COBRA Refresher: 4 Important Notices That You Need to Know About

COBRAAccording to the Consolidated Omnibus Budget and Reconciliation Act (COBRA), employers who offer a group health plan for more than 20 employees must offer temporary continuous coverage to qualifying beneficiaries after qualifying events.

A qualified beneficiary generally is an individual covered by a group health plan on the day before a qualifying event who is either an employee, the employee’s spouse, or an employee’s dependent child.

A qualifying event is a circumstance that would cause the qualified beneficiary to lose their group plan. The type of event determines the length of coverage offered, but continuous plans range between 18 and 36 months. Here are some examples of qualifying events:

  • The death of a covered employee
  • A covered employee’s termination or reduction of hours
  • The covered employee’s new entitlement to Medicare
  • Divorce or legal separation from a covered employee
  • A dependent child ceasing to be a dependent under the plan’s requirements

Employees must be offered health care, dental, vision, medical spending accounts, hearing, prescription, substance abuse, and mental health plans, but only if you offered those services under your group plan.

Generally, the qualified beneficiary pays the entire cost of the continuous coverage plus two percent to account for your administrative costs. Employees who take COBRA coverage for a disability can be charged 150% of their premiums for coverage after month 18.

Per regulations, employers are required to provide certain COBRA notices with specific information and timeframes, depending on the circumstances.  Failure to comply with these regulations can result in fines of $100 to $400 per day per qualifying beneficiary.

4 Notices Required by COBRA

General Notice

This document describes employees’ COBRA rights and the employer’s responsibilities. It must be given to each covered employee and each employee’s spouse within the first 90 days of coverage. It needs to have the following information:

  • Name of plan and contact information of the plan’s COBRA administrator.
  • A description of the coverage provided by the plan.
  • Instructions for beneficiaries to notify the administrator of qualifying events or disabilities.
  • An explanation of the importance of notifying the administrator about address changes.
  • A statement that the notice does not fully describe COBRA or the plan, and that more information is available through the plan’s administrator.

Click here to see a sample General Notice.

Election Notice

This document explains the employee’s rights to continuation coverage and how to elect it. The administrator must send an election notice to each beneficiary who loses their coverage due to a qualifying event within 14 days.

  • Name of plan and contact information of the plan’s COBRA administrator.
  • Identification of the qualifying event and qualified beneficiaries.
  • An explanation of the beneficiaries’ right to elect continuation coverage.
  • The date coverage will terminate if continuation coverage is not elected.
  • The process to officially elect the coverage.
  • Outcomes if coverage is waived or not elected.
  • How coverage might terminate early.
  • Premium information, including amounts, grace periods, and schedules.
  • The type and scope of coverage available and how it can be extended for disability or other qualifying events.
  • An explanation of the importance of notifying the administrator about address changes.
  • A statement that the notice does not fully describe COBRA or the plan, and that more information is available through the plan’s administrator.

Click here to see a sample Election Notice.

Unavailability of Continuation of Coverage Notice

Should an individual request continuous coverage, but the plan administrator determines that the individual is not entitled to coverage, the administrator must send a notice of unavailability. This simple document must be provided within 14 days of the original request and explain the reason for denial.

Click here to see a sample Unavailability of Continuation of Coverage Notice.

Termination of Coverage Notice

If an individual’s coverage is terminated early, the employer must provide a termination notice. This notice must include the following information:

  • The date coverage will terminate.
  • The reason coverage is being terminated.
  • Any rights the qualified beneficiary has under the plan (or the law) to elect alternative coverage, such as the right to convert the plan to a private policy.

There is no timeframe to provide this notice, but regulations say it should be delivered as soon as the decision to terminate coverage is made.

Click here to see a sample Termination of Coverage Notice.

Providing proper COBRA documentation with the right content is an important part of staying compliant with the legislation, but you also need to document the method, timing, and last address of your deliveries. This is for your protection in case you are required to provide evidence that you upheld your obligations.

For more information about disclosure rules (such as the allowed methods for delivery and specific timing requirements), see CFR 2520.104b-1(B). For a detailed breakdown of your obligations and FAQ’s, visit the Department of Labor’s website.

