Tag Archives: FMLA

Massachusetts: Final Earned Sick Time Regulations

2000px-Flag_of_Massachusetts(Post written by attorneys from Fisher & Phillips, June 23, 2015)

On June 19, 2015, the Massachusetts Attorney General published the final regulations concerning the new Earned Sick Time (“EST”) law that will go into effect on July 1, 2015. These final regulations differ somewhat from the draft regulations submitted in April and provide clarification and additional detail to aid with implementation.

The Basics
Under the EST law, all employees in Massachusetts must be allowed to accrue and use up to 40 hours of EST in a calendar year, subject to certain conditions set forth in the law and the regulations. Under the previously announced “safe harbor” provision, companies that utilized a policy under which certain employees received at least 30 hours of paid time off as of May 1, 2015 will be deemed compliant relative to those employees and any other employees to whom the policy is extended on a proportional basis. Additionally, starting July 1, all use of time, whether under the law itself or under the safe harbor provision, must be job protected and is subject to the law’s anti-interference and anti-retaliation provisions. A summary of the law can be found here.

Key Changes And Distinctions Between The Draft And Final Regulations
EST May Run Concurrently With FMLA
The final regulations state that EST may run concurrently with leave under the federal Family and Medical Leave Act and other state leave laws. The draft regulations had stated that EST must be “in addition to” FMLA and other state leaves.

Additional “Travel Time” EST Use Added
The law provides four purposes for which sick time may be used: care for a physical or mental illness, injury or medical condition; caring for a close family member with such a condition; attending medical appointments; and addressing the effects of domestic violence. The final regulations add a fifth category: EST may be used for “travel to and from an appointment, a pharmacy, or other location related to the purpose for which time was taken.”

“Same Hourly Rate” Defined
The law states that EST must be paid at “the same hourly rate” as the employee would earn for their work. Given the numerous ways employees can be compensated outside of an “hourly rate,” the final regulations set out more specifically how this “same hourly rate” should be calculated:

  • hourly employees are paid their regular hourly rate; those who earn two or more rates are paid an average “blended rate” based on their previous pay period;
    salaried employees are paid a rate based on the total compensation divided by hours worked in the previous pay period. For exempt salaried employees working 40 hours or more per week, the employer can assume 40 hours rather than using actual hours worked. However, employers cannot make that assumption for exempt salaried employees regularly working less than 40 hours per week or salaried non-exempt employees;
    employees paid on a piece-work or fee-for-service basis must be paid “a reasonable calculation of the wages or fees the employee would have received” for the work if the employee had worked;
    commissioned employees, whether commission-only or base rate plus commission, must be paid the greater of their base wage or the minimum wage; and
    tipped employees must be paid the minimum wage.

Alternative Accrual Schedule
The final regulations provide Continue reading

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Massachusetts Leave Laws Expanded

2000px-Flag_of_Massachusetts(This post by Rick Dacri, January 30, 2015)

Massachusetts employers should be preparing for the enactment of two new leave laws: 1) Paid Sick Leave and 2)extension of the Parental Leave Law. Current leave policies should be revised, handbooks updated, supervisors briefed and employees updated.

Here’s a summary of the laws:

Massachusetts Parental Leave Extended

Massachusetts Gov. Patrick signed a bill into law that establishes parental leave in Massachusetts for both female and male employees. Effective April 7, 2015, the new law will replace the current Massachusetts Maternity Leave Act (MLA), which provides only female employees with eight weeks of job-protected maternity leave for the birth or adoption of a child. Extending parental leave to male employees will require significant policy changes for Massachusetts employers with fewer than 50 employees, as they are not already covered by the Family and Medical Leave Act (FMLA) which applies to both male and female employees.

Massachusetts Paid Sick Leave

Massachusetts voters approved a ballot referendum Nov. 4, 2014, that requires businesses to allow their workers to earn sick leave. Having a paid-time-off (PTO) policy in place can help employers comply with the new law, but only if the policy meets the statutory requirements. Under the measure, employers with 11 or more employees must let workers earn up to 40 hours of paid sick leave each calendar year. Those with 10 or fewer employees also must allow workers to earn 40 hours per year but the sick days don’t have to be paid. Both full-time and part-time employees are eligible to earn the sick time, under the measure. 

The ballot measure takes effect July 1, 2015. Employees must be allowed to begin accruing sick time on that date. New employees must be allowed to begin using their sick time 90 days after they are hired.

Sick time may be used if employees are ill or have a medical appointment, or if they must care for an ill family member. They also must be permitted to use sick time to receive assistance related to domestic violence.

Employees may carry over up to 40 hours of unused sick time to the next year, under the measure, but employers aren’t required to permit use of more than 40 hours of sick time in any calendar year.

