Medical and Sick Leaves in Massachusetts
To determine whether you are entitled to medical and sick leave requires examining the Massachusetts Earned Sick Time Law, the Family and Medical Leave Act, and the Americans with Disabilities Act. Each of those laws are discussed below in the context of medical and sick leave.
The Massachusetts Earned Sick Time Law
The Massachusetts Earned Sick Time Law took effect in July of 2015 and entitles employees to earn up to 40 hours per year of sick leave to address certain personal and family needs. Employees accrue the right to take sick leave based upon the number of hours they work in a workweek.
Employers with 11 or more employees must provide earned sick time that is paid. Employers with fewer than 11 employees have to provide sick leave, but it may be unpaid. Employers should include all employees who work for pay when determining their number of employees. To determine their number of employees, employers should count the number of employees, including full time, part time, seasonal, per diem, and temporary employees, during each pay period and divide that number by the number of pay periods.
For purposes of calculating the number of employees, it does not matter where an employee lives.
Certain employees are not eligible for earned sick time, including (1) employees of the United States government, (2) certain students attending a public or private institute of higher education, (3) adults participating in a licensed program and performing work duties within the program setting as part of a bona fide educational or vocational training and (4) municipal employees.
Employers are required to provide sick leave to their employees with few exceptions, including the United States government, Massachusetts cities and towns, and certain local public employers.
Employees accrue 1 hour of earned sick time for every 30 hours worked, but cannot accrue more than 40 in a calendar year. Employees begin accruing earned sick time on their first day of work, but are not entitled to take the earned sick time until the 90th calendar day after they began employment.
Earned sick time can be used to (1) care for the employee’s child, spouse, parent, or parent of a spouse, who is suffering from a physical or mental illness, injury, or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care; (2) 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; (3) attend a routine medical appointment or a routine medical appointment for the employee’s child, spouse, parent, or parent of a spouse; (4) address the psychological, physical, or legal effects of domestic violence; or (5) travel to and from an appointment, a pharmacy, or other location related to the purpose for which the time was taken.
Employers may not retaliate against an employee for exercising or attempting to exercise rights under this law, including requesting and using earned sick time, filing a complaint for alleged violations of the law, communicating with anyone about any violation of the law, participating in a judicial proceeding regarding an alleged violation of the law, or informing anyone about their rights under the law.
Retaliation is broadly defined under the law and includes any threat, discipline, discharge, demotion, suspension, or reduction in employee hours, or any other adverse employment action. The law protects an employee from retaliation even if they were wrong about the violation, so long as they believe, in good faith, that a violation had occurred.
Employees who have been damaged as a result of an employer’s violation of the Earned Sick Time Law may sue their employers for that violation and are entitled to the Massachusetts Wage Act’s comprehensive remedial scheme to remedy those damages, including triple wage damages, compensation for emotional distress, attorneys’ fees, and costs.
The Family and Medical Leave Act
The Family Medical Leave Act (FMLA) provides some employees with up 12 workweeks of unpaid leave per year to address certain health-related situations.
The FMLA also provides leave for reasons related to military deployments or to care for a covered servicemember with a serious injury or illness.
The FMLA applies to all public agencies, including local, State, and Federal employers, and local education agencies. The FMLA also applies to all private sector employers who employ 50 or more employees for at least 20 workweeks in the current or preceding calendar year.
Employees eligible for FMLA leave are entitled to take that leave and are also entitled to return to their same or an equivalent job at the end of their FMLA leave.
In order to be eligible for FMLA leave, and employee must (1) work for a covered employer, (2) have worked 1250 hours during the 12 months prior to the start of the leave, (3) work at a location where the employer has 50 or more employees within a 75-mile radius, and (3) have worked for the employer for 12 months.
Employees who are eligible for FMLA leave may take that leave for the following reasons: (1) for the birth of a son or daughter, and to bond with that child; (2) for the placement with the employee of child for adoption or foster care, and to bond with that child; (3) to care for an immediate family member with a serious health condition; (4) to care for the employee’s own serious health condition; and (5) for certain situations arising out of the fact that the employee’s spouse, son, daughter, or parent is on covered active due or call to covered active duty as a member of the National Guard, Reserves, or Regular Armed Forces.
The FMLA also allows eligible employees to take up to 26 weeks of leave to care for a covered service member with a serious injury or illness. Employees may take FMLA leave in one block, separate blocks, or intermittently when it is medically necessary.
The most common type of FMLA leave is that taken to address the employee’s or their immediate family member’s serious health condition. The most common types of serious health conditions are (1) conditions requiring an overnight stay in a hospital or other medical facility, (2) conditions that incapacitate for more than three consecutive days and require ongoing medical treatment; (3) chronic conditions that cause occasional periods of incapacitation and required treatment by a health care provider at least twice a year, and (4) pregnancy.
The FMLA allows employers to require employees to provide certification from a health care provider to support a request for FMLA leave. An employer may require the employee to get a second or third opinion (at the employer’s request) if it doubts the validity of the certification. Employers should request medical certification at the time an employee gives notice of the need for leave or within given business days.
The FMLA contains strict requirements regulating an employer’s ability to contact an employee’s health care provider. Under no circumstances may an employee’s direct supervisor contact the employee’s health care provider.
Employees may require an employee to submit a fitness-for-duty certification before returning to work after being absent due to a serious health condition.
The Americans with Disabilities Act
The Americans with Disabilities provides employees who suffer from disabilities with the right to take medical leaves so long as the leave is reasonable and does not result in an undue hardship for the employer.
The Americans with Disabilities Act and the Massachusetts Fair Employment Practices Act both define ‘disability’ very broadly. As a result, many people who do not consider themselves ‘disabled’ are considered as such under the law. Technically, you are disabled if you suffer from a physical or mental impairment that substantially limits one or more major life activities. Courts have interpreted this very broadly and typically find most employees who bring disability discrimination claims carry their burden of establishing they are.
Say you have cancer and need to take 2 months off from work for intensive radiation and chemotherapy. After those two months, you need to be on a reduced schedule for 6 months while you continue treatment. Clearly cancer is a disability. According to disability law, your employer will have to allow you to miss two months and then go on a reduced schedule for six months unless they can prove that would be an undue hardship. They will likely claim it is, but claiming it and proving it are two different things. Also, the process by which an employer and employee uncover possible accommodations is known as the interactive process. Employers must engage in this process. If they don’t, they’ve engaged in unlawful disability discrimination. The interactive process requires bilateral cooperation and communication. The process requires open communication by both parties, and an employer will not be held liable if it makes reasonable efforts both to communicate with the employee and provide accommodations based on the information it possessed. An employer cannot be found to have violated the ADA when responsibility for the breakdown of the informal interactive process is traceable to the employee and not the employer. The refusal of an employer to participate in that process once initiated, or to make a reasonable accommodation once it has been identified, is a violation of our discrimination laws.