940 Mass. Code Regs. 33.02. Definitions
07/03/2015 – 06/01/2024
As used in 940 CMR 33.00, the following terms shall, unless the context clearly requires otherwise, have the following meanings:
Benefit Year. Benefit Year is used interchangeably with 940 CMR 33.02: Calendar Year for purposes of 940 CMR 33.00.
Break in Service. A period of time extending from the date an employee last worked for an employer until the employee’s return to employment with that employer, whether the separation was voluntary or involuntary.
Calendar Year. Any consecutive 12-month period of time as determined by an employer. Most employers will find it helpful to use the year that they use for determining wages and benefits, st including, for example: a year that runs from January 1st through December 31 , the tax year, fiscal year, contract year, or year running from an employee’s anniversary date of employment. Calendar Year is used interchangeably with 940 CMR 33.02: Benefit Year for purposes of 940 CMR 33.00.
Child. A biological, adopted, or foster child, a stepchild, a legal ward, or a child for whom an employee has assumed the responsibilities of parenthood.
Child For Whom an Employee Has Assumed the Responsibilities of Parenthood. A child of an employee standing in loco parentis, as defined by 29 U.S.C. § 2611(12) and 29 C.F.R. §§ 825.122(c) and 825.800.
Date of Hire. An employee’s first date of actual work for an employer. Date of Hire is used interchangeably with First Date of Actual Work for purposes of 940 CMR 33.00.
Domestic Violence. Abuse committed against an employee or the employee’s child by:
(a) a current or former spouse of the employee;
(b) a person with whom the employee shares a child in common;
(c) a person who is cohabitating with or has cohabitated with the employee;
(d) a person who is related to the employee by blood or marriage; or
(e) a person with whom the employee has or had a dating or engagement relationship. Except as otherwise specified in 940 CMR 33.00, Domestic Violence shall be consistent with M.G.L. c. 151A, § 1(g)(½).
Earned Paid Sick Time. Time off from work accrued by an employee and provided by an employer that can be used for the purposes described in 940 CMR 33.02: Earned Sick Time compensated at the same hourly rate that the employee earns at the time the employee uses the paid sick time; provided, however, that the same hourly rate shall not be less than the effective minimum wage under M.G.L. c. 151, § 1, where applicable.
Earned Sick Time. Time off from work accrued by an employee during hours worked and provided by an employer to allow an employee to:
(a) care for the employee’s child, spouse, parent, or parent of a spouse, who is suffering from a physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care;
(b) care for the employee’s own physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care;
(c) attend a routine medical appointment or a routine medical appointment for the employee’s child, spouse, parent, or parent of spouse;
(d) address the psychological, physical or legal effects of domestic violence; or
(e) travel to and from an appointment, a pharmacy, or other location related to the purpose for which the time was taken.
Employee. Any person who performs services for an employer for wage, remuneration, or other compensation, as further defined by M.G.L. c. 149, § 148B, including full time, part-time, seasonal, and temporary employees, except:
(a) an employee of the United States government;
(b) an employee of a city or town is not considered an employee for purposes of 940 CMR 33.02: Employee until M.G.L. c. 149, § 148C, is accepted by vote or by appropriation as provided in Article CXV of the Amendments to the Constitution of the Commonwealth;
(c) an employee of a local public employer not covered by the term cities and towns, for example, school committees, including regional schools and educational collaboratives, shall be considered an employee only if M.G.L. c. 149, § 148C, is accepted by vote or appropriation of the prudential bodies governing said entity;
(d) a student attending a public or private institution of higher education located in the Commonwealth who is:
1. participating in a federal work-study program or a substantially similar financial aid or scholarship program;
2. providing support services to residents of a residence hall, dormitory, apartment building, or other similar residence operated by the institution at which they are matriculated in exchange for a waiver or reduction of room, board, tuition or other education-related expenses; or
3. exempt from Federal Insurance Contributions Act (FICA) tax pursuant to 26 U.S.C. § 3121(b)(10);
(e) a school-aged student under 20 U.S.C. § 1400 et. seq., the Individuals with Disabilities Education Act (IDEA); and
(f) an adult client who resides in a Massachusetts licensed program and performs work duties within the program setting as part of bona fide educational or vocational training.
