On May 18, 2015, the Massachusetts Attorney General’s Office (AGO) held the first of several public hearings on proposed regulations concerning implementation of the new earned sick time law passed by Massachusetts voters in November 2014. At that hearing, Attorney General Maura Healey stated that the AGO intends to proceed with implementing the law as of its July 1, 2015 effective date and that the AGO is on track to finalize implementing regulations ahead of that date (AGO representatives targeted June 19, 2015 as the date for issuance of final regulations).
However, Attorney General Healey also announced a “safe harbor” that gives certain employers an additional six months—that is, until January 1, 2016—to fully implement the new earned sick time law. The safe harbor applies to employers that already maintain paid time off policies that provide employees at least 30 hours of paid time off per year, so long as they treat all leave taken under those policies as subject to the non-retaliation and non-interference provisions of the earned sick time law. Specifically, the full safe harbor language provided by the AGO, a version of which will be incorporated into the final regulations, provides:
For the period July 1 to December 31, 2015, any employer with a paid time off policy in existence as of May 1, 2015, providing to employees the right to use at least 30 hours of paid time off during the calendar year 2015 shall be in compliance with the law with respect to those employees and to any other employees to whom the use of at least 30 hours of paid time off under the same conditions are extended.
To remain in compliance, any paid time off, including sick time, used by an employee from July 1 to December 31, 2015, must be job protected leave subject to the law’s non-retaliation and noninterference provisions. In all other respects, during this transition period, the employer may continue to administer paid time off under policies in place as of May 1, 2015.
On or before January 1, 2016, all employers operating under this safe harbor provision must adjust their paid time off policy to conform with the earned sick time law.
The attorney general explained that this safe harbor is supported by both the proponents of the earned sick time ballot initiative that led to this new law and the Associated Industries of Massachusetts. Thus, all employers will be subject to the law as of July 1, 2015. However, certain employers will have until January 1, 2016, to fully integrate all requirements of the earned sick time law into existing paid time off programs, so long as those paid time off policies existed as of May 1, 2015, and provide (or are amended to provide) 30 hours of paid leave to all employees.
David P. Mason is of counsel in the Boston office of Ogletree Deakins.