the Attorney General’s office is authorized to issue civil citations against employers who violate the law, and to require restitution and fines of up to $25,000. In addition, employees whose rights have been violated can sue their employers for damages caused by the violation, and those who prevail will be awarded treble (triple) damages, lost wages and other benefits, the costs of litigation, and attorneys’ fees. 

How has the law been interpreted?

There have been relatively few reported cases analyzing claims under the MESTL. Federal district courts have narrowed the reach of the law, finding that it is preempted by other federal statutes as it relates to certain employees, including interstate railroad workers and airline inflight and ground crews. The First Circuit rejected a challenge to the MESTL that argued that it was preempted by the Labor-Management Relations Act as it applied to union members.

If you have been deprived of earned sick time or retaliated against for using your sick time, please contact our employment attorneys at 617-742-6020.