Massachusetts Enacts COVID-19 Emergency Paid Sick Leave Law
As the COVID-19 pandemic continues to recede, Governor Baker recently signed new legislation requiring all Massachusetts employers, regardless of size, to provide employees with up to 40 hours of paid, job-protected leave for various reasons related to COVID-19.
The new law, which went into effect on June 7, 2021, also creates a COVID-19 Emergency Paid Sick Leave Fund (the “Fund”) in the amount of $75 million, through which employers may request reimbursement for providing employees with this paid leave.
Reasons For Leave
Employees will be entitled to paid leave from June 7, 2021 through September 30, 2021 (or, if earlier, until the Fund is exhausted) for the following reasons:
• An employee’s need to: (i) self-isolate and care for him/herself because of the employee’s COVID-19 diagnosis; (ii) seek or obtain medical diagnosis, care, or treatment for COVID-19 symptoms; or (iii) obtain immunization related to COVID-19 or recover from an injury, disability, illness, or condition related to such immunization;
• 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 similar determination by a local, state, or federal public official, a health authority having jurisdiction, the employee’s employer, or a healthcare provider due to 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 similar determination by a local, state, or federal public official, a health authority having jurisdiction, the family member’s employer, or a healthcare provider due to the family member’s exposure to COVID-19, regardless of whether the family member has been diagnosed with COVID-19; or
• 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 definition of “family member” under this new law is the same as under the Massachusetts Paid Family and Medical Leave Act (“PFMLA”). It includes the employee’s spouse, domestic partner, child, parent, parent of a spouse or domestic partner, grandchild, grandparent, sibling, or a person who stood in loco parentis to the employee when the employee was a minor child.
Amount And Use Of Leave
Employees are entitled to paid leave based on their regular work schedule. Full-time employees who work 40 or more hours per week will be entitled to a maximum of 40 hours of paid leave. This maximum amount will be prorated for part-time employees based on their regular weekly hours. For an employee who does not have a regular work schedule or whose hours vary from week to week, the employer must provide leave that is equal to the average number of hours that the employee was scheduled to work per week over the previous six months.
Employees may use paid leave on an intermittent basis and in hourly increments.
Interaction With Other Laws
The allotment of paid leave under the new statute is in addition to any other, similar leave to which employees are entitled under applicable federal or state law, including the Massachusetts Earned Sick Leave Law. In addition, employers may not require employees to exhaust other paid time off before utilizing leave under the new COVID sick leave law.
Notice And Documentation Of Leave
Employees are required to provide their employers with written notice of a need for leave as soon as practicable. Employees must follow their employers’ regular notice procedures for each day of leave to receive compensation for such leave. However, an employer cannot require an employee to find a replacement worker to cover the employee’s hours during such leave.
The written notice of the need for leave must include (i) the dates for which the leave is requested, (ii) a statement of the COVID-19-related reason for leave, and (iii) a statement that because of the COVID-19-related reason, the employee is unable to work or telework.
If the leave request is based on a quarantine order, the employee must also provide a statement including the name of the entity ordering or advising the employee to quarantine. If the leave is for a family member subject to quarantine, the employee’s notice must include the family member’s name and his or her relationship to the employee.
All health information obtained from an employee regarding the employee or the employee’s family member must be maintained in a separate file from the employee’s personnel file and treated as a confidential medical record.
Benefits During Leave
During paid leave, employees will be entitled to compensation at their regular rate of pay, up to a maximum amount of $850 per week. Employers may choose to provide additional compensation to employees on leave, but will only be entitled to reimbursement from the Fund up to the $850 weekly maximum.
Employers are required to maintain employees’ benefits during paid leave, including health insurance, vacation and sick time, and disability insurance.
The new law includes a broad anti-retaliation provision, which, among other things, prohibits adverse action against an employee for taking leave or opposing a practice believed to violate the statute.
Eligible employers may request reimbursement for leave benefits paid to employees through the state Fund. (The statute specifies that an employer may not seek reimbursement for the same paid leave benefits from both the Fund and the federal government, under the Families First Coronavirus Response Act.) The Commonwealth is set to release additional guidance on reimbursement eligibility and procedures for employers in the coming weeks.
The Commonwealth has created a template notice that must be displayed in a conspicuous location in the workplace and distributed electronically to all employees working remotely. This notice, along with additional employer guidance and frequently asked questions, can be found on the state’s website for the new COVID-19 sick leave program, at https://www.mass.gov/info-details/covid-19-temporary-emergency-paid-sick-leave-program.
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If you have any questions about this new law and its requirements, or any other employment issues, please feel free to reach out to one of our experienced employment attorneys. We would be happy to assist.