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Other Leaves: Massachusetts

Other Leaves requirements for other states

Federal law and guidance on this subject should be reviewed together with this section.

Authors: Amanda K. Karras and Peter J. Moser, Hirsch Roberts Weinstein LLP

Summary

  • There are various types of leave that may be available to an employee in Massachusetts. See Leaves of Absence.
  • Under the Massachusetts Small Necessities Leave Act, an employer covered under the FMLA must provide eligible employees with a total of 24 hours of unpaid leave during any 12-month period to attend certain activities or appointments. See Family and Medical Leave.
  • An employer with 11 or more employees must provide paid sick time, while smaller employers must provide unpaid sick time. See Paid Sick Leave.
  • A covered employer must provide up to 15 days off to employees who are victims of abusive behavior or whose family member is a victim of abusive behavior. See Domestic Violence Leave.
  • Massachusetts law provides servicemembers with the same rights and protections afforded by federal law. See Military Leave.
  • All employers in Massachusetts must provide jury duty leave to employees. See Jury Duty Leave.
  • Employees who are veterans are entitled to take leave to observe Veterans Day and to participate in Memorial Day activities. See Veterans and Memorial Day Leave.
  • An employer may not terminate or otherwise discriminate against an employee who fails to report to work at the start of his or her regular working hours when the failure is due to his or her responding to an emergency as a volunteer member of a fire or ambulance department. See Emergency Responder Leave.
  • An employer may not terminate or discriminate against an employee who is required to attend court because the employee is a victim of a crime upon which an accusatory instrument is based, or because the employee has been subpoenaed to testify as a witness in a criminal action. See Witness Duty Leave.
  • A manufacturing, mechanical or mercantile establishment must provide employees with voting leave. See Voting Leave.
  • A noncompetition agreement must be supported by a garden leave clause or other mutually agreed upon consideration. See Garden Leave.

Leaves of Absence

There are various types of leave that may be available to an employee in Massachusetts. To the extent that applicable federal, state or local laws conflict, an employer should apply the provisions that provide the greatest benefits and protections to the employee.

An employer should remain alert to the various types of leave available and take care to track employees' leaves of absence, including:

  • The date the leave begins;
  • The type of leave; and
  • The expected return date.

An employee who exercises leave rights is not protected from discipline for legitimate reasons that are unrelated to the leave and that are not otherwise prohibited by law.

If an employer must discipline an employee who has exercised his or her leave rights, it should carefully document the reasons for the discipline, review past application of the rule (to ensure the policy is being enforced evenhandedly), and consider whether to seek the advice of counsel before imposing the discipline.

Employers should note that leave required by a state or local law is not taken into account when determining the amount of leave provided by an employer for federal tax credit purposes under the federal tax reform law.

Family and Medical Leave

A Massachusetts employer may be subject to a variety of family and medical leave laws. For example:

  • An employer with 50 or more employees will likely be required to adhere to the federal Family and Medical Leave Act (FMLA);
  • An FMLA covered employer must also comply with the Small Necessities Leave Act (SNLA). Under the SNLA, a covered employer must provide an eligible employee with a total of 24 hours of unpaid leave during any 12-month period to do things such as accompany their child to routine medical or dental appointments;
  • An employer with six or more employees must provide up to eight weeks of parental leave to all eligible employees; and
  • An employer subject to the Massachusetts Unemployment Insurance Law must provide qualified employees, former employees and self-employed individuals with paid family and medical leave, beginning January 1, 2021.

For more information on the FMLA, small necessities leave, parental leave and paid family and medical leave, please see FMLA: Massachusetts.

Pregnancy Leave and Accommodation

The Massachusetts Fair Employment Practices Act (Chapter 151B), as amended by the Massachusetts Pregnant Workers Fairness Act, requires a covered employer to provide reasonable accommodations to employees and applicants for pregnancy or a pregnancy-related condition, including lactation or the need to express breast milk for a nursing child, unless the accommodation would impose an undue hardship on the employer.

Chapter 151B specifically includes time off to attend to a pregnancy complication or to recover from childbirth as one example of a reasonable accommodation. The law also prohibits an employer from requiring that an employee take a leave of absence if another reasonable accommodation can be provided without undue hardship to the employer. For more information on pregnancy leave and accommodation, please see Disabilities (ADA): Massachusetts.

