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On May 17, 2015, Maura Healey, the Massachusetts Attorney General (AG), issued a statement in which she announced that the Massachusetts Paid Sick Time Law (scheduled to take effect July 1) would not apply until Jan. 1, 2016, to employers satisfying a “safe harbor” requirement. To qualify for this safe harbor, an employer must satisfy the following requirements: (i) the employer, as of May 1, 2015, must have had a policy in place allowing employees at least 30 hours of paid time off during the 2015 calendar year; and (ii) any paid time off an employee takes during the period July 1, 2015, to Dec. 31, 2015, pursuant to the employer’s paid time off policy must be “job protected leave subject to the law’s non-retaliation and non-interference provisions.” Employers who satisfy these requirements will not have to comply with the Paid Sick Time Law until Jan. 1, 2016.
Here is the key language from the AG’s statement:
“For the period July 1 to Dec. 31, 2015, any employer with a paid time off policy in existence as of May 1, 2015, providing to employees the right to use at least 30 hours of paid time off during the calendar year 2015 shall be in compliance with the law with respect to those employees and to any other employees to whom the use of at least 30 hours of paid time off under the same conditions are extended.
To remain in compliance, any paid time off, including sick time, used by an employee from July 1 to Dec. 31, 2015, must be job protected leave subject to the law’s non-retaliation and non-interference provisions. In all other respects, during this transition period, the employer may continue to administer paid time off under policies in place as of May 1, 2015.
On or before Jan. 1, 2016, all employers operating under this safe harbor provision must adjust their paid time off policy to conform with the earned sick time law.”
It is important to note that the 30 hours of annual paid time off employers needed to provide to employees under a policy existing as of May 1 is not limited to sick time. Based on the language in the AG’s statement, any paid time off (useable for any purposes) appears to count toward the 30-hour requirement, so many employers will meet this criteria for all or a significant portion of their workforces.
However, the second requirement—that the employee’s use of paid leave between July 1 and Dec. 31 in connection with the employer’s existing policy must be job protected and subject to the Paid Sick Time Law’s non-retaliation and non-interference provisions—is a bit less clear and poses some obstacles to compliance. Does the AG intend to deny the safe harbor period to employers who reject employees’ requests to use non-sick paid time off (for example, because work flow or business needs require the employee to be in the office on the dates the employee has requested to take leave)? The Paid Sick Time Law prohibits employers from interfering with employees’ rights under that law (including their rights to use their paid sick leave). If, in fact, the AG intends to require an employer seeking to rely on the safe harbor to now extend those non-interference requirements to its vacation and other paid time off policies during the safe harbor period, those employers may have to cede some management and control over their non-sick paid time off policies. Can this truly be what the AG intends?
The AG must be aware that few, if any, employers include non-retaliation and non-interference provisions in their paid time off policies. Unfortunately, because the implementation of the Paid Sick Time Law has become a fluid and evolving situation, employers will need to await further guidance from the AG regarding the safe harbor period.
In the meantime, as July 1 approaches, employers who wish to avail themselves of the safe harbor period may want to take steps to ensure that between July 1 and Dec. 31 their managers, Human Resources employees and others who administer employees’ paid time off are aware of these non-interference and non-retaliation requirements and act accordingly.
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