Massachusetts Enacts Laws Offering COVID-19 Emergency Paid Sick Depart to All Workers

On May 28, 2021, Massachusetts Governor Charlie Baker signed law granting every full-time employee up to 40 hours (pro rata for part-time workers) on-the-job, emergency paid sick leave for specific COVID-19 reasons to receive the COVID-19 vaccination receive or recover from symptoms resulting from vaccination. The law also creates a 75 million COVID-19 emergency sick leave fund.This new paid vacation entitlement begins 10 days after it comes into effect or June 7, 2021 and lasts until September 30, 2021 or until the fund is depleted .

While additional guidance will be issued in the coming weeks, including the establishment of a website dedicated to the COVID-19 emergency paid sick leave program, below is a summary of key requirements of the law.

Reasons for vacation

All Massachusetts employers, regardless of size, are required to provide paid emergency sick leave to employees who are unable to work for the following reasons:

1. An employee’s need to: (i) self-isolate and fend for themselves based on the employee’s diagnosis of COVID-19; (ii) receive medical diagnosis, care, or treatment for symptoms of COVID-19; or (iii) receive or recover from the COVID-19 vaccine.
2. The need for an employee to care for a family member who is (i) self-isolating due to a diagnosis of COVID-19, or (ii) in need of medical diagnosis, care, or treatment for symptoms of COVID-19. A family member is defined as in the Massachusetts Paid Family and Medical Leave (PFML) Act and includes the spouse, domestic partner, child, or parent of the employee, including the parent of the spouse or domestic partner; a person who faced the employee when he was a minor child; and a grandchild, grandparent, or sibling of the employee.
3. A quarantine order or other decision by a local, state or federal official, applicable health agency, the worker’s employer, or a health care provider.
4. The need for an employee to care for a family member based on a quarantine order or other decision made by a local, state, or federal official, health agency, family member’s employer, or health care provider.
5. A worker’s inability to telework because the worker has been diagnosed with COVID-19 and the worker’s symptoms are inhibiting the worker’s ability to telework.

Leave amounts

The amount of paid COVID-19 emergency sick leave available to an employee depends on their work schedule. An employee who works 40 hours or more per week is entitled to up to 40 hours of paid COVID-19 emergency sick leave. For employees who regularly work less than 40 hours per week, the employer must grant vacation in the amount of the average number of hours that this employee works per week.

For employees whose timetable and weekly hours vary from week to week, the employer must grant vacation in the amount of the average number of hours for which the employee was scheduled per week in the last six months. If the employee has not worked for the employer for six months, the employer must grant vacation equal to the number of hours per week that the employee can reasonably expect when hired.

Similar to the PFML, the maximum power available to the employee is $ 850 per week. Employers can grant additional vacation as part of their own policies, but cannot claim reimbursement of more than $ 850 for that employee’s absence from the COVID-19 Emergency Fund for Paid Sick Leave. In addition, an employer with a separate COVID-19 sick leave scheme that meets statutory leave requirements will not need to take the additional 40 hours of paid COVID-19 sick leave in an emergency. However, employers cannot claim compensation for COVID-19 sick leave voluntarily granted to their employees prior to June 7, 2021.

Further withdrawals during the vacation

COVID-19 Emergency Paid Sick Leave is available to workers in addition to all sheltered paid and unpaid time off under the Massachusetts Earned Sick Time Law (Mass. Gen. Laws. Ch. 149, Section 148C), any existing employer policies or programs, collective bargaining agreement or Federal law, insofar as this is permissible under this federal law. However, an employee cannot receive more than 100% of their regular weekly wage, and if necessary, COVID-19 Emergency Sick Pay may be reduced by wages from a government program.

Workers who take COVID-19 paid sick leave will retain any benefits they are entitled to, including health insurance, vacation, sick leave, disability insurance, and retirement. In addition, an employer may not request any other paid vacation from an employee before taking paid COVID-19 sick leave unless federal law provides otherwise.

Notice of vacation needs

An employee is required to report the need for paid sick leave due to COVID-19 as soon as possible or predictably. After the first working day that an employee receives paid COVID-19 sick leave, an employer may require that the employee follow appropriate notification procedures in order to continue to receive paid COVID-19 sick leave. An employee can take paid COVID-19 sick leave temporarily and in hourly steps. An employer must not require an employee to find a replacement worker to cover the hours that the employee is taking paid COVID-19 sick leave.

Request for Refund

Although the provisions of the Families First Coronavirus Response Act (FFCRA) expired on December 31, 2020, employers with fewer than 500 employees who voluntarily grant sick leave under the FFCRA through September 30, 2021 will still be eligible for a federal tax credit . Larger non-FFCRA employers and those who have not opted to voluntarily provide FFCRA leave can apply to the Commonwealth Trust Fund for reimbursement for COVID-19 Massachusetts emergency sick leave claims Employees. Employers must submit a written application from any employee applying for paid COVID-19 sick leave that includes:

1. the name of the employee;
2. the dates for which leave is requested and taken;
3. a statement of the COVID-19 related vacation reason with support; and
4. a statement that the employee is unable to work or telework due to the COVID-19 related reason.

In the case of vacation requests based on a quarantine order or self-quarantine counseling, the employee’s declaration must also contain:

1. the name of the government agency ordering the quarantine or the name of the health care provider advising self-quarantine; and
2. if the person quarantined or self-quarantined is not the employee, the name and relationship of this person to the employee.

The law is silent about the length of time an employer must apply for reimbursement in an emergency after paying the paid COVID-19 sick leave. After submitting the reimbursement application, the payment will be made to the employer within 30 working days. However, since the vacation program will expire with the use of the COVID-19 Emergency Fund for Paid Sick Leave, employers should submit applications immediately.

If an employer receives health information about an employee or their family members in the process of managing leave, they must keep that information on a separate form and file from other personnel information and treat the information as a confidential medical record. An employer may not disclose such health information without the express consent of the employee. The Executive Office for Labor and Human Resources Development (EOLWD) is developing a sample application form to support the requested leave.

Provisions on non-retaliation measures

The new law also contains extensive anti-retaliation provisions that restrict employers from:

1. Impairment of a worker’s ability to take paid COVID-19 sickness emergencies including, but not limited to, having an employee’s use of COVID-19 sickness emergencies as a negative factor in all employment activities, such as: B. A rating, promotion, used, disciplinary action, or termination;
2. Disciplinary or other adverse action against an employee who has taken emergency sick leave due to COVID-19; and
3. Take adverse action against an employee for rejecting practices believed to violate this program, including taking action or providing testimony.

In its current version, Massachusetts’ COVID-19 Emergency Paid Sick Leave Act does not provide for a private right of action for violations.

Next Steps

By June 4, 2021, EOLWD, in consultation with the Executive Bureau of Administration and Finance, will publish a sample emergency sickness report for COVID-19 in Massachusetts for employers to display in a prominent location in the workplace. If the employer does not maintain a physical workplace or teleworking of the employee, the employer is obliged to send a notification via electronic communication or a conspicuous advertisement in the web-based platform.