MarshallHalem

Massachusetts Sick Leave Law Final Regulations (June 2015)

By now, most Massachusetts employers are aware that they must provide sick leave to all employees by July 1, 2015, unless they take advantage of the Safe Harbor to extend their compliance to January 1, 2016. In summary, the Sick Leave Law (the "Law") requires all Massachusetts employers with at least 11 employees to give employees working in Massachusetts (even for part of their work time) at least 1 hour of paid sick time for every 30 hours they work, up to a total of 40 hours per year. Employers with fewer than 11 employees must grant the same sick time but it need not be paid.

Employees may use that time to care for the employee's own medical condition or the medical condition of the employee's child, spouse, parent or spouse's parent, to attend a medical appointment for the employee or the employee's child, spouse, parent or spouse's parent, or address the effects of domestic violence ("Qualified Reasons").

The Law directed the Attorney General to draft regulations interpreting the Law. On June 19, 2015, just 11 days before the law goes into effect, the Attorney General issued the long-awaited "Final Regulations" ("Regulations"). Below, we have summarized some of the most important issues addressed by the Regulations.

Because the following is a summary, we do not comprehensively describe all the subjects covered by the Regulations. Employers should consult the full text of the Regulations if they have specific questions.

Rate of Pay
Hourly employees must be paid sick time based on their regular hourly rate. Salaried employees accumulate and are paid sick time based on a 40 hour week, even if they typically work more than 40 hours each week. Sick time for part time salaried employees is based on their usual schedule.

Tipped employees receiving the standard service rate must be paid the applicable minimum wage rate for all employees ($9.00 per hour as of January 1, 2015).

Commissioned employees receive the greater of their base wage (if any) or the current minimum wage rate.

Accrual of Sick Time
As stated above, employees must earn at least 1 hour of sick time for every 30 hours they work, including overtime hours, up to 40 hours per Benefit Year. Employers may elect a fiscal, calendar or other 12 month period as their "Benefit Year". After employees have accrued 40 hours in a Benefit Year, employers may stop the accrual of any further sick time. Employees may roll over up to 40 hours of unused earned sick time to the following Benefit Year.

However, employers are not required to grant, or allow employees to retain, any more than a total of 40 sick time hours per Benefit Year. Therefore, if an employer grants employees at least 40 hours of time they may use for a Qualified Reason as of the beginning of the Benefit Year, that employer is not required to allow those employees to carry over any accrued sick time.

New employees begin to accrue sick time immediately upon their hire but may not use the time for ninety calendar days.

Use of Sick Time
The smallest initial increment of sick time an employee can use is 1 hour. After an employee has been absent for an hour, however, employers must use the smallest increment of time the employer's payroll system uses to track the additional time. For example, if an employer tracks employees time in 5 minute increments, an employee who is out sick for 45 minutes will be charged with one hour of sick time; an employee who is out for 1 hour and 10 minutes will be charged for 1 hour and 10 minutes of sick time.

The Regulations state that employees may not invoke sick time as an excuse to be late for work unless their lateness was due to Qualified Reason. Additionally, the Regulations state that employers may discipline employees who use sick time not for a Qualified Reason -- for example as a vacation day. However, since the Law significantly restricts an employer's ability to ask for medical documentation, this provision will be difficult to enforce.

If an employee has a clear pattern of taking leave just before or after a weekend, vacation or holiday, his/her employer may discipline the employee unless s/he provides verification that s/he was out for a Qualified Reason. The Regulations do not describe what constitutes a "clear pattern". However the Regulations do permit an employer to demand documentation from an employee who has taken 4 unforeseeable and undocumented absences within a 3 month period.

Replacement Employees
One of the most important features of the Regulations addresses employers who must hire replacement employees. If an employer must hire a replacement for an employee who calls in sick, the employer may require the employee to use sick time for the number of hours the replacement works, up to a full shift. If the employee does not have enough sick time hours, the remainder of the time is unpaid but job-protected. Presumably, therefore, if a school had to hire a full-day substitute teacher for a faculty member who called in sick, the school could require the faculty member to take the entire day as sick time.

