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”). The law became effective on May 28, 2021 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 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.
COVID-19 Emergency Paid Sick Leave
The new law requires all employers in the Commonwealth, regardless of size, to provide COVID-19 emergency paid sick leave to their employees. The Governor had vetoed a prior version of the bill in April. See our prior alert here. The new law made only slight changes to the prior version.
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 compensation from the employer at the employee’s regular rate of pay (up to the $850 maximum benefit amount) and to 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. 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 Friday, June 4th (7 days after the effective date of the law), the Commonwealth will provide a template notice. Employers are required to post the notice about the law in a conspicuous location. Notification must be sent via electronic communication or an electronic posting on web-based platform for an employee who is 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.
Unemployment Insurance Contribution Relief
As a result of the increase in job losses related to the COVID-19 pandemic, the state unemployment fund solvency assessment rate dramatically increased from 0.58 percent in 2020 to 9.23 percent in 2021, and thus many employers faced significant increases in contributions to the fund. The new law addresses this issue by moving COVID-related unemployment claims from the solvency fund into a new COVID-19 employer relief account until August 1, 2021. After that date, all unemployment claims would be charged to employer accounts. By separating these claims for this time period, it is expected that the solvency fund will return to its typical levels and employers will see a revised assessment for the first quarter. Employers who already paid their first quarter assessment will receive a credit to their account.
The state’s approach only offers temporary relief as the state authorized bonding to cover the cost of the COVID-19 relief fund. Thus, employers in the long run will be expected to pay the costs of the increase in job losses during this period.