Navigating the rules and requirements of COBRA can be confusing and overwhelming. If you have questions or concerns, Sinclair Risk is here to help – Give us a call!

Shannon Hudspeth
Human Resource Director
shudspeth@srfm.com

Shannon Hudspeth

The Modern Office & Managing the Risk

modern officeToday’s employers are placing a premium on employee wellness and engagement. And rightfully so, hard working employees deserve some love. But in addition to doing right by their people, businesses that provide comprehensive wellness plans and lifestyle perks for their employees are realizing huge benefits from it. But with more unconventional and physical activities going on in the office, there comes a whole new set of risks for employers.

Let’s talk about what employers are doing for their people, how it’s working, and how to manage the risks involved in the modern office.

A New Age of Employee Engagement

Now more than ever organizations in business are truly investing in their people. Employee perks and benefits are evolving to an all new level thanks to forward-thinking companies like Google with state of the art fitness facilities, fully stocked game rooms, free bicycles and more cool perks for employees. Who ever thought we’d see a rock climbing wall at the office?  Googles’ perks go so deep that past and current Google employees have gone online to list their favorite perks working for Google.

Here are Some Common Contemporary Employee Benefits, Perks and Activities

  • Fitness gyms
  • Yoga, Karate, Pilates studios
  • Basketball courts
  • Table games: Ping Pong, Foosball, Billiards, etc.
  • Video games
  • Reading rooms
  • Massage chairs
  • On Site Pet Care
  • And yes, even rock climbing

A New Age of Risk

Not to be a wet blanket, but you can get hurt playing Ping Pong, and the bottom line is: If you’re putting perks and activities in place that present the potential for an accident or injury, you have a responsibility to manage the risk and provide the safest environment possible for your employees. So, before you put up the basketball hoop, put some basic risk management measures in place.

Here are some simple things that you can do to manage the risks involved with lifestyle perks:

Liability Waivers: If you’re offering activities with any level of physicality or potential for injury, it’s a common best practice to get signed waivers from participants…even if it’s only Ping Pong.

Medical Clearance: Depending on the physical level of the activities you make available, you may consider requiring clearance from a doctor before employees may participate in any activities.

Restrict Access: To reduce employer risks, allow only employees of the company (and not friends and family) to take advantage of the amenities (Gym, Sports Court, etc).

Safety Programs: Institute a safety education program covering the equipment and activities, and post safety guidelines in game rooms, gyms, and on ball courts or playing fields.

Get Covered: If you’re thinking of providing any new perks or benefits for your employees, make sure that you have adequate liability and workers’ comp  insurance coverage in place (yes, even if it’s ping pong).

The modern office landscape is changing, and with this new era of employee engagement and all of the perks that go with it, a new set of risks arise. So, if you’re considering taking your benefits package to the next level, talk to us at Sinclair. We specialize in measuring your risk and covering your exposure. We’re also Liability and Workers’ Comp experts, so this is right up our alley.

Shannon Hudspeth
Human Resource Director
shudspeth@srfm.com

Why your business needs a wellness program

The Power of an Open Office Space: Good or Evil?

open office spaceForward thinking iconic Silicon Valley organizations like Google and Facebook started the wave that is known as the open office space. The open office space is an office layout that removes all of the physical barriers between employees-No walls, no cubicles, just desks and people.

Born from the spirit of collaboration (and a desire to maximize productivity per square foot) open office layouts have been adopted by businesses all over the country. But has it been an epic win or an epic fail?  It’s both. Let me explain.

If you type in a search engine query for “open office space”, it doesn’t look so good for the open floor plan. You’ll see results claiming that the open office space is oppressive an environment, a nightmare, and likens the trend to a viral outbreak decimating businesses all over the world (that’s taking it a little far, but that’s the gist of it).

Yet there are still some organizations that sing the praises of the open office space and talk about the tangible benefits they’ve seen in workforce and their profits as a result. It’s obviously a mixed bag and it’s tough to call this one, so let’s break it down.

