Costs of New Massachusetts COVID-19 Sick Leave to be Reimbursed by the Commonwealth

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Foley & Lardner LLPEffective May 28, 2021, Massachusetts employers are required to provide paid leave for employees who are unable to work for reasons related to COVID-19 (“COVID Leave”). With its COVID-19 Emergency Paid Sick Leave law, Massachusetts joins a number of other states, including New York and California, in providing paid leave to workers for COVID-19-related reasons as part of ongoing efforts to protect workers throughout the COVID-19 pandemic. The COVID-19 Emergency Paid Sick Leave law also provides paid leave for employees getting and/or recovering from COVID-19 immunizations, suggesting that, at least in part, the new law is intended to drive further vaccine proliferation across the Commonwealth.

Employers can rest assured that they are not expected to bear the cost of providing COVID Leave to their employees. The COVID Leave law provides $75 million in funding through which employers will be reimbursed for the cost of COVID Leave.  COVID Leave will be available to employees until September 30, 2021, or until funding runs out.

COVID Leave is available to all Massachusetts employees and can be taken for any of the following reasons related to COVID-19:

  1. An employee’s need to:
    1. Self-isolate and care for themselves because they have been diagnosed with COVID-19:
    2. Get a medical diagnosis, care, or treatment for COVID-19 symptoms; or
    3. Get or recover from a COVID-19 immunization.
  2. An employee’s need to care for a family member who:
    1. Must self-isolate due to a COVID-19 diagnosis; or
    2. Needs medical diagnosis, care, or treatment for COVID-19 symptoms;
  3. A quarantine order or similar determination regarding the employee by a local, state, or federal public official, a health authority having jurisdiction, or a health care provider;
  4. An employee’s need to care for a family member due to a quarantine order or similar determination regarding the family member by a local, state, or federal public health official, a health authority having jurisdiction, the family member’s employer, or a health care provider; or
  5. An employee’s inability to telework due to COVID-19 symptoms.

Employers should note that they may not require employees to use other types of paid leave before using COVID Leave. Employers also may not require employees to find replacement coverage at work while using COVID Leave.

The amount of COVID Leave available to employees varies depending on the number of hours an employee works in a week. Employees who work 40 or more hours per week are eligible to take up to 40 hours of COVID Leave. Employees who work less than 40 hours per week may take COVID Leave in an amount equal to the average number of hours that they work per week. In all cases, the maximum amount that an employer is required to pay each employee – and the maximum amount for which the employer can seek reimbursement from the Commonwealth – is $850, including the cost of benefits.

The Commonwealth is expected to issue guidance in the upcoming weeks, with additional information on how employers can apply for reimbursement. At this time, employers who want to be reimbursed for the cost of providing COVID Leave must require employees to apply for COVID Leave in writing. An employee’s request for COVID Leave should include:

  • The employee’s name;
  • The date(s) for which leave is requested and taken;
  • A statement of the COVID-19-related reason for which the employee is requesting leave and written support for such reason; and
  • A statement that the employee is unable to work or telework because of the COVID-19-related reason.
  • For COVID Leave requests pertaining to a quarantine order or self-quarantine advice, the employee’s request must also include the name of the governmental entity ordering quarantine or the name of the health care provider advising self-quarantine. If the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee is required.

Massachusetts employers must provide notice to employees of their rights under the Emergency COVID-19 Paid Sick Leave law. Additional guidance from the Commonwealth on this new law is available here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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