Employment and Labor Laws

Massachusetts

Massachusetts Sick Leave Laws


Eligible employees

All employees who work in Massachusetts are eligible for paid sick leave under Massachusetts paid sick leave law, except for the following:

  • employees who have a primary place of employee in a state other than Massachusetts;
  • employees of the United States government
  • employees of cities and towns, unless the sick leave law is adopted by vote or appropriation as provided in CXV of the Amendments of the Massachusetts Constitution;
  • employees of local public employers that are not considered cities and towns, such as school committees, regional schools, and educational collaboratives, unless the sick leave law is adopted by vote or appropriation of the prudential bodies governing the entities;
  • students attending a public or private institution of higher education located in Massachusetts who:
    • participates in a federal work-study program or a similar financial aid or scholarship program;
    • provides supports services to residents of a residence hall, dormitory, apartment building, or other residence run by the institution of higher learning that where they attend in exchange for a waiver or reduction of room, board, tuition, or other educational expenses; or
    • exempt for FICA tax pursuant to 26 USC 3121(b)(10);
  • a school-aged student as defined by 20 USC 1400-1409 (Individuals with Disabilities Act); and
  • an adult client who resides in a Massachusetts licensed program and performs work duties within the program setting as part of bona fide educational or vocational training.

MA Statute 149.148C(a); MA Regs. 940.33.02


Employees’ primary place of employment

Massachusetts sick leave law only requires employers to provide eligible employees with sick leave if Massachusetts is the employees’ primary place of employment. An employee’s primary place of employment is Massachusetts if he or she spends more of his or her time working in Massachusetts than any other state; he or she is not required to work a majority of their time in Massachusetts. For example, if an employee works 40% of his or her time in Massachusetts, 30% of his or her time in Connecticut; and 30% of his or her time in Rhode Island, Massachusetts is the employee’s primary place of employment and the employer must provide sick leave to the employee. MA Statute 149.148C(a); MA Regs. 940.33.03(1)

Moreover, if the employee’s primary place of employment is Massachusetts, the employer must include hours worked by the employee for purposes of sick leave accrual regardless of where the hours are worked. In the prior example, the employer would need to include all hours worked by the employee in Massachusetts, Connecticut, and Rhode Island in its sick leave accrual calculation for the employee. MA Regs. 940.33.03(2)

Employees who permanently transfer to a different state but remain with the same employer are no longer eligible to accrue sick leave under Massachusetts’ sick leave law, but may continue to use sick leave that they accrued prior to the transfer. MA Regs. 940.33.03(3)


Covered employers

Under Massachusetts’ sick leave law, all employers are required to provide sick leave to employees, except:

  • the United States government;
  • cities and towns, unless the sick leave law is adopted by vote or appropriation as provided in CXV of the Amendments of the Massachusetts Constitution;
  • local public employers that are not considered cities and towns, such as school committees, regional schools, and educational collaboratives, unless the sick leave law is adopted by vote or appropriataion of the prudential bodies governing the entities;

MA Statute 149.148C(a); MA Regs. 940.33.02

For purposes of this sick leave law, the Department of Medical Assistance is deemed to be the employer of personal care attendants, as defined in MA Statute 118E.70, unless otherwise noted. The Department of Early Education and Care is deemed to be the employer of family child care providers, as defined in MA Statute 15D.17(a). MA Statute 149.148C(d)(5)


Employer size and paid vs. unpaid sick leave

Under Massachusetts’ sick leave law, employers with an average of ten (10) or fewer employees in the preceding benefit year are only required to provide employees with unpaid sick leave. Employers with an average of 11 or more employees in the preceding benefit year must provide employees with paid sick leave. To determine the average number of employees, an employer must count the number of employees, including full-time, part-time, seasonal, and temporary employees, on the payroll during each pay period in the preceding benefit year and divide that number by the number of pay periods. MA Statute 149.148C(d)(4) & (6), (n); MA Regs. 940.33.04(1), (4) This includes all employees working for the employers, regardless of whether they work in or outside Massachusetts or are otherwise eligible to accrue or use sick leave. MA Regs. 940.33.03(3) Temporary employees provided by temporary staffing agencies must be counted by both the temporary employer and the staffing agency for purposes of determining the average number of employees employed in a benefit year. MA Regs. 940.33.04(1)