The Massachusetts Earned Sick Time Law allows eligible employees to earn paid or unpaid sick leave (depending on the size of the employer. +ALM GL ch. 149, § 148C.

The Office of the Attorney General released Frequently Asked Questions to help employees and employers better understand the law.

Employer Coverage

All employers regardless of size must provide sick leave, but employers with 11 or more employees must provide paid sick leave.

An employer's size is calculated by counting the number of employees (anywhere) on the payroll during each pay period and dividing by the number of pay periods. In calculating the total number of employees, an employer must count all full-time, part-time, seasonal and temporary employees, and owners and officers on the company's payroll, regardless of location or eligibility for paid sick leave. Employees furnished and paid by a temporary staffing agency count as employees of both the employer and the staffing agency. +940 CMR § 33.04.

However, the law does not apply to employers covered by the federal Railroad Unemployment Insurance Act. See CSX Transp. Inc. v. Healey, +2018 U.S. Dist. LEXIS 135328 (D. Mass. Aug. 10, 2018).

Employee Eligibility

An employee is eligible to accrue and use earned sick time if the employee's primary place of work is in Massachusetts, regardless of the location of the employer. An employee is not required to spend 50 percent or more time working in Massachusetts for a single employer in order for Massachusetts to be the employee's primary place of work. +940 CMR § 33.03.

Employee is defined as any person who performs services for an employer for wage, remuneration or other compensation, and includes full-time, part-time, seasonal and temporary employees. +940 CMR § 33.02.

Practical Example

Jane works for Acme Contracting. She works 40 percent of her hours in Massachusetts, 30 percent in New Hampshire and 30 percent in other states. Massachusetts is her primary place of work.

The law does not apply to the following employees:

  • Public employees;
  • Students attending a public or private institution in Massachusetts who are:
    • Participating in a federal work-study program or a substantially similar financial aid or scholarship program;
    • Providing support services to residents of a residence hall, dormitory, apartment building or other similar residence in exchange for a waiver or reduction of room and board or other education-related expenses; or
    • Exempt from Federal Insurance Contributions Act tax;
  • School-aged students under the Individuals with Disabilities Education Act; and
  • Adult clients who reside in Massachusetts licensed programs and perform work duties within the program setting as part of a bona fide educational or vocational training.

+940 CMR § 33.03(1).

Qualifying Reasons for Leave

Sick leave may be used for the following purposes:

To care for the employee's child, spouse, parent or parent-in-law, 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;

To 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;

To attend a routine medical appointment for the employee or the employee's child, spouse, parent or parent-in-law; or

To address the psychological, physical or legal effects of domestic violence.

Parent means a biological, adoptive, foster or stepparent of an employee or an employee's spouse, or another person who assumed the responsibilities of parenthood when the employee or the employee's spouse was a child.

Child means a biological, adopted or foster child; a stepchild; a legal ward; or a child for whom an employee has assumed the responsibilities of parenthood.

Domestic violence is defined to include abuse committed against the employee or the employee's child by:

  • A current or former spouse of the employee;
  • A person with whom the employee shares a child in common;
  • A person who is cohabitating with or has cohabitated with the employee;
  • A person who is related to the employee by blood or marriage; or
  • A person with whom the employee has or had a dating or engagement relationship.

+940 CMR § 33.02.

Accrual and Use of Leave

Accrual: Employees earn one hour of sick leave for every 30 hours worked, up to a maximum of 40 hours of sick leave per calendar year. A calendar year is any consecutive 12-month period defined by the employer (e.g., a year that runs from January 1 through December 31, tax year, fiscal year, contract year or year running from an employee's employment anniversary date).

For accrual purposes, all hours worked must be counted, regardless of the employee's or the employer's location. Hours worked include overtime hours worked by nonexempt employees, but do not include vacation days, paid time off or sick time. Exempt employees are assumed to work 40 hours per week unless their normal workweek is fewer than 40 hours.

Use: Employees begin accruing sick leave on their date of hire and may begin using accrued sick leave 90 calendar days after they commence employment. Thereafter, they may use the sick leave as it accrues.

Practical Example

Jasper's first day of work is October 1, 2016. He is eligible to use sick time beginning December 30, 2016.

