Code of Massachusetts Regulations
940 CMR - OFFICE OF THE ATTORNEY GENERAL
Title 940 CMR 33.00 - Earned Sick Time
Section 33.03 - Accrual and Use of Earned Sick Time

(1) An employee is eligible to accrue and use earned sick time if the employee's primary place of work is in Massachusetts regardless of the location of the employer. An employee need not spend 50% or more time working in Massachusetts for a single employer in order for Massachusetts to be the employee's primary place of work.

Example: A painter with a single employer works 40% of her hours in Massachusetts, 30% in New Hampshire and 30% in other states. Massachusetts is her primary place of work.

Example: A retail clerk relocates from New York to Massachusetts and takes a job at the employer's Boston store. Upon the first date of actual work at the Boston store, Massachusetts becomes the clerk's primary place of work.

(2) If an employee is eligible to accrue and use earned sick time, then all hours the employee works must be applied toward accrual of earned sick time regardless of the location of the work and regardless of the location of the employer.

Example: In a single year, an employee of a catering company works 550 hours in Massachusetts, 350 hours in New Hampshire and 200 hours in Maine. The caterer will accrue earned sick time on all 1,100 hours worked for the catering company.

(3) Eligible employees permanently transferred to another state but remaining with the same employer will no longer accrue earned sick time but may use their accrued time.

Accrual of Earned Sick Time

(4) Employees accrue earned sick time on all hours worked at a rate of one hour of earned sick time for every 30 hours worked, including overtime hours, up to a cap of 40 hours per benefit year.

(5) Employees accrue earned sick time only on hours worked, not on hours paid when not working. For example, employees do not accrue earned sick time during vacation, paid time off, or while using earned sick time.

(6) Employees exempt from overtime requirements under 29 U.S.C. § 213(a)(1) shall be assumed to work 40 hours in each work week for purposes of earned sick time accrual unless their jobs specify a lower number of hours per week, such as salaried part-time employees. In such cases, earned sick time shall accrue based on that specified number of hours per week.

(7) Employees paid on a piece work or fee-for-service basis accrue earned sick time based on a reasonable measure of the time the employees work, including established practices or billing.

(8) Once employees have accrued 40 hours of earned sick time during the benefit year, they do not continue to accrue more hours of earned sick time regardless of the additional hours they work.

(9) Once an employee possesses a bank of 40 hours of unused earned sick time, the employer may opt to delay further accrual until the employee draws down the bank of earned sick time to below 40 hours.

(10) At the end of the benefit year, an employee may rollover up to 40 hours of unused earned sick time to the next benefit year.

(11) Employers may track accrual at an accrual rate of one hour of earned sick time for 30 hours worked or any equivalent accrual rate with smaller increments of time (e.g. one minute of sick time per 30 minutes worked, two minutes of earned sick time per hour worked).

Use of Earned Sick Time

(12) Employees have the right to use 40 hours of earned sick time per benefit year if the employee works sufficient hours to earn the time.

(13) An employee may not use earned sick time if the employee is not scheduled to be at work during the period of use.

(14) The smallest amount of sick time an employee can use is one hour. For uses beyond one hour, employees may use earned sick time in hourly increments or in the smallest increment the employer's payroll system uses to account for absences or use of other time.

Example: Chris takes his daughter to a scheduled doctor's appointment during his regularly scheduled work time, but the entire trip takes 50 minutes. Chris has used one hour of earned sick time.

Example: A furniture company uses a payroll system that tracks time in 15-minute increments. Anna, an employee, goes to a dentist appointment and returns after 90 minutes. Anna has used 90 minutes of earned sick time.

(15) An employer may review with employees the allowable purposes for which earned sick time may be used under M.G.L. c. 149, § 148C.

(16) Earned sick time may not be invoked as an excuse to be late for work without an authorized purpose under M.G.L. c. 149, § 148C.

(17) An employee may not accept a specific shift assignment with the intention of calling out sick for all or part of that shift.

(18) Where an employee's use of earned sick time requires the employer to hire a replacement or call in another employee and the employer does so, the employer may require the employee to use an equal number of hours as the replacement or call-in employee works, up to a full shift of earned sick time. If the employee lacks sufficient accrued earned sick time to cover such time away from work, the employer must provide sufficient job-protected unpaid leave to make up the difference in that shift.

Example: A food broker's fleet departs from the employer's principal place of business at 3:00 A.M. Monday through Friday to ensure timely delivery of perishable items to scheduled customers. The drivers' shifts vary slightly depending on the route, but average eight hours with loading and unloading. The employee responsible for the upper Cape Cod deliveries arrives at the employer's principal place of business at 5:00 A.M. after spending the night in the ER with a sick child. The employer was notified by phone of the emergency, and called in an off-duty employee to cover the upper Cape Cod deliveries for the absent driver's shift. In this example, the employer may require the absent employee to use eight hours of earned sick time.