Here are some pros and cons from both sides of the discussion.

Open Floor Plan Praise

  • It  fosters collaboration
  • Employees feel more comfortable in the space
  • By stripping down physical barriers, it promotes an openness in communication which sparks camaraderie and establishes a stronger sense of team
  • It allows management to have a more hands on “real world” view of the office dynamics
  • Increases productivity

Open Floor Plan Complaints

  • No privacy
  • Causes anxiety in employees due to the fact that everything an employee does is “under the microscope”
  • Hard to concentrate and focus
  • Employees can feel that the interaction with coworkers is “forced” and uncomfortable
  • It causes a divide between employees in the open space and managers in their offices
  • Decreases productivity

 There are valid arguments on both sides of the coin (and some conflicting ones). On one side, the big dot com organizations embrace the concept and are reporting an increase in morale and productivity with the open floor plan in place. In fact in 2015, Facebook moved to a new facility and created the largest open office floor plan in the world.

So, if it’s working for the big guys, Can it be that bad?

Will the Open Office Space work for my business?

From what Facebook says, employees can thrive in the environment and your business can reap the benefits of increased morale and productivity.

 However, employees are people, we’re all unique individuals and what works for one of us, may not work for another. Giving employees no choice but to be on display in front of all of their coworkers will ultimately present a problem for some individuals.

 Organizations like Facebook and Pixar attract employees with the personality for it. That is, professionals who apply for jobs at those organizations know going in that the open floor plan is part of the culture, and it’s something they’re content with. So if you’re a business looking to make a switch to an open office space, it’s not something employees signed up for, so it could meet with some resistance.

Balance is Key: The Hybrid Floor Plan

If you’re thinking about shifting to an open floor plan, consider a hybrid that combines elements of both traditional and open plans. This mix will encourage the collaboration, and create a level of comfort that an open office space is meant for, and at the same time will give the employees an option for more privacy. Sounds like it could be a winner.

Here are a couple simple things to try:

·         Create an open office space floor plan but include some privacy rooms where employees can break away and be on their own, make phone calls, and have some privacy.

·         If space is an issue, conversely you can keep the traditional floor plan in place and create some “open areas” in the office where employees can break out in small groups to collaborate.

The Verdict

The idea of the open office space is a good one, but taken to the extreme it can apparently be problematic and counter-productive. The goal is to create a comfortable space for employees – a “home away from home” helps employees to feel good about their day when they’re putting in long hours. You have to first know your employees and what makes them tick, then you can create an environment that strikes a balance and works for your unique team.

The professionals at Sinclair have a proven history of success in Human Resources. Our staff has the ability to become an integral part of your organization, understanding your products and services, your culture, and your processes. Feel free to get in touch with us anytime for a consultation.

Shannon Hudspeth
Human Resource Director
Why your business needs a wellness program

Are you ready to comply with the new DOL Overtime Payment Rules?

On May 18, 2016, the U.S. Department of Labor (DOL) announced a final rule regarding overtime wage payment qualifications for the “white collar exemptions” under the Fair Labor Standards Act (FLSA).

How does this rule affect your business? The final rule increases the salary an employee must be paid in order to qualify for a white collar exemption. The required salary level is increased to $47,476 per year and will be automatically updated every three years. The final rule does not modify the duties test employees must meet to qualify for a white collar exemption.

Employers will need to comply with this rule by Dec. 1, 2016.

Overtime Rule Change

How can you prepare yourself to comply with the new rule? Follow these steps:

  • Become familiar with the new rule and identify which employees will be affected. Employers should reclassify employees as exempt or non-exempt, as necessary, by Dec. 1, 2016.
  • Consider communicating any work schedule changes to affected employees before the date mentioned above.
  • Evaluate whether implementing new timekeeping practices and training for managers and supervisors on the new requirements is necessary.

The White Collar Exemption

The white collar exemptions are minimum wage and overtime pay exemptions available to certain administrative, professional, outside sales, computer and highly compensated employees.

To qualify for the white collar exemption, an employee must meet a salary basis test, a salary level test and a duties test – the employee must meet all three tests in order to be exempt from FLSA minimum wage or overtime pay requirements.