Employer. Any individual, corporation, partnership or other private or public entity, including any agent thereof, who engages the services of an employee for wages, remuneration or other compensation, except:
(a) the United States government shall not be considered an employer;
(b) cities and towns shall be considered employers for the purposes of M.G.L. c. 149, § 148C only if M.G.L. c. 149, § 148C is accepted by vote or by appropriation as provided in Article CXV of the Amendments to the Constitution of the Commonwealth;
(c) local public employers not covered by the term cities and towns, for example, school committees, including regional schools and educational collaboratives, shall be considered employers for the purposes of M.G.L. c. 149, § 148C, only if accepted by vote or appropriation of the prudential bodies governing said entity; and
(d) notwithstanding M.G.L. c. 15D, § 17, M.G.L. c. 118E, §§ 70 through 75, or any other special or general law to the contrary, the PCA Quality Home Care Workforce Council shall be deemed the Employer of all Personal Care Attendants, as defined in M.G.L. c. 118E, § 70, for purposes of M.G.L. c. 149, § 148C(d)(4), the Department of Medical Assistance shall be deemed the Employer of said Personal Care Attendants for all other purposes under M.G.L. c. 149, § 148C, and the Department of Early Education and Care shall be deemed the Employer of all Family Child Care Providers, as defined in M.G.L. c. 15D, § 17(a), for purposes of M.G.L. c. 149, § 148C.
Health Care Provider.
(a) a doctor of medicine or osteopathy who is authorized to practice medicine or surgery by the State in which the doctor practices; or
(b) any other person determined by the U.S. Secretary of Labor to be capable of providing health care services under 29 U.S.C. § 2611. Health Care Provider includes:
1. podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice in the Commonwealth or any other State and performing within the scope of their practice as defined under the General Laws or any other state law;
2. nurse practitioners, nurse-midwives, clinical social workers and physician assistants who are authorized to practice in the Commonwealth or any other State and performing within the scope of their practice as defined under the General Laws or any other State law;
3. Christian Science Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts;
4. any health care provider from whom an employer or the employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits; and
5. a health care provider listed in 940 CMR 33.02: Health Care Provider(b)1. through 4. who practices in a country other than the United States, who is authorized to practice in accordance with the law of that country, and who is performing within the scope of his or her practice as defined under such law.
Regular Hourly Rate. The amount that an employee is regularly paid for each hour of work.
Same Hourly Rate.
(a) For employees compensated on an hourly basis, the same hourly rate means the employee’s regular hourly rate.
(b) For employees who receive different pay rates for hourly work from the same employer, the same hourly rate means either:
1. the wages the employee would have been paid for the hours absent during use of earned sick time if the employee had worked; or
2. the blended rate, determined by taking the weighted average of all regular rates of pay over the previous pay period, month, quarter or other established period of time the employer customarily uses to calculate blended rates for similar purposes.
Whatever method the employer elects to determine the same hourly rate, 940 CMR 33.02: Same Hourly Rate(b)1. or 2., the employer must use a consistent method for each employee throughout a benefit year.
(c) For employees paid a salary, the same hourly rate means the employee’s total earnings in the previous pay period divided by the total hours worked during the previous pay period. For determining total hours worked during the previous pay period, employees who are exempt from overtime requirements under 29 U.S.C. § 213(a)(1), the Fair Labor Standards Act, shall be assumed to work 40 hours in each week unless their normal work week is less than 40 hours, in which case earned sick time shall accrue and the same hourly rate shall be calculated based on the employee’s normal work week. Regardless of the basis used, the same hourly rate shall not be less than the effective minimum wage under M.G.L. c. 151, § 1, where applicable.
