In addition to meal and rest periods, Massachusetts law requires that employers provide their employees with leave or time off in for various other reasons, as described below.
Under Massachusetts law, employees who work in manufacturing, mechanical or mercantile establishments and who are eligible to vote are entitled to time off to do so during the first two hours after the polls open in the employee’s voting precinct. The employee must request the time off, and employers do not need to pay the employee for this time. Because the time off is limited to the first two hours that polls are open in the employee’s precinct and most polling places open early, this type of request for leave is uncommon but must be honored during those two hours.
In November 2014, Massachusetts voters approved a law requiring all employers to provide sick leave to all employees (with limited exceptions applicable to federal or municipal employers) and further requiring all employers of 11 or more employees to provide paid sick leave to its workers. The law provides that after their 19th calendar day of employment, employees accrue a minimum of one hour of earned sick time for every 30 hours of work performed. Employees must be eligible to use up to 40 hours of earned sick time per calendar year; and employers of 11 or more employees must permit their employees to use up to 40 hours of earned, paid sick time per calendar year. Paid sick time must be paid at the same hourly rate in effect as of the date that the sick time is used. Employees may carry over up to 40 hours of unused by earned sick time to the following year, but employers obligated to provide paid earned sick time are not required to pay out any earned but unused sick time upon termination of employment.
Under the sick leave law, earned sick time may be used for the following four reasons:
Employees may be required to provide advanced notice of the need to take earned sick time when the use of such time is foreseeable, and employers may require their employees to certify the need to take earned sick time when the use of earned sick time covers more than 24 consecutively scheduled work hours. Employers are required to provide notice to employees of their rights under the law, and the Massachusetts attorney general’s office has prepared a notice form (available on its Internet website) that employers must post in a conspicuous location accessible to all employees.
The law provides that employers that have existing policies that provide employees with as much (or more) earned sick time as the law provides need not provide employees with additional sick time – provided that the employer’s existing policies make sick time available to employees for the same purposes and conditions as provided in the law. Further, the statute provides that an employer may not use the fact that an employee has used earned sick time “as a negative factor in any employment action.”
The Massachusetts attorney general’s office, which is charged with enforcing the paid sick leave law, has issued final regulations concerning the law. Some of the most significant provisions of those regulations are described below:
The paid sick leave law and its implementing regulations do not address a collateral but important issue: whether accrued but unused paid sick time counts as “wages” for purposes of the Massachusetts Wage Act. The issue is an important one, because under the Wage Act, an employer who fails to pay “wages” is subject to strict liability, as well as mandatory treble damages and attorneys’ fees, in a civil action for recovery of the unpaid wages and may also be subject to criminal liability. On January 29, 2018, however, the Massachusetts Supreme Judicial Court issued a decision (Mui v. Massachusetts Port Authority) in which it held that sick pay does not qualify as “wages” for purposes of the Wage Act. Accordingly, employers who neglect to pay an employee for accrued but unused sick time upon the termination of his or her employment would not be subject to mandatory treble damages and attorneys’ fees in a suit brought by the employee to recover the value of that sick time – although the employee would likely be entitled to recover the value of the sick time itself.
In sum, a Massachusetts employer should ensure that its sick leave policy complies with the requirements of the sick leave law and regulations and should otherwise tailor its sick leave policy to the needs of the company and the nature of its workforce. In addition to the requirements of the law, a few basic guidelines apply to all such policies and procedures manuals:
Massachusetts law provides a number of protections to employees performing jury duty or attending court as a witness in a criminal action.
Employees may not be discharged from or deprived of employment because of their attendance or service as a juror in any court. Employers that discharge an employee as a result of his or her jury service may be prosecuted and punished for contempt of court.
In addition, employers may not harass, threaten or coerce employees because the employee receives a juror summons, performs any obligation of jury duty or exercises any rights under the Massachusetts jury duty laws. Employers cannot impose compulsory work assignments on employees attending or performing jury duty. Further, employers cannot engage in any other intentional act that would substantially interfere with the availability, effectiveness, attentiveness or peace of mind of the employee during the performance of his or her jury duty. Violation of this law constitutes a crime and an employer who violates it may be subject to substantial fines. The employer may also be liable to the employee in a civil lawsuit for any monetary damages and injunctive relief as appropriate, as well as treble damages and attorneys’ fees in some situations.
Employers must pay employees their regular wages for the first three days (or parts of those days) of jury duty. This applies to all “regular” employees, including part-time, temporary or casual employees, as long as their employment hours may be reasonably determined. After the three days, employees will be paid by the Commonwealth of Massachusetts at a rate of $50 per day; and it is in the employer’s discretion whether to pay any difference between that stipend and the employee’s regular wages. The court in which the employee is serving as a juror may excuse the employer from paying regular wages for the first three days only if the employer can show extreme financial hardship. Failure to pay regular wages for the first three days of an employee’s jury duty may be prosecuted and punished as contempt of court, and the employer may be liable to the employee in a civil lawsuit and subject to treble damages and attorneys’ fees. The policy and intent behind the Massachusetts law is to place the juror in the same financial position as such juror would have been in were it not for the performance of jury duty.
Employers may not discharge, penalize or threaten to discharge or penalize any employee who is absent from work because of his or her attendance as a witness in a criminal action. Employers violating this rule will be subject to punishment by fine, imprisonment or both. The law only applies with respect to victims and other witnesses in criminal cases, and there is no obligation to pay the employee for the time away from work.