Break in Service
Employees with a break in service of up to 4 months must be credited with the full amount of unused sick time they had accrued before the service break.

Following a break in service of between 4 and 12 months, returning employees must be credited with the unused sick time they had accrued before the service break only if they had accrued at least 10 hours of sick time. Presumably that change was designed to address employers' concerns about keeping track of small amounts of accrued sick time for former employees. However, employees working 40 hours per week will accrue 10 hours of sick time after 7 1/2 weeks' (300 hours) of work. Therefore, employers will have to continue to keep track of accrued sick time for most former employees.

In addition, an employee who returns to work for the same employer within 12 months may begin to use their sick time immediately and need not wait 90 days.

Transition Year
The Regulations recognize that 2015 is a "Transition Year" and provide guidance for employers during the period from July 1 and December 31, 2015.

Employers will be deemed in compliance with the Law if they had a policy in effect as of May 1, 2015 that granted full time employees the right to earn and use at least 40 hours of paid time off that they could use for a Qualified Reason.

Employers who have already given employees paid time off that they could use for Qualified Reasons will be credited with that time in calculating if employees have received 30 hours of paid time off during the Transition Year. For example, if an employee has accrued 15 hours of Paid Time Off ("PTO") that s/he may use for Qualified Reasons by July 1, the employer can credit the employee with 15 hours of accrued sick time and must allow the employee to accrue 25 hours of additional sick time by December 31.

Safe Harbor
The Regulations include the previously issued "Safe Harbor" guidelines. Employers who had a policy as of May 1, 2015 that met certain conditions will be considered in compliance with the Law until January 1, 2016. Those conditions are summarized below.

Under the policy, full time employees must earn at least 30 hours of paid time off in 2015 which they could use for Qualified Reasons.

Effective July 1, 2015, all employees who were not covered by the policy must begin to accrue paid time off at the same accrual rate as full time employees or, if full time employees receive the paid time off in a lump sum, receive a proportional lump sum award of time to use for Qualified Reasons.

To take advantage of the Safe Harbor, the sick time must be job protected and employers must follow the Law's anti-retaliation provisions. Finally, employees must be permitted to carry over up to 40 hours of unused sick time to 2016. Note, as discussed above, if employees receive a lump sum grant of at least 40 hours of sick time on January 1, no carryover of unused, accrued sick time is necessary.

Calculation of Employees
Employers having an average of at least 11 employees during the prior benefit year must provide the sick time as paid leave. All employees must be included in the calculation, including temporary, seasonal, part time and employees provided by a temporary staffing firm. In addition, employees working outside Massachusetts must be included in the calculation, although they are not entitled to sick time under the Law.

Documentation
The Regulations provide that employers may not require employees to provide documentation about the nature of the illness or domestic violence as a condition of granting or allowing the employee to use sick leave. While employers may require written documentation signed by a health care provider indicating the need for sick time, they may only require such documentation if the employee's use of sick time:

exceeds 24 consecutively scheduled work hours;
exceeds 3 consecutive days the employee was scheduled to work;
occurs during the 2 weeks prior to the employee's final scheduled day of work, except for temporary employees; or
occurs after 4 unforeseeable and undocumented absences within a 3 month period.

Employees must submit the documentation within 7 days of taking the sick time unless the employee demonstrates that s/he needs more time.

If the employee fails to provide the required documentation, the employer may deduct the sick leave payment from the employee's wages, provided employees are put on notice of that policy.

Employers may require employees to verify in writing that they have used sick time for a Qualified Reason, as long as they are not required to describe their illness.

Employers may require a fitness for duty certification or similar documentation from a medical provider before an employee returns from using sick time if such certification is usual and consistent with industry practice or safety requirements and the employer has a reasonable belief of significant risk of harm to the employee or others.

Allowable Employer Policies
Employers may adopt their own policies, and can have different paid leave policies for different groups of employees, provided they give employees the same amount of time to use for Qualified Reasons under the same conditions as required by the Law. Employers may substitute a PTO, vacation or other policy for the earned sick leave requirement provided at least 40 hours of time off under that policy may be used for Qualified Reasons and employees accrue at least 40 hours of that time at the rate of no less than one hour for every 30 hours of work.