Employers that use start dates to determine employee benefit years other than January 1, such as the anniversary of hire, should use the previous calendar year to determine their average number of employees. MA Regs. 940.33.04(2)


Sick Leave Accrual

Massachusetts’ sick leave law requires employers to credit employees with at least one (1) hour of sick leave for every thirty (30) hours worked, including overtime hours. Employers are not required to include hours spent by employees on paid leave in their sick leave accrual calculation. Accrual of sick leave begins on the first day of an employee’s employment (if an employee began working before July 1, 2015, accrual begins from that date). MA Statute 149.148C(d); MA Regs. 940.33.02

For accrual purposes, administrative, executive, professional, and outside salesmen who are exempt from federal overtime requirements pursuant to 29 USC 213(a)(1) are deemed to work forty (40) hours per week for purposes of sick leave accrual, unless they are regularly scheduled for fewer hours in which case sick leave may accrue based on their regularly scheduled number of hours. MA Statute 149.148C(d)(3); MA Regs. 940.33.03(6) For purposes of this provision of the law, PCA Quality Home Care Workforce is deemed to be the employer of all personal care attendants, as defined in MA Statute 118E.70. MA Statute 149.148C(d)(5)

For employees who are paid on a piecework or fee-for-service basis, employers should calculate their accrued sick leave based on a reasonable measure of time worked by the employee. Adjunct faculty who are compensated on a fee-for-service or per-course basis must be credited for three (3) hours of work for every one (1) hour spent teaching in the classroom. MA Regs. 940.33.03(7), (7)(a)

Employers must credit family child care providers, as defined in MA Statute 15D.17 with 6 work hours for each part day worked and 10 work hours for each full day worked. MA Regs. 940.33.03(7)(b)


Accrual caps and use limits

Employers may cap an employee’s sick leave accrual at forty (40) hours per benefit year and may delay any further accrual until the employee uses some of his or her accrued sick time. MA Regs. 940.33.03(8), (9) Additionally, an employer is only required to allow employees to use up to forty (40) hours of accrued sick leave in each benefit year. MA Regs. 940.33.03(12) Employees may not use sick leave for time they are not scheduled to work. MA Regs. 940.33.03(13) Employees who have both accrued paid and unpaid sick leave due to changes in their employer’s size above or below 10 employees may choose whether to use either or both to cover the use of sick leave. MA Regs. 940.33.04(7)


Benefit year

A benefit year is any consecutive 12-month period designated by the employer for purposes of sick leave accrual and related sick leave compliance issues. It is not required to run from January 1 to December 31. MA Regs. 940.33.02


Vesting period

Under Massachusetts’ sick leave law, an employer may require employees to be employed with the company or other entity up to ninety (90) days before they begin using accrued sick leave. The 90-day period includes both days worked and days not worked. Employees hired by employers on or before April 2, 2015, may begin using accrued sick leave on July 1, 2015, the effective day of Massachusetts sick leave law. The vesting date for employees hired after April 2, 2015, is ninety (90) days after their hire date. MA Regs. 940.33.03(29), (30), (34)


Annual rollover

Massachusetts sick leave law requires employers to allow employees to rollover up to forty (40) hours of accrued sick leave from one benefit year to the next. MA Regs. 940.33.03(10)


Tracking accrued sick leave

Massachusetts sick leave law allows employer to track accrued sick leave in increments smaller than one (1) hour for (thirty) 30 hours of work. For example, an employer could track sick leave based on one (1) minute of sick leave earned for every thirty (30) minutes worked or two (2) minutes for every one (1) hour worked. MA Regs. 940.33.03(11)


Lump sum sick leave

Massachusetts’ sick leave law allows employers to provide employees with a lump sum of forty (40) hours of sick leave at the beginning of each benefit year. Employers that choose to provide lump sum sick leave do not need to track accrual or allow any annual rollover, so long as the policy is otherwise consistent with Massachusetts’ sick leave law. MA Regs. 940.33.07(4)


