New business owner has questions on sick time law

Q: I just started my own business.  I have never owned a small business before.  Some of my employees seem to know more about these laws than I do.  Can you fill me in on this Mass. sick time law that they all seem to be chattering about?

A: In November of 2014, Massachusetts voters passed a ballot question which now requires Massachusetts employers to provide earned sick time to many of their employees.  Some of our clients thought this law was part of the Affordable Care Act (ACA) or “Obamacare,” but it is not.  It is a state law, which only applies to employees whose primary place of employment is in the state of Massachusetts.

The law went into effect on July 1, 2015.  Employers with fewer than 11 employees must offer up to 40 hours of unpaid sick time to employees in a calendar year.  Employers with 11 or more employees must offer up to 40 hours of paid sick time to employees in a calendar year.

Calculating the number of employees an employer has can be tricky though.  According to the law, the employer has to look at the average number of employees the company has maintained on the payroll during the preceding year.  However, full-timers, part-timers, seasonal and temporary employees must all be included in that calculation, which surprises some employers.  Employees furnished by a staffing agency must be counted by both the staffing agency and the employer for the purposes of determining the size of the company for this calculation.

The law also defines when sick time can be used under the law:

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.

For more information, including the required workplace poster, visit www.mass.gov/ago/earnedsicktime.  The poster provides a quick overview that could be very helpful to both you and your employees.

Pattie Hunt Sinacole is a human resources expert and works for First Beacon Group in Hopkinton, an HR consulting firm. She contributes weekly to Boston.com Jobs and the Boston Sunday Globe Money & Careers section. 

Husband seriously ill, what are my options?

Q: My husband was just diagnosed with a serious illness, possibly life threatening. I am unsure of my leave options at work. I have been with my employer for almost nine years. Can you share what I might be eligible for? I have never take a leave before.

A: I am sorry that your husband was diagnosed with a serious health condition. I am sure this has created a lot of stress for both of you as well as other family members.

You may qualify for the Family and Medical Leave Act (FMLA). The FMLA allows many employees to take up to 12 weeks of job-protected leave off for a number of reasons, one being to allow an employee to care for a spouse with a serious health condition. There are a few conditions though. Your employer has to employ 50 or more workers. It sounds like you have already met an additional requirement, that you have worked for your employer for 12 months or more. Also, you must have worked at least 1,250 hours in the last 12 months. Finally, you must work at a location where the employer has 50 employees within 75 miles. This law does not require that your employer pay you for any of this time off. A helpful fact sheet on FMLA can be found at http://www.dol.gov/whd/regs/compliance/whdfs28.pdf.

You also may qualify for earned sick time assuming you are employed in Massachusetts. As of July 1, 2015 employees in Massachusetts are permitted to take up to 40 hours per year of sick time for a number of reasons, one being to care for a sick spouse. If your employer has 11 or more employees, the sick time must be paid, assuming you have earned it. More information can be found at http://www.mass.gov/ago/docs/workplace/earned-sick-time/est-employee-notice.pdf.

Your company may also have their own internal policy on sick time, family illness or paid time off (PTO) which may also provide some income protection if you need to take time off. If your employer has a handbook, it may be helpful to review the handbook or any internal policies on time off or leaves of absence.

If you have an internal Human Resources (HR) department, they might be a helpful resource. They may be able to work through a few different scenarios with you. It is wise to know in advance, what options might be available to you. There may be flex hours or telecommuting options that could assist you during this time.

Also many employers offer Employee Assistance Programs (EAPs) which provide short-term counseling, resources and referrals for employees.

Pattie Hunt Sinacole is a human resources expert and works for First Beacon Group in Hopkinton, an HR consulting firm. She contributes weekly to Boston.com Jobs and the Boston Sunday Globe Money & Careers section.

Sick Relative and Sick Leave Benefits

Q: I recently had to take some sick days off to care for my brother who is suffering from HIV. I really don't want to have to explain to HR why I am taking these days off. They keep asking my reason for taking the days off. I have said that a family member is very sick. They have asked which family member and to "please describe the nature of the illness." Is this legal? Do I have to disclose? Very few people know about his illness and there is still a stigma associated with HIV whether we want to admit to it or not. 