Employers that already provide their employees paid time off under a PTO, vacation or other paid leave policy are not required to provide any additional paid sick time under the new law, provided they permit employees to use at least 40 hours per calendar year for the purposes covered under the law. Furthermore, this law does not override any employer’s obligations under any collective bargaining agreement, contract or benefit plan with more generous provisions.

Contact Rick Dacri for assistance in complying.

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Massachusetts: New Paid Sick Leave Law

(Post written by attorneys Amanda Marie Baer and Bob Kilroy of Mirick O’Connell)

On November 4, 2014, Massachusetts voters approved a ballot question enacting M.G.L. c. 149, § 148C, which entitles Massachusetts employees to earn and use sick time.  Massachusetts is now the third state in the nation to guarantee paid sick days for certain workers.Unknown

The law provides that employees who work for public or private employers having eleven or more employees can earn and use up to 40 hours of paid sick time per calendar year.  The sick time must be compensated at the same hourly rate paid to the employee when the sick time is used.  Employees who work for employers with less than eleven employees can earn and use up to 40 hours of unpaid sick time per calendar year.

Under the law, employees earn one hour of sick time for every 30 hours worked.  Employees begin accruing sick hours on either (a) the date of hire; or (b) July 1, 2015, whichever is later.

Employees may begin to use earned sick time on the 90th day after hire.  After the 90 day period, employees may use earned sick time as it accrues.  Employees can only use earned sick time and miss work in order to: 

  1. Care for a physical or mental illness, injury, or medical condition affecting the employee or the employee’s child, spouse, parent, or parent of a spouse;
  2. Attend routine medical appointments of the employee or the employee’s child, spouse, parent, or parent of a spouse; or
  3. Address the effects of domestic violence on the employee or the employee’s dependent child.

In certain circumstances, employers may require employees to provide certification of the need for sick time.

If an employee does not use all of their sick time in a calendar year, the employee may carry over up to 40 hours of unused sick time to the next calendar year.  Employees who carry over earned sick time, however, may only use up to 40 hours of sick time in a calendar year.  Employers are not required to pay an employee for unused sick time at the end of the employee’s employment.

It is unlawful for any employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under the new law.  For example, employers may not use the taking of earned sick time as a negative factor in any employment action such as an evaluation, promotion, disciplinary action or termination, or otherwise subject an employee to discipline for use of earned sick time under the law.

In light of this change in the law, employers are advised to review and update, as necessary, their sick time, vacation and/or paid time off policies.

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Workers’ Compensation Record Retention

Posted by Rick Dacri, May 14, 2014

imagesThis question came in from one of my HR HelpLine clients in Massachusetts.

Question: How long must I retain workers compensation records for employees?

Expert Advice: Here is the information that I can share with you on record retention for Workers Compensation documents. It looks like 3 years is the rule from both an FMLA and a Workers Compensation perspective. As a best practice employers typically keep any documentation for a current employee as long as the employee remains an active employee irrespective of the three year requirement.

Medical History Items and Forms: One to Three Years
(Recommendation: Keep all medical records at least three years.)

Results of employment-related medical exam.

· Proof of compliance with government mandated tests, vaccinations.
· Copies of health-benefit enrollment forms.
· Workers’ Compensation claim records and injury reports.
· Physician statements for sick absences.
· Drug test results.
· Medical documentation for FMLA and ADA, including initial requests and compliance data.
· Acknowledgement of location of Workers’
· Compensation Board.
· Emergency medical information.
(Note: Keep OSHA records for five years after an accident, or job tenure plus thirty years if the individual is exposed to toxic substances.)

FMLA

§ 825.500 Recordkeeping requirements

(b) No particular order or form of records is required. These regulations establish no requirement that any employer revise its computerized payroll or personnel records systems to comply. However, employers must keep the records specified by these regulations for no less than three years and make them available for inspection, copying, and transcription by representatives of the Department of Labor upon request. The records may be maintained and preserved on microfilm or other basic source document of an automated data processing memory provided that adequate projection or viewing equipment is available, that the reproductions are clear and identifiable by date or pay period, and that extensions or transcriptions of the information required herein can be and are made available upon request. Records kept in computer form must be made available for transcription or copying.

There wasn’t any specific time frame from a Massachusetts stand point for retaining records but Continue reading

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Avoiding Legal Pitfalls (Webinar)

hammer1(This webinar, which you can listen to now, was presented by Rick Dacri, originally on September 17, 2013)

Managing people effectively is a major challenge for every manager. In this webinar, you will learn how to address 5 critical performance and compliance issues faced by nearly all managers—giving you the confidence and knowledge to immediately apply these new skills.