The three tests are outlined below:

  • The salary basis test is used to make sure the employee is paid a predetermined and fixed salary that is not subject to reduction due to variations in the quality or quantity of work.
  • The salary level test is used to ensure that the employee meets a minimum specified amount to qualify for the exemption. This salary threshold provides employers with an objective and efficient way to determine whether an employee qualifies for a white collar exemption.
  • The duties test requires that the employee’s job duties conform to executive, administrative or professional duties, as defined by law. This analysis requires a more thorough evaluation of whether an employee can be classified in one of these categories: administrative, professional, outside sales, computer and highly compensated employee.

Higher Salary Threshold Requirement

The final rule increases the minimum salary level of $455 per week ($23,660 per year) to $913 per week or $47,476 per year. The new salary level represents the 40th percentile of wages earned by workers in the lowest-wage census region in the United States (currently the South) for a full-year worker.

The final rule also increases the $100,000 salary level for highly compensated individuals to $134,004 per year—the 90th percentile of wages earned by full-time workers across the entire United States.

These higher salary levels will be updated every three years to maintain the salary level at their corresponding 40th or 90th percentiles. The first automatic rate update is expected by Jan. 1, 2020. The DOL will publish updated rates in the Federal Register and on the Wage and Hour Division’s website at least 150 days before their effective date.

Calculating Employee Wages

Administrative, Executive and Professional Employees

The final rule will allow, for the first time, non-discretionary bonuses and incentive payments (including commissions) to be used to satisfy up to 10 percent of an employee’s standard salary level. This may include the payment of non-discretionary incentive bonuses tied to productivity and profitability. Non-discretionary bonuses and incentive payments may be used if they are paid on a quarterly basis, but more frequent payments are acceptable. However, the DOL will allow employers to make some “catch-up payments.”

The DOL will also allow employers to use significantly large bonuses toward 10 percent of the required salary amount.

Highly Compensated Employees

Under the final rule, highly compensated employees qualify for an overtime exception if they meet the new salary level of $134,004 per year. However these individuals must receive at least the full standard salary amount each pay period (i.e., $913 per week, $1,826 bi-weekly or $3,956.33 per month) on a salary or fee basis (not counting non-discretionary bonuses and incentive payments).

The remainder of a highly compensated employee’s wages may be calculated by including the full amount of non-discretionary bonuses and incentive payments (including commissions).

Impact on Employers

Given the significant increase in the salary level requirement, employers will need to increase employee salaries, or re-classify certain employees as either exempt or non-exempt, solely based on their salary level. The DOL estimates that this final rule extends overtime protections to approximately 4.2 million workers who are currently exempt under the white collar rules and clarifies overtime compensation eligibility for another 5.7 million white collar workers and 3.2 million salaried blue collar workers whose entitlement to overtime pay will no longer rely on the application of the duties test.

In addition, because of the short implementation deadline, employers should not delay becoming familiar with the new requirements and implementing any necessary changes into their timekeeping and payroll systems. Employers should also determine whether additional training on modifications is necessary for their managers and supervisors.

Finally, employers should also consider communicating with employees to inform them of how their wages, hours of work and timekeeping practices will be affected.

Enforcement and Compliance

Employers that fail to comply with the final rule may be subject to a variety of overtime wage payment enforcement mechanisms, including the ones listed below.

  • Private employee lawsuits: These lawsuits can be initiated by employees either individually or through collective action to recover back pay, interest, attorneys’ fees and court costs.
  • Administrative injunctions: These injunctions may include a prohibition on the shipment of goods in interstate commerce if the goods were produced in violation of the FLSA (including overtime wage payment provisions).
  • Civil fines for willful and repeated violations (up to $1,100 per violation).
  • Criminal charges for willful violations (up to $10,000 in fines, imprisonment for up to six months or both).

These laws can seem confusing and complex. If you have questions or need more information, please contact Sinclair Risk & Financial Management – we’re here to help!

