Mass-Peculiarities: An Employers Guide to Wage & Hour Law in the Bay State 2022 Edition

32 | Massachusetts Wage & Hour Peculiarities, 2022 ed. © 2022 Seyfarth Shaw LLP sick time reaches forty hours, employers may delay further accrual until the reserve of hours decreases through use. 155 Employees may begin using sick time ninety days after hire, as it is accrued. 156 Employers need not allow employees to use sick time before they have accrued it. The smallest increment of sick time that can be used in a given day is one hour. After the first hour of sick time is used in a given day, the employee may use sick time in the smaller of one hour or the smallest hourly increment the employer’s payroll system uses to account for time. 157 If an employee’s use of sick time requires the employer to call in a replacement, the employer may require the employee to use an amount of sick time equal to the time that the replacement employee works, up to a full shift of sick time. 158 The law prohibits employers from retaliating against employees for exercising or attempting to exercise their rights under the ESTL. 159 This means, for example, that an attendance policy that faults employees for taking time off under the ESTL is impermissible. 1. Pay for Time Off Pursuant to the ESTL Employers with eleven or more employees must provide paid sick time. Sick time must be paid out at the employee’s “same hourly rate.” 160 For hourly employees who receive more than one hourly rate, the “same hourly rate” means either the wages that the employee would have been paid for the time that the employee was on sick leave or the weighted average of all regular rates during the previous pay period or another period of time used to calculate a blended rate of pay. 161 For employees paid a salary, the same hourly rate is determined by dividing the salary in the previous pay period by the number of hours worked during that period. 162 Employees paid on a piecework or fee for service basis must be paid a reasonable calculation of what the employee would have earned had he or she worked. 163 Employees paid on a commission or base wage plus commission basis must be paid the greater of the base wage or the 155 940 C.M.R. § 33.03(10). 156 M.G.L. ch. 149, § 148C(d)(1). 157 940 C.M.R. § 33.03(14). 158 If the employee using sick t ime does not have sufficient accrued sick t ime to cover the ent ire period that the replacement worker is called in to cover for the employee’s absence, the employer must provide the absent employee unpaid, job-protected leave to cover the port ion of his or her absence not covered by accrued sick t ime. 159 940 C.M.R. § 33.08. 160 M.G.L. ch. 149, § 148. The “same hourly rate” does not include commissions, bonuses, incent ive pay based on sales, or product ion, overt ime, holiday pay, or premium pay. 940 C.M.R. § 33.02. 161 940 C.M.R. § 33.02. 162 Id. Employees who are exempt from the FLSA’s overt ime requirement s are assumed to work forty hours per week for purposes of the ESTL unless their normal work week is less than forty hours per week. Id. 163 Id.