142 | Massachusetts Wage & Hour Peculiarities, 2025 ed. © 2025 Seyfarth Shaw LLP Although employees begin accruing sick time upon hire, they may not begin using sick time until ninety days after hire.835 Employers need not allow employees to use sick time before they have accrued it. The smallest increment of sick time that can be used in a given day is one hour. After the first hour of sick time is used, the employee may use sick time in the smaller of one hour or the smallest hourly increment the employer’s payroll system uses to account for time.836 If an employee’s use of sick time requires the employer to call in a replacement, the employer may require the employee to use an amount of sick time equal to the time that the replacement employee works, up to a full shift of sick time.837 The law prohibits employers from retaliating against employees for exercising or attempting to exercise their rights under the ESTL.838 This means, for example, that an attendance policy that faults employees for taking time off under the ESTL is impermissible. 1. Pay for Time Off Pursuant to the ESTL Employers with eleven or more employees must provide paid sick time. Sick time must be paid out at the employee’s “same hourly rate.”839 For hourly employees who receive more than one hourly rate, the “same hourly rate” means either the wages that the employee would have been paid for the time that the employee was on sick leave or the weighted average of all regular rates during the previous pay period or another period of time used to calculate a blended rate of pay.840 For employees paid a salary, the same hourly rate is determined by dividing the salary in the previous pay period by the number of hours worked during that period.841 Employees paid on a piecework or fee for service basis must be paid a reasonable calculation of what the employee would have earned had they worked.842 Employees paid on a commission or base wage plus commission basis must be paid the greater of the base wage or the Massachusetts minimum wage. Finally, tipped employees must be paid at the Massachusetts minimum wage.843 835 M.G.L. ch. 149, § 148C(d)(1). 836 940 C.M.R. § 33.03(14). 837 If the employee using sick time does not have sufficient accrued sick time to cover the entire period that the replacement worker is called in to cover for the employee’s absence, the employer must provide the absent employee unpaid, job-protected leave to cover the portion of theirtheir absence not covered by accrued sick time. 838 940 C.M.R. § 33.08. 839 M.G.L. ch. 149, § 148. The “same hourly rate” does not include commissions, bonuses, incentive pay based on sales, or production, overtime, holiday pay, or premium pay. 940 C.M.R. § 33.02. 840 940 C.M.R. § 33.02. 841 Id. Employees who are exempt from the FLSA’s overtime requirements are assumed to work forty hours per week for purposes of the ESTL unless their normal work week is less than forty hours per week. Id. 842 Id. 843 Id.
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