Employers must provide 40 hours of COVID-19 emergency paid sick leave to eligible employees who regularly work 40 or more hours per week, the maximum amount of leave under the act. 

On May 28, 2021, Massachusetts Governor Charlie Baker signed into law “An Act providing for Massachusetts COVID-19 emergency paid sick leave,” which requires employers to provide paid sick leave benefits to employees who are unable to work for a qualifying reason related to COVID-19. The act establishes an Emergency Paid Sick Leave Fund from which qualifying employers can receive reimbursement for covered leave, subject to certain restrictions detailed below.

The act went into effect immediately and will remain in effect until September 30, 2021 (or until the exhaustion of the $75 million in program funds, whichever occurs first).

Covered Employers and Employees

The act covers all “employers” in the Commonwealth of Massachusetts―defined as any individual, corporation, partnership or other private or public entity, including any agent thereof, who engages the services of an employee for wages, remuneration or other compensation.

The act defines covered “employees” to include any person who performs services for an employer for wage, remuneration or other compensation, including family child care providers and personal care attendants (as defined under Massachusetts law).

Importantly, only employees whose primary place of employment is in Massachusetts are eligible for leave under the act. An employee’s “primary place of employment” means the worksite or physical location where the employee spent the greatest percentage of work hours between the dates of January 1, 2020, and April 30, 2021; temporary telecommuting arrangements entered into during this period should not factor into this determination. For a new employee who commences work on or after May 1, 2021, “primary place of employment” means the worksite or physical location where the employee is expected to spend the greatest percentage of work hours between the first day of work and September 30, 2021, based on the work arrangement agreed upon between the employer and the employee.

Qualifying Reasons for Leave

Under the act, employers are required to provide emergency paid sick leave to covered employees who are unable to work for any of the following COVID-19 related reasons:

1. An employee’s need to:
   1. Self-isolate because they have been diagnosed with COVID-19;
   2. Get a medical diagnosis, care or treatment for COVID-19 symptoms; or
   3. Receive or recover from a COVID-19 immunization;
2. An employee’s need to care for a family member[1] who:
   1. Must self-isolate because they have been diagnosed with COVID-19; 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 healthcare 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 official, a health authority having jurisdiction, the family member’s employer or a healthcare provider; or
5. An employee’s inability to telework due to COVID-19 symptoms.

Amount of Leave Employers Are Required to Provide

Employers must provide 40 hours of COVID-19 emergency paid sick leave to eligible employees who regularly work 40 or more hours per week, the maximum amount of leave under the act. For employees who regularly work fewer than 40 hours per week, employers must provide leave in an amount that is equal to the number of hours that the employee works per week, on average over a 14-day period.

For employees whose schedule and weekly hours vary from week to week, employers 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. If an employee with a variable schedule has not worked for the employer for six months, the employer must provide leave that is equal to the number of hours per week that the employee reasonably expected to work when hired. Notably, there is no waiting period for new hires. Employers also may not condition an employee taking paid sick leave on the employee searching for or finding a replacement worker to cover their shift.

An employee may use paid leave on an intermittent basis and in hourly increments. The maximum amount an employer is required to pay an employee for leave under the act is $850, which also is the maximum amount for which the employer may seek reimbursement for any one employee (see below).

Employers must provide leave under the act in addition to all other job-protected time off, paid and unpaid, that the employer is required to provide under any existing policy or program. However, employers with separate COVID-19 sick leave policies that meet the requirements of the act (i.e., paid sick leave for the same purposes and under the same conditions) are not required to provide additional leave.

Reimbursement

As noted above, an employer who provides COVID-19 emergency paid leave under the act is eligible for reimbursement from the Commonwealth’s COVID-19 Emergency Paid Sick Leave Fund. However, employers cannot receive reimbursement under the act if they are eligible for tax credit for the same period of leave under the federal Families First Coronavirus Response Act and any of its subsequent extensions. When applying for reimbursement, employers will be required to attest that they are ineligible for the federal tax credit.

To be reimbursed, the employer must submit the following information: 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 because of the COVID-19 related reason the employee is unable to work or telework.

If the employee takes leave on the basis of a quarantine order or self-quarantine advice, the employer must also submit the name of the governmental entity ordering quarantine or the name of the healthcare 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.

Pursuant to the Commonwealth’s Employer Guidance, employers should also retain the following information in anticipation of applying for reimbursement:

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.

Prohibition on Retaliation

Leave under the act is job-protected leave. Employers must maintain the same employment benefits that the employee is entitled to while they are out on leave. Employers cannot interfere with, restrain, or deny an employee’s ability to take COVID-19 emergency paid sick leave under the act and may not retaliate against an individual who exercises, or attempts to exercise, their right to take leave.

Notice Requirements

Employees that seek to take leave under the act must provide notice to their employer as soon as practicable or foreseeable. Employers may require employees to follow reasonable notice procedures after the first work day that the employee receives paid leave.

All employers are required to immediately provide notice to covered employees. The Commonwealth prepared a Notice to Employees that employers must place in a conspicuous location in the workplace. If an employer does not maintain a physical workplace or if employees telework, the employer must send the notice electronically or post it on a web-based platform.

What This Means for Employers

To the extent they have not already done so, Massachusetts employers (including employers based outside of Massachusetts but who have employees whose primary place of employment is in Massachusetts) should provide the required notice under the act as soon as possible. Covered employers also should review their leave policies and practices to ensure compliance with the requirements of the act. In light of the act’s numerous requirements, employers should consult with counsel to ensure compliance and maximize reimbursement for eligible paid COVID-19 leave provided.

As an additional resource, the Commonwealth recently released Frequently Asked Questions that provide supplemental information about the act such as considerations for multistate employers, the reimbursement process and documentation.

About Duane Morris

Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

For More Information

If you have any questions about this Alert, please contact Christopher D. Durham, Lauren A. Appel, Elisabeth Bassani, any of the attorneys in our Employment, Labor, Benefits and Immigration, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.

Notes

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.