Use of unaccrued sick leave

Employers and employees may agree in writing to allow the employee to use sick time before accruing it and for employers to count the use against future accrued leave. MA Regs. 940.33.03(22)


Alternative sick leave accrual options

If employers prefer not to track sick leave accrual over the course of a benefit year, they may use the schedule below to provide incremental lump sums of sick leave based on the average number of hours worked by employees in a workweek:

  • 37.5 to 40 hours – 8 hours of sick leave for 5 months
  • 30 hours – 5 hours per month for 8 months
  • 24 hours – 4 hours per month for 10 months
  • 20 hours – 4 hours per month for 9 months
  • 16 hours – 3 hours per month for 10 months
  • 10 hours – 2 hours per month for 10 months
  • 5 hours – 1 hour per month for 10 months

Employers may use this schedule even if the hours worked by employees vary from week to week. An employer may also choose to accelerate the accrual or increase hours. Under this system, employees are entitled to rollover up to 40 hours to the next benefit year and an employer may delay the lump sum grants of sick leave while the 40 hour bank of sick time remains unused. MA Regs. 940.33.07(8)


Increments of sick leave use

Pursuant to Massachusetts’ sick leave law, the smallest amount of sick time an employee may use is one (1) hour, even if the employee needs to use less than that amount of time. For leave beyond the first hour, employers may use hourly increments or the smallest increment used by the employer for payroll or other leave purposes. For example, if an employer pays employees based on 10-minute increments, it may establish a policy in which it deducts accrued leave from an employee’s sick leave bank in 10-minute increments after the employee’s first hour of leave. MA Stat. 149.148C(d)(7); MA Regs. 940.33.03(14)


Sick leave deductions and replacement employees

In situations where an employer is required to hire a replacement employee or call in another employee due to an employee’s use of sick leave, the employer may deduct from the employee’s sick leave bank an amount of time equal to the number of hours the replacement or call-in employee works, up to a full shift of earned sick time. If the employee does not have enough accrued leave to cover the amount of time worked by the replacement or call-in employee, the employer must grant the employee enough unpaid leave to make up the difference. MA Regs. 940.33.03(18) In situations where an employer does not hire a replacement employee or call in another employee and an employee misses a ride to a work site due to the use of sick leave, the employer may only require the employee to use sick leave up until the employee arrives at the work site. MA Regs. 940.33.03(91)


Using make-up time instead of sick leave

An employer and employee may, by mutual agreement, arrange for the employee to work additional hours during the same or next pay period to avoid the use of sick leave. MA Regs. 940.33.03(20) Employers may allow fee-for-service employee to make up hours during the same pay period or future pay period to avoid using sick leave. MA Regs. 940.33.03(21) An employer may not require any employee to make up time as a condition of using sick leave. MA Statute 149.148C(e); MA Regs. 940.33.03(20)


Permitted uses

Under Massachusetts’ sick leave law, an employee may use earned sick time:

  • to care for the employee’s child, spouse, parent, or parent of a spouse, who suffers from a physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care;
  • to 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;
  • to attend regular medical appointments for the employee or the employee’s child, spouse, parent, or parent of a spouse;
  • to address the psychological, physical, or legal effects of domestic violence; and
  • to travel to and from an appointment, a pharmacy, or other location related to the purpose for sick leave was taken.

MA Statute 149.148C(c); MA Regs. 940.33.02


Child defined

For purposes of Massachusetts sick leave law, a child includes a biological child, adopted child, foster child, step-child, legal ward, or child for whom an employee has assumed the responsibilities of parenthood in accordance with 29 USC 2611(12) and 29 CFR 825.122(c). MA Regs. 940.33.02


Parent defined

For purposes of Massachusetts sick leave law, parent includes a biological parent, adoptive parent, foster parent, or step-parent of an employee or an employee’s spouse, or other person who assumed parental responsibilities when the employee or employee’s spouse was a child. MA Statute 149.148C(a)


Spouse defined

For purposes of Massachusetts sick leave law, spouse has the same meaning as spouse in Massachusetts’ marriage laws. MA Statute 149.148C(a)


Domestic violence defined

For purposes of the Massachusetts sick leave law, and at all time consistent with MA Statute 151A.1(g1/2), domestic violence includes any abuse committed against an employee or an employee’s chile by:

  • a current or former spouse of the employee;
  • an individual with whom the employee shares a child in common;
  • an individual with whom the employee does cohabitate or has cohabitated;
  • a relative either through blood or marriage; or
  • an individual with whom the employee has or had a dating or engagement relationship.

