September 17, 2021

Volume XI, Number 260

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Massachusetts Enacts COVID-19 Emergency Paid Sick Leave

Last week, Massachusetts Governor Charlie Baker signed legislation providing for COVID-19 Emergency Paid Sick Leave for Massachusetts employees. Governor Baker vetoed an earlier version of the bill in April. The revised bill, signed into law on May 28, 2021, takes effect on Monday, June 7, 2021. Employees are eligible for COVID-19 Emergency Paid Sick Leave until September 30, 2021, or until the Fund (explained below) runs out, whichever is earlier.

The legislation provides that employers must provide COVID-19 Emergency Paid Sick Leave to their employees who are absent from work and unable to work for certain enumerated reasons. Employees are eligible to receive – and employers may be reimbursed for – up to $850 of leave per week.

The leave is in addition to all paid or unpaid time off that the employer is required to provide under the MA Earned Sick Time Law, employers’ existing policies, pursuant to a CBA, and under federal law, to the extent permitted by federal law. This is subject to the caveat that the COVID-19 Emergency Paid Sick Leave may be reduced if the total amount an employee would receive would exceed their weekly wage. Employers may not require employees to use other paid leave before using COVID-19 Emergency Paid Sick Leave, unless federal law requires. Employers with separate, more generous COVID-19 sick leave policies do not need to provide additional COVID-19 emergency paid sick leave under this legislation.

Amount of Leave

Employees who work 40 or more hours per week are eligible for 40 hours of COVID-19 emergency paid sick leave. Employees who work less than 40 hours per week but maintain a regular schedule with consistent hours each week are eligible for an amount of leave equal to the number of hours they work per week, on average over a 14-day period of their regular schedule.

For employees whose schedule varies weekly, employers must provide leave in an amount that is either:

  • Equal to the average number of hours they were scheduled to work per week over the 6-month period immediately preceding the date on which the employee takes leave, or

  • If the employee did not work over this 6-month period, equal to the employee’s reasonable expectation upon hiring of the average number of hours they would work per week.

Employees may take leave intermittently and in hourly increments. An employee’s leave ends at the beginning of the next scheduled work shift immediately following the termination of their need for leave.

Reasons for Leave

Employees may take COVID-19 Emergency Paid Sick Leave for the following reasons:

  • If the employee needs to:

    • Self-isolate and care for oneself because of their COVID-19 diagnosis;

    • Seek or obtain medical diagnosis, care or treatment for COVID-19 symptoms; or

    • Obtain immunization related to COVID-19 or they are recovering from an injury, disability, illness or condition related to such immunization;

  • If the employee needs to care for a family member who:

    • is self-isolating due to a COVID-19 diagnosis; or

    • 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; or

  • If the employee cannot telework because they have been diagnosed with COVID-19 and the symptoms inhibit their ability to telework.

COVID-19 Emergency Paid Sick Leave Fund

The legislation establishes a COVID-19 Emergency Paid Sick Leave Fund, administered by the state, to reimburse eligible employers who provide employees with COVID-19 Emergency Paid Sick Leave. $75 million of COVID-19-related federal funds received by Massachusetts will furnish the Fund.

The Fund will reimburse employers for the cost of providing COVID-19 Emergency Paid Sick Leave to employees; employers should be aware, though, that the Fund will not reimburse employers for sick leave wages paid which are also eligible for the tax credit provided by the Family First Coronavirus Response Act, or any subsequent extensions, including the American Rescue Plan Act of 2021.

The legislation provides the application process by which employers apply for reimbursement. The state will provide a reimbursement application form, though it is not yet available. It will include such information as a copy of the employee’s written request for leave and a statement that the employee is unable to work. The legislation also provides that employers will be reimbursed within 30 business days of their submitting the application.

Employers should be aware that health information regarding employees or their family members must be treated as confidential medical information. It must be maintained on a separate form and in a separate file from other personnel information and may not be disclosed without the employee’s express permission.

Notice

Employees must provide notice to their employers of the need for leave as soon as practicable or foreseeable. Employers may require employees follow reasonable notice procedures after the first day they receive leave in order to continue to receive leave.

Employers must post notice regarding COVID-19 Emergency Paid Sick Leave in a conspicuous location accessible to employees in every establishment where employees eligible for leave work, and must also provide a copy to employees. If employees telework, employers must send notice electronically. The state will provide employers with such notice, though none is available as of this posting.

Employers may not require employees to find replacement workers for the hours during which the employee is receiving leave.

© 2021 Proskauer Rose LLP. National Law Review, Volume XI, Number 155
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About this Author

Mark W Batten, Labor & Employment Attorney, Proskauer Law Firm
Partner

Mark Batten is a Partner in the Labor & Employment Law Department and co-head of the Class/Collective Action Group, resident in the Boston office.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters and discrimination claims. Ranked by Chambers USA, Mark is hailed as “a fabulous lawyer, handling interesting and complex cases.” Clients “highly recommend him to anyone seeking litigation counsel in the Boston area,” as well as note “he is...

617-526-9850
Heylee S. Bernstein Associate Proskauer Labor & Employment Employment Counseling & Training
Associate

Heylee Bernstein is an associate in the Labor & Employment Law Department and a member of the Employment Counseling & Training Group. Heylee earned her J.D. cum laude from Harvard Law School, where she served as the President of the Committee on Sports and Entertainment Law. In addition, she was a Senior Article Editor for the Journal of Sports and Entertainment Law, and served as a Research Assistant in the Labor & Worklife Program. 

1-617-526-9621
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