As indicated in our previous e-Alert, Massachusetts recently passed a law requiring employers to provide employees up to 40 hours of paid leave for reasons related to the effects of the COVID-19 pandemic, beginning May 28, 2021 (the Act).
Recently, additional guidance and resources have been released by the Commonwealth, including Frequently Asked Questions. These resources can be found on a new website that has been established.
Following are some key updates:
Notice to Employees
The Act requires that employers provide notice to employees regarding their leave rights. A Notice to Employees has been published in two forms, as a document and a poster, which can be found at the website referenced above. The notice is also available in several languages. Employers are required to post the notice in a conspicuous location accessible to employees and to provide a copy to employees. The latest guidance provides that the notice requirement can be satisfied by using either the poster form or the document form of the notice, and in cases where the employer does not maintain a physical workplace or an employee teleworks, notice must be sent electronically or conspicuously-posted in a web-based platform.
Included in the Frequently Asked Questions is guidance regarding the documentation employers can request from employees to support their need for leave under the Act.
Pursuant to the Act, in order for employers to request reimbursement for the paid leave, they must require that requests for leave be made in writing, with: (1) the employee’s name; (2) the date(s) for which leave is requested and taken; (3) a statement of the COVID-19 related reason the employee is requesting leave and written support for such reason; and (4) a statement that because of the COVID-19 related reason the employee is unable to work or telework. Then, for leave requests based on a quarantine order or self-quarantine advice, the statement from the employee must also include: (5) the name of the governmental entity ordering quarantine or the name of the health care provider advising self-quarantine; and (6) if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.
Regarding the written support required, the new guidance provides that, not only are employers permitted to request medical documentation to support employees’ need for leave for their own or their family members’ COVID-19 diagnosis, treatment, care, or vaccination, but employers are required to request such information in order to qualify for reimbursement.
No specific guidance is provided as to what documentation is required to be collected, and the FAQs confirm that “there are no express limitations on the medical documentation an employer may collect.”
The Commonwealth is expected to release a model leave request form imminently, which may provide further clarity.
Notwithstanding the lack of limitations in the Act, there may be legal implications when requesting medical information from employees, and employers would be well-advised to limit their requests for medical information to only the minimum necessary to justify the leave requested by the employee. Employers should be mindful that sometimes medical records related to a qualifying reason under the Act may contain unrelated or unnecessary medical information reflecting chronic medical conditions, disabilities, or genetic information, which employers should only obtain when strictly necessary.
When obtaining medical information, employers should be careful to keep it confidential and separate from the employee’s personnel file. The Act specifically provides that in the event medical documentation is obtained, such information shall: (1) be maintained on a separate form and in a separate file from other personnel information; (2) be treated as confidential medical records; (3) not be disclosed except to the affected employee or with the express permission of the affected employee; and (4) be kept confidential in accordance with any other state or federal law.
Interaction with Federal Leave
Under the Federal Families First Coronavirus Response Act (FFCRA), employers with fewer than 500 employees were required to provide up to 80 hours of emergency paid leave for reasons related to COVID-19. This federal mandate expired December 31, 2020; however, employers could elect to voluntarily provide this paid leave and continue to be entitled to tax credits for pay to employees taking this leave through September 30, 2021.
In our previous alert, we stated that the Massachusetts COVID-19 emergency paid leave under the Act was required in addition to leave voluntarily provided by employers under the FFCRA. However, while the Act provides that the Massachusetts leave must be provided in addition to other leave and an employee is prohibited from requiring an employee to use other paid leave before the employee uses Massachusetts COVID-19 emergency paid leave, the updated guidance indicates that both forms of leave may be used concurrently. Therefore, if an employer offers federal emergency leave under the FFCRA and the employee has federal leave available after May 28, leave for a qualifying reason under both laws can run concurrently, and an employer does not have to offer leave consecutively under both laws, as long as employees are able to take the full allotment of Massachusetts COVID-19 emergency paid leave.
An important consideration for employers is that in order to request reimbursement from the Commonwealth for Massachusetts leave, they must attest that they are ineligible for federal tax credits for any costs for which they are seeking state reimbursement. Therefore, employers who are continuing to offer federal FFCRA leave should ensure that they are crediting leave taken under both laws and only seek reimbursement from the state for leave for which they cannot apply for a federal tax credit.
Employers based outside of Massachusetts or with employees in multiple states should be aware that leave under the Act is required for all employees with a primary place of employment in Massachusetts.
The new guidance clarifies that an employee’s “primary place of employment” means the worksite or physical location where the employee spent the greatest percentage of work hours between the dates of January 1, 2020 and April 30, 2021, and temporary telecommuting arrangements entered into during this period should not factor into this determination. For a new employee who commences work on or after May 1, 2021, “primary place of employment” means the worksite or physical location where the employee is expected to spend the greatest percentage of work hours between the first day of work and September 30, 2021, based on the work arrangement agreed upon between the employer and the employee.
Supplementation with Paid Time Off
The new guidance additionally states that, while an employer is required to provide up to 40 hours of leave but only pay up to $850 for that time, employees may use other forms of paid time off, including sick leave, to supplement their pay up to their normal rate once the $850 cap is reached, and, thereafter, subsequent leave can run concurrently. This aspect of the guidance appears to be at odds with the language of the Act requiring that the 40 hours of emergency paid leave be in addition to other leave, including earned sick time, and we are hopeful for further clarification on this aspect. At a minimum, employees should not be required to use other paid leave to supplement the emergency paid leave.
We expect the Commonwealth to release further guidance in the coming weeks, including further information on the process by which employers may seek reimbursement.
If you have any questions regarding the Act or other employee leave, please do not hesitate to reach out to any member of Mirick O’Connell’s Labor, Employment, and Employee Benefits Group.