Employees may use a maximum of 40 hours of sick leave per calendar year. Up to 40 hours of accrued, unused sick time may be carried over to the next calendar year. Once an employee banks 40 hours of sick time, leave will not accrue until some of the banked time is used. An employer has the option to pay employees for up to 40 hours of unused, accrued sick time at the end of the year or when the employee changes jobs within the same employer. If the employer pays out 16 or more hours, it must provide 16 hours of unpaid sick time until the employee accrues new paid time, which replaces the unpaid time as it accrues. If the employer pays out fewer than 16 hours, it must provide an amount of unpaid time equivalent to the amount paid out until the employee accrues new paid time, which replaces the unpaid time as it accrues.

An employer may, but is not required to, pay out unused sick time upon termination of employment. See Payment of Wages: Massachusetts.

An employer must grant sick time in hourly increments or the smallest increment that the employer's payroll system uses to account for absences or use of other time off. If the employer and employee agree, an employee may avoid using accrued sick time by working an equivalent number of hours to cover the absence in the same or next pay period following the absence. The employer may not require this, however. An employer also may not require an employee to find a replacement worker to substitute during his or her absence.

An employee is prohibited from invoking earned sick time as an excuse to be late for work without a qualifying reason under the law. See Qualifying Reasons for Leave. An employee is also prohibited from accepting a specific shift assignment with the intention of calling out sick for all or part of the shift.

An employer is permitted to discipline an employee for misusing sick leave (e.g., employee commits fraud or abuse by engaging in an activity that is inconsistent with the law; employee exhibits a clear pattern of taking sick time on days just before or after a weekend, vacation or holiday without providing verification of a qualifying reason under the law).

If an employee's use of sick time requires the employer to hire a replacement or call in another employee and the employer does so, the employer may require the employee to use an equal number of hours as the replacement or call-in employee works, up to a full shift of earned sick time. If the employee does not have enough accrued sick time to cover this time, the employer must provide sufficient job-protected unpaid leave to make up the difference in that shift. If the employer does not hire a replacement or call-in another employee, but the employee's use of sick time results in the employee missing transportation to a worksite, the employer may require the employee to use sick time only until the employee arrives at the worksite.

Following a break in service of up to four months, an employee maintains the right to use any unused sick time accrued before the break. If the break in service is between four and 12 months, the employee maintains this right if the bank of unused sick time equals or exceeds 10 hours. An employee does not need to wait 90 days before using sick leave if the break was not longer than 12 months.

+940 CMR § 33.03.

Frontloading and Other Accrual Schedules

An employer has the option to provide employees with a lump sum of 40 hours of sick leave at the beginning of the year, rather than tracking accrual by hours worked. Carryover of unused time is not required.

An employer may also use alternative accrual schedules that provide lump sums of sick leave. Carryover of up to 40 hours is required. For employees working an average of:

  • 37.5-40 hours per week, provide eight hours per month for five months;
  • 30 hours per week, provide five hours per month for eight months;
  • 24 hours per week, provide four hours per month for 10 months;
  • 20 hours per week, provide four hours per month for nine months;
  • 16 hours per week, provide three hours per month for 10 months;
  • 10 hours per week, provide two hours per month for 10 months; and
  • Five hours per week, provide one hour per month for 10 months.

+940 CMR § 33.07.

Compensation

Paid sick time is compensated at the same hourly rate as the employee earns at the time the employee uses the paid sick time. This hourly rate may not be less than the effective minimum wage. The hourly rate includes shift differentials, but does not include overtime pay, holiday pay or other premium pay. Special rules apply for salaried employees, tipped employees and employees paid on a piece work or commission basis.

Employee Notice Requirements

An employee must make a good-faith effort to provide advance notice to the employer before using sick leave, except in an emergency. An employer may have a written policy requiring up to seven days' notice for a foreseeable or prescheduled absence, unless the employee learns of the need to use sick leave within a shorter period. If leave is unforeseeable, notice that is reasonable for the circumstances must be provided.

For multi-day absences, an employer may require the employee to provide the expected duration if known. If not known, then notification on a daily basis from the employee or the employee's surrogate (e.g., spouse, adult family member or other responsible party) may be required, unless the circumstances make such notice unreasonable. An employee must be allowed to communicate with their employer in a manner employees customarily use to communicate with the employer for absences or requesting leave.

An employee need not expressly refer to the sick leave law or use the term "earned sick time," as long as they provide notice that they are using accrued time for a proper purpose.

