On May 28, 2021, Massachusetts Governor Charlie Baker signed House Bill 3702—Massachusetts Law Providing Emergency Paid COVID-19 Sick Leave (“Law”) – effective after initially vetoing a similar bill in early April 2021. Under the law, employers are required to provide employees with up to 40 hours of sick leave paid emergency COVID-19 if they are unable to work due to a qualifying COVID-19-related reason, including to obtain a vaccine. In return, employers will be able to claim reimbursement from the Commonwealth for the cost of such leave. The law as originally drafted provided that its benefits would come into effect on Monday, June 7, 2021. However, the final version of the bill entered into force upon signature, and its benefits will remain in effect until September 30. 2021 or until The Massachusetts COVID-19 Emergency Paid Sick Leave Fund (“Reimbursement Fund”) runs out, whichever occurs 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 each employee’s schedule:
- “Full-time employees,” defined as those who work 40 or more hours per week, are entitled to a maximum of 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 constant hours each week, are entitled to a number of holidays equal to the number of hours worked per week.
- For any employee whose schedule varies from one work week to another, employers must calculate the leave based on:
- an amount equal to the average number of hours the employee was required to work per week over the preceding six months, or
- an amount equal to the employee’s reasonable expectation, when 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 Benefit is in addition at any earned sick leave that employers are required to provide under the Massachusetts Sick Leave Act (MGL c. 149, § 148C), as well as any other job protected leave already provided for by policies or an employer’s programs, applicable collective agreements, or federal law. Employees have the right to take their COVID-19 emergency paid sick leave in blocks or hourly increments, as needed. Employers are required to pay employees during this leave, but only up to a reimbursable maximum of $ 850. It is also important to note that, according to guidelines 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 a Additional 40 hours between May 28, 2021 and the program expires. Employees who earn more than $ 850 for a 40-hour period may receive their regular compensation through the additional use of paid time off, but employers will only be reimbursed for a maximum of $ 850 per employee.
Qualifying Reasons for Massachusetts’ New Emergency Paid Sick Leave
The law clarifies the reasons why employees in Massachusetts can use the new COVID-19 emergency paid sick leave. Many will sound familiar to you, being similar to the reasons allowed for first-time required leave under last year’s federal Emergency Paid Sick Leave Act, established under the Families First Coronavirus Act. Response Act (“FFCRA”). However, the law also provides for leave related to COVID-19 vaccinations. The grounds for qualification are as follows:
- The employee must:
- isolate and take care of yourself because of your diagnosis of COVID-19;
- seek or obtain a medical diagnosis, care or treatment for the symptoms of COVID-19; Where
- obtain a COVID-19 related vaccination or recover from an injury, disability, disease or condition related to such vaccination.
- The employee must take care of a family member:
- self-isolation due to a diagnosis of COVID-19, or
- seek medical diagnosis, care, or treatment for symptoms of COVID-19.
- The employee is subject to a quarantine order or other decision of a local, state or federal public official; a competent health authority; the employee’s employer; or a health care provider. A true diagnosis of COVID-19 is not required.
- The employee’s family member is subject to a quarantine order or other decision of a local, state or federal public official; a competent health authority; the employee’s employer; or a health care provider. A true diagnosis of COVID-19 is not required.
- The employee cannot telecommute because he has been diagnosed with COVID-19 and the symptoms are inhibiting his ability to telecommute.
Note that the Massachusetts definition of an employee’s “family member” is broad and includes spouses, domestic partners, parents (including parents of a spouse or domestic partner, aka a step-parent, or someone who was a “parent figure” to the employee), grandparents, grandchildren and siblings.
Employer’s 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, vacation and sick leave accumulation, disability insurance, education benefits, health insurance life and retirement benefits. However, if an employer has already voluntarily implemented a paid sick leave policy related to COVID-19, the employer is not required to provide additional emergency paid sick leave now, provided that the voluntary policy offers at least as many benefits as now required by the Act.
In addition, employers must post a notice of the Act to their employees in a prominent place on site and provide electronic copies to employees who telecommute. A downloadable manual is available here.
An employer may require employees to notify their need for COVID-19 emergency paid sick leave as soon as possible or foreseeable, and may also require that additional notice procedures be followed as a condition of continued leave.
Employers can not require an employee to seek or find a replacement worker to cover their absence during COVID-19 emergency paid sick leave, nor can they require employees to exhaust other paid leave options before taking advantage of the law.
Employers are also prohibited from retaliating against an employee for exercising their rights under the Act. While the law does not provide a private right of action in the event of a violation, it prohibits an employer from:
- interfere with an employee’s ability to take COVID-19 emergency paid sick leave, including, but not limited to, the use of emergency paid sick leave by an employee as a factor negative in any employment action, such as evaluation, promotion, disciplinary action, or termination;
- discipline an employee or take any other adverse action against an employee for using COVID-19 emergency paid sick leave; and
- take adverse action against an employee because the employee objects to practices considered to be contrary to the law, or because the employee supports another employee’s rights under the law, including but not limited to be limited to:
- the filing of an action, or the commencement or commencement of proceedings under or in connection with the Law;
- provide or intend to provide information in connection with an injury or a proceeding related to the Act; Where
- testify or intend to testify in connection with any investigation or proceeding relating to the Act.
Finally, employers should be careful to treat any health information they obtain about an employee or an employee’s family member as confidential medical records. Such health information should be (i) kept on a separate form and in a separate file from other personal information; (ii) protected from disclosure, except to the employee concerned or with the express permission of the employee concerned; and (iii) kept confidential in accordance with any other federal or state law.
Massachusetts COVID-19 Emergency Paid Sick Leave Fund
The new legislation also provides federal funding of $ 75 million for the establishment of the Repayment Fund, which will be administered by the Commonwealth of Massachusetts. Employers can request reimbursement from the fund for eligible costs incurred to pay for COVID-19 emergency sick leave after on 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 the leave is requested and taken; (iii) a statement identifying the reason related to COVID-19 for which the employee took leave and a written justification for this reason; and (iv) a statement that the employee is unable to work, including telework, for such reason.
If a leave request is due to quarantine, additional documents regarding the quarantine order or recommendation must also be submitted, including (i) the name of the government entity ordering the quarantine or the name of health care provider advising self-quarantine, and (ii) if the person quarantined or advised to self-quarantine is not the employee, that person’s name and relationship with the employee. According to the Act, employers should be reimbursed directly within 30 days of filing their claim.
It should be noted that employers will not be able to ‘double up’: the Commonwealth Temporary Reimbursement Fund will not reimburse employers for sick leave wages which are also eligible for a tax credit through the FFCRA or any other legislation extending the fiscal provisions of the FFCRA. for emergency paid sick leave credit. In addition, no employer will receive compensation for any payment exceeding the limit of $ 850 per week.
Authorities in the Commonwealth of Massachusetts are currently preparing additional guidelines and forms. We will keep you informed of any relevant development.
What Massachusetts Employers Should Do Now
- Carefully document any request for COVID-19 emergency paid leave if you are considering requesting a refund.
- Review Massachusetts-issued employer guidelines for COVID-19 emergency paid sick leave.
- Post a written notice to on-site employees and provide electronic copies to all remote employees.
- Review your current leave policies and any COVID-19 policies, to ensure compliance with the law.
- Speed up your reimbursement requests, as the Redemption Fund is not guaranteed until September 30, 2021.