Boston Employment Law: The Deal With Sick Time

New business owners in Boston may find themselves grappling with a host of legal questions. stethascope.jpg

Our Massachusetts business lawyers know there are issues of zoning, licensing, certifications, inspections, taxes and other elements that have to be worked out before you can even open your doors.

Another issue that frequently arises is the question of whether employers must provide sick time to their workers. The fact is, state law doesn’t mandate that private sector businesses must provide this benefit to workers, although many do because it’s popular and it’s a good way to get – and keep – good employees. Federal laws don’t require it either. Some employers choose not to extend this benefit, and employees simply are not paid for the days they don’t work.

However, keep in mind that if you do promise to pay it to your workers, you may have a legal obligation to pay it based on breach of contract laws.

Some courts have handed down rulings that indicate that if you publish a policy in your employee handbook specifying that employees will receive sick time, that constitutes an implied contract. It has in some cases been held as binding and therefore enforceable.

It’s important to establish your policy before you begin hiring, and then clearly convey it to your employees. It’s also a good idea to regularly evaluate it to ensure that your policy remains in line with current laws.

The reason many employers have opted out of sick time benefits is that employees have been known to abuse it by taking days off work when they’re not actually sick. Other companies offer to “buy back” that time if it’s unused, potentially encouraging workers not to use sick time when they actually are ill, thereby possibly sickening other employees as well.

It’s also worth noting that if you’re going to employ more than 50 people, sick time for your workers is covered under the Family Medical Leave Act, or FMLA. This is a federal law that allows employees who are eligible to substitute sick days for any part of a leave they take based on their own serious health condition or to provide care for a spouse, parent or child. It provides up to three months of time off, though it does not force employers to pay for this time. Many, however, do pay a portion.

In addition to the minimum 50-employee rule, FMLA requires that in order to be eligible, they must have worked at the company for at least a year and they had to have worked at least 1,250 hours over the last year.

Where you have to be careful is in how you spell out your policy to your workers. Back in 2008, one retiring employee in Massachusetts successfully sued his employer for breach of contract for failing to provide promised sick time benefits that the worker had accrued. Although sick time differs from vacation time under state law in that it is not considered “accrued,” meaning you don’t have to pay it if workers don’t use it, the issue in this case was conflicting policy. The employer had multiple versions of its sick day policy in the employment manual. For this reason, the court ruled in the employee’s favor.

Vacation time is another matter. Here again, employers aren’t required to give employees this benefit. However if they do, it’s considered an accrued benefit. So if an employee has unused vacation time and then chooses to leave the company, under Massachusetts law, he or she is entitled to be paid for it. There is, however, a “use it or lose it” clause in the law that allows employers to discharge the vacation time if it’s not used within a certain period of time. However, that must be clearly stated in the policy, and time can’t be discharged if the employee is trying to collect it as a result of termination.

The bottom line is that this is a tricky area of the law, and policy should be established and reviewed with your legal counsel prior to opening your business.

The Brown Law Firm, LLC, has offices in Belmont and Boston. For a free and confidential consultation, call 617-489-0817 today, or contact us online.

Additional Resources:
Is Sick Time Your Time?, By Elaine Varelas, The Boston Globe

More Blog Entries:
Boston Business Lawyers & the Costner-Baldwin Feud, July 4, 2012, Boston Business Lawyer Blog

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Boston Bar Assosiation