An employer who adopts a policy that meets the above requirements need not give employees additional time for a Qualified Reason if the employee has used all their time for another reason provided the employer's leave policy makes it clear that employees will not receive any additional time. Such employers need not separately tract the employees use of sick time under that policy.

Employers that give employees a lump sum of at least 40 hours at the beginning of a benefit year that may be used for a Qualified Reason need not track accrual or allow any rollover of unused time from one year to the next. However, note that paid time off that may be used for a vacation as well as sick time must be paid to employees upon their separation from employment.

Employers may adopt a separate use policy for any paid time off in excess of 40 hours. However, in that case, the employer must track the use of sick time separately.

If an employer does not wish to track employees' accrual of sick time, the Regulations provide a schedule employers may use to grant employees sick time on a monthly basis.

Prohibition on Retaliation and Interference
Employers may not discipline employees for using earned sick time or consider the use of accrued sick time as a negative factor in any employment action. Employers may not take any adverse action against an employee who opposes any perceived violation of the Law or supports employees' rights under the Law.

However, the Regulations state (somewhat ambiguously) that employers may adopt policies rewarding employees for good attendance and may deny employees "a holiday pay incentive" if they fail to report to work on the day immediately before and after a holiday. Presumably that means that employers may continue to enforce policies denying holiday pay to employees who do not work the day before or after a holiday, but the language of the regulations is somewhat unclear.

Notice
The Attorney General has issued a Notice describing employees' rights under the Law. That notice must be posted in a conspicuous place accessible to employees in every location where eligible employees work.

Employers must also provide a hard or electronic copy of that Notice to all eligible employees or include a description of the employer's allowable substitute policy on earned sick, PTO or vacation time in the employer's Employee Handbook.

TO DO

1. Determine if you qualify for, and wish to take advantage of, the Safe Harbor, delaying implementation of many facets of the Law until January 1, 2016.

2. Establish your Benefit Year.

3. Review your time off policies to ensure that all employees, including part-time, temporary and seasonal employees, accrue at least 1 hour of paid time off they can use for a Qualified Reason for every 30 hours they work.

4. If you have a paid PTO or vacation policy that permits employees to use that time for a Qualified Reason, ensure that all employees receive that time either as a lump sum at the beginning of a Benefit Year or accrue it at a rate at least as fast as 1 hour for every 30 hours worked.

5. Consult your payroll provider to determine the smallest amount they track.

6. Ensure that your payroll service will record and track accrual of sick time for all employees as required by the Law and will keep a record of accrued sick time for departing employees for one year.

7. Discontinue any practice of automatically disciplining employees for absences and replace it with a system that does not discipline employees for using accrued sick time. However, you may continue to discipline employees who take time off in excess of their earned sick time.

8. If necessary, change your practice of requiring medical documentation of all sick leave absences to conform to the Law.

9. Put employees on notice, either in the Employee Handbook or other communication, that you will deduct any sick leave payment from an employee's future wages if s/he does not provide required medical documentation supporting a sick leave absence.

10. Notify employees, either in the Employee Handbook or other communication, that if you have a vacation or other PTO policy that allows employees to use the time for a Qualified Reason, and the employee has used all that time for any purpose, they will not receive any additional time if they or a family member is sick or the victim of domestic violence.

11. Post the Attorney General's Sick Leave Notice in a conspicuous place and incorporate your sick leave policy in a written communication to employees, such as an Employee Handbook.

If you have any questions about the Law or the Regulations, please contact us.

Attorney General Announces Safe Harbor For Massachusetts Earned Sick Time Law (May 2015)

Most Massachusetts employers are aware of the Earned Sick Time law (the "Law") that is scheduled to go into effect on July 1, 2015. For further information about that Law, please see our November, 2014 E-Mail Alert http://marshallhalem.blogspot.com/2015/01/massachusetts-new-paid-sick-time.html. The Attorney General recently issued Proposed Regulations and is in the process of soliciting public comments about those Proposed Regulations. When the Attorney General issues Final Regulations we will send you an E-Mail Alert describing them.