Employee Documentation Requirements

An employer may require that an employee provide written documentation for sick time that:

Exceeds 24 consecutively scheduled work hours;

Exceeds three consecutively scheduled workdays;

Occurs within two weeks of the employee's final scheduled day of work before termination of employment (excluding temporary workers);

Occurs after four unforeseeable and undocumented absences within a three-month period; or

For minor employees (under age 18), occurs after three unforeseeable and undocumented absences within a three-month period.

An employer may not require that the employee provide the certification prior to taking the leave. Documentation must be provided within seven days after taking sick leave, unless the employee has good cause for needing more time. It may be provided by any reasonable method, such as by hand or by email. Failure to provide such documentation may result in the employer recouping the sum paid for sick time from future pay, but the employer must put employees on notice of this practice. For unpaid sick time, the employer may deny future use of an equivalent number of earned sick time hours until documentation is provided.

Written documentation includes documentation signed by a health care provider. Employees are not required to provide as certification any information from a health care provider that violates the federal Social Security Act or Health Insurance Portability and Accountability Act (HIPAA) regulations.

If an employee does not have health care coverage, he or she may instead provide a signed, written statement evidencing the need for the use of sick time. The Massachusetts Attorney General has provided a model form for this purpose.

In relation to domestic violence leave, an employee may provide:

  • A restraining order issued by a court;
  • A police record documenting the abuse;
  • A conviction record for the perpetrator of the abuse;
  • Medical documentation of the abuse;
  • A statement by a counselor, social worker, health worker, clergy member, shelter worker, legal advocate or other professional; or
  • A signed statement from the employee attesting to the abuse.

The employer's request for certification may not require the employee to explain the nature of the illness or the details of the domestic violence. The employer may require only that an employee provide certification that the leave was taken for a qualifying reason. An employer may not disclose any evidence of domestic violence unless the employee has provided written consent for disclosure at the time the evidence is provided.

An employer may seek verification from a parent or guardian if it has a reasonable suspicion that a minor employee is misusing sick time, unless verification would create a health and safety risk or hardship for the employee.

An employer may require employees to personally verify in writing that they have used earned sick time for allowable purposes after using any amount of sick leave, provided that the employee is not required to explain the nature of the illness or the details of the domestic violence. The Massachusetts Attorney General has provided a model form for this purpose.

An employer may also require an employee to provide a fitness-for-duty certification, a work release or other documentation from a medical provider before an employee may return to work, but only 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 job duties. Reasonable safety concerns means a reasonable belief of significant risk of harm to the employee or others.

+940 CMR § 33.05; +940 CMR § 33.06.

Employer Notice and Posting Requirements

An employer must provide each employee with a written notice of rights under the law (may be included in an employee handbook), and post a copy of the notice in a conspicuous, accessible location in the workplace. +940 CMR § 33.09. See Paid Sick Time Handbook Statement [11+ Employees]: Massachusetts; Sick Time Handbook Statement [1-10 Employees]: Massachusetts.

An employer must also provide all eligible employees with at least 30 days' written notice if sick time will change from paid to unpaid, or unpaid to paid, due to a change in the employer's size. Whether sick time is paid or unpaid when used depends on whether it was paid or unpaid when accrued. +940 CMR § 33.04(5); +940 CMR § 33.04(6).

Recordkeeping Requirements

An employer must keep true and accurate records of accrual and use of sick time for three years. Employers that provide time off under a paid time off, vacation or other policy that complies with the sick leave law are not required to track and keep a separate record on accrual and use of earned sick time unless they choose to maintain separate earned sick time policies. In that case, employers must keep records regarding the time designated as sick time for purposes of compliance with the earned sick time law.

An employee may request of copy of his or her records, and the employer must comply within 10 business days of the request. At the employee's request, he or she must be allowed to inspect the original paper or electronic records at a reasonable time and place.

+940 CMR § 33.09.

Prohibited Actions

An employer may not:

  • Interfere with, restrain or deny the exercise of or the attempt to exercise any right provided by the law (e.g., by disciplining or terminating an employee for taking earned sick time); and
  • Take an adverse action against an employee for opposing practices that the employee reasonably believe violate the law or for supporting another employee's exercise of rights under the law.

Examples of adverse actions include:

  • Denying use or delaying payment of earned sick time;
  • Terminating an employee;
  • Taking away work hours;
  • Negatively altering the terms or conditions of employment;
  • Disciplining an employee under the employer's attendance policy;
  • Giving undesirable assignments or schedule changes;
  • Giving false negative employment references;
  • Making false criminal reports to authorities;
  • Reporting an employee to immigration authorities; or
  • Threatening an employee with an adverse action.

