On May 28, 2021, Massachusetts Governor Charlie Baker signed a new law providing job- protected, emergency paid sick leave for COVID-related illness, quarantine and vaccinations (“COVID-19 Sick Leave”) for all employees in the Commonwealth.
COVID-19 Sick Leave will be in addition to any earned sick leave that employers must provide under the Massachusetts Earned Sick Time Law (M.G.L. c. 149, § 148C), or pursuant to any existing employer policy or program, or collective bargaining agreement. The law also creates a $75 million COVID-19 Emergency Paid Sick Leave Fund (“Fund”) which eligible employers can access for reimbursements for COVID-19 Sick Leave payments.
The COVID-19 Sick Leave entitlement begins June 7, 2021 and extends through September 30, 2021, or until the Fund is exhausted, whichever occurs first. All Massachusetts employers, regardless of size, must provide COVID-19 Sick Leave.
Below is an overview of the COVID-19 Sick Leave provisions:
Reasons for Leave
COVID-19 Sick Leave may be used by an employee who is unable to work because:
- The employee must:
(a) self-isolate and care for oneself due to the employee’s COVID-19 diagnosis,
(b) seek or obtain a medical diagnosis, care or treatment for COVID-19 symptoms, or
(c) obtain a COVID-19 vaccine or recover from an injury, disability, illness or condition related to vaccination; or
- An employee’s need to care for a family member who:
(a) is self-isolating due to a COVID-19 diagnosis, or
(b) needs medical diagnosis, care or treatment for COVID-19 symptoms; or
- The employee must abide by 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; or
- 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; or
- The employee is unable to telework because the employee has been diagnosed with COVID-19 and the employee’s symptoms inhibit the ability to telework.
Under this law, “family member” includes an employee’s spouse, domestic partner, child, parent, grandchild, grandparent, or sibling, a parent of a spouse or domestic partner or the employee, or a person who stood in loco parentis to the employee when such employee was a minor.
Amount of Leave
- Full-time employees (who work 40 hours or more per week) are eligible for up to 40 hours of leave;
- Part-time employees (who work less than 40 hours a week, but who maintain a regular schedule with consistent hours each week) are eligible for leave equal to the number of hours that the employee works per work, on average over a 14- day period of the regular schedule;
- Part-time employees with a variable schedule are eligible for leave equal to either (i) the average number of hours worked per week over the 6- month period immediately preceding the leave, or (ii) if the employee has not worked 6 months, the average number of hours per week that the employee would normally be scheduled to work.
- The maximum amount an employer is required to pay per employee, and the maximum amount for which the employer may seek reimbursement for any one employee, is $850 (including cost of benefits).
Calculating Hourly Rate of Leave
When an employee uses COVID-19 Sick Leave, the hourly rate will be the same as the employee’s regular rate of pay, capped at $850. An employee may not receive more than 100% of regular wages in a week. Also, the amount of paid leave may be reduced by the amount of any wages or wage replacement that the employee receives for the same leave period under another government program or law. Further, any employer that maintains a separate COVID-19 sick leave program that meets the requirements of the new law is not required to provide the additional COVID-19 Sick Leave.
Benefits During Leave
Employees shall maintain all benefits to which they are entitled, including health insurance, vacation leave, sick leave, disability insurance and pension, while on COVID-19 Sick Leave. Employers may not require employees to use other types of paid leave before using COVID-19 Sick Leave. Additionally, employers are not permitted to require employees to find a replacement worker to cover their hours while out on leave.
Under the new law, employees must provide notice of the need for COVID-19 Sick Leave as soon as it is practicable or foreseeable for the first workday in which leave is needed. For subsequent days, employers may require employees to follow reasonable notice procedures in order to continue receiving paid leave. COVID-19 Sick Leave may be taken on an intermittent basis and in hourly increments. An employer may not require an employee to find a replacement worker to cover the hours during which the employee is using COVID-19 Sick Leave.
Employers that are not eligible for reimbursement through the Families First Coronavirus Response Act (FFCRA) tax credits may seek reimbursement from the Commonwealth for the cost of paying COVID-19 Sick Leave for an employee up to the $850 per week cap. Additional information regarding the reimbursement process will be forthcoming.
To qualify for such reimbursement, employers must require employees to submit a written request for COVID-19 Sick Leave which includes the following information:
- Employee name,
- Date or dates of the requested leave,
- A statement of the COVID-19-related reason for leave, along with written support for the reason, and
- A statement that the employee is unable to work, including by means of telework, for such reason.
For leave requests based on a quarantine order or self-quarantine advice, the statement from the employee must also include:
- The name of the governmental entity ordering quarantine or the name of the health care provider advising self-quarantine, and
- If the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.
The new law does not provide a deadline by which an employer must seek reimbursement for COVID-19 Sick Leave payments. Reimbursements to employers will be issued within 30 business days of the employer submitting the application. Given that the leave program expires upon the depletion of the Fund, employers are advised to file applications for reimbursement promptly.
Health information received by an employer relative to an employee or an employee’s family member must be kept on a separate form and maintained in a separate file from other personal information and treated as confidential medical records. An employer may not disclose the health information except to the affected employee or with the express permission of the employee.
Employers are required to display the Commonwealth-required poster in a conspicuous location accessible to employees. For employees who telework, employers are allowed to send notice through electronic means (such as email or posting to a web-based platform that remote employees can access).
The new law contains an anti-retaliation provision which prohibits employers from:
- Interfering with, restraining, or denying an employee’s ability to take COVID-19 Sick Leave, including but not limited to, using an employee’s taking of COVID-19 Sick Leave as a negative factor in any employment action, such as an evaluation, disciplinary action or termination,
- Discipling or taking any other adverse action against an employee for using COVID-19 Sick Leave, and
- Taking any adverse action against an employee because the employee opposes practices believed to be in violation of the COVID-19 Sick Leave mandate, such initiating action or opposing testimony.
The Commonwealth’s Executive Office for Administration and Finance may promulgate regulations necessary for the implementation of the COVID-19 Sick Leave program. Thus, further guidance and information on the new law may be forthcoming.
If you have any questions about Massachusetts’ COVID-19 Sick Leave Law or other employment and labor issues, please feel free to contact Lorna Hebert at [email protected] or 617-512-8401.
Lorna Hebert (New England team) is an employment, labor, higher education, and litigation attorney with nearly 30 years of experience handling a broad range of complex employment and labor matters. Lorna advises clients on a wide range of employment matters, including workplace investigations, dispute resolution, hiring, performance management, discipline, terminations, reorganizations, accommodations, employee benefits, wage and hour issues, discrimination claims, policies and procedures, and training.
This publication should not be construed as legal advice or a legal opinion on any specific facts or circumstances not an offer to represent you. It is not intended to create, and receipt does not constitute, an attorney-client relationship. The contents are intended for general informational purposes only, and you are urged to consult your attorney concerning any particular situation and any specific legal questions you may have. Pursuant to applicable rules of professional conduct, portions of this publication may constitute Attorney Advertising.