940 CMR, § 33.06 - Documentation of Use of Earned Sick Time

(1) An employer may require written documentation for an employee's use of earned sick time that:

(a) exceeds 24 consecutively scheduled work hours;

(b) exceeds three consecutive days on which the employee was scheduled to work;

(c) occurs within two weeks prior to an employee's final scheduled day of work before termination of employment, except in the case of temporary employees (i.e. Temp Workers);

(d) occurs after four unforeseeable and undocumented absences within a three-month period; or

(e) for employees younger than 18 years old, occurs after three unforeseeable and undocumented absences within a three-month period.

(2) Written documentation that may be required includes:

(a) Written documentation signed by a health care provider indicating the need for the earned sick time taken; or

(b) With regard to indicating the need of leave related to domestic violence, any of the following:

1. a restraining order or other documentation of equitable relief issued by a court of competent jurisdiction;

2. a police record documenting the abuse;

3. documentation that the perpetrator of the abuse has been convicted of one or more of the offenses enumerated in M.G.L. c. 265 where the victim was a family or household member;

4. medical documentation of the abuse;

5. a statement provided by a counselor, social worker, health worker, member of the clergy, shelter worker, legal advocate or other professional who has assisted the employee in addressing the effects of the abuse on the employee or the employee's family; or

6. a signed written statement from the employee attesting to the abuse.

(3) The employer may never require, as a condition of granting, using, or verifying earned sick time, that an employee provide documentation to explain the nature of the illness or the details of the domestic violence.

(4) All evidence of domestic violence experienced by an employee, including the employee's statement and corroborating evidence, shall not be disclosed by the employer unless written consent for disclosure is given by the employee at the time the evidence is provided.

(5) Where documentation is required, employees who do not have health care coverage through a private insurer, the Massachusetts Healthcare Connector and related insurers, or an employer that provides health insurance to employees may provide a signed, written statement evidencing the need for the use of the earned sick time, without being required to explain the nature of the illness, in lieu of documentation by a health care provider. Employers may use the Attorney General's model form as a guide for their own policies and may include a check-off listing of the statutory reasons for permissible use of earned sick time on such form. Employers using their own verification form shall not require any additional information than what is required by M.G.L. c. 149, § 148C.

(6) Documentation may be submitted to an employer in hand or by any reasonable method, including e-mail.

(7) Employees must submit such documentation within seven days after the taking of earned sick time for which such documentation is required, unless, for good cause shown, an employee requires more time to provide such documentation.

(8) If an employee fails to comply without reasonable justification with the documentation requirements of the employer as described in 940 CMR 33.06, the employer may recoup the sum paid for earned sick time from future pay, as an overpayment. Employees must be put on notice of this practice.

(9) If the employee fails to provide documentation for unpaid earned sick time, the employer may deny the future use of an equivalent number of hours of accrued earned sick time until documentation is provided, but may not otherwise take adverse action.

(10) Employers 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 shall not be required to explain the nature of the illness or the details of the domestic violence. Employers may use the Attorney General's model form as a guide for their own policies and may include a check-off listing of the statutory reasons for permissible use of earned sick time on such form. Employers using their own verification form shall not require any additional information than what is required by M.G.L. c. 149, § 148C.

(11) Public employers performing essential public health and safety functions may require employees making any use of earned sick time during severe weather events or other emergencies to provide written documentation from a medical provider substantiating its use and to follow additional notification procedures set forth by the employer. If an employee fails without cause to follow policies in such circumstances, an employer may discipline an employee for misuse of sick leave.

(12) 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. If an employee fails without cause to follow policies in such circumstances, an employer may discipline an employee for misuse of sick leave.

(13) 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.

Notes

940 CMR, § 33.06

Adopted by Mass Register Issue 1290, eff. 7/3/2015. Amended by Mass Register Issue 1292, eff. 7/3/2015.