Earned Sick Time Final Regulation Summary and Analysis for Home Care Agencies

The final regulations on paid Earned Sick Time were released by the Attorney General’s Office (AGO) on Friday, June 19^th with a number of substantial changes from the proposed regulations.   (The AG was charged with developing regulations to implement the new law – which was passed via a binding ballot question in 2014.)

The Home Care Alliance is pleased that most of the association’s comments were taken into consideration and the HCA thanks member home care agencies for their questions, concerns and suggestions. It is such involvement that allows the Alliance to better represent agencies and work for better results through our advocacy efforts.

Below is a basic summary of changes that home care agencies inquired about that were made between the proposed and final regulation.

Additionally, the Boston law firm Donahue, Barrett & Singal posted an analysis available to the public that is an excellent guide to the Earned Sick Time regulations. The Alliance has also partnered with Kurker Paget, LLC on a webinar for HCA members and further details and interpretation may become available.

Summary of Regulation Changes:

Section 33.01: Purpose, Scope and Other General Provisions

• AGO added that “employees may choose to use, or employers may require employees to use, concurrent earned paid sick time…to receive pay when taking other statutorily-authorized leave that would otherwise be unpaid.”

Section 33.02: Definitions

• AGO explained that “benefit year” is used interchangeably with “calendar year.”
• The term “Calendar Year” was simplified to stand for any consecutive 12-month period as determined by the employer.
• The term “Date of hire” was simplified to mean the employees “first date of actual work.”
• Much more detail of employees and employers exempt from the law. Clarification that PCA’s are covered.
• Regular hourly rate is newly defined as “the amount that an employee is regularly paid for each hour of work.”
• “Same hourly rate” is clarified to mean employees regular hourly rate or, for employees earning varying rates from the same employer, either
  • The wages the employee would have been paid for the hours absent during the use of earned sick time if the employee had worked, or
  • A blended, weighted average of all regular rates over the previous pay period.
  • A clarification made in response to HCA’s comments for employees paid “fee-for-service,” the same hourly rate means a reasonable calculation of the wages or fees the employee would have received for the piece work, service or part thereof, if the employee had worked.
• A clarification relative to “overtime, holiday pay, or other premium rates” that states “where an employee’s hourly regular hourly rate is a ‘differential rate,’ meaning  a different wage rate paid for the same work performed under differing conditions (e.g. a night shift), the ‘differential rate’ is not a premium.

 Section 33.03: Accrual and Use of Earned Sick Time

• The AGO clarified that 40 hours per benefit year is the cap under the law. Employees  cannot accrue more unless the employer’s policy allows.
• Employees accrue sick time only on hours worked, not while on PTO.
• AGO added “Earned sick time may not be invoked as an excuse to be late for work without an authorized purpose under the regulations.”
• AGO added “An employee may not accept a specific shift assignment with the intention of calling out sick for all or part of that shift.”
• AGO added “Employers and their fee-for-service employees may arrange to make up hours during the same or next pay period.
• AGO clarified “If an employee is exhibiting a clear pattern of taking leave on days just before or after a weekend, vacation, or holiday, an employer may discipline the employee for misuse of earned sick time, unless the employee provides verification of authorized use” under the regulation.

Break in Service

• Regarding “Break in Service,” the AGO heard the Home Care Alliance’s concerns and shortened the timeline an employee has a right to use any unused sick time following “a break in service of up to four months.” However, following a break in service of between four months and one year, “an employee shall maintain the right to use earned sick time accrued before the break in service” if the unused time equals or exceeds 10 hours.

Transition Year/Safe Harbor

• AGO clarified the “Transition Year/Safe Harbor” provision for employers with part time staff and per diem staff.
  • These employees must either accrue paid time off at the same rate as covered full time employees or receive prorated “lump sums” of paid time off.
  • If an employee is compensated other than on an hourly or salaried basis, the employee must accrue or receive lump sum allocations based on “a reasonable approximation of hours worked.”

 Section 33.06: Documentation of Use of Earned Sick Time

• AGO clarified that an employer may require written documentation for an employee’s use of earned sick time that:
  • Exceeds 24 consecutive scheduled work hours;
  • Exceeds 3 consecutive days on which the employee was scheduled to work;
  • Occurs within 2 weeks prior to an employee’s final scheduled day of work before termination of employment, except in the case of temporary employees;
  • Occurs after 4 unforeseeable and undocumented absences within a three-month period.
• AGO clarified that “health care providers may require employees making any use of earned sick time during local, state or federally declared emergencies to provide written documentation from a medical provider substantiating its use and to follow additional notification procedures set forth by the employer.” The employer may discipline the worker if they fail in this regard.

Fitness for Duty

• AGO clarified that “an employer may require an employee to provide a ‘fitness-for-duty’ certification, a work release, or other documentation from a medical provider before an employee returns to work after an absence during which earned sick time was used if such certification 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 perform duties.”
  • “Reasonable safety concerns” means a reasonable belief of significant risk of harm to the employee or others.

Section 33.07: Allowable Substitution of Employers’ Paid Time Off

• AGO clarified that “an employer’s own paid time off, vacation, sick leave, or other policy may be substituted for earned sick time so long as 40 hours of time off is provided under the policy, or such lesser amount as each employee might earn if the employer were not using the substitute policy” and the employees can use PTO for the same purposes under the same conditions as outlined in the regulation.

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