(d) For employees paid on a piece work or a fee-for-service basis, the same hourly rate means a reasonable calculation of the wages or fees the employee would have received for the piece work, service, or part thereof, if the employee had worked. Regardless of the basis used, the same hourly rate shall not be less than the effective minimum wage under M.G.L. c. 151, § 1, where applicable.
(e) For employees paid on commission (whether base wage plus commission or commission only), the same hourly rate means the greater of the base wage or the effective minimum wage under M.G.L. c. 151, § 1, where applicable.
(f) For tipped employees who ordinarily receive the service rate under M.G.L. c. 151, § 7 ($3.00 plus tips as of January 1, 2015), the same hourly rate means the effective minimum wage under M.G.L. c. 151, § 1 ($9.00 as of January 1, 2015).
(g) The same hourly rate shall not include:
1. sums paid as commissions, drawing accounts, bonuses, or other incentive pay based on sales or production;
2. sums excluded under 29 U.S.C. § 207(e), including contributions irrevocably made by an employer to a trustee or third person pursuant to a bona fide plan for providing old-age, retirement, life, accident, or health insurance, and any other employee benefit plans;
3. overtime, holiday pay, or other premium rates. However, where an employee’s regular hourly rate is a Differential Rate, meaning a different wage rate paid for the same work performed under differing conditions (e.g. a night shift), the Differential Rate is not a premium.
Transition Year. The benefit year that includes July 1, 2015.
940 Mass. Code Regs. 33.03. Accrual and Use of Earned Sick Time
07/03/2015 – 06/01/2024
Employees Eligible to Accrue and Use Earned Sick Time
(1) An employee is eligible to accrue and use earned sick time if the employee’s primary place of work is in Massachusetts regardless of the location of the employer. An employee need not spend 50% or more time working in Massachusetts for a single employer in order for Massachusetts to be the employee’s primary place of work.
Example: A painter with a single employer works 40% of her hours in Massachusetts, 30% in New Hampshire and 30% in other states. Massachusetts is her primary place of work.
Example: A retail clerk relocates from New York to Massachusetts and takes a job at the employer’s Boston store. Upon the first date of actual work at the Boston store, Massachusetts becomes the clerk’s primary place of work.
(2) If an employee is eligible to accrue and use earned sick time, then all hours the employee works must be applied toward accrual of earned sick time regardless of the location of the work and regardless of the location of the employer.
Example: In a single year, an employee of a catering company works 550 hours in Massachusetts, 350 hours in New Hampshire and 200 hours in Maine. The caterer will accrue earned sick time on all 1,100 hours worked for the catering company.
(3) Eligible employees permanently transferred to another state but remaining with the same employer will no longer accrue earned sick time but may use their accrued time.
Accrual of Earned Sick Time
(4) Employees accrue earned sick time on all hours worked at a rate of one hour of earned sick time for every 30 hours worked, including overtime hours, up to a cap of 40 hours per benefit year.
(5) Employees accrue earned sick time only on hours worked, not on hours paid when not working. For example, employees do not accrue earned sick time during vacation, paid time off, or while using earned sick time.
(6) Employees exempt from overtime requirements under 29 U.S.C. § 213(a)(1) shall be assumed to work 40 hours in each work week for purposes of earned sick time accrual unless their jobs specify a lower number of hours per week, such as salaried part-time employees. In such cases, earned sick time shall accrue based on that specified number of hours per week.
(7) Employees paid on a piece work or fee-for-service basis accrue earned sick time based on a reasonable measure of the time the employees work, including established practices or billing.
(a) Adjunct faculty compensated on a fee-for-service or per-course basis shall be deemed to work three hours for each classroom hour worked.
(b) Family Child Care Providers, as defined by M.G.L. c. 15D, § 17, shall be deemed to work six hours for each part day worked and ten hours for each full day worked.
(8) Once employees have accrued 40 hours of earned sick time during the benefit year, they do not continue to accrue more hours of earned sick time regardless of the additional hours they work.
(9) Once an employee possesses a bank of 40 hours of unused earned sick time, the employer may opt to delay further accrual until the employee draws down the bank of earned sick time to below 40 hours.