Likely in response to employer concerns about the implementation of the Law between July 1 and December 31, 2015, the Attorney General has also issued an option which some employers may elect to delay full compliance with the Law until January 1, 2016. Specifically, on May 18, 2015, the Attorney General issued a "Safe Harbor for Employers with Existing Paid Time Off Policies".

According to that Safe Harbor, an employer having an existing (as of May 1, 2015) paid time off policy that grants employees the right to use at least 30 hours of paid time off during the 2015 calendar year shall be in compliance with the law for those employees from July 1 to December 31, 2015. The Safe Harbor does not require that the paid time off be explicitly labeled "sick time". Rather, it appears that any paid time off will satisfy the 30 hour requirement.

To be in compliance, all leave taken under the employer's existing paid time off policy must be job protected and employers are prohibited from retaliating against any employee who uses paid time off.

Employers who meet the 30 hour requirement may continue to administer the use of paid time off under their existing policies.

If specific employees do not have the right to take at least 30 hours of paid time off during the 2015 calendar year, their employers can only take advantage of the Safe Harbor for those employees by giving them 30 hours of paid time off which the employees may use during the remainder of 2015.

Thus, the Safe Harbor provides little assistance to employers with part-time, temporary or seasonal employees who do not earn the required amount of paid time off. Unless their employer grants them 30 hours of paid time off to use during the rest of the year, those employees will begin to earn sick time under the Law on July 1, 2015. As a result, a few employers may find that they can take advantage of the Safe Harbor to delay the implementation of the Law until January 1, 2016 for some employees, while others will be covered by the Law on July 1, 2015. Such employers may find it easier simply to comply with the Law fully beginning on July 1, 2015 and not take advantage of the Safe Harbor.

By January 1, 2016, all employers must be in compliance with the Law.

We will continue to update our friends and clients as this Law develops. Please do not hesitate to contact us if you have any questions about this Law or your obligations.

When Weather Forces You To Close Your Business (January 2015)

Employers all over the east coast are anticipating closing tomorrow due to snow. Many are asking whether they must pay their employees if they do decide to close.

The key questions to ask in deciding whether you must pay employees on a day you close your business are: (1) is the employee exempt or non exempt; and (2) is the employer open all or part of the day?

EXEMPT EMPLOYEES

Employers must pay all exempt employees for the day if the employer chooses to close. If the employer remains open but the employee does not report to work, the employer is not required to pay the employee for that day. However, if the employee performs any work that day, s/he must be paid. Therefore, if the employee reports to work but the employer closes early, the employee chooses to leave early, or the employee stays home but takes a call or checks his/her e-mail, the employee must be paid.

Employers who have a well drafted vacation or paid time off ("PTO") policy, can require exempt employees who take a partial or full day off to use available vacation or PTO to be paid for that day. However, if the employee has no available vacation or PTO, the employer must still pay exempt employees as described above.

NON-EXEMPT EMPLOYEES

The situation is different for non-exempt employees. An employer who closes for an emergency is not required to pay non-exempt employees for that day. Employers must only pay a non-exempt employee who reports to work and is sent home the amount required by state law. However, most states only require payment at the state minimum wage. In Massachusetts, employees who report to work but are sent home must be paid at least the state minimum wage for three hours, in New Hampshire for two hours, and in New York for four hours. Other states may have different or no requirements.

TO DO

If possible, employers should decide if they will be open. If not, they should inform employees as soon as possible that they will be closed to avoid having to pay employees who report to work. For the future, employers should develop an Emergency Closure Policy and address in their Employee Handbook.

Please do not hesitate to contact us if you have any questions about your obligations or need to update your Employee Handbook.

New Massachusetts Parental Leave Law Extends Benefits To Fathers (January 2015)

Effective April 7, 2015, Massachusetts employers with 6 or more employees must grant a leave of absence to new fathers. Massachusetts has long required employers to give 8 weeks of maternity leave to female employees who give birth to or adopt a child. The new Parental Leave Law now requires employers to grant full time employees of any gender an 8 week leave due to the:

birth of a child;
adoption of a child;
the placement of a child under age 18 or under age 23 if the child is disabled.

