Tag Archives: sick leave

Massachusetts Attorney General Issues Proposed Regulations on Implementation of New Earned Sick Time Law

2000px-Flag_of_Massachusetts(This post was written by David P. Mason, ESQ of the firm Ogletree Deakins on April 28, 2015)

As we detailed in November 2014, Massachusetts voters last fall approved a new law mandating that employers provide earned sick time to their employees. Under the new law, employers with 11 or more employees must provide paid sick leave for workers and smaller employers must provide unpaid sick time. The law is set to take effect on July 1, 2015, and employers have raised many questions about how the law will be implemented. The Massachusetts Attorney General’s Office (AGO) recently issued proposed regulations that provide detailed guidance concerning implementation of the new law. The AGO has scheduled six public hearings to gather public feedback on the regulations and has invited any interested parties to submit written comments on the regulations.

The proposed regulations provide definitions and guidance on many issues that were unclear based on the statutory text. However, they raise some additional compliance challenges for employers as well. Of particular note, the proposed regulations:

  • Broadly define “employer” to include entities that have very small Massachusetts operations. All employees will be counted toward the 11-employee threshold that requires an employer to provide paid sick leave, regardless of whether those employees work in Massachusetts or are eligible to accrue and use earned sick time.
  • Broadly define the types of employees entitled to sick leave. Employees may accrue and use earned sick time on all hours worked regardless of whether those hours are worked in Massachusetts, so long as the employee’s “primary place of work”—the location they spend the most time working—is Massachusetts. Also, all full-time, part-time, temporary, or seasonal employees are entitled to earned sick time under the law.
  • Outline how employers should take steps to comply in 2015 in light of the statute’s mid-year effective date (July 1).
  • Permit employers to define their own “calendar year” for purposes of accrual and use of earned sick time, provided the employer gives written notice to employees as described in the regulations. This will assist employers in coordinating use of earned sick time with their existing paid time off and leave policies.
  • Define the rate that must be paid to employees who use earned sick time (including a requirement that salaried employees be paid at an “hourly rate” determined by dividing their total earnings by hours worked from the previous pay period), and when those payments must be made.
  • Allow employers to require employees to use a full shift of earned sick time if their absence required the employer to hire a replacement for the shift, even though the statute generally requires that employers allow employees to take earned sick time in hourly increments or the smallest increment the employer’s payroll system allows.
  • Modify the statute’s mandate that employers must allow employees to carry-over 40 hours of earned sick time from year to year. Employers can, but are not required to, establish policies that provide for the payout of up to 40 hours of earned paid sick time at the end of each calendar year so long as the employee would maintain at least 16 hours of previously-accrued time.
  • Allow employers to create notice policies mandating that (1) employees give advanced notice of up to seven days for pre-scheduled or foreseeable absences, and (2) require daily notification if an employee anticipates a foreseeable multi-day absence.
  • Allow employers to require “written verification” from employees that they have used earned sick time for purposes permitted by the statute for any amount of earned sick time used. However, an employer may not require medical documentation unless the employee is absent for more than 24 consecutive work hours.
  • Permit employers to discipline employees for misuse of sick leave if the employee is “committing fraud or abuse by engaging in an activity that is not consistent with allowable purposes for leave (e.g., being sick, caring for an ill family member) or by exhibiting a clear pattern of taking leave on days when the employee is scheduled to perform duties perceived as undesirable.”
  • Permit employers to maintain “good attendance” rewards policies if those policies do not subject employees that use earned sick time under the statute to any adverse action. The inability of employees to qualify for such rewards because they used earned sick time does not constitute a statutorily-prohibited adverse action or interference with employees’ rights.
  • Require employers to maintain records of accrual and use of earned sick time for three years, with those records being subject to inspection by the AGO and the employee.

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Exempt Employees: Can You Dock Pay for Illness?

Posted by Rick Dacri, August 5, 2013

 This question came in from one of my HR HelpLine clients.

 Question: I have a salaried exempt employee who has lost time due to illness. Are deductions from pay allowed for absences due to sickness or disability?

 Advice: Yes. Under the federal Fair Labor Standards Act (FLSA) employers may deduct from pay for full-day absences due to sickness or disability, but only “in accordance with a bona fide plan, policy or practice of providing compensation for loss of salary occasioned by such sickness or disability.” The same rule applies “if salary replacement benefits are provided under a state disability insurance law or under a state workers’ compensation law.” If there is no such plan or practice, employers cannot deduct for sickness absences. No pay is required for any workweek in which the employee performs no work. Employers also may deduct for full-day sick or disability-related absences for employees who are not yet eligible for the salary replacement plan or practice or who have exhausted their available leave.

If you would like to learn more about Dacri’s HR HelpLine service, where you can get all your workforce questions answered, click HR HelpLine.

 

Other posts you may want to read:

  1. Interns: Employers Obligation T0 Pay
  2. Off the Clock: Must I Pay?
  3. Employee Classifications: When Must you Pay Overtime?

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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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Workers’ Comp, FMLA & the Critical Avoidance of “Stacking”

Posted by Rick Dacri on June 11, 2013

Eligible employees who get injured at work and lose time (lost time injury) should be placed on FMLA, thus avoiding “stacking.”