(10) At the end of the benefit year, an employee may rollover up to 40 hours of unused earned sick time to the next benefit year.
(11) Employers may track accrual at an accrual rate of one hour of earned sick time for 30 hours worked or any equivalent accrual rate with smaller increments of time (e.g. one minute of sick time per 30 minutes worked, two minutes of earned sick time per hour worked).
Use of Earned Sick Time
(12) Employees have the right to use 40 hours of earned sick time per benefit year if the employee works sufficient hours to earn the time.
(13) An employee may not use earned sick time if the employee is not scheduled to be at work during the period of use.
(14) The smallest amount of sick time an employee can use is one hour. For uses beyond one hour, employees may use earned sick time in hourly increments or in the smallest increment the employer’s payroll system uses to account for absences or use of other time.
Example: Chris takes his daughter to a scheduled doctor’s appointment during his regularly scheduled work time, but the entire trip takes 50 minutes. Chris has used one hour of earned sick time.
Example: A furniture company uses a payroll system that tracks time in 15-minute increments. Anna, an employee, goes to a dentist appointment and returns after 90 minutes. Anna has used 90 minutes of earned sick time.
(15) An employer may review with employees the allowable purposes for which earned sick time may be used under M.G.L. c. 149, § 148C.
(16) Earned sick time may not be invoked as an excuse to be late for work without an authorized purpose under M.G.L. c. 149, § 148C.
(17) An employee may not accept a specific shift assignment with the intention of calling out sick for all or part of that shift.
(18) Where an employee’s use of earned sick time requires the employer to hire a replacement or call in another employee and the employer does so, the employer may require the employee to use an equal number of hours as the replacement or call-in employee works, up to a full shift of earned sick time. If the employee lacks sufficient accrued earned sick time to cover such time away from work, the employer must provide sufficient job-protected unpaid leave to make up the difference in that shift.
Example: A food broker’s fleet departs from the employer’s principal place of business at 3:00 A.M. Monday through Friday to ensure timely delivery of perishable items to scheduled customers. The drivers’ shifts vary slightly depending on the route, but average eight hours with loading and unloading. The employee responsible for the upper Cape Cod deliveries arrives at the employer’s principal place of business at 5:00 A.M. after spending the night in the ER with a sick child. The employer was notified by phone of the emergency, and called in an off-duty employee to cover the upper Cape Cod deliveries for the absent driver’s shift. In this example, the employer may require the absent employee to use eight hours of earned sick time.
Example: The employee, a maternity ward nurse, is scheduled to report for her 12-hour shift at 8:00 A.M. but calls her supervisor at 6:00 A.M. to report that she will not be available to work until 12:00 P.M. that day due to a sudden illness in the family. The supervisor is able to secure a replacement for the first four hours of the employee’s shift and must allow the employee to report for duty at 12:00 P.M. In this example, the employer may not require the absent employee to use more than four hours of her earned sick time.
(19) Where an employer does not hire a replacement or call in another employee but the employee’s use of earned sick time results in the employee missing transportation to a work site, the employer may require the employee to use earned sick time only until the employee arrives at the work site.
Example: The employee, a landscaper, calls his supervisor before the start of his six-hour shift at 8:00 A.M. to report that he has to take an ill parent to the hospital. The landscaper’s crew leaves for a new job site and the employee is not replaced. The employee arrives at the job site by 9:00 A.M. after finding a ride on his own. The employee need only use one hour of earned sick time.
(20) An employer shall not require an employee to make up time off from work as a condition of using earned sick time. An employee and employer may, however, by mutual agreement arrange for the employee to work additional hours during the same or next pay period to avoid the use of, and payment for earned sick time.
(21) Employers and their fee-for-service employees may arrange to make up hours during the same pay period or any future pay period that is mutually agreeable.
(22) Employers and employees, by mutual written agreement, may arrange for employees to use earned sick time before accruing it and for employers to count the use against future accrual.
(23) If an employee is committing fraud or abuse by engaging in an activity that is not consistent with allowable purposes for earned sick time under M.G.L. c. 149, § 148C, an employer may discipline the employee for misuse of sick leave.