MA Regs. 940.33.02


Health care provider defined

Massachusetts sick leave law defines a health care provider to include:

  • a doctor or medicine or osteopathy authorized to practice medicine or surgery in the State where the doctor practices;
  • any person capable of providing health care services as determined by the US Secretary of Labor pursuant to 29 USC 2611 (see also 29 CFR 825.125), include:
    • podiatrists, dentists, clinical psychologists, optometrists, and chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice in their State of practice and performing within the scope of their practice as defined under their State’s law;
    • nurse practitioners, nurse-midwives, clinical social workers, and physician assistants authorized to practice under their State of practice and who are performing within the scope of their practice as defined under their State’s law;
    • Christian Science Practitioners listed with the First Church of Christ, Scientist in Boston, Massachusetts;
    • health care providers from whom an employer or the employer’s group health plan’s benefits manager will accept certification of the existence of a serious health condition to substantiate a claim for benefits; and
    • a health care provider listed above who practices in a country other than the United States, who is authorized to practice in accordance with the law of that country, and who is performing within the scope of his or her practice as defined under such law.

MA Statute 149.148C(a); MA Regs. 940.33.02


Paying employees for sick leave; the same hourly rate required

When paying employees for sick leave, employers must pay employees for sick leave at the employee’s same hourly wage rate they are paid for actual time worked. MA Regs. 940.33.02, 940.33.03(25)

Hourly employees

For hourly employees, the same hourly rate is the employee’s regular hourly rate. For employees who are paid at different hourly rates by the same employer for different hourly work, the same hourly rate may be either:

  • the wage rate the employee would have been paid if he or she had performed the work for which he or she was absent, or
  • a blended rate calculated by taking the weighted average of all regular rates the employee was paid over the previous pay period, month, quarter, or any other established period of time the employer customarily uses to determine blended rates for other similar purposes.

Once an employer has determined which method to use to pay employees with multiple hourly rates for sick leave, it must consistently apply the same method to all employees throughout the benefit year. MA Regs. 940.33.02

Salary employees

For salary employees, the same hourly rate is determined by an employee’s total earnings in the previous pay period divided by the total hours worked by the employee in the pay period. For purposes of the same hourly rate calculation, it is assumed administrative, executive, professional, and outside salesmen who are exempt from federal overtime requirements pursuant to 29 USC 213(a)(1) work forty (40) hours per week unless they are normally scheduled to work fewer hours, in which case their hourly rate should be calculated using the employee’s normal workweek. The same hourly rate for a salaried employee may not be less than Massachusetts’ current minimum wage. MA Regs. 940.33.02

Piece work and fee-for-service employees

For piece work and fee-for-service employees, the same hourly rate is based on a reasonable calculation of the wages or fees the employee would have received for the piece work, service, or part thereof if they had performed the work instead of taking leave. The same hourly rate for piece work and fee-for-service employees may not be less than Massachusetts’ current minimum wage. MA Regs. 940.33.02

Commission employees

For employees who are paid in whole or in part by commission, the same hourly rate is the greater of the employee’s base wage or Massachusetts’ current minimum wage. MA Regs. 940.33.02

Tipped employees

For tipped employees who are paid the tipped minimum wage (service rate), the same hourly rate is Massachusetts’ current minimum wage. MA Regs. 940.33.02

Not included in same hourly rate

Employers do not need to include the following in the calculation of an employee’s same regular rate:

  • amounts paid as commissions, drawing accounts, bonuses, or other incentive pay based on sales or production;
  • amounts paid under 29 USC 207(e), including contributions irrevocably made by an employer to a trustee or third party pursuant to a bona fide benefit plans, including but not limited to, health, life, accident, retirement, and old-age insurance; or
  • overtime, holiday, or other premium rate (differential rates, such as night shift pay, are not considered premium rates for purposes of Massachusetts’ sick leave law).

