Paid Go away And Coronavirus — Half 28: Massachusetts Governor Indicators Legislation Offering COVID-19 Emergency Paid Sick Go away – Coronavirus (COVID-19)

By Last updated Jun 9, 2021

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Seyfarth Synopsis: On May 28,
2021, Massachusetts Governor Charlie Baker signed into law
legislation that grants employees emergency paid sick leave for
COVID-related illness, quarantine and vaccinations (“COVID-19
emergency paid sick leave”).1 The law became
effective on May 28,2 and will remain in
place through September 30, 2021, or the exhaustion of $75 million
in program funds as determined by the Commonwealth, whichever is
earlier.

The new law requires all employers in the Commonwealth,
regardless of size, to provide up to 40 hours of COVID-19 emergency
paid sick leave to their employees (employers can prorate the
amount of leave for employees who work less than 40 hours per
week).3 Employees are able to use the new
emergency sick leave for a number of reasons, including to recover
from COVID-19 or to obtain the COVID-19 vaccination or recover from
illness or injury due to vaccination.

Governor Baker vetoed a prior version of the bill in April.
Notably, the new law made only slight changes to the vetoed
version. See our prior alert
here for more information on the mandate’s substantive
requirements.

Here are additional high level details about the Massachusetts
COVID-19 emergency sick leave mandate.

Reasons for Use. The new sick leave may be used
by employees who are absent from work for any of the following
reasons:

An employee’s need to: (i) self-isolate and care for
oneself because of the employee’s COVID-19 diagnosis; (ii) seek
or obtain medical diagnosis, care or treatment for COVID-19
symptoms; or (iii) obtain the COVID-19 vaccine or to recover from
an injury, disability, illness or condition related to such
vaccination.
An employee’s need to care for a family member who (i) is
self-isolating due to a COVID-19 diagnosis or (ii) needs medical
diagnosis, care or treatment for COVID-19 symptoms.
A quarantine order, or other determination by a local, state or
federal public official, a health authority having jurisdiction,
the employee’s employer or a health care provider that the
employee’s presence on the job or in the community would
jeopardize the health of others because of the employee’s
exposure to COVID-19 or exhibiting of symptoms, regardless of
whether the employee has been diagnosed with COVID-19.
An employee’s need to care for a family member due to a
quarantine order, or other determination by a local, state or
federal public official, a health authority having jurisdiction,
the family member’s employer, or a health care provider that
the family member’s presence on the job or in the community
would jeopardize the health of others because of the family
member’s exposure to COVID-19, regardless of whether the family
member has been diagnosed with COVID-19.
An employee’s inability to telework because the employee
has been diagnosed with COVID-19 and the symptoms inhibit the
ability of the employee to telework.

The law uses the same definition of “family member” as
the Massachusetts Paid Family and Medical Leave Act (M.G.L. c.
175M), which includes an employee’s spouse, domestic partner,
child, parent, grandchild, grandparent, or sibling, a parent of a
spouse or domestic partner of the employee, or a person who stood
in loco parentis to the employee when such employee was a minor
child.

Amount of Sick Leave. The amount of COVID-19
emergency paid sick leave available to an employee depends on his
or her work schedule:

An employee who works 40 hours or more per week is eligible for
up to 40 hours of leave.
An employee who works less than 40 hours a week, but maintains
a regular schedule with consistent hours per week, shall be
eligible for leave that is equal to the number of hours that such
employee works per week, on average over a 14-day period of such
regular schedule.
An employee whose schedule and weekly hours worked vary from
week to week is eligible for leave equal to either (a) the average
number of hours that the employee was scheduled to work per week
over the six-month period immediately preceding the date of leave,
or (b) if the employee has not worked for six months, the
reasonable expectation of the employee at the time of hire of the
average number of hours per week that the employee would normally
be scheduled to work.

This allotment of leave is in addition to earned sick leave that
employers must provide under the Massachusetts Earned Sick Time Law
(M.G.L. c. 149, § 148C), an existing policy or program of the
employer, and pursuant to a collective bargaining agreement. An
employer may adopt a more generous COVID-related paid sick leave
policy.

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

Notice of the Need for Leave and Employer
Reimbursement. Under the law, an employer that is not
eligible for reimbursement through the federal tax credit under the
Families First Coronavirus Response Act (FFCRA) may seek
reimbursement from the Commonwealth for the cost of paying an
employee and continuing his or her benefits up to $850.5 In
order to be eligible for reimbursement from the Commonwealth, an
employer must require an employee to submit a written request for
COVID-19 emergency paid sick leave. The request must include:

(1) the employee’s name;

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

(3) a statement of the COVID-19 related reason the employee is
requesting leave and written support for such reason; and

(4) a statement that because of the COVID-19 related reason, the
employee is unable to work or telework.