Employers in Massachusetts with 50 or more employees are required to provide up to 15 days of domestic violence leave for its employees. The leave may be taken by employees who have been victims of domestic violence or who have family members that were victims of such. Leave may be used to:
Such leave does not have to be paid leave, but employees should be free to choose to use accrued vacation, PTO or sick leave. In addition, under the Massachusetts Earned Sick Time Law, employees are able to use their accrued paid sick leave for absences relating to domestic violence.
Massachusetts law affords all members of organized units of the armed forces ready reserve with up to 17 days of leave per calendar year to fulfill military reserve training requirements. The employee taking leave must provide notice to the employer of the date of departure and return for the training and of the satisfactory completion of the training. On return from the military training leave, the employer must return the employee to his or her previous position or a similar position with the same status, pay and seniority. It is left to the employer’s discretion whether to pay the employee during leave; but the leave must not affect the employee’s normal vacation, sick leave, bonus, advancement or other advantages of employment. Employers failing to comply with the law may be subject to a civil lawsuit by the employee for damages or other equitable relief.
In addition to Massachusetts law for ready reserve leave, employers must ensure compliance with the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), which includes additional military leave requirements and prohibits discrimination against individuals based on their military, ready reserve, National Guard or other uniformed service or military status. See Chapter 18: Military leave for more information
The Massachusetts Small Necessities Leave Act (SNLA) provides small necessities leave to many employees. This leave is separate from that provided by the federal Family and Medical Leave Act (FMLA), but it must be offered by employers subject to the FMLA (employers with 50 or more employees) to employees eligible for the FMLA (employees employed for at least 12 months by the employer and who have worked at least 1,250 hours during the previous 12-month period). Such eligible employees are permitted under the SNLA to take a total of 24 hours of unpaid leave during any 12-month period to:
Employers must consistently and uniformly define and measure the 12-month period during which the 24 hours of leave may be taken. Employers may choose to define the period as the calendar year, the fiscal year, the 12-month period following each employee’s anniversary date, the 12-month period following each employee’s first SNLA leave request or a rolling 12-month period measured backward from the date an employee uses any leave under the SNLA.
The employee must provide his or her employer with seven days’ notice whenever the need for leave is foreseeable. If the need for leave is unforeseeable, the employee must inform his or her employer as soon as practicable. Employers may require that leave be supported by certification.
Employees do not need to take all 24 hours at once but may take SNLA leave for any number of hours at a time, intermittently, depending on their needs. Employers may require that employees take leave in increments of one hour.
Employees may elect or employers may require employees to use any accrued vacation leave, personal leave or medical or sick leave for the leave taken under the SNLA. Employers are not required to provide pay for SNLA leave beyond the paid leave that the employer already offers.
Employers should notify their employees of their ability under law to take SNLA leave. This is often accomplished by providing the SNLA policy in their employee handbook.
The Massachusetts attorney general is authorized to enforce the SNLA against any employer in violation of the law. Employers may be subject to fines for criminal violation of the SNLA; and employees may institute civil actions for any monetary damages and/or injunctive relief and may be entitled to treble damages, costs and attorneys’ fees.
An employee may elect to use his or her accrued paid vacation leave, personal leave or sick leave during any medical leave period in order to be paid during the leave. Similarly, an employer may require the employee to use such paid leave during the leave period. However, the law does not require that the employer provide paid sick leave or medical leave in any situation in which the employer would not otherwise provide it.
The employee must provide the employer with at least seven days’ notice before the date of the leave when it is foreseeable. If the leave is not foreseeable, the employee must provide notice as is practicable.
The Massachusetts attorney general enforces the SNLA. As a remedy, the court may order that the employer provide the employee with leave and may rule that the employer’s policy is unlawful.
About the Editor
About the Firm
An HR audit snapshot - Massachusetts
An introduction - features of the HR Library
Background checks — Massachusetts
Benefits — Massachusetts
Celebrating in the workplace — Massachusetts
Child labor — Massachusetts
Compliance thresholds — Massachusetts
Disabilities and reasonable accommodation — Massachusetts
Disaster planning — Massachusetts
Discipline — Massachusetts
Discrimination — Massachusetts
Diversity in the workplace — Massachusetts
Drugs alcohol and tobacco — Massachusetts
Family and medical leave — Massachusetts
Federal contractors and affirmative action — Massachusetts
Health insurance continuation coverage — Massachusetts
Health insurance portability and privacy — Massachusetts
Health insurance reform — Massachusetts
Immigration — Massachusetts
Independent contractors — Massachusetts
Military leave — Massachusetts
Other types of leave — Massachusetts
Pandemic outbreaks — Massachusetts
Performance evaluations — Massachusetts
Personnel Files — Massachusetts
Plant closings and mass layoffs — Massachusetts
Policies and procedures manuals — Massachusetts
Politics in the workplace — Massachusetts
Privacy rights — Massachusetts
Protecting electronic information — Massachusetts
Public employers — Massachusetts
Recruiting and hiring — Massachusetts
Restrictive covenants and trade secrets — Massachusetts
Safety and Health — Massachusetts
Social media — Massachusetts
Telecommuting — Massachusetts
Temporary and leased employees, interns and volunteers — Massachusetts
Termination — Massachusetts
Unemployment insurance — Massachusetts
Unions — Massachusetts
Wages and hours — Massachusetts
Whistleblower protections — Massachusetts
Workers' compensation — Massachusetts
Workplace harassment — Massachusetts
Workplace investigations — Massachusetts
Workplace violence — Massachusetts