MA Regs. 940.33.02


Payment after use of sick leave

Employers must pay employees for sick leave at the same time it pays for hours worked by the employee in the same pay period. It may not delay the payment for sick leave. MA Regs. 940.33.03(26)


Payment of sick leave at the end of a benefit year or at the time of a job transfer

An employer may choose to pay employees for up to 40 hours of unused earned sick time at the end of a benefit year or when the employee transfers job within the same company. If an employer choose to pay out sixteen (16) or more hours, it must provide sixteen (16) hours of unpaid sick leave time until the employee accrues new paid sick time, which will replace the unpaid time as it is earned. Employers who pay out less than sixteen (16) hours must provide the employees with an equivalent amount of unpaid sick leave until the employee accrues new paid sick time, which will replace the unpaid time as it is earned. MA Regs. 940.33.03(27)


Payment of accrued sick leave upon separation from employment

An employer is not required to pay employees for accrued sick leave upon separation from employment, regardless of the reason. MA Regs. 940.33.03(28)


Rehired employees

Employees who are rehired by the same employer within four months after a separation from employment are entitled to the reinstatement of all previously accrued sick leave and may begin to use the sick leave on the first day of rehire. Employees who are rehired between four (4) and twelve (12) months after a separation from employment are entitled to the reinstatement of all previously accrued sick leave and may begin to use the sick leave on the first day of rehire if they had 10 or more hours of accured leave prior to the separation from employment. MA Regs. 940.33.03(31)-(33)


Alternative eligible leave policies

Employers are considered to be in compliance with Massachusetts’s sick leave law if they offer their own sick leave, vacation leave, or other time off policies if the policies allow employees to use at least the same amount of time, for the same purposes, under the same conditions, and with the same protection as required by Massachusetts’ sick leave law. MA Statute 149.148C(k); MA Regs. 940.33.07(1) Employers’ own paid leave policies are sufficient if they:

  • provide 40 hours of time off, or a lesser amount based on an employee’s accrual rate;
  • provide for an accrual rate of no less than one (1) hour for 30 hours of work;
  • pay employees for leave at the employee’s same hourly rate;
  • allow for all the purposes permitted by Massachusetts’ sick leave law;
  • make leave available under the same notice and documentation requirements; and
  • provide for the same job protections.

MA Regs. 940.33.07(3)

Employers are permitted to maintain different policies for different groups of employees so long as all policies conform to the requirements of Massachusetts’ sick leave law. MA Regs. 940.33.07(2)


Multi-use leave policies

Employers’ multi-use leave policies that provide employees with 40 or more hours of leave and allow employees to use the leave for vacation, sick, and other personal time may comply with Massachusetts’ sick leave law if they its minimum requirements. If an employer maintains a compliant multi-use leave policy, it is not required to provide additional sick leave to employees who use all their accrued time for purposes other than sick leave, so long as the employer makes clear to employees that the additional time will not be provided. MA Regs. 940.33.07(2)


Unlimited sick leave policies

Employers may maintain unlimited sick leave policies. Employers that maintain such policies are not required to track sick leave accrual or allow any annual rollover, so long as they are otherwise compliant with Massachusetts’ sick leave law. MA Regs. 940.33.07(6)


Employer notice requirement

An employer must post a notice of Massachusetts’ sick leave laws, published by Massachusetts’ Attorney General, in a conspicuous place accessible to employees in every location where eligible employee work. English, Spanish, Portuguese. MA Statute 149.148C(o); MA Regs. 940.33.09(3)

Employers must also provide a hard copy or electronic copy of the notice to all eligible employees, or include the employer’s policy on earned sick time or the employer’s allowable substitute paid leave policy in its employee handbook. MA Regs. 940.33.09(4)

Employers must notify all eligible employees in writing at least 30 days in advance if future accrued sick leave will be changing from paid to unpaid or unpaid to paid because of a change in the employer’s size. MA Regs. 940.33.04(5)