A: You are an incredibly supportive sibling. In order to take approved “sick time” (whether paid or unpaid) off from work, you need to provide your employer with enough information for your employer to determine that you are using the leave for the purposes intended. You are wise, however, to protect sensitive medical information.

Jeff Dretler, an employment attorney from Fisher & Phillips, explains: "Under the new Massachusetts Earned Sick Time Law, effective July 1, 2015, most employees can use accrued sick time to care for an 'immediate family member' suffering from a 'medical condition that requires home care, professional medical diagnosis or care, or preventative medical care.' Under the law though, an immediate family member does not include a sibling which is why your employer needs more information about the familial relationship. Similarly, under the federal Family and Medical Leave Act (FMLA), which applies to employers with 50 or more employees, an employee seeking time off to care for a seriously ill family member (which like Massachusetts law does not include siblings) must describe the type of care which the employee plans to provide for the family member."

An employer may ask about the “nature of the illness” to better understand what benefits you may apply. Dretler further explains, "Relevant facts may include whether the patient is hospitalized, the type of care the patient will require, the expected duration of care, but need not necessarily include the diagnosis. In most circumstances, it will not be necessary for you to disclose to your employer the actual diagnosis of the person for whom you are caring (e.g., HIV). An employer who demands from the employee more information than is necessary, to determine the employee’s right to the leave, could very well be in violation of state or federal laws, including those which protect employee privacy."

I would recommend asking specifically what your employer is seeking. Is there a form that they could provide? Many physicians have navigated similar issues and have experience with sharing what is truly required. If you are further pressed for information, you may want to contact an attorney.

Pattie Hunt Sinacole is a human resources expert and works for First Beacon Group in Hopkinton, an HR consulting firm. She contributes weekly to Boston.com Jobs and the Boston Sunday Globe Money & Careers section.

Sick employees need to stay at home

Q: I can't stand this time of year. Other people complain about the snow, their commute or the cold. Not me. I am can deal with all of that. But these people that come into the office with their noses running, a hacking cough and then touching phones, door knobs and shaking hands. They are making all of us sick. When I am sick, I stay home. I call into meetings if I can. I don't sneeze and cough amidst co-workers. How are we supposed to address this in the workforce?

A: I get it. I so get it. I have been on the same tirade recently. These folks that take out the tissues, honk their noses and then proclaim that everyone is sick in their house but brag how they made it into work. I feel like standing up and saying, "Go home. We don't want you in this condition."

Sick people need to stay home. With all of the technologies available to us, we want the brains of our employees, but not their germs.

I recently had a client email all employees a reminder not to come into the office if they have certain symptoms (similar to the list you see posted at hospitals). One person can spur an epidemic. And many of us, because of snow storm after snow storm, are more housebound that usual. It is hard to get outside and get some fresh air.

One policy that drives me wild, which some companies still have, is a perfect attendance award. Instead, I would like to abolish these awards. These drive employees to report to work even when they are sick and should remain at home.

I also think having hand sanitizer around is a smart idea. A decade ago, hand sanitizer was uncommon. Today I would make sure I have a giant bottle on my desk. I also like to wipe down telephones and door knobs frequently.

Thirty-two days until spring!

Pattie Hunt Sinacole is a human resources expert and works for First Beacon Group in Hopkinton, an HR consulting firm. She contributes weekly to Boston.com Jobs and the Boston Sunday Globe Money & Careers section.

Minimum Wage for Cashiers

Q: I had heard that the minimum wage was going to increase in Massachusetts. I am applying for cashier jobs and they say they will pay minimum wage but it seems awfully low. What is the current minimum wage in Massachusetts? How does overtime work in Massachusetts for cashier positions?

