The Massachusetts legislature is considering two bills that would provide expansive new protections for parents who are unable to return to work during the COVID-19 pandemic due to a lack of childcare and paid sick time for employees who are not eligible for paid sick time under the federal law that was passed by Congress last March. While these bills have not yet passed, they are moving forward quickly and, because they have been designated as emergency legislation, they would take effect immediately if they pass and are signed into law. Below is a summary of how these new laws would affect Massachusetts employers if they are adopted as currently written. We will also be discussing these bills during our complimentary webinar next week, on August 19, 2020. The webinar will focus on return to school issues for employers. More information on our webinar can be found here: Back in Session — Critical Return to School Issues for Employers.
Indefinite Leave and Unemployment Benefits for Employees Who Lack Childcare
On June 19, 2020, State Senator Adam G. Hinds (D – Western Mass), filed S.2869, entitled An Act to protect working parents during the COVID-19 emergency. The bill would:
- forbid employers from terminating “an employee who cannot physically report to work due to a lack of childcare,”
- require employers to provide reasonable accommodations to such employees “to the best of their ability,” including telework and flexible schedule arrangements,
- allow employers to require such employees to use any available paid time off, including vacation, sick and personal time, to receive pay for any period of time they are unable to work due to a lack of childcare,
- extend state unemployment benefits to such employees from the time they exhaust their paid time off until 90 days after Governor Baker lifts the existing state of emergency, and
- require employers to reinstate these employees at that time.
The bill spans just two paragraphs, and leaves many important questions unanswered. For example, under what circumstances would an employee lack childcare? Must the child’s school or usual place of care be physically closed? Or would an employee also lack childcare if they voluntarily decide not to send their children back to a school or other place of care that is open? And do employees have any obligation to consider potential alternatives before claiming that they lack care? Similarly, what must employers do to demonstrate that they provided reasonable accommodations “to the best of their ability”? Is this standard equivalent to the undue burden standard under the federal Americans with Disabilities Act, or does it require something more? Or perhaps something less? And what about the employees? Do they have any obligation to look for work from an employer who could accommodate them while they are collecting unemployment? Or must employers foot the bill for their indefinite unemployment benefits for the duration of what could be a very long state of emergency? And what about their benefits?
Suffice it to say that, if the bill becomes law as presently written, employers may face a mass exodus by employees with very little guidance as to who really qualifies for job-protected leave under the new law, not to mention the unexpected vacancies in positions that could be essential to their ongoing operations and that would be impossible to fill on a temporary basis. Hopefully, some of these questions will be answered before the legislation is adopted. Otherwise, employers will be looking to the Attorney General to provide swift guidance.
Paid Sick Time for Employees Who Are Not Eligible For Sick Time Under the FFCRA
The legislature is also considering S.2882, entitled An Act relative to emergency paid sick time. This bill, which already has the approval of the Committee on Labor and Workforce Development, would establish a $55 million COVID Emergency Paid Sick Leave Fund to fund additional paid sick time benefits for employees who are not eligible for paid sick time under the federal Families First Coronavirus Relief Act (“FFCRA”).
As we have reported extensively on our blog over the past several months, the FFCRA gives many employees up to 80 hours of paid sick time for various reasons related to the coronavirus pandemic, but it does not cover businesses that have more than 500 employees. It also allows businesses that employ health care providers and emergency responders to exempt their employees from the law’s benefits, along with businesses that have fewer than 50 employees if an officer certifies that providing the benefits to their employees would jeopardize the business’s ongoing viability. (You can find our previous blog posts about the FFCRA on the COVID-19 Resources page on our website.)
S.2882 is meant to extend similar paid sick time benefits to those employees who are unable to work (or telework) for certain reasons related to the pandemic and are not eligible for paid sick time under the FFCRA. However, the bill is broader than the FFCRA in significant ways. For one thing, it is not limited to the current pandemic, but would remain in force after the current state of emergency is lifted and apply during any future public health emergency tied to COVID-19. Second, it would allow employees to use the paid sick time for several reasons not available to employees who are covered under the FFCRA; specifically:
- to seek, or to care for a family member who is seeking, “preventative care” concerning COVID-19, a term that is not defined;
- to self-quarantine, or to care for a family member who is self-quarantining, at the request of their employer because they were exposed to COVID-19 or are exhibiting symptoms, even without a health care provider’s recommendation; and
- because their workplace was closed, either by governmental order or at the discretion of their employer, due to a public health emergency.
Finally, unlike the FFCRA, the bill does not provide paid sick time to employees who are unable to work due to a lack of child care.
All covered employees, including temporary employees, would be eligible to take the paid sick time, regardless of how long they have been employed. Employees who use it would receive their regular rate of pay for the duration of the absence, up to a maximum of $850/week, and employers would be reimbursed from the COVID Emergency Paid Sick Leave Fund by the Department of Revenue. Employees would have the option of using the time on an intermittent basis, in increments of one hour or the smallest increment of time by which their employer accounts for uses of other paid time, whichever is smaller. And employers would not be allowed to require their employees to use any other paid time they may have available – including regular earned sick time – before using the paid sick time provided by this bill, unless required by federal law. Employees would be required to provide advance notice of the need to use the time only if the need is foreseeable and only as much notice as is “practicable,” and employers would be forbidden from requiring the employee to search for or find a replacement to cover for them during their absence.
Finally, S.2882 contains typical non-discrimination and retaliation provisions that would make it unlawful for employers to interfere with, restrain or deny the exercise, or attempted exercise, of rights provided under the law or to take any adverse action against an employee who opposes any practice the employee believes is contrary to the statute, institutes legal action, provides information in connection with any inquiry or proceeding, etc. Employees whose rights under the law are violated would have the right to file a civil action in accordance with Mass. Gen. L. c. 149, § 150, under which they would be entitled to mandatory triple damages for any lost wages and other benefits, along with reasonable attorneys’ fees and costs. The Attorney General would be empowered to adopt emergency rules and regulations to implement the program and employers would be required to post a notice of rights provided by the law in a conspicuous location and to distribute a copy to their employees.
The principal challenge employers will face if this bill becomes law is the lack of time to plan and prepare before it takes effect, and the lack of critical guidance until the Attorney General publishes regulations. Anyone who followed the U.S. Department of Labor’s effort to implement the FFCRA understands just how many questions a law like this can generate and just how difficult it is to answer all of those questions quickly without raising even more questions. The AG has the benefit of the DOL’s efforts to draw upon for guidance, but this law is not identical and it will still take time. Meanwhile, the law will be in effect and covered employers will have no choice but to comply with it as best they can from day one. We’ll continue to follow the progress of both of these emergency bills, and will report any important developments here as they arise. In the meantime, employers may want to start preparing now for some version of these bills to take effect in the coming weeks.