Shannon Hudspeth
Human Resource Director
Overtime Rule Changes

You’ve Hired Someone with a Questionable Record: What’s Next?

You’ve Hired Someone with a Questionable Record: What’s Next?As a hiring manager, you know how difficult it can be to find the perfect candidate. In unsteady economic times like these, thousands of people can reply to the same job ad. It’s your duty to comb through them to find the best candidate for the position.
However, all those phone calls to verify employment and forms to request database information can take time. There’s work to be done! When you need someone right now, it can be tempting to cut corners. Don’t – it’s not worth it in the end.  Let the process do the work.
What do you do when you discover your new hire has a criminal (or otherwise questionable) record?
It sounds harsh, but hiring someone with a criminal record, industry sanctions, or other black marks on their record can pose a significant risk to your business and expose your company to liability.
1. Confirm your information is accurate. Verify in any way you can that the record actually belongs to your new hire. Data entry inaccuracies on your part and/or the database you used are quite common. In many cases, a small detail (like an old address or a middle initial) will clear up the confusion. If you use a third-party screener, double check they have provided you with the correct information.
2. Understand the conviction or sanction. Carefully investigate the employee’s past infraction that concerns you. Depending on the type, severity, and distance from the questionable mark, you may choose to disregard it. Of course, infractions in certain industries can’t be ignored, like the medical and financial sectors. It may be helpful to speak with a lawyer to make sure you don’t violate the new hire’s rights. If the person has a parole/probation officer or case counselor, speak with them as well.
3. Execute a Pre-Adverse Action. According to the Fair Credit Reporting Act, a job candidate or employee must be given an opportunity to dispute or explain any information uncovered on a background check. The employer must issue a Pre-Adverse Action, which is a document that informs the new hire that they can be terminated based on the information in the background check. You are also required to give the employee a copy of their rights under the Fair Credit Reporting Act, the background report, and a reasonable amount of time to respond.
4. Execute an Adverse Action. If the employee is unable to offer a suitable explanation or adequate proof that the results of the background check are inaccurate, you may issue an Adverse Action and termination. This must be done in writing. 
5. Review your screening process. If someone slipped through the cracks, your screening process needs some work. First, identify where the error occurred. Were the interview questions less than thorough? Were the references checked? Was each step of the background check completed? Were any licensing or accreditation agencies contacted? 
It’s worth mentioning that by hiring a felon, you may be creating a fiercely loyal employee. Job prospects for felons (or anyone with unfavorable marks on their records) can be slim. By giving the hire an opportunity, you may be rewarded with an outstanding employee who won’t leave a safe, steady job. 
Hiring a candidate should be a thorough multi-step process that uncovers problems and red flags as early as possible. That’s why a proper background check should always be a part of your screening process. You must simultaneously ensure the candidate/employee’s rights are protected and business is insulated from potential harm.
Shannon Hudspeth
Human Resource Director

Why your business needs a wellness program

Beyond the Bonus: Powerful Ways to Reward Your Employees


Beyond the Bonus: Powerful Ways to Reward Your EmployeesA company or organization can only achieve success through the hard work and dedication of its employees. Those employees need to feel motivated and empowered to produce excellent work. 
Finding ways to inspire employees is one of the challenges of today’s managers. The conventional solution is to throw money at the problem in the form of bonuses. The best managers know how to lead without writing checks. Plus, in today’s economic climate, rewarding employees with cash is tough for many businesses. 
Creating a compelling incentive for an employee (or an offer to a candidate) doesn’t have to be centered around pay. Here are some powerful ways you can reward your employees (and boost their happiness and loyalty) without writing bonus checks.  
Public Appreciation
Saying “thank you” behind closed doors is well and good, but we’re social animals that like others to know about our accomplishments. Find ways to acknowledge your employees in public forums, like company newsletters, meetings, or memos. Make sure to document exactly what the employee did above his or her job so you set the standard for others to excel as well.
Employment Perks
Perks are simple ways to make the workplace a bit more comfortable for your employees. Things like free coffee and snacks, free lunch, or even elaborate benefits like a daycare facility or pick-up dry cleaning are excellent ways to make your staff feel like the company is taking care of them. Furthermore, an employee perceives the value of these perks higher than they actually cost you. (For example, an employee values a bottle of water at $2 because that’s what they would pay, but you pay less by buying in bulk for the office.)
Flexible Schedules
For many people, a flexible schedule that can adapt to their lives is worth more than money. A schedule they can adjust within reason may reduce their time spent in traffic, save a few dollars with their daycare provider, or give them a chance to spend more time with their spouse. When work stops being an obstacle in their life, you greatly improve their happiness. 
Opportunities to Develop
Career-minded people are always looking for ways to improve their resumes and skill sets. Give high-performing individuals the tools they need by investing in their education through classes and conferences. Place them in positions of authority and responsibility within your company where they can lead others and improve professionally. Not only will this help your employee grow, but it also strengthens their commitment to your company.
Ask Your Employees
Before doling out what you think your employees want, ask them directly how you can help them do their job better, improve productivity, and improve their work/life balance. You might be surprised at what they find valuable. 
Shannon Hudspeth
Human Resource Director
Why your business needs a wellness program