+940 CMR § 33.08.

Interaction With Other Laws and Policies

Employers with preexisting paid time off policies equivalent to, or more generous than, the sick leave law are not required to provide additional paid sick time. Such employers should review their policies to ensure that accrual of paid time off does not occur at a slower rate than that provided for in the paid sick leave law. The law also allows employers to have different leave policies for different groups of employees as long as the requirements of the earned sick time law are met. Employers with unlimited sick leave policies are not required to track accrual of sick leave or allow any carryover. +940 CMR § 33.07.

Leave taken under the paid sick leave law does not replace leave taken under other state and federal family and medical leave laws. An employee using qualifying leave under the FMLA, Parental Leave Act, Domestic Violence Leave Act or Small Necessities Leave Act may choose, or an employer may require an employee, to utilize accrued paid sick leave under the new law concurrently so that the leave would not be unpaid. +940 CMR § 33.01(3).

Key Action Steps

To help ensure compliance with Massachusett's sick leave law:

Review and revise, as needed, paid sick leave, PTO, anti-retaliation and any other related Massachusetts handbook policies and procedure to ensure they meet the law's requirements;

Post the required notice and provide written notification to employees;

Ensure timekeeping, payroll and benefits systems properly calculate, track and detail accrued and used leave. If a third-party payroll processor is used, ensure it is aware of and complies with the law's requirements;

Provide other information to employees to show the employer's support, such as local community resources for domestic violence victims; and

Train supervisory and managerial employees, as well as HR and payroll personnel, on the law's requirements.

Domestic Violence Leave

Employer Coverage

An employer with 50 or more employees in Massachusetts (as opposed to 50 overall) must provide an eligible employee with domestic violence leave.

A covered employer should consider including a domestic violence leave policy in its handbook to educate employees, including supervisors, about the availability of domestic violence leave and to show its compliance with Massachusetts law.

The Massachusetts Attorney General's Office (AGO) issued an advisory that provides guidance for covered employers on the AGO's understanding of and enforcement of this law.

Employee Eligibility

A paid employee who is a victim of abusive behavior (i.e., domestic violence, stalking, sexual assault and kidnapping) or whose family member is a victim of abusive behavior, is entitled to up to 15 days of leave in any 12-month period, so long as the employee is not the perpetrator of the abusive behavior against such employee's family member.

An employee is eligible for leave regardless of their number of hours worked or period of service.

A family member includes:

  • Persons who are married to one another;
  • Persons in a substantive dating or engagement relationship and who live together;
  • Persons having a child in common regardless of whether they have ever married or lived together;
  • Parents and stepparents;
  • Children and stepchildren;
  • Siblings;
  • Grandparents;
  • Grandchildren; and
  • Persons in a guardianship relationship.

+ALM GL ch. 149, § 52E(a), (b) and (c).

Qualifying Reasons for Leave

Leave must be used to:

  • Seek or obtain medical attention, counseling, victim services or legal assistance;
  • Secure housing;
  • Obtain a protective order from a court;
  • Appear in court or before a grand jury;
  • Meet with a district attorney or other law enforcement official;
  • Attend child custody proceedings; or
  • Address other issues directly related to the abusive behavior.

+ALM GL ch. 149, § 52E(b).

Compensation and Benefits

Leave may be paid or unpaid, solely at the employer's discretion. However, employees must exhaust all available annual or vacation leave, personal leave and sick leave prior to requesting or taking domestic violence leave, unless the employer waives this requirement. +ALM GL ch. 149, § 52E(g).

The taking of leave may not result in the loss of any employment benefit accrued prior to the date on which the leave began. At the end of the leave, the employee must be restored to his or her original job or to an equivalent position.

+ALM GL ch. 149, § 52E(b) and (i).

Employee Notice Requirements

An employee seeking leave must provide appropriate advance notice as required by the employer's leave policy. However, if there is a threat of imminent danger to the health or safety of the employee or the employee's family member, advance notice is not required; instead, the employee must notify the employer within three workdays that the leave was taken or is being taken under this law. Such notification may be communicated to the employer by:

  • The employee;
  • A family member of the employee; or
  • The employee's counselor, social worker, health care worker, member of the clergy, shelter worker, legal advocate or other professional who has assisted the employee in addressing the abusive behavior.

