It’s The Holiday Season and Time for a History Lesson

The Commonwealth of Massachusetts is a state steeped in history, and the laws are no exception. Some might call the patchwork of rules known as the Blue Laws archaic. After all, the Blue Laws date back to the 17th century – to the founding of New England. The founders wanted to prevent unwholesome activity on Sundays, and over the years these laws were expanded to include certain holidays. You may be wondering how this impromptu history lesson applies to your workplace. This year, Christmas and New Year’s Day fall on Sundays but, are legally observed on the following Monday, which means that employers receive a double dose of Blue Law headache.

So what are these Blue Laws?

Over the last century, the Commonwealth has gradually narrowed these prohibitions against operating on Sundays and holidays by enacting numerous piecemeal exemptions to the Blue Laws, and there are now fifty-five exemptions, that allow certain businesses to operate legally on Sundays and holidays. However, these existing rules still impose significant burdens on businesses that may include: closure, premium pay, and voluntariness of work requirements on December 26 and January 2.

When certain holidays, including Christmas and New Year’s Day, fall on a Sunday, those holidays are legally observed on Monday. Below we will untangle what this will mean for our different clients. The answer will depend on the nature of your business..


Massachusetts law prevents most manufacturers from operating on Sundays without a permit issued by the local police department. There is a limited exception to this rule that allows manufacturers to operate on Sundays without a permit if there are “manufacturing processes which for technical reasons require continuous operations.” Manufacturers that fall within the exception or who obtain a permit are not required to provide premium pay, and employees can be required to work.

This same law will apply to manufacturers on Christmas (December 25) and New Year’s Day (January 1), both of which fall on Sundays.

Although December 26 and January 2 are considered legal holidays, manufacturers will be able to operate lawfully. However, non-exempt employees cannot be required to work on those days – all work must be voluntary. Again, there is only a very limited exception to the voluntariness requirement under the law if the work being performed is both (1) absolutely necessary and (2) can lawfully be performed on Sunday. As stated above, work on Sunday may only occur without a permit if the work for technical reasons requires continuous operation.

Employees may volunteer to work on legal holidays, and premium pay is not required.

Warehouses and Delivery Centers

An Act Relative to Job Creation and Workforce Development, signed by Governor Baker on August 10, 2016, amended the Blue Laws to allow warehouses and delivery centers to remain open on Sundays and holidays. The Act revised a section of the law that previously applied only to the transport of goods and commerce by motor truck or trailer. The section now includes the “delivery of goods in commerce,” including the operations of facilities and warehouses related to the delivery.

This means that warehouses and delivery centers and transport operations may operate as usual on December 25, December 26, and January 1. As written, the law does not require these employers to provide premium pay, and the voluntariness requirement does not apply.

Retail Employers

Retail employers in Massachusetts may not open on Christmas Day (December 25). Retailers operating on December 26 must pay non-exempt employees who work on that day premium pay, defined as at least one and one-half times the employee’s regular rate of pay. Retailers who open on January 1, and January 2 will also be required to pay non-exempt employees premium pay and all work must be voluntary. However, premium pay on December 26, January 1, and/or January 2 can be off set against any overtime worked in the same workweek. There will be no pyramiding of premium pay, which would require employers to pay overtime based on the premium rate.

Additionally, retailers cannot require employees to work on December 26, January 1, or January 2. All work on those days must be voluntary, and refusal to work cannot be grounds for discrimination, dismissal, discharge, reduction in hours, or any other penalty.

Non-Retail, Non-Manufacturer

Employers who are not retailers or manufacturers may not operate on December 25, December 26, and January 1 unless they are subject to one of the fifty-five exemptions in the Blue Laws, or obtain a permit from the local police department to operate. Non-retail employers that fall under one of the exemptions or receive a permit are not required to provide premium pay, and the voluntariness requirement does not apply (again, religious accommodation requirements must still be met).

These employers may open on January 2, even without an exemption or permit and the premium pay and voluntariness requirements do not apply.