Let me explain. To begin, when an employee gets injured at work, they become eligible for workers’ compensation. Secondly, if the employee loses work time, as a rule of thumb three days or more, this would be considered a “serious health condition” and the employee should be placed on a Family and Medical Leave (remember, to be eligible for FMLA, the company must employ 50 or more employees and the employee must have one or more years of service and worked 1250 hours in the previous 12 months).

Now, what is stacking? Stacking refers to the piling on one type of leave on top of another. In this case, if the employee goes out on workers’ comp with a lost time injury, by designating that time as a FMLA leave, the employee, at some future time, could not refuse a return to work with a light duty job offer by declaring the FMLA leave, at that point.

When the employer declares the leave at the onset, you take better control of the workers’ comp case, begin to exhaust the 12 weeks of FMLA leave eligibility, and avoid stacking, which if not done could result in a longer period of lost time that could include a refusal of light duty by the employee.

Remember, the employer has the right to declare the FMLA leave. Exercise it.

Questions? Give me a call. Comments? I welcome them. Just put them in the section below.

If you want to know more about how I can help you, click Dacri & Associates.

Other articles you might want to read:

  1. Control Your Workers’ Compensation Costs
  2. Light Duty Work: Must I Provide for Non-Work Related Injuries
  3. FMLA: DOL Issues New Rules Effective March 8

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Sick Leave Still Bad For Business

13624160-grunge-and-gritty-portrait-of-sick-woman-laying-in-bed-and-coughing

Two years ago when Maine was considering mandating paid sick leave, I wrote that I thought it was bad for business. I continue to believe this. As I stated then, no one can argue that it makes sense for employees to stay home when not feeling well.  The last thing anyone wants is to have someone preparing or serving your meal who is not well—and that’s what happens when the choice is between staying home and not receiving pay or working sick because you can’t live without your paycheck.  It is a terrible choice to have to make.

Unfortunately, as noble as the various bills being proposed throughout the country may be, as right as it feels, it is bad policy because it undermines the businesses it purports to support and ultimately hurt all employees.  Small businesses cannot afford another mandate.  Mandatory sick leave will be cost prohibitive and an administrative nightmare to manage, particularly on top of the other leave policies mandated under state and federal law.  Managing time-off policies are not easy.  Employers still struggle making sense out of the federal Family and Medical Leave Act (FMLA) and that’s been around 20 years!

One can empathize with any worker who has to work ill.  Ideally, businesses will see that sick leave benefits, voluntarily offered, provide them a competitive advantage. But mandating it is not the right thing to do. Smaller organizations often cannot afford these kinds of benefits and another mandate could potentially put them under.

What do you think? Share your comments and opinions below.

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Employee Medical Information: Be Careful What You Ask For

(This guest post was written by attorney Glenn Israel from Bernstein Shur)

Earlier this week, the national department store chain Dillard’s agreed to pay $2M to settle a discrimination claim based upon its policy of requiring absent employees to provide a doctor’s note stating the medical reason for the absence. The U.S. Equal Employment Opportunity Commission took the position that once a doctor confirms the employee was absent for medical reasons, the employer is not entitled to ask for any additional information. This is consistent with the approach taken by the U.S. Department of Labor with regard to Family and Medical Leave Act requests. The DOL medical certification form asks the doctor to state whether the employee has a medical condition that prevents the employee from performing one or more essential functions of his or her job and also asks the doctor to “describe other relevant medical facts” which “may include symptoms, diagnosis, or any regimen of continuing treatment.” The DOL form does not, however, require the doctor to provide any of that additional information.

In a recent case that I handled in Maine, an employer and a mid-level supervisor found themselves in front of the Maine Human Rights Commission for asking one too many questions. The supervisor noticed that one of his subordinates was acting strangely and asked the employee if she was “on drugs.” The employee said “No, but I do take medication.” The supervisor innocently asked “For what?” The employee then revealed her mental health diagnosis to the supervisor and filed a claim with the MHRC.

The take away point is don’t ask too many questions. Here are some things you can ask an employee: Continue reading

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Earned Benefit Time & Payout at Termination

Understanding an employer’s obligation regarding payout of vacation pay when an employee quits or is terminated can be very confusing, particularly when Paid Time Off (PTO) and Earned Benefit Time (EBT) is thrown in the mix. Each state has different laws, but we will focus in this post on Maine.

Maine does not require employers to provide paid vacation. However, if an employer offers it, any accrued and unused vacation pay must be paid out at the time of termination. But what happens if an employer combines vacation time, sick time, and other time off into either Earned Benefit Time or Paid Time Off? Again, the law is only concerned about the vacation time.

If you can separate the various time-off pieces, then the only obligation you would have is the vacation time. If, however, you cannot, you should look at the following:

  1. What does your policy say?
  2. What is your past practice? How have you handled it in the past?

If your policy and practice does not differentiate between the various time-off pieces and simply treats them all as “earned time,” then you have no obligation to payout at termination. Your accrual should also focus on the earned time without differentiating. And finally, you may also want to state that your “earned time has no value at separation.”

A well-written policy that includes these components and has been reviewed by counsel will minimize any confusion on how to handle this benefit at termination.

For addition assistance, contact the Dacri HR HelpLine by clicking here.

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