A Hole In The Massachusetts Earned Sick Time Law

Cup of tea with lemon for sick day

Being a leap year, there’s an extra day standing between us and spring. So, us New Englanders have to tough out winter even longer. February is the worst of the season and we’re still at the beginning. The cold temperatures usually mean that more of us are sick. CBS News recently reported that because the country has close to full employment, the places where we work have an increase in people, so the flu spreads even easier.

Whether it’s a cold, the flu or some other bug, there’s probably a lot of coughing, sneezing and sniffling where you work. Everyone says if you’re sick, don’t go in. Take a day or two off to rest and get better.

But that’s often easier said than done. Especially so soon after the holidays. Money spent on gifts may have left some in a fragile financial state and the holidays themselves may have been unpaid — further exacerbating the situation. Not all workers have paid holidays.

The time frame from the end of November through mid-January (Thanksgiving, Christmas, New Years and Martin Luther King, Jr. Day) often comes with several smaller weekly paychecks due to all the holidays. So taking unpaid time off at this time of year because of illness may not be an option. If anything, some workers may be trying to work extra time to make up for the money lost.

The Massachusetts Earned Sick Time Law is presumably meant to address most workers, but its focus is on permanent employees within larger companies – 11 employees or more. This law may seem fair on its face, but it’s not always fair in its application. Even though I had been working full time, one year, I ended up not having sick time available to use even though I earned it. Contract workers aren’t able to use sick leave in the same way (or sometimes at all) as permanent workers.

Contract vs Permanent

The term contract employee is used interchangeably with temporary employee. Both terms mean that the employee is hired via a contract for a particular job at a set rate of pay. This worker does not become part of the staff where they work and is not a permanent employee.

According to the American Staffing Association, about 17 million temporary and contract employees are hired each year in the United States by staffing companies. Most work full-time and enjoy having a flexible schedule. The average assignment is around two and a half months and can range from a few hours to several years.

Staffing statistics specific to Massachusetts give some insight as well. Annual sales are $4.3 billion. Each week, 68,100 temporary employees are part of the workforce in this state. Annually, that’s 354,200 people doing contract work in Massachusetts.

47% of these workers are in the engineering, IT and scientific sector. 15% are doing industrial work and another 15% are doing clerical and administrative work in an office. 7% are doing professional or managerial work. 12% are part of an uncategorized sector and 4% work in health care.

I’ve been a full-time contract attorney for many years, working at mostly large law firms in the Boston area. I’ve worked on dozens of projects. They have been as short as one day to as long as nearly four years. But as the previously stated statistics say, most recently, my projects have generally been two to three months.

To keep working steadily, I’m signed up with multiple agencies. Depending upon how long a project lasts, I might work for one agency for a year or more. Or I may work for several agencies for a few weeks and then for a few months. Most of these agencies I have worked with over many years. Each project may be new, but I am not a new employee. There is a work history.

The Problem: Using Massachusetts Sick Time

Earned sick time in Massachusetts provides that workers can earn and use up to 40 hours of sick time per year. Workers earn an hour of sick leave for every 30 hours worked. Employers can have their own policies providing more generous leave options than required by law.

Earning sick time isn’t the problem. The problem is using sick time that has already been earned. The regulations give some clarity. Sick time can’t be used until 90 days after the first date of actual work. Also, after a 12 month break in service, the 90-day vesting period starts again.

When a contractor is working on a project on average for about 75 days and works for multiple agencies, they may not return to the same agency for another year or more. In this scenario, the sick time that they earned is probably lost by the time they return to that employer.

This happened to me. It hasn’t happened often, but I went about one year where I couldn’t use the sick time that I had earned. By the next year, I had lost most if not all of it and had to start the 90 days again. This has also happened to colleagues. If this is happening to us, it might be happening to contractors in different sectors of the workforce as well.

According to the Institute for Women’s Policy Research, “approximately 728,000 private sector workers gained access to earned sick time under the law; of those, 431,000 workers lacked paid leave benefits of any kind (including vacation) and are newly eligible to receive leave under the law.”

The Solution: Amend The Law

I’m one of those workers who for the most part didn’t have paid leave benefits before this 2015 law. I’m grateful for it. But hindsight is 2020 and so is the year. Since we’ve had five years to see how this law works, I believe it’s time to take a closer look and amend the law, so it works for more of us.

However, there is another issue. Does anyone care? I’m attuned to the gaps in the law because I have firsthand experience. I was talking to a friend at work about this and she said that nobody cares how it impacts us. It felt quite hurtful, but maybe it’s true.

I plan to contact my state legislators about an amendment — and it may come to nothing. But at least I wrote this and raised the issue. Much like when I wrote about the gap in the Family Medical Leave Act when it comes to siblings. I want others in similar situations to know that they are not alone. It’s happening to other people as well. And even though it may not be most people, someone else does care.