Specifically, you will learn

  1. How to hire right
  2. How to control and reduce workers’ compensation costs
  3. How to deal with alcohol & drugs in the workplace
  4. How to prevent FMLA abuse

This webinar will last approximately 60 minutes. To watch and listen, click webinar.

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Making Managing Easy Webinar Series

Making Managing Easy Webinar Series

September 10 and 17 at noon EDT

I am launching a series of free webinars designed to help you make your job easier, improve the performance and productivity of your workforce, and increase the profitability of your organization.  

Managing people effectively is a major challenge for every manager. In these manager level webinars, you will learn how to address 10 critical performance and compliance issues faced by nearly all managers—giving you the confidence and knowledge to immediately apply these new skills.

Among the topics covered in these two webinars

September 10 at noon EDT

  1. How to improve individual performance
  2. How to discipline & terminate, if necessary
  3. How to win an unemployment compensation claim
  4. How to avoid pay and classification mistakes (exempt/nonexempt, independent contractors)

September 17 at noon EDT

  1. How to hire right
  2. How to control and reduce workers’ compensation costs
  3. How to deal with alcohol & drugs in the workplace
  4. How to prevent FMLA abuse

Both webinars will be fast paced, filled with specific examples and participants will have the opportunity to forward specific questions, which will be answered in the sessions.

Registration

Both of these initial webinars are complimentary. However, you must preregister, as seating will be limited. At the same time, I encourage you to notify your professional colleagues and encourage them to enroll.

I will also record the program so you can refer to it easily after the fact.

To enroll or get further information, click Dacri Webinars

Webinars are a great way to learn and provide these benefits:

  1. No travel expense
  2. Bo time away from the office
  3. Economical training (these two are free)
  4. Access to a workforce expert
  5. Multiple managers can listen in

These are live events, intended to feel as close to a group workshop as possible, the only difference being attendees are located in their offices, instead of in the same room. All you need to participate is a computer and telephone.

Added bonus:

If you’re wondering if there are bonus materials available that can make attending worthwhile, you’re in luck. For starters, the program is free. Secondly, if you’re one of the first 5 to sign up will, I’ll send you a copy of my book Uncomplicating Management. Want more? OK, I’ll also give you a copy of the slides for future reference.

I hope you’ll register now.

Thanks

Rick Dacri, Dacri & Associates, LLC

P.S. Still have questions? Just send me an email at rick@dacri.com or give me a call (my direct line: 207-967-0837), and I’ll be happy to address and questions or concerns you may have.

 

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Health Insurance: Can You Mandate Full Premium Payments?

(Post by Rick Dacri, July 22, 2013)

This question came through my HR HelpLine.

 Client HR HelpLine Question: We currently pay the entire premium for each employee that is enrolled in our group health insurance plan. We recently had an issue arise when an employee had discussed with us that he might have elective surgery on his foot and would be out of work for an extended period of time. The employee decided against the surgery at this time, but it brought up an issue that we hadn’t previously considered. Can we put an addendum in our employee handbook that states that if an employee has elective surgery not related to any work-related injury and will be out of work for an extended period of time (say several weeks) that the employee is responsible for their health insurance premiums while not working? Also, if an employee takes a leave of absence can we do the same? What is the best way to handle this?

Expert Advice: Since you are an employer with 25 employees the federal Family and Medical leave Act is not applicable. That law would have mandated that you continue to provide coverage for the employee for up to 12 weeks at his normal contribution. You do, however, fall under Maine’s Family and Medical Leave Act. This law applies to private sector employers with 15 or more employees at a single location within the state and covers employees who have worked for you for more than 12 consecutive months. In this case, he has.  Under the Act, you must provide up to 10 weeks of unpaid family medical leave and your employee must be allowed to continue his health benefits while on leave at his own expense (continuation of group life and disability insurance must also be allowed). Obviously you could opt to continue to provide benefits for the employee at the employer’s expense too.

Before you change you policy to require your employee to pay the full cost of his health insurance, I would advise that you first discuss this option with your health plan carrier/broker to determine if your current summary plan description would allow the employee to pay the full premium while out on a leave of absence.

Once you hear from your broker and if your plan allows this, you should put in place a policy that specifically addresses the payment of health benefits while an employee is on a leave of absence. Finally, for extended leaves, COBRA rules kick in.

To summarize, you can mandate the employee to pay the full cost of the premium, as long as your plan document permits this. Assuming you opt to do this, create policy and communicate it to your workforce.

If you need expert advice, contact the HR Helpline. I provide practical operational advice, not legal advice, on how to address all your difficult employee issues. 

Other posts you might want to read:

  1. Compliance: 6 Problem Areas For Employers
  2. Affordable Care Act: What’s Delayed and What’s Not
  3. HR HelpLine: When You Need Expert Advice

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