An employee is eligible for leave if she or he has been employed full time for the duration of the employer's probationary period, or for 3 consecutive months, whichever is shorter.

The employer must reinstate the employee to his or her previous or similar position after the leave, with no loss of seniority or service credit. However, the leave may be either paid or unpaid, at the employer's election, and employers are not required to provide the employee with any benefits during the leave unless it grants benefits to all employees on leave.

If both the mother and father are employed by the same employer, that employer is only required to provide an aggregate of 8 weeks of leave to the 2 employees.

Employees intending to take a leave must give their employer at least 2 weeks' notice, unless they cannot do so for reasons beyond the employee's control.

If the employer agrees to grant an employee a parental leave lasting longer than 8 weeks, or agrees to extend a leave, the employer must reinstate the employee to his or her previous position, as described above. However, an employer can avoid that result by giving the employee clear, written notice before the leave or extension that the employee will lose his or her reinstatement rights after 8 weeks.

Employers with 50 or more employees within a 75 mile radius are covered by the federal Family Medical Leave Act ("FMLA") which requires employers to grant eligible employees up to 12 weeks of leave for the same reasons as the Parental Leave Law. Thus, the Massachusetts law will primarily affect small employers or employees at larger FMLA covered employers who have not been employed for a year and therefore do not qualify for FMLA leave.

TO DO

         Massachusetts Employers are required to post a notice about employees' rights to a parental leave. Therefore, employers should remove their poster describing the Maternity Leave Act and replace it with a notice describing the Parental Leave Law.

         Most employers have a probationary or introductory period. If that period is shorter or longer than 3 months, employers may wish to consider changing their introductory period to 3 months, or 90 days, to be consistent with the Parental Leave Law.

Finally, employers with Massachusetts employees should revise their Employee Handbooks to reflect the changes the Parental Leave Law has made to the Massachusetts Maternity Leave Act.

Please do not hesitate to contact us if you have any questions about your obligations under this law or need to update your Employee Handbook.

Compensation News (December 2014)

State Minimum Wage

Effective January 1, 2015, the minimum wage for non-exempt employees in Massachusetts will increase from $8.00 per hour to $9.00 per hour. The minimum wage for tipped employees increases to $3.00 per hour. On January 1, 2016, the Massachusetts minimum wage will increase to $10.00 per hour and, on January 1, 2017, will go to $11.00 per hour.

Some neighboring states have also increased their minimum wage. Specifically, the minimum wage in New York and Rhode Island increases to $9.00 an hour. The new minimum wage in Connecticut and Vermont will be $9.15 per hour.

Pay for Screening Time

On December 9, 2014, the United States Supreme Court unanimously decided that employees who must go through a security screening before leaving work need not be paid for that screening time.

Employees of a contractor for Amazon who worked in a distribution center were required to go through a security screening at the end of their shift to ensure that they had not stolen any company property. The company did not pay employees for the time they spent waiting to be screened. The employees argued that because the screening was required by Amazon and was for the company's benefit, they should be paid for their time, which they alleged took up to 25 minutes each work day.

The Court ruled in favor of Amazon, holding that federal law only required employees to be paid for work they were "employed to perform". The employees in this case were employed to retrieve and package products, not "to undergo security screenings".

The employees had argued that if the company did not have to pay them for the time they waited to be screened, Amazon would have no incentive to speed up the process. In response, the court opined that such issues should be addressed to the legislature.

Additional Unpaid Activities

The above case demonstrates how difficult it can be to determine for what activities non-exempt employees must be paid and which may be unpaid. One example of the complexity of this issue involves payment for travel time.

Generally, employees need not be paid for travel time to and from work. However, if an employee travels during the work day for his/her employer, that time must be paid.

Employees who must travel away from home overnight must be paid for their travel time if it takes place during the employee's regular work hours -- regardless of the day of the week. Thus, if an employee's regular work hours are 9:00 a.m. to 5:00 p.m., Monday through Friday, that employee must be paid for all work-related travel away from home that takes place between 9:00 a.m. and 5:00 p.m., even if that travel takes place on the weekend. However, employers are not required to pay employees for travel time outside the hours of 9:00 a.m. to 5:00 p.m. if the employee is traveling as a passenger on an airplane, train, boat, bus, or automobile. In addition, employers are not required to pay a traveling employee during his/her regular meal time.