(24) If an employee is exhibiting a clear pattern of taking leave on days just before or after a weekend, vacation, or holiday, an employer may discipline the employee for misuse of earned sick time, unless the employee provides verification of authorized use under M.G.L. c. 149, § 148C.
Payment of Earned Sick Time
(25) Earned paid sick time is paid at the same hourly rate listed in 940 CMR 33.02: Same Hourly Rate.
(26) When used, earned paid sick time must be paid on the same schedule as regular wages are paid. Employers may not delay compensating employees for earned paid sick time.
(27) Employers shall have the option, but are not required, to pay out employees for up to 40 hours of unused earned sick time at the end of the benefit year or when the employee changes jobs within the employer’s employment. Employers paying out 16 hours or more shall provide 16 hours of unpaid sick time until the employee accrues new paid time, which shall replace the unpaid time as it accrues. Employees paying out less than 16 hours shall provide an amount of unpaid sick time equivalent to the amount paid out until the employee accrues new paid time, which shall replace the unpaid time as it accrues.
(28) Employers shall have the option, but are not required, to pay out unused earned sick time upon separation from employment.
90-Day Vesting Period
(29) Employees begin accruing earned sick time on the first date of actual work and may begin to use any accrued earned sick time 90 days following their first dates of actual work, regardless of the number of days worked during the 90-day period.
(30) Employees who have been employed for at least 90 days as of July 1, 2015, meaning their first dates of actual work occurred on or before April 2, 2015, may use earned sick time, whether paid or unpaid, as it accrues.
Example: Jasper’s first date of actual work as a salesperson at a shop is October 1, 2016. Jasper will be eligible to use any accrued earned sick time 90 days later, which is December 30, 2016.
Break in Service
(31) Following a break in service of up to four months, an employee shall maintain the right to use any unused earned sick time accrued before the break in service.
(32) Following a break in service of between four and 12 months, an employee shall maintain the right to use earned sick time accrued before the break in service if the employee’s unused bank of earned sick time equals or exceeds ten hours.
Example: An employee has accrued 20 hours of earned sick time and then goes on an unpaid leave of absence for 11 months, starting June 1, 2016. Upon the employee’s return to employment on May 1, 2017, eleven months from the date of the employee last worked for the employer, the employee shall have the right to use the 20 hours of earned sick time accrued before the leave of absence began.
(33) Following a break in service of up to 12 months, employees maintain their vesting days from the employer and do not need to restart the 90-day vesting period.
Transition Year
(34) Employees shall begin to accrue earned sick time beginning on July 1, 2015 and shall be eligible to use their earned sick time 90 days after their first date of actual work, should a qualifying need arise.
(35) An employer shall not be required to provide more than 40 hours of earned paid sick time during the transition year, and any paid leave given in the benefit year prior to July 1, 2015, will be credited.
Example: An employee used 15 hours of paid leave time as of July 1, 2015. The employer must allow the employee to earn and use up to 25 hours of earned paid sick time in the remainder of the benefit year.
Transition Year: Safe Harbor for Employers with Existing Policies Providing Paid Time off
(36) Employers with a policy in existence on May 1, 2015 that provides paid time off or paid sick leave, shall be deemed in compliance with the Earned Sick Time law until January 1, 2016 provided:
(a) Full-time employees on the policy have the right to earn and use at least 30 hours of paid time off/paid sick leave between January 1, 2015 and December 31, 2015;
(b) On and after July 1, 2015, all employees not previously covered by the policy, including part-time employees, seasonal employees, temporary employees, new employees, and per diem employees must either:
1. accrue paid time off at the same rate of accrual as covered full-time employees; or
2. if the policy provides lump-sum allocations, receive a prorated lump-sum allocation based on the provision of lump sum paid time off/paid sick leave to covered full-time employees. Such lump-sum allocations may:
a. where lump sums of paid time off are provided annually, be halved for employees who receive coverage as of July 1, 2015, and proportionately reduced for employees hired after July 1, 2015; and/or
b. be proportionate for part-time employees;
If an employee is compensated other than on an hourly or salaried basis, the employee must accrue or receive lump-sum allocations based on a reasonable approximation of hours worked; and
(c) 30 hours of paid time off/paid sick leave or such lesser amounts as are earned or used by employees under 940 CMR 33.03 must be:
1. job-protected leave subject to the law’s anti-retaliation provisions;
2. available for the allowed purposes of the leave under M.G.L. c. 149, § 148C; and
3. available to the employee after January 1, 2016 if unused during the Transition Year unless the policy provides lump sum allocations that make rollover unnecessary.
