UPDATE: On September 29, 2021, Governor Baker signed a bill extending the Act until the earlier of April 1, 2022, or the exhaustion of the Reimbursement Fund.
On May 28, 2021, Massachusetts Governor Charlie Baker signed House Bill 3702—An Act Providing for Massachusetts COVID-19 Emergency Paid Sick Leave (“Act”)—into law after initially vetoing a similar bill in early April 2021. Under the Act, employers are required to provide employees with up to 40 hours of COVID-19 emergency paid sick leave if they are unable to work due to a qualifying reason related to COVID-19, including to obtain a vaccine. In exchange, employers will be able to seek reimbursement from the Commonwealth for the cost of providing such leave. The Act as originally drafted provided that its benefits would take effect this past Monday, June 7, 2021. However, the final version of the bill took effect upon signing, and its benefits will remain in place until September 30, 2021, or until the COVID-19 Massachusetts Emergency Paid Sick Leave Fund (“Reimbursement Fund”) runs out, whichever comes first.
How Much Emergency Leave Can Massachusetts Employees Now Take?
The amount of COVID-19 emergency paid sick leave available to each employee depends on an individual employee’s schedule:
- “Full-time employees,” defined as those who work 40 or more hours per week, are eligible for up to 40 hours of paid COVID-19 emergency sick leave.
- “Part-time employees,” defined as those who work less than 40 hours per week and work consistent hours each week, are entitled to an amount of leave equal to the number of hours they work per week.
- For any employee whose schedule is variable from workweek to workweek, employers must calculate leave based on either:
- an amount equal to the average number of hours the employee was scheduled to work per week over the preceding six months, or
- an amount equal to the employee’s reasonable expectation, upon hiring, of the average number of hours to be worked per week, for any employee who has not yet worked for six months.
This COVID-19 emergency paid sick leave allowance is in addition to any earned sick leave that employers are required to provide under the Massachusetts Earned Sick Time Law (M.G.L. c. 149, § 148C), as well as any other job-protected leave already provided by an employer’s policies or programs, applicable collective bargaining agreements, or federal law. Employees are entitled to take their COVID-19 emergency paid sick leave in blocks or in hourly increments, as needed. Employers are required to pay employees during such leave, but only up to a reimbursable maximum of $850. Also of significance is that, according to guidance issued by the Massachusetts Executive Office for Administration and Finance, employees who had already exhausted emergency paid sick leave previously offered under federal programs are eligible for an additional 40 hours between May 28, 2021, and the expiration of the program. Employees who earn more than $850 for a 40-hour period may be paid their usual compensation through supplemental use of paid time off, but employers will only be reimbursed for a maximum of $850 per employee.
Qualifying Reasons for the new Massachusetts Emergency Paid Sick Leave
The Act specifies reasons for which Massachusetts employees may use the new COVID-19 emergency paid sick leave. Many will seem familiar, being similar to the permitted reasons for leave first required under last year’s federal Emergency Paid Sick Leave Act, instituted as part of the Families First Coronavirus Response Act (“FFCRA”). However, the Act also provides for leave related to COVID-19 vaccinations. The qualifying reasons are as follows:
- The employee needs to:
- self-isolate and care for oneself because of their COVID-19 diagnosis;
- seek or obtain medical diagnosis, care, or treatment for COVID-19 symptoms; or
- obtain immunization related to COVID-19 or recover from an injury, disability, illness, or condition related to such immunization.
- The employee needs to care for a family member who is:
- self-isolating due to a COVID-19 diagnosis, or
- seeking medical diagnosis, care, or treatment for COVID-19 symptoms.
- The employee is under a quarantine order or other determination by a local, state, or federal public official; a health authority having jurisdiction; the employee’s employer; or a health care provider. An actual COVID-19 diagnosis is not required.
- The employee’s family member is under a quarantine order or other determination by a local, state, or federal public official; a health authority having jurisdiction; the employee’s employer; or a health care provider. An actual COVID-19 diagnosis is not required.
- The employee cannot telework because they have been diagnosed with COVID-19 and the symptoms inhibit their ability to telework.
Note that the Massachusetts definition of an employee’s “family member” is broad, and include spouses, domestic partners, parents (including parents of a spouse or domestic partner, aka a parent-in-law, or a person who was a “parental figure” to the employee), grandparents, grandchildren, and siblings.