Thus, as with the Supreme Court's recent decision on screening time, employees need not always be paid when they are unable to engage in personal activities due to their employer's requirements.

If you have any questions about what time is compensable, please do not hesitate to contact us.

Massachusetts New Paid Sick Time Requirement (November 2014)

Effective July 1, 2015, employers must grant employees who work in Massachusetts one hour of sick time for every 30 hours they work, up to a maximum of 40 hours of sick time each year. This new law imposes a number of new requirements on employers.

Under the law, employers with 11 or more employees must grant employees up to 40 hours of sick time off with pay each year. Employers with 10 or fewer employees must also allow employees to take up to 40 hours of sick time off, but without pay. All employees who receive compensation, including part-time and temporary employees, must be counted to determine how many employees an employer has.

Employees may use that time off to: (1) care for their own physical or mental illness; (2) care for an ill or injured child, spouse, parent or spouse's parent; (3) attend routine medical appointments for the employee, his/her child, spouse, parent or spouse's parent; or (4) address the impact of domestic violence on the employee or his/her dependent child.

Employees begin to accrue sick time immediately upon their employment but are not entitled to use the sick time until they have been employed for 90 calendar days.

Employees may carry over up to 40 hours of unused sick time to the following year, but the law does not require employers to allow employees to use more than 40 total hours of sick time in any year. In addition, employers are not required to pay employees for their accrued unused sick time upon separation of employment.

Sick time may be used in either hourly increments or the smallest increment the employer uses to calculate time off, whichever is smaller. Sick time also may be used on an intermittent basis. Thus, it appears that an employee could use his/her sick time to leave work for an hour or more several times each week, or even daily, for medical appointments.

The law permits employers to require certification from a "health care provider" if the employee is absent for "more than 24 consecutively scheduled work hours". Apparently, therefore, an employer cannot require an employee who works eight hours per day to provide documentation supporting his/her absence until the employee has been out of work for three consecutive days. Employers must accept any "reasonable documentation signed by a health care provider" and may not require the documentation to explain the nature of the employee's or relative's illness or any details about the domestic violence.

As usual, the law contains a provision prohibiting any discrimination or retaliation against an employee who exercises his/her rights to sick leave. It also makes it unlawful for any employer to interfere with, deny or restrain any employee from exercising his/her rights under the law.

Additionally, employers are free to provide more generous sick time, under more generous conditions, than required by the law.

The Attorney General will prepare a notice describing employees' rights under the new law. Employers must post that notice in a conspicuous place in every location where employees work. In addition, employers must give all employees a copy of the notice.

Finally, employers who give their employees paid time off which the employees can use for the reasons described above, in the manner required by the law, are not required to provide additional paid sick time.

THE IMPACT

The new sick time law is likely to have a number of consequences for Massachusetts employers and their policies and leaves some questions unanswered.

Employers must allow employees to accrue one hour of sick time for every 30 hours they work. Many employers have part-time, seasonal or temporary employees who receive no benefits. The law appears to require employers to grant sick time to those employees. Employers with more than 10 employees will have to give that time off with pay.
Most employers with more than 10 employees give employees paid time off, such as vacation, sick time, personal days, which employees can use for the same reason as the required sick time. However, most paid time off policies state that any time that is not used is lost at the end of the calendar year. Under the new law, employers will have to allow employees to carry over up to 40 hours of sick time to the following year.
Employers with paid time off ("PTO") policies will have to designate up to 40 hours of PTO time as "sick time" under the law and, as discussed above, allow employees to carry over up to 40 hours of sick time each year.
Employers will have to develop a mechanism to determine what time off is covered by the law (similar to use of Family Medical Leave time). Employers will then have to record all sick time taken by every employee to calculate how much sick leave each employee has used and determine how many hours that employee may carry over to the following year.
The law states that employees may use sick time in increments of one hour or less. However, many employers require employees to use time off in full or half day increments. Thus, when the law goes into effect, employers will have to allow employees to take the first 40 hours of sick time in increments much smaller than they currently allow.
Employees may carry up to 40 hours of unused sick time from one calendar year to the next. However, it is unclear whether that carried over time stops the accrual of additional sick time or whether that carried over time is added to the employee's total amount of accrued sick time. For example, if an employee carries 20 hours of sick time over from 2015 to 2016 and uses 40 hours of sick time in 2016, will that employee still have 20 hours of sick time s/he can carry over from 2016 to 2017?