(37) In all other respects, during this transition period, employers may continue to administer paid time off under policies in place as of May 1, 2015.
(38) Employers with the option to utilize the safe harbor may also choose full compliance with M.G.L. c. 149, § 148C, and 940 CMR 33.00 beginning July 1, 2015 for some or all employees.
(39) On or before January 1, 2016, all employers operating under this safe harbor provision must adjust their policies providing paid time off/paid sick leave to conform to M.G.L. c. 149, § 148C, and 940 CMR 33.00.
940 Mass. Code Regs. 33.04: Employer Size
07/03/2015 – 06/01/2024
(1) An employer must provide earned paid sick time to all eligible employees if the employer maintained an average of 11 or more employees on the payroll during the preceding benefit year.
Employers shall determine the average number of employees by counting the number of employees, including full time, part-time, seasonal, and temporary employees, on the payroll during each pay period and dividing by the number of pay periods. Employees furnished to an employer by a temporary staffing agency and paid by the staffing agency count as employees of both the staffing agency and the employer for the purpose of determining employer size.
(2) If an employer uses multiple start dates for the benefit year, such as dates based on employees’ anniversaries of hire, the employer should calculate employer size based on the previous January 1 through December 31 calendar year.
(3) All of an employer’s employees, including full-time, part-time, seasonal, and temporary employees, whether working in or outside Massachusetts and regardless of their eligibility to accrue and use earned sick time, shall be counted for the purpose of determining employer size.
(4) All employers with fewer than 11 employees must provide employees with the right to accrue and use up to 40 hours of earned unpaid sick time per benefit year.
(5) Employers shall notify all eligible employees at least 30 days in advance in writing if earned sick time will be changing from paid to unpaid or from unpaid to paid sick time based on a change in employer size.
(6) Earned sick time is paid when used, if the employer provided paid time when the employee accrued the time. Earned sick time is unpaid when used, if the employer provided unpaid time when the employee accrued the time.
(7) When an employee has both unused earned paid and unpaid sick time available for use, the employee has the option of using either or both to cover the use of earned sick time.
Mass. Gen. Laws ch. 149, § 148C. Earned sick time
12/04/2023 – 06/01/2024
(a) As used in this section and section 148D, the following words, unless the context clearly requires otherwise, shall have the following meanings:—
”Child”, a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person who has assumed the responsibilities of parenthood.
”Earned paid sick time”, the time off from work that is provided by an employer to an employee as computed under subsection (d) that can be used for the purposes described in subsection (c) and is compensated at the same hourly rate as the employee earns from the employee’s employment at the time the employee uses the paid sick time; provided, however, that this hourly rate shall not be less than the effective minimum wage under section 1 of chapter 151.
”Earned sick time”, the time off from work that is provided by an employer to an employee, whether paid or unpaid, as computed under subsection (d) that can be used for the purposes described in subsection (c).
”Employee”, any person who performs services for an employer for wage, remuneration, or other compensation, except that employees employed by cities and towns shall only be considered Employees for purposes of this law if this law is accepted by vote or by appropriation as provided in Article CXV of the Amendments to the Constitution of the Commonwealth.
”Employer”, any individual, corporation, partnership or other private or public entity, including any agent thereof, who engages the services of an employee for wages, remuneration or other compensation, except the United States government shall not be considered an Employer and cities and towns shall only be considered Employers for the purposes of this law if this law is accepted by vote or by appropriation as provided in Article CXV of the Amendments to the Constitution of the Commonwealth.