Example: The employee, a maternity ward nurse, is scheduled to report for her 12-hour shift at 8:00 A.M. but calls her supervisor at 6:00 A.M. to report that she will not be available to work until 12:00 P.M. that day due to a sudden illness in the family. The supervisor is able to secure a replacement for the first four hours of the employee's shift and must allow the employee to report for duty at 12:00 P.M. In this example, the employer may not require the absent employee to use more than four hours of her earned sick time.

(19) Where an employer does not hire a replacement or call in another employee but the employee's use of earned sick time results in the employee missing transportation to a work site, the employer may require the employee to use earned sick time only until the employee arrives at the work site.

Example: The employee, a landscaper, calls his supervisor before the start of his six-hour shift at 8:00 A.M. to report that he has to take an ill parent to the hospital. The landscaper's crew leaves for a new job site and the employee is not replaced. The employee arrives at the job site by 9:00 A.M. after finding a ride on his own. The employee need only use one hour of earned sick time.

(20) An employer shall not require an employee to make up time off from work as a condition of using earned sick time. An employee and employer may, however, by mutual agreement arrange for the employee to work additional hours during the same or next pay period to avoid the use of, and payment for earned sick time.

(21) Employers and their fee-for-service employees may arrange to make up hours during the same pay period or any future pay period that is mutually agreeable.

(22) Employers and employees, by mutual written agreement, may arrange for employees to use earned sick time before accruing it and for employers to count the use against future accrual.

(23) If an employee is committing fraud or abuse by engaging in an activity that is not consistent with allowable purposes for earned sick time under M.G.L. c. 149, § 148C, an employer may discipline the employee for misuse of sick leave.

(24) If an employee is exhibiting a clear pattern of taking leave on days just before or after a weekend, vacation, or holiday, an employer may discipline the employee for misuse of earned sick time, unless the employee provides verification of authorized use under M.G.L. c. 149, § 148C.

Payment of Earned Sick Time

(25) Earned paid sick time is paid at the same hourly rate listed in 940 CMR 33.02: Same Hourly Rate.

(26) When used, earned paid sick time must be paid on the same schedule as regular wages are paid. Employers may not delay compensating employees for earned paid sick time.

(27) Employers shall have the option, but are not required, to pay out employees for up to 40 hours of unused earned sick time at the end of the benefit year or when the employee changes jobs within the employer's employment. Employers paying out 16 hours or more shall provide 16 hours of unpaid sick time until the employee accrues new paid time, which shall replace the unpaid time as it accrues. Employees paying out less than 16 hours shall provide an amount of unpaid sick time equivalent to the amount paid out until the employee accrues new paid time, which shall replace the unpaid time as it accrues.

(28) Employers shall have the option, but are not required, to pay out unused earned sick time upon separation from employment.

90-Day Vesting Period

(29) Employees begin accruing earned sick time on the first date of actual work and may begin to use any accrued earned sick time 90 days following their first dates of actual work, regardless of the number of days worked during the 90-day period.

(30) Employees who have been employed for at least 90 days as of July 1, 2015, meaning their first dates of actual work occurred on or before April 2, 2015, may use earned sick time, whether paid or unpaid, as it accrues.

Example: Jasper's first date of actual work as a salesperson at a shop is October 1, 2016. Jasper will be eligible to use any accrued earned sick time 90 days later, which is December 30, 2016.

Break in Service

(31) Following a break in service of up to four months, an employee shall maintain the right to use any unused earned sick time accrued before the break in service.

(32) Following a break in service of between four and 12 months, an employee shall maintain the right to use earned sick time accrued before the break in service if the employee's unused bank of earned sick time equals or exceeds ten hours.

Example: An employee has accrued 20 hours of earned sick time and then goes on an unpaid leave of absence for 11 months, starting June 1, 2016. Upon the employee's return to employment on May 1, 2017, eleven months from the date of the employee last worked for the employer, the employee shall have the right to use the 20 hours of earned sick time accrued before the leave of absence began.

(33) Following a break in service of up to 12 months, employees maintain their vesting days from the employer and do not need to restart the 90-day vesting period.

Transition Year

(34) Employees shall begin to accrue earned sick time beginning on July 1, 2015 and shall be eligible to use their earned sick time 90 days after their first date of actual work, should a qualifying need arise.

(35) An employer shall not be required to provide more than 40 hours of earned paid sick time during the transition year, and any paid leave given in the benefit year prior to July 1, 2015, will be credited.

Example: An employee used 15 hours of paid leave time as of July 1, 2015. The employer must allow the employee to earn and use up to 25 hours of earned paid sick time in the remainder of the benefit year.

Transition Year: Safe Harbor for Employers with Existing Policies Providing Paid Time off

(36) 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:

(37) In all other respects, during this transition period, employers may continue to administer paid time off under policies in place as of May 1, 2015.

(38) Employers with the option to utilize the safe harbor may also choose full compliance with M.G.L. c. 149, § 148C, and 940 CMR 33.00 beginning July 1, 2015 for some or all employees.

(39) 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 to M.G.L. c. 149, § 148C, and 940 CMR 33.00.