A: Most employees in Massachusetts should be paid the minimum wage or higher. The current minimum wage in Massachusetts is $9.00, as of January 1, 2015. There are a few exceptions. For example, employees who are eligible to receive tips as part of their income (e.g., waitresses, bartenders, etc.), may be paid $3.00 per hour. However, tipped employees must still earn more than $9.00 per hour when all of their wages are combined. Some agricultural employees can also be paid $8.00 per hour. On January 1, 2016, the minimum wage in Massachusetts will be $10.00 per hour and then on January 1, 2018, the minimum wage will be $11.00 per hour. Visit http://www.mass.gov/lwd/labor-standards/minimum-wage/ for more information on the minimum wage law in Massachusetts.

Most cashier roles are classified as non-exempt. This means that the role is eligible for overtime pay. Overtime compensation should be paid when a non-exempt employee works more than 40 hours in a single work week.

On a related note, there is a new sick leave law that was passed in November, 2014. It requires employers to allow employees to earn and use sick time. Employers with 11 or more employees will need to offer paid sick time, however employers with fewer than 11 employees still have to offer the sick time but it does not have to be paid. The law isn't effective until July 1, 2015. Employers should think about how to implement this law in advance of July 1, 2015.

You are smart to ask questions about the minimum wage. For most cashier roles, you should be earning at least $9.00, at least in the state of Massachusetts.

Pattie Hunt Sinacole is a human resources expert and works for First Beacon Group in Hopkinton, an HR consulting firm. She contributes weekly to Boston.com Jobs and the Boston Sunday Globe Money & Careers section.

Summary of Earned Sick Time Law for Mass Employers

We have talked with many clients today in response to the passage of Massachusetts Ballot Question 4, the earned sick time law.

First, don't panic.  The law does not go into effect until July, 2015!

Second, read the summary below.

We still have a number of questions and we expect to receive further guidance from the Attorney General's office in early 2015.

---

Earned Sick Time (Ballot Question 4) - Implications for Massachusetts Employers
On November 4, 2014, Massachusetts voters passed Ballot Question 4, which requires many employers to
provide earned sick time for their employees. We have provided this summary for our clients.

1. When is this law effective?
   Not until July 1, 2015.
2. I have heard confusing info about company size.
   Employers with fewer than 11 employees - employees can earn and use up to 40 hours of UNPAID sick time in a calendar year.
   Employers with 11 or more employees - employees can earn and use up to 40 hours of PAID sick time in a calendar year.
   To calculate employee headcount for this law, all employees performing work (on a paid basis) should be counted including full-time, part-time or temporary employees. There have been additional questions raised on how to calculate headcount due to reductions in force or whether out-of-state employees are included in the calculation. We expect additional guidance from the Attorney General in early 2015 on this provision of the law.
3. Explain when this new earned sick time can be used by an employee.
1. If an employee has to miss work for the employee's child, spouse, parent or parent's spouse, who is suffering from illness, injury or medical condition that requires medical care; or
2. to care for the employee's own medical illness, injury or medical condition that requires medical care, to attend an employee's routine medical appointment (or that of a child, spouse, parent or parent's spouse); or
3. to address the effects of domestic violence.
4. Will we have to pay out accrued but unused sick time upon termination, as required with vacation time?
   No. A payout of unused but earned sick time is not required upon separation of employment.
5. How will accruals work?
   Employees earn one hour of sick time for every 30 hours worked. Employees begin accruing on their start date OR July 1, 2015, whichever is later. Employees also may carry over up to 40 hours of time into the next calendar year. 
6. What about our current PTO policy? Do we have to abandon that policy?
   No. However, employers must ensure that their current PTO policy offers the same or a more generous benefit than the earned sick time law. A PTO policy must also offer that the earned sick time be used for the same purposes as outlined in answer #3 above. An employer's PTO policy may needs to be revised and perhaps re-written for compliance purposes.

First Beacon Group LLC will continue to provide guidance on the new earned sick leave law in Massachusetts. For more information, please contact Pattie Hunt Sinacole at psinacole@firstbeacongroup.com or (508)435-9889.