My name is Marc Terry.  I am a Partner in the Labor, Employment & Employee Benefits Group at Mirick O’Connell in Westborough.  I also serve as the Chair of the Public Policy Committee of the MetroWest Chamber of Commerce.

Although I want to state that the Chamber opposed the Mandatory Sick Leave Law, it is not the purpose of my testimony today to ask the Attorney General to do what we know it cannot.  In opposing the Law, the Chamber expressed concern about the financial and operational impact on business and the potential for the abuse of sick leave that the law creates.  We believe there is still an opportunity through the Attorney General’s regulations to balance the intent of the act with the need for ease of administration and protection from abuse.  I will also offer a number of comments that are intended to clarify some points that remain unclear.

With that background, I’d like to offer the following comments regarding the proposed regulations.  Let me first address what I like about the draft regulations.

1.         The regulations, at Section 33.07(2) clarify that the purpose of the law is to ensure that employees of employers with 11 or more are required to provide paid leave that may be used for illness rather than requiring them to offer an additional bank of paid sick leave.  I think this addresses a significant concern for business and I encourage the Attorney General to retain this provision in its final regulations.

2.         The clarification of what it means to provide more generous benefits in Section 33.07(2) is also helpful as there was significant concern about exactly what this meant.  I recommend that the regulations simply be clarified to extend this provision to combined paid time off policies under 33.07(3).

3.         I am also supportive of the preservation of good attendance bonuses in Section 33.07(4).  I think that was a point of concern for employers that has been adequately addressed.

Let me now turn to the points that I believe will be a point of concern for business.

1.         Section 33.01 provides that leave under the Law will be “in addition to” time off provided under the FMLA, and a number of other leave laws.  This creates a significant concern as each of the other laws, while unpaid, allows for the use of paid leave to maintain paid status.  We, therefore, believe it is appropriate and consistent with the purpose of the law that it be allowed to run concurrently with other statutory leaves as is explicitly allowed under each of the other statutes referenced in this section.  This may be achieved by amending the phrase “but may run concurrent with leaves” after the aforementioned “in addition to” phrase.

2.         With regard to the definition of “Earned paid sick time,” I recommend removing the phrase “under M.G.L. c. 151, § 1” from the end of the definition.  This is not to suggest that sick leave should not be paid at less than the minimum wage, but rather to recognize that not all employers covered by the Law are subject to the State minimum wage.  Some are covered by the Federal minimum wage.

3.         The definitions of “Employee” and “Employer” should be amended to clarify that other political subdivisions and regional districts are included within the definition of cities and towns as they are comprised of cities and towns rather than state entities.

4.         The regulations clarify that an employee may only avoid the use of his or her sick leave benefit by making up the hours if the employer agrees in Section 33.03 (19).  I strongly encourage the language to be revised to reflect that any time must be made up in the same work week.  Failing to do this is going to lead a number of overtime disputes that arise from the employer’s desire to help an employee without recognizing that overtime is due in most circumstances when a non-exempt employee works in excess of 40 hours in a week.  This would be the case if the hours were made up in a subsequent workweek within the same pay period.

5.         Of significant concern to business is Section 33.05(4).  This provision prohibits employers from obtaining a doctor’s note, under any circumstance, until an employee uses 24 hours of earned sick time.  This was certainly one of the major reasons the Chamber opposed the legislation to begin with and it remains the case because of the potential for abuse.  I realize this is the way the law was adopted.  That said, this provision of the regulations makes the matter worse because it will put employers in a situation of failing to comply with the certification requirements of the FMLA.  My suggestion to balance the provisions of the Law against this concern is to add the phrase “unless such additional medical or documentation is expressly permitted by other state or federal law.”  This allows employers to comply with both this and other laws.

6.         I recommend the expansion of the employee notification under Section 33.05(8) for foreseeable absences to 30 days to create a single standard for the use of FMLA and paid sick leave.  With the “as soon as is practicable” provision that already exists in 33.05(9), this does not inhibit an employee’s use of paid sick leave while at the same time simplifying the administration of the act for employers by using a common notification period.

7.         In Section 33.06(1), I strongly recommend inserting a sentence that reads, “The health care provider must be qualified to provide care consistent with the reason for which the employee is seeking leave.”  For example, employers should not be required to accept the note of a dentist for an employee is who is using paid sick leave to recover from gall bladder surgery.

8.         In Section 33.06(2), I have strong concerns about the ability of employees to provide a signed statement excusing themselves from work.  While sympathetic to those who still do not have health coverage, the signed statement is simply not sufficient.  Again, one of employers’ biggest concerns with this law is that paid sick leave will be seen as an entitlement.  I get the time so I am going to use the time.  This factor cannot be dismissed.  It does happen and it is extremely hard to catch an employee when they do it.  Allowing employees to write their own notes is only going to make this worse, particularly with no real ability to confirm that an employee does not have a primary care physician or other medical provider.  Given that everyone is supposed to have health coverage in Massachusetts, employers should not be disadvantaged if employees do not take advantage of their coverage.  I recommend that Section (2) be deleted.