Employee notice requirement

An employer may require employees to provide up to seven (7) days’ notice of the need to take sick leave when the need for leave is know that far in advance. When the need for sick leave is not known prior to the standard notice period or is unforeseeable, the employer may require employees to provide notice of the need for leave as soon as is reasonable under the circumstances. If an employer requires employees to provide notice a set number of days before taking leave, the policy must be in writing. MA Statute 149.148C(g); MA Regs. 940.33.05(1)(a)-(c)

If an employee’s sick leave absence will span multiple days, an employer may require that the employee to provide the expected duration of the leave, or if unknown, provide daily updates of the employee’s status either by the employee or the employee’s spouse, adult family member, or other responsible party, unless the notice is otherwise unreasonable. MA Regs. 940.33.05(1)(a)-(c)

Employers may establish a reasonable system for employees to use to notify it of their need to use sick leave; however, the system must allow employees to provide notice consistent with the manner in which employees customarily provide notice to the employer about absences or the need for leave. MA Regs. 940.33.05(2) Moreover, an employer may not require an employee to use specific terms when requesting sick leave so long as the notice is sufficient for the employer to understand that the employee needs to use sick leave for a permitted purpose. MA Regs. 940.33.05(3)

If an employer questions whether an employee 17 years old or younger is using sick leave of improper purposes, it may request verification from a parent or guardian that the employees is using the time for proper purposes. MA Regs. 940.33.05(4)


Written sick leave documentation

Massachusetts sick leave law allows employers to require employees to personally verify in writing that they are using earned sick time for an allowable purpose. MA Regs. 940.33.06(10) Employers may require employees to provide additional written documentation supporting their need to use sick leave in the following situations:

  • when leave exceeds 24 consecutively scheduled work hours;
  • when leave exceeds 3 consecutive days on which the employee was scheduled to work;
  • when leave occurs within two (2) weeks of an employee’s final scheduled day of work for the employer, except for temporary employees;
  • when an employee has already had 4 unforeseeable and undocumented absences with a 3-month period; or
  • when an employee who is 17 years old or younger has 3 unforeseeable and undocumented absences within a 3-month period.

MA Statute 149.148C(f); MA Regs. 940.33.06(1)

The employer may require the following forms of written documentation:

  • documentation signed by a health care provider indicating the need for the earned sick time;
  • for purposes of need related to domestic violation, any of the following:
    • a restraining order or other similar document issued by a court of competent jurisdiction;
    • a police record related to the abuse;
    • documentation showing the alleged perpetrator has been convicted of one or more of the offenses listed in Massachusetts Stat. 265, where the victim was a family or household member;
    • medical documentation of the abuse;
    • a written statement by a counselor, social worker, health worker, member of the clergy, shelter worker, legal advocate, or other professional who helped the employee address the effects of the abuse; or
    • a signed written statement from the employee attesting to the abuse.

MA Regs. 940.33.06(2)

Public employers that perform essential public health and safety functions may require employees to provide written documentation from a medical provider and to follow any additional notification procedures set forth by the employer when using sick leave during severe weather events or other emergencies. MA Regs. 940.33.06(11)

Health care providers may require employees to provide written documentation from a medical provider and to follow any additional notification procedures set forth by the employer when using sick time during local, state, or federally declared emergencies. MA Regs. 940.33.06(12)

Employees must provide required documentation to an employer within seven (7) days after taking earned sick time, unless the employee can show good cause for needing more time. MA Regs. 940.33.06(7)

Massachusetts sick leave law prohibits employers from requiring employees to explain the nature of their illness or details of domestic abuse as a condition of granting, using, or verifying sick leave. MA Statute 149.148C(f); MA Regs. 940.33.06(3) Employers are also prohibited from disclosing any evidence of an employee’s domestic abuse, including any statements by the employee and corroborating evidence, unless the employee gives written approval at the time the evidence is provided. MA Regs. 940.33.06(4)

If an employee does not have health care coverage, he or she may provide a signed, written statement stating the need for sick leave, without explaining the nature of the illness, instead of providing documentation from a health care provider. MA Statute 149.148C(n); MA Regs. 940.33.06(5)

