Back in June, the state legislature passed a law giving Massachusetts workers paid sick time for certain reasons related to COVID-19. The law was set to expire on September 30, 2021. Last Wednesday, however, Governor Baker signed an amendment that: extends the law’s benefits for another seven months, until April 1, 2022; gives workers one more basis for using the paid time provided by the law—to care for family members who are receiving or recovering from the COVID-19 vaccination; and provides funding for a public information campaign meant to promote awareness of the benefits provided by the law.
Here’s an overview of the key provisions of the law, as amended:
Use of Leave
Under the COVID-19 Emergency Paid Sick Leave law, every employer in the Commonwealth (except the federal government) is required to provide all of their employees up to 40 hours of “COVID-19 Massachusetts emergency paid sick leave” (hereinafter, COVID-19 Sick Leave) that may be used for any of the following reasons. To:
- Seek or obtain a medical diagnosis, care or treatment for COVID-19 symptoms;
- Self-isolate and provide care for themselves due to their own COVID-19 diagnosis;
- Obtain the COVID-19 vaccine;
- Recover from any injury, disability, illness or condition related to the COVID-19 vaccine;
- Care for a covered family member who needs a medical diagnosis, care or treatment for COVID-19 symptoms; is self-isolating due to a COVID-19 diagnosis; is obtaining the COVID-19 vaccine; or is recovering from any injury, disability, illness or condition related to the COVID-19 vaccine;
- Quarantine pursuant to an order or other determination by (1) a local, state or federal public official; (2) a health authority with jurisdiction; (3) the employee’s employer; or (4) the employee’s health care provider that the employee’s presence on the job or in the community would jeopardize the health of others because the employee has been exposed to COVID-19 or is exhibiting symptoms of COVID-19, regardless of whether the employee has been diagnosed with the disease; or
- Care for a family member who is the subject of such a quarantine order or determination, regardless of whether the family member has been diagnosed with COVID-19. Importantly, guidance only recently published suggests that an employee might qualify to take COVID-19 Sick Leave for this reason if their child’s school or daycare is closed due to the pandemic by order of a federal, state or local official and the employee is unable to work or telework due to the closure.
COVID-19 Sick Leave may be used intermittently, in one-hour increments, but employees are required to telework if it is feasible for them to do so unless they have been diagnosed with COVID-19 and their symptoms inhibit their ability to telework. Employees must also continue to receive all employment benefits during any period of COVID-19 Sick Leave.
Covered family members are the employee’s spouse, domestic partner, child, parent, grandparent, grandchild, sibling, parent of their spouse or domestic partner, and any person who stood in loco parentis to the employee when the employee was a minor with whom they have a personal relationship. Parents and children are defined to include foster, step and guardian relationships. COVID-19 Sick Leave will now be available to employees through April 1, 2022, or 15 days after the state gives notice that the $75 million in funds earmarked for this program will likely be depleted within 15 days, whichever occurs first. The recent amendment allows the state to spend up to $500,000 of the earmarked funds on a public information campaign meant to promote awareness of the availability of COVID-19 Sick Leave.
Amount of Leave
Full-time employees are entitled to 40 hours of COVID-19 Sick Leave. Part-time employees who work a regular schedule are entitled to an amount of COVID-19 Sick Leave equal to the number of hours they work each week, on average, over a 14-day period. Part-time employees whose hours vary are entitled to an amount of COVID-19 Sick Leave equal to the average number of hours they were scheduled to work during the six months preceding their request to take the leave (including any hours they took any type of leave), or, if they have not worked for the employer for six months, a number of hours equal to the number of hours the employee reasonably expected to work each week at the time the employee was hired.
