Code of Massachusetts Regulations › 940 CMR - OFFICE OF THE ATTORNEY GENERAL › Title 940 CMR 33.00 - Earned Sick Time › Section 33.02 - Definitions

Current through Register 1525, July 5, 2024
As used in
				940 CMR
				33.00, the following terms shall, unless the context
				clearly requires otherwise, have the following meanings:
Benefit Year.
"Benefit year" is used
				interchangeably with "calendar year" for purposes of
				940 CMR
				33.00.
Break in Service.
A period of time extending from
				the date an employee last worked for an employer until the employee's return to
				employment with that employer, whether the separation was voluntary or
				involuntary.
Calendar Year
. Any consecutive 12-month period of
				time as determined by an employer. Most employers will find it helpful to use
				the year that they use for determining wages and benefits, including, for
				example: a year that runs from January 1 to December 31, the tax year, fiscal
				year, contract year, or year running from an employee's anniversary date of
				employment. "Calendar year" is used interchangeably with "benefit year" for
				purposes of
				940 CMR
				33.00.
Child.
A biological, adopted, or foster child, a
				stepchild, a legal ward, or a child for whom an employee has assumed the
				responsibilities of parenthood.
Child For Whom an Employee Has Assumed the
				Responsibilities of Parenthood
. A child of an employee standing in loco
				parentis, as defined by 29 U.S.C. § 2611(12) and 29 C.F.R. §§
				825.122(c) and 825.800.
Domestic Violence.
Abuse committed against an
				employee or the employee's child by:
(1) a current or former spouse of the employee;
(2) a person with whom the employee shares a child in common;
(3) a person who is cohabitating with or has cohabitated with
				the employee;
(4) a person who is related to the employee by blood or
				marriage; or
(5) a person with whom the employee has or had a dating or
				engagement relationship. Except as otherwise specified herein, this term shall
				be consistent with M.G.L. c. 151A, § 1(g)(1/2), including any amendments
				thereto.
Date of Hire.
An employee's first date of actual
				work for an employer. "Date of hire" is used interchangeably with "first date
				of actual work" for purposes of
				940 CMR
				33.00.
Earned Paid Sick Time.
Time off from work accrued
				by an employee and provided by an employer that can be used for the purposes
				described in 940 CMR 33.02:
Definitions
for Earned Sick Time
				compensated at the same hourly rate that the employee earns at the time the
				employee uses the paid sick time; provided, however, that the same hourly rate
				shall not be less than the effective minimum wage under M.G.L. c. 151, § 1
				where applicable.
Earned Sick Time.
Time off from work accrued by an
				employee during hours worked and provided by an employer to allow an employee
				to:
(1) care for the employee's child, spouse, parent, or parent of
				a spouse, who is suffering from a physical or mental illness, injury, or
				medical condition that requires home care, professional medical diagnosis or
				care, or preventative medical care;
(2) care for the employee's own physical or mental illness,
				injury, or medical condition that requires home care, professional medical
				diagnosis or care, or preventative medical care;
(3) attend a routine medical appointment or a routine medical
				appointment for the employee's child, spouse, parent, or parent of
				spouse;
(4) address the psychological, physical or legal effects of
				domestic violence; or
(5) travel to and from an appointment, a pharmacy, or other
				location related to the purpose for which the time was taken.
Employee.
Any person who performs services for an
				employer for wage, remuneration, or other compensation, as further defined by
				M.G.L. c. 149, § 148B, including full time, part-time, seasonal, and
				temporary employees, except:
(1) an employee of the United States government;
(2) an employee of a city or town is not considered an employee
				for purposes of this section until M.G.L. c. 149, § 148C, is accepted by
				vote or by appropriation as provided in Article CXV of the Amendments to the
				Constitution of the Commonwealth;
(3) an employee of a local public employer not covered by the
				term cities and towns, for example, school committees, including regional
				schools and educational collaboratives, shall be considered an employee only if
				M.G.L. c. 149, § 148C, is accepted by vote or appropriation of the
				prudential bodies governing said entity;
(4) a student attending a public or private institution of
				higher education located in the Commonwealth who is:
(a) participating in a federal work-study program or a
				substantially similar financial aid or scholarship program;
(b) providing support services to residents of a residence
				hall, dormitory, apartment building, or other similar residence operated by the
				institution at which they are matriculated in exchange for a waiver or
				reduction of room, board, tuition or other education-related expenses;
				or
(c) exempt from Federal Insurance Contributions Act (FICA) tax
				pursuant to 26 U.S.C. § 3121(b)(10);
(5) a school-aged student under 20 U.S.C. § 1400
et. seq
., the Individuals with Disabilities Education Act
				(IDEA); and
(6) an adult client who resides in a Massachusetts licensed
				program and performs work duties within the program setting as part of bona
				fide educational or vocational training.
Employer.