Employer Obligations Under the Act
If any of the above conditions are met, a Massachusetts employee is entitled to take leave and receive compensation at their regular rate of pay, up to the maximum benefit amount of $850 per week. The employer must maintain all employee benefits throughout the leave, including health insurance, accrual of vacation and sick leave, disability insurance, education benefits, life insurance, and pension benefits. However, if an employer has already voluntarily implemented a COVID-19-related paid sick leave policy, the employer is not required to provide additional emergency paid sick leave now, provided that the voluntary policy provides at least as many benefits as now required by the Act.
In addition, employers must post notice of the Act for their employees in a conspicuous place on-site and provide electronic copies to employees who telework. A downloadable notice is available here.
An employer can require employees to give notice of their need for COVID-19 emergency paid sick leave as soon as practicable or foreseeable, and may also require that additional notice procedures be followed as a condition for continued leave.
Employers may not require that an employee search for or find a replacement worker to cover their absence during COVID-19 emergency paid sick leave, and also may not require employees to exhaust other paid leave options before taking advantage of the Act.
Employers are also prohibited from retaliating against an employee for exercising their rights under the Act. Although the legislation stops short of providing a private right of action for violations, it restricts an employer from:
- interfering with an employee’s ability to take COVID-19 emergency paid sick leave, including, but not limited to, using an employee’s taking of emergency paid sick leave as a negative factor in any employment action, such as an evaluation, promotion, disciplinary action, or termination;
- subjecting an employee to discipline 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 Act, or because the employee supports the rights of another employee under the Act, including, but not limited to:
- filing an action, or instituting or causing to be instituted, any proceeding under or related to the Act;
- providing or intending to provide any information in connection with any injury or proceeding related to the Act; or
- testifying or intending to testify in any inquiry or proceeding related to the Act.
Finally, employers must take care to treat any health information it obtains about an employee or an employee’s family member as confidential medical records. Any such health information must be (i) maintained on a separate form and in a separate file from other personnel information; (ii) protected from disclosure, except to the affected employee or with the express permission of the affected employee; and (iii) kept confidential in accordance with any other state or federal law.
COVID-19 Massachusetts Emergency Paid Sick Leave Fund
The new legislation also sets aside $75 million in federal funding for the creation of the Reimbursement Fund, to be administered by the Commonwealth of Massachusetts. Employers may seek reimbursement from the fund for eligible costs incurred in paying COVID-19 emergency sick leave after May 28, 2021, by submitting a written request to the Commonwealth of Massachusetts that includes (i) the employee’s name; (ii) the date or dates for which leave is requested and taken; (iii) a statement identifying the COVID-19 related reason the employee took leave and written support for such reason; and (iv) a statement that the employee is unable to work, including by means of telework, for such reason.
If a leave request is due to quarantine, additional documentation about the quarantine order or recommendation should also be submitted that includes (i) the name of the governmental entity ordering quarantine or the name of the health care provider advising self-quarantine, and (ii) if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee. In accordance with the Act, employers should be directly reimbursed within 30 days of submitting their application.
It should be noted that employers will not be able to “double dip”: the Commonwealth’s temporary Reimbursement Fund will not reimburse employers for sick leave wages that are also eligible for a tax credit through the FFCRA, or any other legislation that extended FFCRA’s tax provisions for emergency paid sick leave credit. Further, no employer will receive compensation for any payment in excess of the $850-per-week cap.
Commonwealth of Massachusetts authorities are currently preparing additional guidance and forms. We will advise you of any pertinent developments.
What Massachusetts Employers Should Do Now
- Carefully document any COVID-19 emergency paid leave requests if you plan to seek reimbursement.
- Review the Massachusetts-issued employer guidance regarding COVID-19 emergency paid sick leave.
- Post a written notice to employees on-site, and provide electronic copies to all remote employees.
- Review your current leave polices, and any COVID-19 policies, to ensure compliance with the Act.
- Expedite your applications for reimbursement, as the Reimbursement Fund is not guaranteed to last until September 30, 2021.
As always, our attorneys are available to guide Massachusetts employers through necessary recordkeeping and decision-making processes.
For more information about this Advisory, please contact: