Code of Massachusetts Regulations
940 CMR - OFFICE OF THE ATTORNEY GENERAL
Title 940 CMR 33.00 - Earned Sick Time
Section 33.02 - Definitions
As used in 940 CMR 33.00, the following terms shall, unless the context clearly requires otherwise, have the following meanings:
Benefit Year. "Benefit year" is used interchangeably with "calendar year" for purposes of 940 CMR 33.00.
Break in Service. A period of time extending from the date an employee last worked for an employer until the employee's return to employment with that employer, whether the separation was voluntary or involuntary.
Calendar Year. Any consecutive 12-month period of time as determined by an employer. Most employers will find it helpful to use the year that they use for determining wages and benefits, including, for example: a year that runs from January 1 to December 31, the tax year, fiscal year, contract year, or year running from an employee's anniversary date of employment. "Calendar year" is used interchangeably with "benefit year" for purposes of 940 CMR 33.00.
Child. A biological, adopted, or foster child, a stepchild, a legal ward, or a child for whom an employee has assumed the responsibilities of parenthood.
Child For Whom an Employee Has Assumed the Responsibilities of Parenthood. A child of an employee standing in loco parentis, as defined by 29 U.S.C. § 2611(12) and 29 C.F.R. §§ 825.122(c) and 825.800.
Domestic Violence. Abuse committed against an employee or the employee's child by:
(1) a current or former spouse of the employee;
(2) a person with whom the employee shares a child in common;
(3) a person who is cohabitating with or has cohabitated with the employee;
(4) a person who is related to the employee by blood or marriage; or
(5) a person with whom the employee has or had a dating or engagement relationship. Except as otherwise specified herein, this term shall be consistent with M.G.L. c. 151A, § 1(g)(1/2), including any amendments thereto.
Date of Hire. An employee's first date of actual work for an employer. "Date of hire" is used interchangeably with "first date of actual work" for purposes of 940 CMR 33.00.
Earned Paid Sick Time. Time off from work accrued by an employee and provided by an employer that can be used for the purposes described in 940 CMR 33.02: Definitions for Earned Sick Time compensated at the same hourly rate that the employee earns at the time the employee uses the paid sick time; provided, however, that the same hourly rate shall not be less than the effective minimum wage under M.G.L. c. 151, § 1 where applicable.
Earned Sick Time. Time off from work accrued by an employee during hours worked and provided by an employer to allow an employee to:
(1) care for the employee's child, spouse, parent, or parent of a spouse, who is suffering from a physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care;
(2) care for the employee's own physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care;
(3) attend a routine medical appointment or a routine medical appointment for the employee's child, spouse, parent, or parent of spouse;
(4) address the psychological, physical or legal effects of domestic violence; or
(5) travel to and from an appointment, a pharmacy, or other location related to the purpose for which the time was taken.
Employee. Any person who performs services for an employer for wage, remuneration, or other compensation, as further defined by M.G.L. c. 149, § 148B, including full time, part-time, seasonal, and temporary employees, except:
(1) an employee of the United States government;
(2) an employee of a city or town is not considered an employee for purposes of this section until M.G.L. c. 149, § 148C, is accepted by vote or by appropriation as provided in Article CXV of the Amendments to the Constitution of the Commonwealth;
(3) an employee of a local public employer not covered by the term cities and towns, for example, school committees, including regional schools and educational collaboratives, shall be considered an employee only if M.G.L. c. 149, § 148C, is accepted by vote or appropriation of the prudential bodies governing said entity;
(4) a student attending a public or private institution of higher education located in the Commonwealth who is:
(a) participating in a federal work-study program or a substantially similar financial aid or scholarship program;
(b) providing support services to residents of a residence hall, dormitory, apartment building, or other similar residence operated by the institution at which they are matriculated in exchange for a waiver or reduction of room, board, tuition or other education-related expenses; or
(c) exempt from Federal Insurance Contributions Act (FICA) tax pursuant to 26 U.S.C. § 3121(b)(10);
(5) a school-aged student under 20 U.S.C. § 1400 et. seq., the Individuals with Disabilities Education Act (IDEA); and
(6) an adult client who resides in a Massachusetts licensed program and performs work duties within the program setting as part of bona fide educational or vocational training.
Employer. Any individual, corporation, partnership or other private or public entity, including any agent thereof, who engages the services of an employee for wages, remuneration or other compensation, except:
(1) the United States government shall not be considered an employer;
(2) cities and towns shall be considered employers for the purposes of this law only if this law is accepted by vote or by appropriation as provided in Article CXV of the Amendments to the Constitution of the Commonwealth;
(3) local public employers not covered by the term cities and towns, for example, school committees, including regional schools and educational collaboratives, shall be considered employers for the purposes of M.G.L. c. 149, § 148C, only if the law is accepted by vote or appropriation of the prudential bodies governing said entity; and
(4) notwithstanding M.G.L. c. 15D, § 17, M.G.L. c. 118E, §§ 70-75, or any other special or general law to the contrary, the PCA Quality Home Care Workforce Council shall be deemed the Employer of all Personal Care Attendants, as defined in M.G.L. c. 118E, § 70, for purposes of M.G.L. c. 149, § 148C(d)(4), the Department of Medical Assistance shall be deemed the Employer of said Personal Care Attendants for all other purposes under M.G.L. c. 149, § 148C, and the Department of Early Education and Care shall be deemed the Employer of all Family Child Care Providers, as defined in M.G.L. c. 15D, § 17(a), for purposes of M.G.L. c. 149, § 148C.
Health Care Provider.
(1) a doctor of medicine or osteopathy who is authorized to practice medicine or surgery by the State in which the doctor practices; or
(2) any other person determined by the U.S. Secretary of Labor to be capable of providing health care services under 29 U.S.C. § 2611. Health Care Provider includes:
a) podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice in the Commonwealth or any other State and performing within the scope of their practice as defined under the General Laws or any other state law;
b) nurse practitioners, nurse-midwives, clinical social workers and physician assistants who are authorized to practice in the Commonwealth or any other State and performing within the scope of their practice as defined under the General Laws or any other State law;
c) Christian Science Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts;
d) any health care provider from whom an employer or the employer's group health plan's benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits; and
e) a health care provider listed above who practices in a country other than the United States, who is authorized to practice in accordance with the law of that country, and who is performing within the scope of his or her practice as defined under such law.
Regular Hourly Rate. The amount that an employee is regularly paid for each hour of work.
Same Hourly Rate.
(1) For employees compensated on an hourly basis, the same hourly rate means the employee's regular hourly rate.
(2) For employees who receive different pay rates for hourly work from the same employer, the same hourly rate means either:
(a) the wages the employee would have been paid for the hours absent during use of earned sick time if the employee had worked; or
(b) the blended rate, determined by taking the weighted average of all regular rates of pay over the previous pay period, month, quarter or other established period of time the employer customarily uses to calculate blended rates for similar purposes.
Whatever method the employer elects to determine the same hourly rate, (a) or (b) above, the employer must use a consistent method for each employee throughout a benefit year.
(3) For employees paid a salary, the same hourly rate means the employee's total earnings in the previous pay period divided by the total hours worked during the previous pay period. For determining total hours worked during the previous pay period, employees who are exempt from overtime requirements under 29 U.S.C. § 213(a)(1), the Fair Labor Standards Act, shall be assumed to work 40 hours in each week unless their normal work week is less than 40 hours, in which case earned sick time shall accrue and the same hourly rate shall be calculated based on the employee's normal work week. Regardless of the basis used, the same hourly rate shall not be less than the effective minimum wage under M.G.L. c. 151, § 1, where applicable.
(4) For employees paid on a piece work or a fee-for-service basis, the same hourly rate means a reasonable calculation of the wages or fees the employee would have received for the piece work, service, or part thereof, if the employee had worked. Regardless of the basis used, the same hourly rate shall not be less than the effective minimum wage under M.G.L. c. 151, § 1, where applicable.
(5) For employees paid on commission (whether base wage plus commission or commission only), the same hourly rate means the greater of the base wage or the effective minimum wage under M.G.L. c. 151, § 1, where applicable.
(6) For tipped employees who ordinarily receive the service rate under M.G.L. c. 151, § 7 ($3.00 plus tips as of January 1, 2015), the same hourly rate means the effective minimum wage under M.G.L. c. 151, § 1 ($9.00 as of January 1, 2015).
(7) The same hourly rate shall not include:
(a) sums paid as commissions, drawing accounts, bonuses, or other incentive pay based on sales or production;
(b) sums excluded under 29 U.S.C. § 207(e), including contributions irrevocably made by an employer to a trustee or third person pursuant to a bona fide plan for providing old-age, retirement, life, accident, or health insurance, and any other employee benefit plans;
(c) overtime, holiday pay, or other premium rates. However, where an employee's regular hourly rate is a "differential rate," meaning a different wage rate paid for the same work performed under differing conditions (e.g. a night shift), the "differential rate" is not a premium.
Transition Year. The benefit year that includes July 1, 2015.
