Part III: Traps for Unwary Employers

On November 4, 2014, Massachusetts voters overwhelmingly voted in favor of Ballot Question 4, approving a new law that imposes significant obligations on employers to provide earned sick time to employees. In our last installment, Part II: Use of Sick Time under the New Law, we examined the circumstances under which an employee may use sick time under the new law . This week’s article highlights some of the potential pitfalls for employers that come with the new sick time law.

This week our focus shifts to some of the numerous ways employers may unwittingly violate the broad, employee-friendly provisions of the new law and the potential penalties, fines and lawsuits such violations may foster.
Although the new law requires employees to make a “good faith effort” to give advanced notice that sick time will be used and to provide certification of the need for sick time when an earned sick time period covers more than 24 consecutively scheduled work hours, employers seeking to enforce these provisions may unwittingly violate the new law. Employers may not require that the certification explain the nature of the illness or the details of any domestic violence that gave rise to the use of sick time. Also, employers cannot condition payment for paid sick time (or delay approval of sick leave) upon receipt of such certification. The provisions of the new law call into question if an employer should request a certification ( i.e. a note from a doctor) to confirm that an employee was actually receiving medical care, particularly since the new sick time law allows employees to take “sick time” when they are not the ones who are sick. See the last blog post on the numerous and broad allowed uses of “sick time”.
Furthermore, if an employee asks to use sick time, the employer may not require the employee to find a replacement to cover the employee’s missed shift or hours. Also, employers may not require an employee to work additional hours to make up sick time. However, the law allows the employer and the employee “by mutual consent”, to allow the employee to work an equivalent number of additional hours or shifts during the same or the next pay period to “make up” the sick time. When an employer and employee reach such an agreement, the employee will not be required to use accrued earned sick time for the absence and the employer shall not be required to pay for the sick time for which the employee was absent.
Another potential mistake employers may make is treating an employee’s use of sick time as a negative factor in any review or employment action. Employers may not consider an employee’s use of earned sick time in conducting evaluations, awarding promotions, or as grounds for termination. Also, an employee cannot be disciplined for the use of earned sick time. Employers who retaliate in any way against an employee for use of earned sick time will be exposed to potential civil penalties and/or lawsuits.
If an employee feels that an employer has violated a provision of the new statute, the employee may file a complaint with the Attorney General’s office. The Attorney General’s office may issue a civil fine of up to $25,000 against employers who have violated the new law. Also, employees may obtain permission from the Attorney General’s office to sue employers. An employee who successfully sues for a violation of the new law may be entitled to multiple damages, litigation costs, and attorneys’ fees. It is easy to see how the new sick time law could generate disputes and lawsuits.
Please check this website again next week to read the fourth installment in our series of articles concerning the new sick time law and its effect on Massachusetts businesses. If you have questions about Question 4, changes to employee sick time laws, or about any other employment law issues, please contact Attorney Michael P. Doherty, Andrew M. Kepple or one of our other employment attorneys at 508 541-3000.