If the leave is 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 may create their own form or use the standard form
that will be developed by the Commonwealth. All health information
regarding an employee or an employee’s family member must be
treated as confidential medical records in accordance with
applicable state and federal law. Employers must receive the
employee’s express permission to share any such information
with third parties.

To apply for reimbursement, employers will need to collect 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 leave (in hours) and wages paid during
that leave that are not eligible for federal tax credits, and are
not otherwise paid under any other government program or law;

(4) benefits applicable to the employee taking leave; and

(5) the number of hours in the employee’s regular schedule,
or (A) if the employee has no regular schedule, the hours that the
employee was scheduled to work per week over the six- month period
immediately preceding the date on which such employee takes the
COVID- 19 Massachusetts emergency paid sick leave, including hours
for which such employee took leave of any type; or (B) if the
employee did not work over such six-month period, is equal to the
reasonable expectation of the employee at the time of hiring of the
average number of hours per week that the employee would normally
be scheduled to work.

An employee must provide notice of the need for COVID-19
emergency paid sick leave as soon as practicable or foreseeable for
the first workday in which an employee uses the leave. For
subsequent days, an employer may require the employee to follow
reasonable notice procedures in order to continue receiving
COVID-19 emergency paid sick leave. An employee may use COVID-19
emergency paid sick leave on an intermittent basis and in hourly
increments.

An employer may not require an employee to use other types of
available paid leave before he or she uses COVID-19 emergency paid
sick leave. An employer also may not require an employee to find a
replacement worker to cover the hours during which the employee is
using COVID-19 emergency paid sick leave.

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

Employer Posting Requirement. By tomorrow, June
4, 2021 (i.e., 7 days after Governor Baker signed the legislation),
the Commonwealth will provide a template notice. Employers are
required to post the notice about the law in a conspicuous location
and provide a copy of the notice to employees. Notification must be
sent via electronic communication or an electronic posting on
web-based platform for employees who are teleworking.

Anti-Retaliation Provisions. The law includes
broad anti-retaliation provisions, which prohibit employers from
taking action to:

(1) interfere with, restrain, or deny an employee’s ability
to take COVID-19 emergency paid sick leave, including, but not
limited to, by using an employee’s taking of COVID-19 emergency
paid sick leave as a negative factor in any employment action, such
as an evaluation, promotion, disciplinary action, or
termination;

(2) discipline or take any other adverse action against an
employee for using COVID-19 emergency paid sick leave; or

(3) take any adverse action against an employee because the
employee opposes practices believed to be in violation of this
program, or because the employee supports the exercise of rights of
another employee.

With the COVID-19 and paid leave landscape continuing to expand
and grow in complexity, companies should reach out to their
Seyfarth contact for solutions and recommendations on addressing
compliance with Massachusetts state and local COVID-19 and
non-COVID paid sick leave laws, and paid leave requirements more
generally. Consult Seyfarth’s COVID-19
Resource Center for updated information regarding the
rapidly evolving COVID-19 situation and its impact on the
workplace.

To stay up-to-date on Paid Sick Leave developments,
click here to sign up for Seyfarth’s Paid Sick Leave
mailing list. Companies interested in Seyfarth’s paid sick
leave laws survey should reach out to [email protected].

Footnotes

1 In
addition to imposing a new COVID-19 emergency paid sick leave
mandate on employers, the law also amends the Act Financing a
Program for Improvements to the Unemployment Insurance Trust Fund
and Providing Relief to Employers and Workers in the Commonwealth
to provide relief to employers facing the sharp rise in employer
contributions to the unemployment fund by spreading out costs over
a 20-year period. For more information on the law’s
unemployment insurance contribution relief, see our separate alert

here.

2 Because
the mandate was declared an emergency law and based on guidance
issued by the Commonwealth, it appears highly likely that the
mandate went into effect immediately on May 28. However, businesses
should note that the previously vetoed version of the legislation
called for a 10 day grace period after enactment before going into
effect. While unlikely, there is a possibility the mandate’s
effective date is June 7 (i.e., 10 days after it was signed into
law).

3
Massachusetts joins
several other jurisdictions with COVID-19 supplemental or
emergency paid sick leave requirements, including
California,
New York, and
Philadelphia, PA.

4 It
appears that employers will need to compensate employees for
Massachusetts COVID-19 emergency paid sick leave at their regular
rate of pay. We expect further clarity on this point from the
Commonwealth in the coming days.

5 For
more information on the status of the FFCRA tax credits for
voluntarily provided paid leave, see
Part 23 of our “Paid Leave and Coronavirus”
series.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.