Taking the Pulse – Sick-leave Law Presents Challenges for Employers

It’s been almost three years since Massachusetts’ Earned Sick Time Law went into effect (how time flies), but employment-law attorneys still frequently receive questions about the law and the administration of earned sick leave.

Like any leave law, the sick-leave law presents unique challenges to employers. Here are some of the questions encountered most often:

Does the Sick Leave Law Apply to My Organization?

This is an easy one. Unless your organization is a federal or municipal employer, it must provide earned sick leave to all employees (including part-time, temporary, per diem, and seasonal employees), regardless of the size of your organization. If the employer has 11 or more employees, the sick leave must be paid at the employee’s regular hourly rate (with the exception of tipped employees, who must receive at least minimum wage). 

As a reminder, the law entitles employees to earn one hour of sick leave for every 30 hours worked, up to 40 hours per year, and employees may use the earned sick leave to attend routine medical appointments (for themselves or for a child, spouse, parent, or parent-in-law); to care for their own illness, injury, or medical condition or that of a child, spouse, parent, or parent-in law; or to address the effects of domestic violence.

Can I Discipline Employees for Excessive Absences?

It depends on what you mean by ‘excessive.’ The sick-leave law prohibits employers from retaliating against employees who use earned sick leave, so if an employee has earned sick leave available that applies to an absence, an employer cannot discipline the employee for taking the time off, nor can it consider the use of sick time as a factor in the discipline for non-sick-leave-related absences. Therefore, employers must be very careful when issuing attendance-related discipline. 

Employers may discipline for absences exceeding the amount of sick leave to which the employee is entitled or for absences that occur before the employee has accrued sufficient sick leave to cover the absence. However, employers must make sure the employee’s use of sick leave is not a factor in the discipline. Although it seems obvious, this can be tricky. 

Consider two employees. The first employee has one unplanned absence in a two-week period. The second employee has one unplanned absence in a two-week period and five sick-leave-related absences in that same two-week period. Which employee is a supervisor more likely to want to discipline? 

While employers generally can discipline employees for unplanned absences unrelated to earned sick leave, they cannot take the use of sick leave into consideration when determining appropriate discipline. Thus, in the above example, it would be unlawful to discipline the employee who took sick leave if the employer did not also discipline the employee who had just the one unplanned absence. 

On a related note, employers should be sure to document any attendance-related discipline and make clear in that documentation that the discipline is not related to sick-leave-related absences. The best way of doing this is to note the specific dates for which the discipline is being issued. If an employer simply writes that the discipline is for “poor attendance,” and the employee had sick-leave-related absences, it will be difficult for an employer to demonstrate that the discipline for poor attendance did not take into account the absences due to sick leave. If the employer specifies the absences at issue, it can show that it considered only the non-sick-leave absences.

What If an Employee Is Out Sick but Wants to Save Paid Sick Leave for Later Use?

We often hear of employees with accrued paid sick leave who call out sick but then ask the employer to count the absence as an unpaid day off so that the employee can save the paid sick for use later in the year. Employers should not grant these kinds of requests. First, because the sick-leave law requires employers to pay employees who are absent due to illness (assuming the employee has earned sick leave available), an employer who fails to pay an employee for a sick-leave-related absence violates the law, even if the failure to pay was at the request of the employee.

Second, if the employee saves the paid sick leave for use at a later time, the employer may lose the ability to discipline for excessive absences. The employer can discipline for excessive absences only after an employee has exhausted any available paid sick leave. If the employer allows the employee to save paid sick leave, it will take longer for the employee to exhaust the leave, and the employer will, in effect, be required to accept more absences than it otherwise would have.

The best practice for employers is to require the use of paid sick leave for all sick-leave related absences and then later decide whether it wants to allow unpaid leave once the paid leave is exhausted.