Communication to the employer may be made by any reasonable means, including:

  • By telephone;
  • In person; or
  • In writing.

If an unscheduled absence occurs, the employer may not take any negative action against the employee if the employee provides appropriate documentation within 30 days from the unauthorized absence or from the last day of consecutive unauthorized absences.

Employee Documentation Requirements

An employer may require an employee to provide documentation showing that the employee or employee's family member has been a victim of abusive behavior and that the reason for taking leave qualifies under the law. An employer may not require an employee to show evidence of an arrest, conviction or other law enforcement documentation.

An employee must provide documentation within a reasonable period after the employer requests it relative to the employee's absence. Providing any one of the following documents is acceptable:

  • A protective order, an order of equitable relief or other documentation issued by a court as a result of abusive behavior;
  • A document under the letterhead of the court, provider or public agency that the employee attended for the purposes of acquiring assistance related to the abusive behavior;
  • A police report or victim or witness statement provided to police, including a police incident report, documenting the abusive behavior;
  • Documentation that the perpetrator has:
    • Admitted to sufficient facts to support a finding of guilt of abusive behavior; or
    • Has been convicted of, or has been adjudicated a juvenile delinquent by reason of, any offense constituting abusive behavior and that is related to the abusive behavior that necessitated the leave;
  • Medical documentation of treatment as a result of the abusive behavior;
  • A sworn statement, signed under the penalties of perjury, provided by a counselor, social worker, health care worker, member of the clergy, shelter worker, legal advocate or other professional who has assisted the employee or the employee's family member in addressing the effects of the abusive behavior; or
  • A sworn statement, signed under the penalties of perjury, from the employee attesting that he or she has been the victim of abusive behavior or is the family member of a victim of abusive behavior.

The employer must maintain such documentation in the employee's employment record, but only for as long as required to determine whether the employee is eligible for leave.

All information related to the employee's leave must be kept confidential. Such information may be disclosed only if:

  • Requested or consented to, in writing, by the employee;
  • Ordered to be released by a court;
  • Otherwise required by federal or state law;
  • Required in the course of an investigation authorized by law enforcement, including the attorney general; or
  • Necessary to protect the safety of the employee requesting leave or other employees.

+ALM GL ch. 149, § 52E(f).

Employer Notice and Posting Requirements

A covered employer must notify each employee of their rights and responsibilities under the law, including those relating to notice and confidentiality. No specific manner of notification is required, but the Massachusetts AG provides the following guidance:

  • Putting the information in a new employee handbook;
  • Adding the information to an existing employee handbook;
  • Sending memos, letter or emails to employees; and
  • Posting a notice in a conspicuous place.

Prohibited Actions

An employer may not:

  • Coerce, interfere with, restrain or deny the exercise of any rights provided by law;
  • Make leave requested or taken contingent upon whether or not the victim maintains contact with the alleged abuser; or
  • Terminate or discriminate against an employee for exercising his or her rights.

+ALM GL ch. 149, § 52E(h) and (i).

Key Action Steps

A covered employer should consider the following action steps:

  • Review and revise current policies and procedures for domestic violence leave, emphasizing employee confidentiality;
  • Review and revise, if necessary, current workplace safety procedures applicable to all employees;
  • Train managers, HR, and all employees on any leave and workplace safety procedures; and
  • Ensure that employees taking leave under this policy do not suffer the loss of any employment benefit accrued prior to the date the leave commenced.

Military Leave

Massachusetts law provides military servicemembers with the same rights and protections afforded by the federal Uniformed Services Employment and Reemployment Rights Act (USERRA). Servicemembers are also protected from discrimination under state and local laws. For more on military leave, please see USERRA: Massachusetts.

Veterans and Memorial Day Leave

An employee who is a veteran or a member of a department of war (see +ALM GL ch. 8, § 17) who wants to participate in a Memorial Day exercise, parade or service in his or her community of residence must be granted a leave of absence of sufficient time to do so.

An employee who is a veteran or member of a department of war must also be granted time off to observe Veterans Day.

Both absences may be with or without pay at the employer's discretion.

The law does not apply to employees whose services are essential and critical to public health or safety and are determined to be essential to the safety and security of the employer or the employer's property.

+ALM GL ch. 149, § 52A1/2.

An employer should consider including a veterans and memorial day leave policy in its handbook to educate employees, including supervisors, about the availability of veterans and memorial day leave and to show its compliance with Massachusetts law.