Employee Notice
Employees must give employers notice of their need to use COVID-19 Sick Leave as soon as practicable or foreseeable, must submit their request for leave in writing, and must follow the employer’s reasonable notice procedures after the first day of the leave. The written request must include the employee’s name, the period of leave requested, a statement of the qualifying reason for the request with “written support for such reason” and a statement that the employee is unable to work or telework for that reason. Where the reason is a quarantine order, the request must also include the name of the governmental entity or health care provider requiring or advising a quarantine and, if applicable, the name of the quarantining family member and their relation to the employee. The state has published a form employers can use to collect the necessary information from employees. It is available here under “Sample Employee Leave Request Forms.”
Keep in mind that all health information related to COVID-19 Sick Leave must be kept separate from an employee’s regular personnel records, may not be disclosed to anyone other than the employee without the employee’s express permission, must be treated as confidential medical records and must be kept confidential in accordance with any other state or federal law.
Employer Notice
The Executive Office of Labor and Workforce Development has published a poster and a notice about the new law. If they have not done so already, employers must post the poster or the notice in a conspicuous location in each of their establishments and make copies available to employees. Employers that have employees who telework or work through a web-based platform must send the notice via e-mail or post it on the web-based platform.
Concurrent Use of Other Leave
COVID-19 Sick Leave is a separate bucket of paid sick time available for the COVID-related reasons listed above. This means that it does not run concurrently with Massachusetts Earned Sick Time or any other job-protected leave, paid or unpaid, that is provided under any employer policy or program, collective bargaining agreement or federal law.
However, employers who already provide paid time off to employees for the same COVID-related reasons and under the same conditions are not required to provide additional leave. Additionally, employers may not require employees to use any other paid time off provided by the employer before the employee uses COVID-19 Sick Leave unless otherwise required by federal law. Employers may reduce the amount of wages they would otherwise pay to an employee by the amount of any other wages or wage replacement the employee receives for the same time period under any other government program or law or if the aggregate amount the employee would otherwise receive would exceed the employee’s average weekly wage.
Employer Reimbursement
As noted above, employers are entitled to be reimbursed by the state for all wages they pay to employees during COVID-19 Sick Leave out of the $75 million COVID-19 Massachusetts Emergency Paid Sick Leave Fund—with two exceptions. First, wages are not reimbursable if the paid leave is also eligible for the federal tax credit under the federal Families First Coronavirus Response Act (FFCRA). (You can find more information about the FFCRA at our COVID-19 Resources page on our website.)
Second, employers are not required to pay employees more than $850 per week while they are on COVID-19 Sick Leave, and will not be reimbursed for any wages they pay in excess of that amount. Guidance published by the state makes clear that this cap is inclusive of the cost of benefits provided to the employee during the leave, which means that employers may reduce the cash wages they pay to employees during COVID-19 Sick Leave to account for the cost of continuing their benefits.
Reimbursements will be paid “in a timely manner” after an employer submits an application. Applications are available on the MassTaxConnect website and must include a copy of the employee’s written request with all required information. Step-by-step instructions for submitting the application are available here, under “How to Apply for Reimbursement.”
Importantly, the law gives the Executive Office for Administration and Finance the authority to require employers to maintain records sufficient to document payment of COVID-19 Sick Leave to employees and to impose penalties for false or deliberately misleading statements.
So far, the Executive Office has not issued formal regulations on these or any other aspects of the law. However, the state has published guidance recommending that employers keep a record of the number of hours of leave paid, the wages paid that are eligible for reimbursement, the benefits the employee received during the leave, and the average number of hours the employee works each week, as well as copies of quarantine orders supporting employee requests for leave.
No Retaliation or Interference
The law includes standard non-retaliation and non-interference provisions that prohibit employers from taking any adverse action against an employee for taking COVID-19 Sick Leave, opposing any practice the employee believes is contrary to the new law or supporting another employee’s exercise of rights under the law. Notably, however, the law does not expressly allow employees to file suit in court or take any other legal action to enforce those provisions.
Skoler Abbott attorneys are available to assist employers with any questions they may have about COVID-19 Sick Leave and whether or how it may apply to individual employees.