Employers with Massachusetts employees have about seven months to comply with the new law. The law states that the Attorney General "may" issue regulations interpreting the law. We hope that such regulations will be forthcoming.

At this point, employers should, first, revise their time off policies to meet the requirements described above. Second, as soon as the Attorney General releases the language of the notice, employers should post it in all employee locations. Finally, employers will have to revise their Employee Handbooks to reflect their new time off policies and to include the required notice.

We will inform our clients as soon as the Attorney General releases the notice and will help them revise their policies and handbooks.

Please do not hesitate to contact us if you have any questions about this law or your obligations.

Domestic Violence Leave (August 2014)

A new Massachusetts law expands the rights of individuals who are victims of, or have a family member who is a victim of, domestic violence. One portion of the law places new requirements on employers with 50 or more employees.

Specifically, covered employers must give employees up to 15 days of leave in any 12 month period to address domestic violence against themselves or a family member (a "Domestic Violence Leave"). A "family member" is broadly defined as: a spouse; persons in a dating or engagement relationship who live together; persons having a child together, regardless of their marital or living arrangements; a parent, step-parent, child, step-child, sibling, grandparent or grandchild; and persons in a guardianship relationship.

The Domestic Violence Leave must be granted under the following conditions:

the employee or a family member is a victim of domestic violence;
the employee needs time off to address issues directly related to the domestic violence against the employee or a family member; and
the employee is not the perpetrator of the domestic violence.

Employees must give their employer the same amount of advance notice for a Domestic Violence Leave as the employer requires for any other leave unless there is a threat of imminent danger to the health or safety of the employee or the employee's family member. In that case, the employee or his/her representative must notify the employer within 3 business days after the Domestic Violence Leave begins.

However, even in the absence of such notice, employers may not take any negative action against an employee who provides the employer with documentation supporting the employee's need for the leave within 30 days of the employee's absence.

Employers may require employees to provide any of the following documents to substantiate the need for the leave.

a court order resulting from the domestic violence;
a document with the letterhead of the court, provider or agency the employee attended to obtain assistance about the domestic violence;
a police report or statement of a victim or witness provided to the police, including a police incident report documenting the domestic violence;
documentation showing the person who committed the abuse leading to the leave has admitted to sufficient facts to support a finding of guilt, has been convicted of the domestic violence, or has been adjudicated a juvenile delinquent by reason of the domestic violence leading to the leave;
medical documentation of treatment due to domestic violence;
a sworn statement from a professional who assisted the employee or family member to address the effects of the violence; or
a sworn statement from the employee attesting that the employee or a family member has been the victim of domestic violence.

The above documents may only be maintained in the employee's personnel file for the time the employer requires to determine if the employee is eligible for the Domestic Violence Leave.

All information related to the employee's Domestic Violence Leave must be kept strictly confidential and may only be disclosed if:

the employee requests or consents in writing to disclosure;
a court of competent jurisdiction orders the release of the information;
required by applicable federal or state law;
required during an investigation authorized by law enforcement; or
necessary to protect the safety of the employee or other employees.

The leave may be either paid or unpaid, at the employer's election. Employers may require employees to use all available paid time off prior to granting the Domestic Violence Leave.

Employers may not discriminate against or retaliate in any way against any employee who takes the leave. Upon the employee's return from leave, the employee must be returned to his/her original or equivalent position.

Finally, employers with 50 or more employees must notify each employee of their rights under this law. Consequently, we recommend that all employers add a notice about this Leave to their employee handbooks.