On May 28, 2021, Governor Charlie Baker signed An Act Providing For Massachusetts COVID-19 Emergency Paid Sick Leave into law. This alert provides a general overview of the statute and what it will mean for employers moving forward.
General Overview
Massachusetts employers are required to provide emergency paid sick leave to eligible employees as of May 28, 2021. The weekly cap for leave is $850.
Although the employer will pay the employee’s wages while the employee is out on leave, the employer will be entitled to a reimbursement for the wages paid via a newly created COVID-19 Massachusetts Emergency Paid Sick Leave Fund. Employers who receive a tax credit for wages paid to employees out on leave, however, may not be eligible for the reimbursement (e.g., employers who voluntarily extended Families First Coronavirus Response Act leave under the American Rescue Plan, or any other extension of the FFCRA). Employers are also required to post a notice regarding COVID-19 emergency paid sick leave and to distribute the notice to their employees.
Effective Date
The effective date of the statute is May 28, 2021—and it will remain in effect through September 30, 2021. Emergency paid sick leave, however, may expire before September 30th if the program funds are depleted before then.
Who Is Eligible For Emergency Paid Sick Leave?
All Massachusetts employees, with a qualifying reason(s), are eligible for emergency paid sick leave.
How Much Leave Are Employees Eligible For?
Employees may be eligible for up to 40 hours of COVID-19 emergency paid sick leave.
What Are The Qualifying Reasons For Leave?
The qualifying reasons for leave are as follows:
- An employee’s need to:
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- self-isolate and care for oneself because of the employee’s COVID-19 diagnosis;
- get a medical diagnosis, care, or treatment for COVID-19 symptoms; or
- get or recover from a COVID-19 immunization.
- An employee’s need to care for a family member who:
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- is self-isolating due to a COVID-19 diagnosis;
- needs medical diagnosis, care, or treatment for COVID-19 symptoms; or
- is subject to a quarantine order or similar determination by a local, state, or federal public official, a health authority, the family member’s employer, or a health care provider, regardless of whether the family member has been diagnosed with COVID-19.
- A quarantine order, or other determination by a local, state, or federal public official, a health authority, the employee’s employer or a healthcare provider that the employee’s presence on the job or in the community would jeopardize the health of others because of the employee’s exposure to COVID-19 or exhibiting of symptoms, regardless of whether the employee has been diagnosed with COVID-19.
- Employee’s inability to telework because the employee has been diagnosed with COVID-19 and the symptoms inhibit the employee’s ability to telework.
How Much Is An Employee Entitled To Be Paid While Out On Emergency Paid Leave?
Employees may be entitled to the following wages while out on emergency paid sick leave:
- Employees working at least 40 hours per week: will be paid a maximum of 40 hours of emergency paid sick leave.
- Employees working less than 40 hours per week on a regular schedule: will be paid an amount equal to the average number of hours they work during a regular 14-day schedule.
- Employees with varying hours and schedules: will be entitled to emergency paid sick leave in an amount equal to the average hours they worked during the prior six-month period. If, however, the employee with a varying schedule has not worked for the employer over the six-month period, then the employer needs to provide leave that is equal to the reasonable expectation of the employee at the time of hiring of the average number of hours per week that the employee would normally be scheduled to work.
However, depending on the employee’s compensation or rate of pay, an employee may not be entitled to 100% of their weekly wages because the statute imposes a $850 per week cap on wages paid to an employee who is out on emergency paid sick leave. Adhering to the cap is important because employers will not be eligible for reimbursement from the COVID-19 Massachusetts Emergency Paid Sick Leave Fund for wages paid to an employee in excess of $850 per week.
Is This Leave Required In Addition To Other Employer-Provided Vacation, PTO, Or Sick-Time Policies?
Yes. Emergency paid leave is to be provided to employees in addition to any employer provided vacation, PTO, or sick time.
Is Intermittent or Incremental Use Permissible?
Yes. Employees may be able to use leave intermittently or in hourly increments.
Required Notice of Need for Leave
An employee who needs COVID-19 emergency paid sick leave must provide written notice to the employer as soon as practicable or foreseeable. Notice from the employee must include:
- The employee’s name;
- The date or dates for which leave is requested and taken;
- A statement of the COVID-19 related reason the employee is requesting leave with written support of the reason; and
- A statement that the employee is unable to work, including by means of telework, because of the stated COVID-19 related reason.
For a leave request based on a quarantine order or self-quarantine advice, the employee statement must also include:
- The name of the governmental entity ordering quarantine or the name of the health care provider advising self-quarantine; and
- If the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.
After the first workday an employee receives the emergency paid leave, the employer may require the employee to follow reasonable notice procedures to continue receiving the leave. An employer cannot, however, require that the employee find a replacement worker to cover the hours during which the employee is using COVID-19 emergency paid sick leave.
How Do Employers Get Reimbursed?
Eligible employers may apply for a reimbursement from the COVID-19 Massachusetts Emergency Paid Sick Leave Fund.
It appears that, to date, there is no specified time or form for submission of a request for reimbursement,[1] but the application must include the employee’s written request for COVID-19 emergency paid sick leave to the employer. After submission of an application, reimbursement will be made directly to eligible employers “in a timely manner.”
Required Notice to Employees
Employers are also required to post a notice concerning COVID-19 emergency paid sick leave. On June 4, 2021, the Executive Office for Administration and Finance established a website that both provides information on the new law and provides the required employer notice.
The notice must be posted in a conspicuous location accessible to employees in every establishment where eligible employees work. A copy must also be provided to each employee. If, however, the employer does not maintain a physical workplace, or if the employee teleworks or performs work through a web-based platform, the notification shall be sent via electronic communication or a conspicuous posting in the web-based platform.
Prohibition Against Retaliation
Employers should be mindful that the statute contains strict anti-retaliation provisions and employers are prohibited from the following:
- interfering with, restraining, or denying an employee’s ability to take COVID-19 emergency paid sick leave, including, but not limited to, using an employee’s taking of the leave as a negative factor in any employment action, such as an evaluation, promotion, disciplinary action, or termination;
- disciplining or taking any other adverse action against an employee for the use of COVID-19 emergency paid sick leave; and
- taking any adverse action against an employee because the employee opposes practices believed to be in violation of the COVD-19 emergency paid sick leave law, including filing an action or providing information or testimony.
There is no doubt that these have been busy times for employers. We will continue to monitor developments under this statute to provide helpful information and guidance. Employers with specific questions are encouraged to speak with one of our employment attorneys.
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This alert is for informational purposes only and may be considered advertising. It does not constitute the rendering of legal, tax or professional advice or services. You should seek specific detailed legal advice prior to taking any definitive actions.
[1] The Executive Office for Administration and Finance or its designee) has been charged with developing a form application for use by employers.