Any individual, corporation, partnership
				or other private or public entity, including any agent thereof, who engages the
				services of an employee for wages, remuneration or other compensation,
				except:
(1) the United States government shall not be considered an
				employer;
(2) cities and towns shall be considered employers for the
				purposes of this law only if this law is accepted by vote or by appropriation
				as provided in Article CXV of the Amendments to the Constitution of the
				Commonwealth;
(3) local public employers not covered by the term cities and
				towns, for example, school committees, including regional schools and
				educational collaboratives, shall be considered employers for the purposes of
				M.G.L. c. 149, § 148C, only if the law is accepted by vote or
				appropriation of the prudential bodies governing said entity; and
(4) notwithstanding M.G.L. c. 15D, § 17, M.G.L. c. 118E,
				§§ 70-75, or any other special or general law to the contrary, the
				PCA Quality Home Care Workforce Council shall be deemed the Employer of all
				Personal Care Attendants, as defined in M.G.L. c. 118E, § 70, for purposes
				of M.G.L. c. 149, § 148C(d)(4), the Department of Medical Assistance shall
				be deemed the Employer of said Personal Care Attendants for all other purposes
				under M.G.L. c. 149, § 148C, and the Department of Early Education and
				Care shall be deemed the Employer of all Family Child Care Providers, as
				defined in M.G.L. c. 15D, § 17(a), for purposes of M.G.L. c. 149, §
				148C.
Health Care Provider.
(1) a doctor of medicine or osteopathy who is authorized to
				practice medicine or surgery by the State in which the doctor practices;
				or
(2) any other person determined by the U.S. Secretary of Labor
				to be capable of providing health care services under 29 U.S.C. § 2611.
				Health Care Provider includes:
a) podiatrists, dentists, clinical psychologists, optometrists,
				and chiropractors (limited to treatment consisting of manual manipulation of
				the spine to correct a subluxation as demonstrated by X-ray to exist)
				authorized to practice in the Commonwealth or any other State and performing
				within the scope of their practice as defined under the General Laws or any
				other state law;
b) nurse practitioners, nurse-midwives, clinical social workers
				and physician assistants who are authorized to practice in the Commonwealth or
				any other State and performing within the scope of their practice as defined
				under the General Laws or any other State law;
c) Christian Science Practitioners listed with the First Church
				of Christ, Scientist in Boston, Massachusetts;
d) any health care provider from whom an employer or the
				employer's group health plan's benefits manager will accept certification of
				the existence of a serious health condition to substantiate a claim for
				benefits; and
e) a health care provider listed above who practices in a
				country other than the United States, who is authorized to practice in
				accordance with the law of that country, and who is performing within the scope
				of his or her practice as defined under such law.
Regular Hourly Rate.
The amount that an employee
				is regularly paid for each hour of work.
Same Hourly Rate.
(1) For employees compensated on an hourly basis, the same
				hourly rate means the employee's regular hourly rate.
(2) For employees who receive different pay rates for hourly
				work from the same employer, the same hourly rate means either:
(a) the wages the employee would have been paid for the hours
				absent during use of earned sick time if the employee had worked; or
(b) the blended rate, determined by taking the weighted average
				of all regular rates of pay over the previous pay period, month, quarter or
				other established period of time the employer customarily uses to calculate
				blended rates for similar purposes.
Whatever method the employer elects to determine the same
				hourly rate, (a) or (b) above, the employer must use a consistent method for
				each employee throughout a benefit year.
(3) For employees paid a salary, the same hourly rate means the
				employee's total earnings in the previous pay period divided by the total hours
				worked during the previous pay period. For determining total hours worked
				during the previous pay period, employees who are exempt from overtime
				requirements under 29 U.S.C. § 213(a)(1), the Fair Labor Standards Act,
				shall be assumed to work 40 hours in each week unless their normal work week is
				less than 40 hours, in which case earned sick time shall accrue and the same
				hourly rate shall be calculated based on the employee's normal work week.
				Regardless of the basis used, the same hourly rate shall not be less than the
				effective minimum wage under M.G.L. c. 151, § 1, where applicable.
(4) For employees paid on a piece work or a fee-for-service
				basis, the same hourly rate means a reasonable calculation of the wages or fees
				the employee would have received for the piece work, service, or part thereof,
				if the employee had worked. Regardless of the basis used, the same hourly rate
				shall not be less than the effective minimum wage under M.G.L. c. 151, §
				1, where applicable.
(5) For employees paid on commission (whether base wage plus
				commission or commission only), the same hourly rate means the greater of the
				base wage or the effective minimum wage under M.G.L. c. 151, § 1, where
				applicable.
(6) For tipped employees who ordinarily receive the service
				rate under M.G.L. c. 151, § 7 ($3.00 plus tips as of January 1, 2015), the
				same hourly rate means the effective minimum wage under M.G.L. c. 151, § 1
				($9.00 as of January 1, 2015).
(7) The same hourly rate shall not include:
(a) sums paid as commissions, drawing accounts, bonuses, or
				other incentive pay based on sales or production;
(b) sums excluded under 29 U.S.C. § 207(e), including
				contributions irrevocably made by an employer to a trustee or third person
				pursuant to a bona fide plan for providing old-age, retirement, life, accident,
				or health insurance, and any other employee benefit plans;
(c) overtime, holiday pay, or other premium rates. However,
				where an employee's regular hourly rate is a "differential rate," meaning a
				different wage rate paid for the same work performed under differing conditions
				(e.g. a night shift), the "differential rate" is not a premium.
Transition Year.
The benefit year that includes
				July 1, 2015.