Effective May 28, 2021, Massachusetts employees are entitled to up to 40 hours of paid leave for reasons related to the effects of the COVID-19 pandemic. Emergency paid sick leave legislation has been working its way through the State House and the Governor’s Office for several weeks, in the wake of the expiration of mandatory paid leave benefits under the Federal Families First Coronavirus Response Act (FFCRA). Governor Baker signed “An Act providing for Massachusetts COVID-19 emergency paid sick leave” on May 28, 2021 (the Act).
The Act requires employers to provide all employees with the equivalent of one week of paid leave (up to 40 hours for full-time employees), subject to a cap of $850. While this leave must be paid, employers may apply for reimbursement from the State. Leave is only available for a limited time, and the entitlement will end on September 30, 2021, at the latest (see below).
Leave is available to employees who are unable to work for the following reasons:
- self-isolate and care for themselves because they have been diagnosed with COVID-19;
- 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:
- must self-isolate due to a COVID-19 diagnosis; or
- needs medical diagnosis, care, or treatment for COVID-19 symptoms;
- a quarantine order or similar determination regarding the employee by a local, state, or federal public official, a health authority having jurisdiction, or a health care provider;
- an employee’s need to care for a family member due to a quarantine order or similar determination regarding the family member by a local, state, or federal public official, a health authority having jurisdiction, the family member’s employer, or a health care provider; or
- an employee’s inability to telework due to COVID-19 symptoms.
“Family member” has the same definition as set forth in the Massachusetts Paid Family and Medical Leave Act, and includes an employee’s spouse, domestic partner, child, parent, grandchild, grandparent, or sibling, a parent of the employee’s spouse or domestic partner, or a person who stood in loco parentis to the employee when the employee was a minor child.
Under the Act, employees are entitled to leave as follows:
- 40 hours of emergency paid sick leave for employees who work 40 or more hours per week.
- For employees who regularly work fewer than 40 hours per week, leave in an amount that is equal to the average number of hours that such employee works per week.
- For employees whose schedule and weekly hours vary from week to week, leave that is equal to the average number of hours that the employee was scheduled to work per week over the previous 6 months.
- If an employee with a variable schedule has not worked for the employer for 6 months, leave that is equal to the number of hours per week that the employee reasonably expected to work when hired.
The maximum amount an employee may receive, and the maximum amount for which the employer is required to pay and may seek reimbursement, is $850 per employee.
Emergency paid sick leave is in addition to all other leave available to employees, including Massachusetts Earned Sick Time. For employers who have elected to voluntarily provide paid leave under the federal FFCRA following the expiration of its mandate, Massachusetts emergency paid sick leave must be offered in addition to federal emergency sick leave. For example, if an employee needs greater than 2 weeks of leave for a reason that qualifies under both laws, they would be entitled to take leave under both laws, i.e., 2 weeks under the FFCRA emergency sick time provisions, and up to 1 week under the Act.
An employee may use emergency paid sick leave on an intermittent basis and in hourly increments.
An employee is required to provide notice of the need for leave as soon as practicable or foreseeable. In order for employers to request reimbursement for paid leave from the State, they must require that requests for leave be made in writing, with the following information:
- the date(s) for which leave is requested and taken;
- a statement of the COVID-19 related reason the employee is requesting leave and written support for such reason; and
- a statement that because of the COVID-19 related reason the employee is unable to work or telework.
For leave requests based on a quarantine order or self-quarantine advice, the statement from the employee must also include: (1) the name of the governmental entity ordering quarantine or the name of the health care provider advising self-quarantine; and (2) if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.
Employers are required to provide employees notice of the Act within 7 days of its effective date, and we anticipate that the State will shortly release a form notice which employers can use for this purpose.
The Act includes an anti-retaliation provision, so employers must be cautious to not prevent an employee from taking emergency paid sick leave, interfere with the ability of an employee to use leave, take any action against an employee who uses leave, or take action against an employee for reporting or opposing an unlawful practice.
The State has allocated $75 million to fund reimbursement of paid leave taken under this program. According to the law, employers must offer paid leave until September 30, 2021, or earlier if the fund is exhausted prior to this date. It is presently unknown how the status of the fund will be communicated to employers and how employers and employees will be notified of the exhaustion of funding should that occur.
Initial guidance on the Act was released in conjunction with its passage, which can be found here. According to this initial guidance, additional information will be provided in the coming weeks, and a website is being established, which will include information regarding applications for reimbursement and points of contact to address questions regarding the program.
The various leave options available to employees can be complex, and we will continue to track developments regarding the implications of this Act. If you have any questions regarding employee leave laws, please do not hesitate to reach out to any member of Mirick O’Connell’s Labor, Employment, and Employee Benefits Group.