”Health care provider”, the meaning given this term by the Family and Medical Leave Act of 1993, 29 U.S.C. sections 2601 to 2654, inclusive, as it may be amended and regulations promulgated thereunder.
”Parent”, a biological, adoptive, foster or step-parent of an employee or of an employee’s spouse; or other person who assumed the responsibilities of parenthood when the employee or employee’s spouse was a child.
”Spouse”, the meaning given this term by the marriage laws of the commonwealth.
(b) All employees who work in the commonwealth who must be absent from work for the reasons set forth in subsection (c) shall be entitled to earn and use not less than the hours of earned sick time provided in subsection (d).
(c) Earned sick time shall be provided by an employer for an employee to:
(1) care for the employee’s child, spouse, parent, or parent of a spouse, who is suffering from a physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care; or
(2) care for the employee’s own physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care; or
(3) attend the employee’s routine medical appointment or a routine medical appointment for the employee’s child, spouse, parent, or parent of spouse; or
(4) address the psychological, physical or legal effects of domestic violence as defined in subsection (g.5) of section 1 of chapter 151A, except that the definition of employee in subsection (a) will govern for purposes of this section.
(d)(1) An employer shall provide a minimum of one hour of earned sick time for every thirty hours worked by an employee. Employees shall begin accruing earned sick time commencing with the date of hire of the employee or the date this law becomes effective, whichever is later, but employees shall not be entitled to use accrued earned sick time until the 90th calendar day following commencement of their employment. On and after this 90 day period, employees may use earned sick time as it accrues.
(2) Nothing in this chapter shall be construed to discourage or prohibit an employer from allowing the accrual of earned sick time at a faster rate, or the use of earned sick time at an earlier date, than this section requires.
(3) Employees who are exempt from overtime requirements under 29 U.S.C. section 213(a)(1) of the Federal Fair Labor Standards Act shall be 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.
(4) All employees employed by an employer of eleven or more employees shall be entitled to earn and use up to 40 hours of earned paid sick time from that employer as provided in subsection (d) in a calendar year. In determining the number of employees who are employed by an employer for compensation, all employees performing work for compensation on a full-time, part-time or temporary basis shall be counted.
(5) Notwithstanding section 17 of chapter 15D, sections 70–75 of chapter 118E, or any other special or general law to the contrary, the PCA Quality Home Care Workforce Council shall be deemed the Employer of all Personal Care Attendants, as defined in section 70 of chapter 118E, for purposes of subsection (d)(4) of this section, the Department of Medical Assistance shall be deemed the Employer of said Personal Care Attendants for all other purposes under this section, the CDC workforce council established pursuant to section 4F of chapter 19A shall be the employer of consumer directed care workers, as defined in section 4E of said chapter 19A, for purposes of paragraph (4) of subsection (d), the department of elder affairs shall be deemed the employer of consumer directed care workers for all other purposes under this section, and the Department of Early Education and Care shall be deemed the Employer of all Family Child Care Providers, as defined in section 17(a) of chapter 15D, for purposes of this section.
(6) All employees not entitled to earned paid sick time from an employer pursuant to subsection (d)(4)–(5) shall be entitled to earn and use up to 40 hours of earned unpaid sick time from that employer as provided in subsection (d) in a calendar year.
(7) Earned 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. Employees may carry over up to 40 hours of unused earned sick time to the next calendar year, but are not entitled to use more than 40 hours in one calendar year. Employers shall not be required to pay out unused earned sick time upon the separation of the employee from the employer.
(e) If an employee is absent from work for any reason listed in subsection (c) and, by mutual consent of the employer and the employee, the employee works an equivalent number of additional hours or shifts during the same or the next pay period as the hours or shifts not worked due to reasons listed in subsection (c), an employee shall not be required to use accrued earned sick time for the employee’s absence during that time period and the employer shall not be required to pay for the time the employee was so absent. An employer shall not require such employee to work additional hours to make up for the hours during which the employee was so absent or require that the employee search for or find a replacement employee to cover the hours during which the employee is utilizing earned sick time.
