In A Twist, The New Massachusetts Earned Sick Time Act May Not Apply For Union Employees

The new Earned Sick Time Act, approved by Massachusetts voters on November 4, requires private employers to provide sick leave to their employees. Though labor unions were among the leading backers of the ballot question, there is a good chance that unionized workers will be the one segment of the Massachusetts workforce not covered by the Act, due to a legal principle called "preemption."

The Earned Sick Time Act

Under the new law, which is to be codified at M.G.L. ch. 149, § 148C, employers must allow employees to accrue one hour of sick time for every 30 hours worked, up to a maximum of 40 hours in a calendar year. For employers with 11 or more employees, the sick leave must be paid at the same hourly rate the employee earns from employment at the time the employee uses the paid sick time. The employee must be permitted to carry over up to 40 hours of accrued leave into a subsequent year, though the employer may limit an employee's use of sick time to 40 hours in a calendar year.

The Act provides that an employee is entitled to use accrued sick leave -

(1) to care for a physical or mental illness, injury or medical condition affecting the employee or the employee's child, spouse, parent, or parent of a spouse;

(2) to attend routine medical appointments of the employee or the employee's child, spouse, parent or parent of a spouse; or

(3) to address the effects of domestic violence on the employee or the employee's dependent child.

Paid vacation or paid time off (or "PTO"), will satisfy the requirements of the Act if a sufficient amount is accrued and may be used for the purposes described above.

The drafters of the Act made clear that the law is intended to establish minimum standards for sick time accrual and use, but that employers are free to offer benefits that exceed the requirements of the Act. The Act expressly states that it is not to be construed to "diminish or impair the obligation of an employer to comply with any contract, collective bargaining agreement, or any employment benefit program or plan in effect on the effective date of this section that provides for employees greater earned sick time rights than the rights established under this section."

Section 301 Preemption

Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, says that lawsuits for violations of labor agreements between employers and unions can be brought in federal court. From this seemingly straightforward concept, the United States Supreme...