A Word About Religious Accommodation

With holidays falling on Sunday employers should remain thoughtful of religious accommodations to avoid a claim of discrimination. Under Massachusetts law, “it is unlawful for an employer to impose upon an employee or prospective employee as a condition of obtaining or retaining employment any terms or conditions which would require the individual to violate or forego a practice required by his or her religion. This includes but is not limited to requiring an employee or prospective employee to work on any day or portion thereof that the employee observes as a Sabbath or holy day.”

To obtain a religious accommodation, an employee or applicant must demonstrate that the observance of Sunday or the holiday is a required practice of his or her religion and must notify the employer at least ten days in advance of the requested absence and provide notice that the absence is for religious purposes. Once this is done, the employer is required to grant the accommodation unless it would impose an undue hardship.

These laws are enough to give anyone the Holiday “blues,” but we are here to help!



Back in May, the Occupational Safety and Health Administration (OSHA) issued a final rule requiring certain employers to electronically submit data from their work-related injury records to OSHA. This new rule, which takes effect January 1, 2017 also included anti-retaliation provisions intended to prevent employers from discouraging employees from reporting workplace injuries and illnesses. Here is the OSHA announcement of the “Final Rule Issued to Improve Tracking of Workplace Injuries and Illnesses Addressing Employer’s Compliance Obligations.”

OSHA’s initial plan was to begin enforcing the new anti-retaliation provisions in August, but due to litigation, the deadline was pushed back to December 1, 2016.  On this past Monday, a Texas federal judge refused to block the anti-retaliation provisions, rejecting a request by numerous business groups for a national injunction while their legal challenge plays out. Covered employers (defined below under “Looking Down The Road”) must take immediate steps to comply with the new anti-retaliation provisions.


  • Employers must inform employees of their right to report work-related injuries and illnesses free from retaliation. This obligation may be met by posting the OSHA Job Safety and Health — It’s The Law worker rights poster from April 2015 or later (
  • An employer’s procedure for reporting work-related injuries and illnesses must be reasonable and must not deter or discourage employees from reporting.
  • An employer may not retaliate against employees for reporting work-related injuries or illnesses


The final rule does not specifically prohibit employers from performing drug tests on employees or implementing safety incentive programs.  Instead, it prohibits employers from using drug-testing and safety incentive programs in a way that deters or discourages employees from reporting workplace incidents.

No More Post Incident Drug Testing: According to OSHA, a blanket policy that requires all employees to submit to drug testing following a workplace safety incident violates anti-retaliation protections. This anti-retaliation prohibition does not change or impact the Department of Transportation Commercial Driver License post-accident drug/alcohol testing requirement. The pertinent rule provides that “if an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and this rule would not prohibit such testing.” OSHA has also indicated that post-incident drug testing is appropriate in circumstances where employee drug use is suspected to be the cause of the incident.

No Incentive Programs That Reward for Zero Reported Injuries: OSHA is concerned that if employees are sufficiently motivated, they will under-report incidents in order to reach the incentive. OSHA is also encouraging employers to implement incentive plans that reward employees to improve workplace safety without discouraging reporting.


The new anti-retaliation provisions will allow OSHA to take a more proactive enforcement role, meaning that OSHA will not need to wait until a retaliation claim is filed to issue a citation against an employer if OSHA feels that the employer is discouraging appropriate reporting. This makes compliance particularly important.  Consider the following immediate steps:

  1. Update your OSHA Poster, and if you have not already done so, adopt a reasonable reporting process. Your handbook is a great place to start.
  2. Mandatory post-incident drug testing policies must be revised immediately. Adopt language that links testing to a reasonable suspicion that drug use caused the incident or illness.
  3. Modify any incentive programs that may be construed to discourage employees from reporting workplace accidents or illnesses.

Here is the OSHA Fact Sheet addressing the “Final Rule to Improve Tracking of Workplace Injuries and Illnesses.”


  • July 1, 2017: Organizations with 250 or more employees that are currently required to keep OSHA 300 Logs will be required to submit those records as well as Forms 300 and 301 electronically. Organizations with 20-249 employees that are classified in certain high-risk industries will also be required to electronically submit OSHA 300 Logs.

For your convenience and information, the links within this Alert contain related links to the list of “certain high-risk industries.”


At Foley & Foley we have already helped many of our clients modify their handbooks and drug testing policies to comply with these new rules.  We welcome the opportunity to help your organization do the same.