“Ban the Box” Law Prohibits Inquiries of Criminal History

“Ban the Box” Law Prohibits Inquiries of Criminal HistoryOn June 1st, Connecticut Governor Malloy signed House Bill 5237, An Act Concerning Fair Chance Employment. This new law is referred to as the “Ban the Box” bill.

Effective January 1st, 2017, Connecticut employers will be prohibited from asking about criminal history (including prior arrests, convictions and charges) on job applications. Connecticut is now the 19th state to adopt this type of legislation.

The law applies to any employer with one or more employees, including the state (and any political subdivisions of the state). However, it does not apply to job applications of independent contractors.

The Equal Employment Opportunity Commission collected data that shows that 92% of employers perform criminal background checks on job candidates, and that a criminal record reduces the likelihood of a job offer (and even just a callback) by more than 50%.

The EEOC asserts that the criminal history box on an application allows employers to instate blanket policies to disregard any applicant with a criminal history. Further, they claim these practices disproportionally affect minority applicants, which violates the 1964 Civil Rights Act.

The new law is designed to enhance the protections of people with criminal or legally-troubled pasts. Throughout the United States, more than 100 million people (about a third of the population) have criminal records.

There are two exceptions to this new law. An employer may ask about an applicant’s criminal history on a form if they are otherwise required to by state or federal law. They may also ask about criminal history if any kind of security, fidelity or money bond is required for the position.

Similar “Ban the Box” laws in other states typically prevent the employer from inquiring about criminal information until a certain point in the hiring process. However, Connecticut’s law only prohibits a criminal history inquiry on the initial application. Employers may ask questions about an applicant’s history at any point forward, including during the interview. The interviewer may also run a background check on an applicant and ask any questions they like, even regarding expunged and erased convictions.

The law establishes a “Fair Chance Task Force” that will study employment opportunities available to individuals with criminal histories and may recommend further statutory restrictions.

The law is a victory for anyone whose past has been marred with any type of convictions or arrests. It allows them to display their credentials to prospective employers before being forced to reveal their criminal past.

Employers should take a few steps to ensure compliance with the “Ban the Box” law: 1) Remove any language regarding criminal histories from job applications and advertisements. 2) Provide training to employees who conduct hiring to teach them when it is acceptable to make inquiries into criminal histories of applicants. 3) Audit the hiring process to ensure the compliance and timing of inquiries into criminal histories.

Shannon Hudspeth
Human Resource Director
shudspeth@srfm.com

“Ban the Box” Law Prohibits Inquiries of Criminal History

Massachusetts Earned Sick Time Law effective July 1, 2015

Shannon HudspethOn Nov. 4, 2014, Massachusetts voters approved a ballot measure, known as the “Massachusetts Paid Sick Days Initiative,” to provide earned paid sick leave to employees.The Earned Sick Time Law is effective July 1, 2015, and generally covers all employers in Massachusetts. However, employers must comply with existing collective bargaining agreements or contracts that have more generous leave provisions.

