Beginning on Monday, June 7, 2021, all Massachusetts employers are temporarily required to make paid leave time available to employees for COVID-19-related illnesses, quarantine, and vaccinations. Massachusetts Governor Charlie Baker signed H.3702, An Act Providing for Massachusetts COVID-19 Emergency Paid Sick Leave (the Act), on May 28, 2021. The Act established the COVID-19 Emergency Paid Sick Leave Program (the Program) and designated $75 million in state funds for employer reimbursements. The Program will remain in effect until the earlier of September 30, 2021, or the exhaustion of the state fund.
As soon as practicable or foreseeable, employers must post a Notice to Employees in a conspicuous location accessible to all employees in all establishments where eligible employees physically work and circulate a copy to each employee. Employers should send electronic notices to teleworkers.
Qualified Reasons for Leave
According to MA’s Preliminary Program Guidance, all MA employers are obligated to provide up to 40 hours of paid leave to MA-based employees unable to work due to:
- an employee’s need to:
- self-isolate and care for themself because they have been diagnosed with COVID-19;
- get a medical diagnosis, care, or treatment for COVID-19 symptoms; or
- get or recover from a COVID-19 immunization;
- an employee’s need to care for a family member1 who:
- must self-isolate due to a COVID-19 diagnosis; or
- needs medical diagnosis, care, or treatment for COVID-19 symptoms;
- 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;
- 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 health care provider; or
- an employee’s inability to telework due to COVID-19 symptoms.
Amount of Leave
The maximum per-employee amount an employer is required to pay is $850, including the cost of benefits. While an employee is on leave through the Program, the employer must maintain all other employment benefits the employee is otherwise entitled to, such as sick leave, vacation time, disability insurance, group health insurance, or life insurance.
|For employees who:|
Employers must provide:
|Work 40 or more hours/week||40 hours of COVID-19 emergency paid sick leave|
|Regularly work fewer than|
|COVID-19 emergency paid sick leave in an amount that is equal to the employee’s average weekly number of hours|
|Have a schedule and weekly hours that vary from week to week||COVID-19 emergency paid sick leave equal to the average number of hours that the employee was scheduled to work per week over the previous six months|
|Has a variable schedule and has not worked for the employer for six months||COVID-19 emergency paid sick leave equal to the number of hours per week that the employee reasonably expected to work when hired|
Requests for Leave
- If leave lasts longer than one day, employers may require employees to follow reasonable notice procedures to continue to receive COVID-19 emergency paid sick leave.
- The form employees will use to request COVID-19 emergency paid sick leave must be specific to the Program and separate from other leave request forms.
- MA is currently creating a standard form that employers may use. The form is expected to be posted on the Commonwealth’s dedicated Program webpage
- If you create your own Program-specific leave request form, it should ask for:
- the employee’s name;
- the date(s) requested and taken for leave;
- a statement from the employee on:
- the qualifying reason for which they are requesting leave and written support for such reason;
- that he or she is unable to work or telework because of the COVID-19-related reason; and
- for leave requests based on a quarantine order or self-quarantine advice, the form should ask for:
- the health care provider advising self-quarantine or the name of the governmental entity ordering quarantine; and
- if the leave request is for someone other than the employee, that person’s name and relation to the employee.
- Employers must treat health information regarding an employee or an employee’s family member as confidential medical records and keep them confidential under state and federal law.
- Employers may not disclose this information except to the affected employee or with the affected employee’s express permission.
- Employers must maintain this information in a separate file from other personnel information.
State Fund Reimbursements
The maximum per-employee amount an employer may seek reimbursement for is $850, including the cost of benefits. MA will release further instructions on the reimbursement process in the coming weeks; however, it is clear that payments for leave eligible for reimbursement under the Families First Coronavirus Response Act (FFCRA) are not eligible for reimbursement from the Program. Employers may not “double-dip” by seeking reimbursement from both the state fund and the federal government if they opted to obtain payroll tax credits through the FFCRA and extensions thereof, including the most recent extension through the American Rescue Plan Act.
When seeking reimbursement, employers will be required to submit:
- the employee’s social security or tax ID number;
- the employer identification number associated with the employee’s position;
- total hours of the leave and wages paid during that leave that are not eligible for federal tax credits or otherwise paid under any other government program or law;
- benefits applicable to the employee taking leave;
- the number of hours the employee works in his or her regular schedule
- if the employee has no regular schedule, use the six-month period immediately preceding the start date of leave to calculate the hours that the employee was scheduled to work per week, including hours taken for leave of any type
- if the employee did not work over the preceding six-month period, substitute with an average, based on the employee’s reasonable expectation when hired, of hours per week the employee would normally be scheduled to work; and
- the employee’s written request for leave.
Additional Employer Obligations
- Employers must provide COVID-19 emergency paid sick leave in addition to all other paid or unpaid job-protected leave they are required to provide to employees under their existing policies or programs, collective bargaining agreements, the Massachusetts Earned Sick Time Law, or federal law.
- Employers with a voluntary COVID-19 sick leave policy in place are not required to provide additional COVID-19 emergency paid sick leave, as long as their existing policy provides employees with the same amount of leave for the same qualifying reasons under the Act.
- Unless required by federal law, employers may not require their employees to first exhaust other forms of leave before requesting or using COVID-19 emergency paid sick leave.
- Employers may not deem employees responsible for searching for or finding replacement workers to cover their time away on COVID-19 emergency paid sick leave.
- An employer may not restrain, deny, or interfere with an employee’s use of COVID-19 emergency paid sick leave, nor may the employer retaliate against an employee for using COVID-19 emergency paid sick leave or opposing any practice in violation of the new law.
Resources for Massachusetts Employers
Employers can find detailed Program information on MA’s dedicated webpage. Additional instructions and forms, including how to apply for reimbursements and a standard leave request form, are forthcoming.
The Program is not administered by the Department of Unemployment Assistance (DUA); consequently, the Commonwealth has advised employers not to direct Program-related questions to the DUA call center. Instead, employers should email all Program-related questions to CovidSickLeave@mass.gov.
Contact Commonwealth Payroll & HR
Let the professionals at Commonwealth help your company stay up-to-date and compliant. We can help with everything from answering questions, providing best practices, and assisting with training to documenting policy updates and implementing new procedures and software.
Contact us today to find out more about how Commonwealth Payroll & HR can help with your HR and payroll needs. And ask us about our Employee Retention Credit and PPP Loan Forgiveness assistance programs.
Check out Commonwealth’s other recent insights on paid leave:
- Paid Family Leave: What’s Happening on the National Front?
- Maine’s Earned Paid Leave Law is Effective January 1, 2021: Are You Ready?
- What Connecticut Employers Need to Know About CT PFMLA
- Paid Leave in New England Shifts Toward a New Standard
- MA PFMLL: Are You Ready?
The information provided in this article does not, and is not intended to, constitute legal advice; instead, all information is for general informational purposes only. Information in this article may not constitute the most up-to-date legal or other information. This article contains links to other third-party websites provided only for the convenience of the reader.