Paid Depart and Coronavirus — Half 28: Massachusetts Governor Indicators Legislation Offering COVID-19 Emergency Paid Sick Depart

Seyfarth Synopsis: On May 25th, 2021, Massachusetts Governor Charlie Baker signed law providing employees with emergency paid sick leave for COVID-related illnesses, quarantine and vaccinations (“COVID-19 Emergency Paid Sick Leave”).[1] The law came into effect on May 28th.[2] and will remain in effect until September 30, 2021 or until $ 75 million in program funds are depleted as determined by the Commonwealth, whichever comes first.

The new law requires all employers in the Commonwealth, regardless of size, to give their employees up to 40 hours of paid sick leave due to COVID-19 (employers can prorate the leave for employees who work less than 40 hours a week). .[3] Employees can take advantage of the new sick leave for a variety of reasons, including recovering from COVID-19 or receiving the COVID-19 vaccination, or recovering from an illness or injury due to a vaccination.

Governor Baker vetoed an earlier version of the bill in April. Notably, the new law made only minor changes to the vetoed version. For more information on the content requirements of the mandate, see our previous warning here.

Find additional high-level details on the Massachusetts Emergency COVID-19 Mandate.

Reasons for using. The new sick leave can be taken by employees who are absent from work for one of the following reasons:

  • An employee’s need to: (i) self-isolate and fend for themselves based on the employee’s diagnosis of COVID-19; (ii) seek or receive medical diagnosis, care, or treatment for COVID-19 symptoms; or (iii) receive the COVID-19 vaccine or recover from any injury, disability, illness or condition related to such vaccination.
  • 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 quarantine order or other determination by a local, state, or federal official, competent health agency, employee’s employer or health care provider that the employee’s presence in the workplace or in the community affects the health of others due to the employee’s exposure to COVID-19 or the appearance of symptoms, regardless of whether the worker has been diagnosed with COVID-19.
  • The need for an employee, family member to care for a quarantine order or other decision made by a local, state, or federal official, health agency, family member’s employer, or health care provider where the family member is present at the workplace or in the community Would endanger the health of others due to the family member’s exposure to COVID-19, regardless of whether the family member was diagnosed with COVID-19.
  • A worker’s inability to telework because the worker has been diagnosed with COVID-19 and symptoms are interfering with the worker’s ability to telework.

The law uses the same definition of “family member” as the Massachusetts Paid Family and Medical Leave Act (MGL c. 175M), which includes the spouse, domestic partner, child, parent, grandchild, grandparent or sibling, parent of an employee, spouse or domestic partner of the employee or a person who faced the employee when that employee was a minor child.

Amount of sick leave. The amount of paid emergency COVID-19 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 vacation.
  • An employee who works less than 40 hours per week but adheres to a regular schedule of constant hours per week is entitled to vacation equal to the number of hours that employee works per week on average over a period of 14 days of such a regular Schedule.
  • An employee whose work schedule and weekly working hours vary from week to week are entitled to vacation equal to either (a) the average number of hours the employee worked per week in the six months immediately preceding the date of vacation, or (b) if the employee has not worked for six months, the reasonable expectation of the employee at the time of cessation of the average number of weekly hours that the employee would normally have to work.

This grant is in addition to earned sick leave that employers are required to grant under the Massachusetts Earned Sick Time Law (MGL c. 149, Section 148C), an existing employer’s policy or program, and a collective agreement. An employer can introduce a more generous paid sick leave policy in connection with COVID.

Compensation while on vacation. An employee who takes vacation is entitled to (a) compensation from the employer up to a maximum benefit amount of $ 850;[4] and (b) maintain all benefits to which he is entitled, including health insurance, vacation, sick leave, disability insurance and annuity. An employee may not receive more than 100% of his regular weekly wage in one week. Compensation for paid COVID-19 emergency sick leave may be reduced by the amount of wage or wage replacement an employee receives for that period under a government program or law.

Notification of the need for vacation and reimbursement by the employer. Under the law, an employer who is not eligible for federal tax credit reimbursement under the Families First Coronavirus Response Act (FFCRA) can request reimbursement from the Commonwealth of the cost of paying an employee and keeping an employee going up to $ 850.[5] To be eligible for Commonwealth reimbursement, an employer must require an employee to submit a written application for paid sick leave due to COVID-19. The application must contain:

(1) the name of the employee;

(2) the dates for which leave is requested and taken;

(3) an explanation of the COVID-19-related reason the employee is requesting leave and written support for that reason; and

(4) A statement that the employee is unable to work or telework due to the COVID-19 related reason.

If the vacation is based on a quarantine order or self-quarantine counseling, the employee’s declaration must also contain:

(1) the name of the government agency ordering 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, name and relationship to the employee.

Employers can create their own form or use the standard form developed by the Commonwealth. All health information about an employee or an employee’s family members must be treated as confidential medical records under applicable state and federal law. Employers must obtain the employee’s express permission to share such information with third parties.

To request a refund, employers must obtain the following information from the employee:

(1) the employee’s social security or tax identification number;

(2) the employer identification number associated with the position from which the employee took leave;

(3) the length of the vacation (in hours) and wages paid during that vacation that are not eligible for federal tax credits and that are not otherwise paid under any other government program or law;

(4) Benefits for the employee who takes vacation; and

(5) the number of hours on the employee’s regular roster, or (A) if the employee does not have a regular roster, the hours that the employee took during the six-month period immediately preceding the date on which the employee takes the paid emergency sick leave of COVID-19 in Massachusetts, including hours that employee was vacationed; or (B) if the employee has not worked for such a period of six months, the employee’s reasonable expectation at the time of employment corresponds to the average number of hours per week that the employee would normally allow for the work.

An employee must report the need for paid COVID-19 sick leave as soon as possible or foreseeable for the first working day an employee takes the vacation. For the following days, an employer can demand that the employee follow appropriate termination procedures in order to continue to receive paid COVID-19 sick leave in the event of an emergency. An employee can take paid COVID-19 sick leave temporarily and in hourly steps.

An employer must not require an employee to take other types of available paid vacation before he or she takes COVID-19 paid sick leave. Neither can an employer require an employee to find a replacement worker to cover the hours the employee is taking paid COVID-19 sick leave.

Employers should expect additional guidance from the Commonwealth on the reimbursement process.

Posting obligation of the employer. By tomorrow, June 4th, 2021 (i.e. 7 days after Governor Baker signed the law), the Commonwealth will provide a sample notice. Employers are obliged to affix the legal notice in a clearly visible place and to give the employees a copy of the notice. The notification must be made via electronic communication or electronic publication on a web-based platform for workers who do telework.

Anti-Retaliation Provisions. The law contains extensive anti-retaliation provisions that prohibit employers from taking action to:

(1) an employee’s ability to take, impair, limit, or deny a paid COVID-19 sick leave, including, but not limited to, an employee’s use of a paid COVID-19 sick leave as a negative factor in any employment measures, such as B. an evaluation, promotion, disciplinary action, or termination;

(2) Disciplinary or other adverse action against an employee for taking paid COVID-19 sick leave; or

(3) Take adverse action against an employee because the employee disapproves of practices believed to violate this program or because the employee supports the exercise of another employee’s rights.

As the COVID-19 and paid vacation landscape continues to expand and become more complex, companies should reach out to their Seyfarth contact for solutions and recommendations on how to comply with COVID-19 and local COVID-19 and non-COVID sick leave laws in the state of Massachusetts and at the local level, and paid vacation requirements in general.

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