On April 24, 2015, the Massachusetts Attorney General filed draft regulations to implement the Earned Sick Time Law, which clarify practices and policies in the administration and enforcement of the law. The draft regulations are not final, therefore, employers are not required to comply with them.

Also, on May 17, 2015, the Massachusetts Attorney General announced a delay in implementation of the earned sick time requirement, until Jan. 1, 2016, for certain employers who satisfy the requirements of a “safe harbor.”

Covered employers

In general, all employers in Massachusetts are required to comply with the Earned Sick Time Law. However, the paid leave requirement only applies to employers with 11 or more employees, as follows:

  • Employers with 11 or more employees must allow all employees to earn and use paid sick time.
  • Employers with fewer than 11 employees must allow all employees to earn and use unpaid sick time.

Eligible employees

All employees—including part-time, temporary and seasonal employees—working in Massachusetts are eligible to accrue earned sick time. Whether an employee’s accrued earned sick time is paid depends on the size of his or her employer.

Employers may restrict the use of earned sick time for the first 90 days of employment.

Accrual of earned sick time

The Earned Sick Time Law requires that employees earn a minimum of one hour of sick time for every 30 hours worked, starting July 1, 2015, up to a maximum of 40 hours per calendar year.

Employees must be permitted to carry over up to 40 hours of earned but unused sick time into the next calendar year. However, the law does not require employers to allow employees to use more than 40 hours of earned sick time in a calendar year.

Reasons for leave

An employee may use earned and accrued sick time, whether paid or unpaid, to:

  • Care for a physical or mental illness, injury or medical condition affecting the employee or his or her child, spouse, parent or parent-in-law;
  • Attend routine medical appointments of the employee or his or her child, spouse, parent or parent-in-law; or

Address the effects of domestic violence on the employee or his or her dependent child.

Notice and certification requirements

When possible, and when the need for leave is foreseeable, the law requires employees to make a good faith effort to provide advance notice of leave to their employers.

In addition, employers may require medical documentation or certification for the need to use earned sick time if the employee is absent for more than 24 consecutive work hours. However, an employer may not delay or deny sick time if this certification is not received.

Employee protections

An employer may not interfere with an employees’ right to use earned sick time and may not retaliate against any employees who request to use earned sick time.

Draft Regulations

On April 24, 2015, the Massachusetts Attorney General filed draft regulations to implement the Earned Sick Time Law. These draft regulations clarify practices and policies in the administration and enforcement of the Earned Sick Time Law including, but not limited to, the following:

  • Requirements that an employer’s paid time off, vacation or other PTO policy must meet in order to be considered an allowable substitution for an earned sick time program;
  • How employers are to address the “transition year” of July 1, 2015, until the beginning of the next calendar year for employee accrual and use purposes;
  • Employer documentation and recordkeeping requirements; and
  • How the Earned Sick Time Law affects attendance policies that reward employees for good attendance.

The draft regulations are not final. Therefore, at this time, employers are not required to comply with them. There will be various public hearings on the draft regulations, including a public comment period, which ends on June 10, 2015. The draft regulations, as well as information on public hearings and comment submissions, are available on the Attorney General’s website.

Delayed Implementation safe harbor

Employers who satisfy the requirements of a safe harbor may delay the implementation of earned sick time until Jan. 1, 2016, according to the Massachusetts Attorney General.

To qualify for this safe harbor, all of the following requirements must be met:

  • The employer must have had a paid time off policy in place as of May 1, 2015;
  • The employer’s paid time off policy must have provided employees with the right to use at least 30 hours of paid time off during the 2015 calendar year; and
  • Any paid time off, including sick time, used by an employee from July 1, 2015, to Dec. 31, 2015, must be job-protected leave subject to the law’s non-retaliation and non-interference provisions.

On or before Jan. 1, 2016, all employers operating under this safe harbor must adjust their paid time off policy to conform to the requirements of the Earned Sick Time Law.

More information on the Massachusetts Earned Sick Time Law is available on the Massachusetts Attorney General’s website.

Shannon Hudspeth, SPHR

shudspeth@srfm.com