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One Particular (Safe) Harbor: Safe Harbor for Massachusetts Earned Sick Time Law Ends on December 31, 2015.

Massachusetts employers need to take heed that the safe harbor provision in the Earned Sick Time law ends on December 31, 2015.  By the start of the New Year, Massachusetts employers will need to strictly comply with the Sick Time Law or it will not be a very happy New Year.

As my colleagues Drew Matzkin and Jillian Collins discussed this summer, the Sick Time Law went into effect on July 1, 2015, and required Massachusetts employers with 11 or more employees to provide up to 40 hours of paid sick time per calendar year (employers with less than 11 employees must provide unpaid sick time).  The Sick Time Law provided a transition period, which provided employers with pre-existing paid sick time policies with a five month window to comport their policies with the strictures of the new law.  The applicable section of the regulations reads, in relevant part, as follows:

Employers with a policy in existence on May 1, 2015 that provides paid time off or paid sick leave, shall be deemed in compliance with the Earned Sick Time law until January 1, 2016 provided:

(a) Full-time employees on the policy have the right to earn and use at least 30 hours of paid time off/paid sick leave between January 1, 2015 and December 31, 2015;

(b) On and after July 1, 2015, all employees not previously covered by the policy, including part-time employees, seasonal employees, temporary employees, new employees, and per diem employees must either: 1) accrue paid time off at the same rate of accrual as covered full-time employees; or 2) if the policy provides lump-sum allocations, receive a prorated lump-sum allocation based on the provision of lump sum paid time off/paid sick leave to covered full-time employees . . . .; and

(c) [the] 30 hours of paid time off/paid sick leave or such lesser amounts as are earned or used by employees . . . must be: (1) job-protected leave subject to the law’s anti-retaliation provisions; (2) available for the allowed purposes of the leave under the [law]; and (3) available to the employee after January 1, 2016 if unused during the Transition Year unless the policy provides lump sum allocations that make rollover unnecessary . . . .

On or before January 1, 2016, all employers operating under this safe harbor provision must adjust their policies providing paid time off/paid sick leave to conform [with the law]. (emphasis added)

For those Massachusetts employers who availed themselves of this safe-harbor provision, practically speaking, the time to overhaul sick leave policies is now.  Given vacations and end-of-year slow-downs, employers may have difficulty bringing policies in compliance with the Sick Time Law, if adjustments are delayed until the last week of the December.  Delay could be costly: companies who violate the Sick Time Law could be subject to a parade of horribles including, but not limited to, fines levied by the Massachusetts Attorney General and private law suits with the potential for treble damages and attorney’s fees—certainly not the best way to begin 2016.

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Robert Sheridan