Emergency Responder Leave

An employer may not terminate or otherwise discriminate against an employee who fails to report to work at the start of his or her regular working hours when the failure is due to his or her responding to an emergency as a volunteer member of a fire or ambulance department. The leave may be unpaid, but the employee must upon request provide a statement from the chief certifying the date, time and employee's response to the emergency.

Responding to an emergency means responding to, working at the scene of or returning from a fire, rescue, emergency medical service call, hazardous materials incident or a natural or man-made disaster in the good-faith belief that the action is necessary to prevent the imminent loss of life or property, where the emergency occurs during a period other than normal working hours of the employee.

Volunteer member means a volunteer, call, reserve or permanent-intermittent firefighter or emergency medical technician, but does not include any person who received pay for over 975 hours of services over the preceding six-month period.

If an employer unlawfully terminates or disciplines an employee in violation of the emergency responder leave law, the employee must be immediately reinstated to their former position without reduction of pay, seniority or other benefits, and must receive any lost pay or other benefits during any period for which such termination or other disciplinary action was in effect. Any action to enforce this law must be brought within one year of the alleged violation.

+ALM GL ch. 149, § 177B.

An employer should consider including an emergency responder leave policy in its handbook to educate employees, including supervisors, about the availability of emergency responder leave and to show its compliance with Massachusetts law.

Jury Duty Leave

All employers in Massachusetts must provide jury duty leave to regular employees. When an employee serves as a juror, the employee is entitled to receive their regular wages for the first three days, or part thereof, of jury service. For more information on jury duty leave, please see Jury Duty: Massachusetts.

Witness Duty Leave

An employer may not terminate or discriminate against an employee who is required to attend court because the employee is a victim of a crime upon which an accusatory instrument is based, or because the employee has been subpoenaed to testify as a witness in a criminal action. The employee must notify the employer prior to the day of the employee's attendance at court.

An employer that violates the law may be punished by a fine of not more than $200 or by imprisonment for not more than one month, or both. +ALM GL ch. 268, § 14B.

An employer should consider including a witness duty leave policy in its handbook to educate employees, including supervisors, about the availability of witness duty leave and to show its compliance with Massachusetts law.

Voting Leave

A manufacturing, mechanical or mercantile establishment must permit an employee to vote at an election during the first two hours after the polls open in the precinct, ward or town in which the employee is entitled to vote, if the employee requests such leave. +ALM GL ch. 149, §178.

An employer should consider including a voting leave policy in its handbook to educate employees, including supervisors, about the availability of voting leave and to show its compliance with Massachusetts law.

Garden Leave

Massachusetts law regulates the use and enforcement of noncompete agreements entered into on or after October 1, 2018. To be valid and enforceable, a noncompetition agreement must be supported by a garden leave clause or other mutually agreed upon consideration between the employer and the employee.

The law defines a garden leave clause as a provision within a noncompetition agreement by which an employer agrees to pay an employee during the period of time after the date employment terminates and the employee is restricted from engaging in activities competitive with the employer. The law does not define other mutually agreed upon consideration, but requires that it be specified in the agreement.

During garden leave, the employer must pay at least 50 percent of the employee's highest annualized base salary paid by the employer within the two years preceding the employee's termination. The employer may not unilaterally discontinue or otherwise fail or refuse to make the payments, except in the event of a breach by the employee.

ALM GL ch. 149, § 24L, as added by 2018 Mass. Ch. 228.

Training

An employer should be aware that certain leaves are protected by state law and therefore it should train its supervisory employees not to take action against an employee because he or she took leave or indicated that he or she may take the leave in the near future. See Training and Development: Federal.

Future Developments

Note: In June 2019, the state decided to delay by three months the deadline for contribution withholding. +2019 Bill Text MA S.B. 2255.

Massachusetts has enacted a law providing paid family and medical leave (PFML) to qualified employees, former employees and self-employed individuals, beginning January 1, 2021. Family and medical leave will be paid for by a combination of employer and employee contributions, which must be made beginning October 1, 2019. In addition, the law contains notice and retaliation provisions that take effect in 2019. For more information on paid family and medical leave, please see FMLA: Massachusetts.

Additional Resources

Massachusetts Supplement: Table of Contents

Sample Massachusetts Earned Sick Time Policy

Massachusetts Commission Against Discrimination