144 | Massachusetts Wage & Hour Peculiarities, 2025 ed. © 2025 Seyfarth Shaw LLP 3. Effect of Termination and Breaks in Service and Recordkeeping and Notice Requirements Employers are not required to pay out unused but accrued sick time upon an employee’s termination.849 Employees who experience a break in service—that is, they end their employment for a period of time, and return to the same employer—may be entitled to maintain the right to use unused sick time they accrued before their break in service depending on the length of the break:850 For breaks in service less than four months, employees maintain the right to use any sick time that they accrued prior to the break in service. For breaks in service between four and twelve months, employees may use sick time accrued before the break in service if the employees’ bank of sick time exceeds ten hours. In addition, employees whose break in service does not exceed twelve months need not wait ninety days before using reinstated, accrued sick time.851 Employers must keep records of use and accrual of sick time under the ESTL and maintain such records for three years.852 Some employers may choose to substitute their own vacation, paid time off, or sick time policy for a policy under the ESTL. While such substitution is permissible, employers must ensure that their substitute policies allow employees to use at least the same amount of time, for the same purposes, under the same conditions, and with the same job protections as those provided under the ESTL. Employers that use their own substitute policies to provide sick time need not separately track use and accrual of sick time. All employers must post in a conspicuous location a notice of the ESTL prepared by the Massachusetts Attorney General and either provide a copy of the notice to eligible employees or maintain a sick time policy in an employee handbook.853 B. Massachusetts Leave for Domestic Violence Victims and Family Members Under the Act Relative to Domestic Violence (ARDV), an employer that has 50 or more employees working in Massachusetts must allow an employee who is a victim of abusive 849 See ESTL FAQs, at 10. 850 940 C.M.R. § 33.03(31)-(33). 851 Id. 852 940 C.M.R. § 33.03. 853 940 C.M.R. § 33.09. The Attorney General’s notice is available at http://www.mass.gov/ago/docs/workplace/earned-sicktime/est-employee-notice.pdf (last visited Mar. 6, 2025).
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