(f) Subject to the provisions of subsection (n), an employer may require certification when an earned sick time period covers more than 24 consecutively scheduled work hours. Any reasonable documentation signed by a health care provider indicating the need for earned sick time taken shall be deemed acceptable certification for absences under subsection (c)(1), (2) and (3). Documentation deemed acceptable under subsection (g.5) of section 1 of chapter 151A shall be deemed acceptable documentation for absences under subsection (c)(4). An employer may not require that the documentation explain the nature of the illness or the details of the domestic violence. The employer shall not delay the taking of earned sick time or delay pay for the period in which earned sick time was taken for employees entitled to pay under subsection (d), on the basis that the employer has not yet received the certification. Nothing in this section shall be construed to require an employee to provide as certification any information from a health care provider that would be in violation of section 1177 of the Social Security Act, 42 U.S.C. 1320d–6, or the regulations promulgated under section 264(c) of the Health Insurance Portability and Accountability Act of 1996, 42 U.S.C. 1320d–2 note.
(g) When the use of earned sick time is foreseeable, the employee shall make a good faith effort to provide notice of this need to the employer in advance of the use of the earned sick time.
(h) It shall be unlawful for any employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under or in connection with this section, including, but not limited to, by using the taking of earned sick time under this section as a negative factor in any employment action such as evaluation, promotion, disciplinary action or termination, or otherwise subjecting an employee to discipline for the use of earned sick time under this section.
(i) It shall be unlawful for any employer to take any adverse action against an employee because the employee opposes practices which the employee believes to be in violation of this section, or because the employee supports the exercise of rights of another employee under this section. Exercising rights under this section shall include but not be limited to filing an action, or instituting or causing to be instituted any proceeding, under or related to this section; providing or intending to provide any information in connection with any inquiry or proceeding relating to any right provided under this section; or testifying or intending to testify in any inquiry or proceeding relating to any right provided under this section.
(j) Nothing in this section shall be construed to discourage employers from adopting or retaining earned sick time policies more generous than policies that comply with the requirements of this section and nothing in this section shall be construed to diminish or impair the obligation of an employer to comply with any contract, collective bargaining agreement, or any employment benefit program or plan in effect on the effective date of this section that provides to employees greater earned sick time rights than the rights established under this section.
(k) Employers required to provide earned paid sick time who provide their employees paid time off under a paid time off, vacation or other paid leave policy who make available an amount of paid time off sufficient to meet the accrual requirements of this section that may be used for the same purposes and under the same conditions as earned paid sick time under this section are not required by this section to provide additional earned paid sick time.
(l) The attorney general shall enforce this section, and may obtain injunctive or declaratory relief for this purpose. Violation of this section shall be subject to paragraphs (1), (2), (4), (6) and (7) of subsection (b) of section 27C and to section 150.
(m) The attorney general shall prescribe by regulation the employer’s obligation to make, keep, and preserve records pertaining to this section consistent with the requirements of section 15 of chapter 151.
(n) The attorney general may adopt rules and regulations necessary to carry out the purpose and provisions of this section, including the manner in which an employee who does not have a health care provider shall provide certification, and the manner in which employer size shall be determined for purposes of subsection (d)(4).
(o) Notice of this section shall be prepared by the attorney general, in English and in other languages required under clause (iii) of subsection (d) of section 62A of chapter 151A. Employers shall post this notice in a conspicuous location accessible to employees in every establishment where employees with rights under this section work, and shall provide a copy to their employees. This notice shall include the following information:
(1) information describing the rights to earned sick time under this section;
(2) information about the notices, documentation and any other requirements placed on employees in order to exercise their rights to earned sick time;
(3) information that describes the protections that an employee has in exercising rights under this section;
(4) the name, address, phone number, and website of the attorney general’s office where questions about the rights and responsibilities under this section can be answered; and
(5) information about filing an action under this section.
