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

34 | Massachusetts Wage & Hour Peculiarities, 2022 ed. © 2022 Seyfarth Shaw LLP The ESTL has strong privacy protections for employees. Certification forms should not state the nature of an employee’s illness or the details of domestic violence, nor should employers seek such information from employees. 3. Effect of Termination and Breaks in Service and Recordkeeping and Notice Requirements Employers are not required to pay out unused but accrued sick time upon an employee’s termination. 170 Employees who experience a break in service—that is, they end their employment for a period of time, and return to the same employer—may be entitled to maintain the right to use unused sick time they accrued before their break in service depending on the length of the break : 171 • For breaks in service less than four months, employees maintain the right to use any sick time that they accrued prior to the break in service. • For breaks in service between four and twelve months, employees may use sick time accrued before the break in service if the employees’ bank of sick time exceeds ten hours. In addition, employees whose break in service does not exceed twelve months need not wait ninety days before using sick time. 172 Employers must keep records of use and accrual of sick time under the ESTL and maintain such records for three years. 173 Some employers may choose to substitute their own vacation, paid time off, or sick time policy for a policy under the ESTL. While such substitution is permissible, employers must ensure that their substitute policies allow employees to use at least the same amount of time, for the same purposes, under the same conditions, and with the same job protections as those provided under the ESTL. Employers that use their own substitute policies to provide sick time need not separately track use and accrual of sick time. All employers must post in a conspicuous location a notice of the ESTL prepared by the Massachusetts Attorney General and either provide a copy of the notice to eligible employees or maintain a sick time policy in an employee handbook. 174 170 Se e ht tp://www.mass.gov/ago/docs/workplace/earned-sick-t ime/est -faqs.pdf a t 10 (last visited July 16, 2021). 171 940 C.M.R. § 33.03(31)-(33). 172 Id. 173 940 C.M.R. § 33.03. 174 940 C.M.R. § 33.09. The At torneyGeneral’s not ice is available a t ht tp://www.mass.gov/ago/docs/workplace/earned-sick- t ime/est -employee-notice.pdf (last visited July 16, 2021).