Employees may provide the written documentation to their employer by hand or by any other reasonable method, including email. MA Regs. 940.33.06(6)


Fitness-for-duty certificate

Under Massachusetts’ sick leave law, employers may require employees to provide a fitness-for-duty certification, a work release, or other documentation from a medical provider before returning to work after taking sick time if:

  • requesting such a certificate is customarily required and consistent with industry practice or state and federal safety requirements; and
  • reasonable safety concerns exist regarding the employee’s ability to safely perform job duties because of the potential of significant risk of harm to the employee or others.

MA Regs. 940.33.06(13)


Prohibited practices for employers

Massachusetts’ sick leave law prohibits an employer from:

  • interfering with, restraining, or denying an employee’s exercise of or attempt to exercise any right granted by Massachusetts’ sick leave law, including, but not limited to, using an employee’s use of sick leave as a negative factor in an evaluation, promotion, disciplinary, or termination decision (MA Statute 149.148C(h); MA Regs. 940.33.08(1));
  • taking any adverse action against employees because they oppose practices that they believe violate Massachusetts’ sick leave law or because they support the exercise of rights by another employee under the sick leave law, including, but not limited to, filing an action against the employer alleging a violation of the law; instituting or causing to be instituted any proceeding against the employer; providing information in connection with an inquiry or proceeding against the employer; or testifying in any inquiry or proceeding against the employer (MA Statute 149.148C(i); MA Regs. 940.33.08(1));

Examples of unlawful adverse actions include, but are not limited to:

  • refusing to allow employees to use earned sick time;
  • delaying the payment of used sick time;
  • taking away hours worked;
  • negatively altering the terms or conditions of an employee’s employment;
  • disciplining an employee under the employer’s attendance policy;
  • giving an employee an undesirable assignment or schedule change;
  • giving a false negative reference to a future employer; or
  • filing false criminal reports about the employee to authorities.

MA Regs. 940.33.08(3)

An employee’s inability to earn a reward for good attendance or to receive a holiday pay incentive based on the employee’s use of sick leave does not constitute an adverse action for purposes of Massachusetts’ sick leave law. MA Regs. 940.33.08(4)


Employee misuse of sick leave and failure to comply with sick leave policies

Massachusetts sick leave law allows employers to discipline employees if the employees engage in fraud or abuse when using accrued sick leave for purposes that are not allowed. MA Regs. 940.33.03(23) Employers may also discipline employees who demonstrate a clear pattern of taking leave on days just before or after a weekend, vacation, or holiday, unless the employee can verify that the use is for proper purposes. MA Regs. 940.33.03(24)

Employee are prohibited from using sick leave as an excuse to tardy to work unless the employee is tardy for proper purposes. MA Regs. 940.33.03(16) Additionally, an employee may not accept a specific shift assignment with the intention of calling out sick for all or part of the shift. MA Regs. 940.33.03(17)

If an employee fails to provide required documentation after using paid sick leave, without reasonable justification, the employer may recover sums for paid sick leave from future pay, so long as the employer has given the employer notice of the policy. MA Regs. 940.33.06(8) If an employee fails to provide required documentation after using unpaid sick leave, without reasonable justification, the employer may deny the future use of an equivalent number of hours of accrued earned sick time until the employee provides the required documentation. The employer may take no other adverse action against the employee. MA Regs. 940.33.06(9)


Recordkeeping

Massachusetts sick leave law requires employers to keep true and accurate records of the accrual and use of earned sick time by employees, consistent with MA Statute 151.15. If an employer complies with sick leave requirements though an alternative leave law policy, it is only required to a single record of leave used by employees, except that it must designate what leave time use by employees is designated as earned sick time. MA Statute 149.148C(m); MA Regs. 940.33.09(1) Employers must keep the records for a period of three years. If an employee requests a copy of the records, employers must provide a copy to the employee within ten 910) business days. The employer must also allow employees, upon request, to inspect the original records, whether paper or electronic, at a reasonable time and place. MA Regs. 940.33.09(2)


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