Under A New State-Funded Program, Massachusetts Employees Will Receive Paid Sick Time for Certain Reasons Related to COVID-19

By Skoler, Abbott & Presser, P.C.

June 2, 2021

After months of debate and a partial veto, a bill giving Massachusetts workers paid sick time for certain reasons related to COVID-19 was signed into law by Governor Charlie Baker last Friday and went into effect immediately.  Additional guidance from the Executive Office of Labor and Workforce Development is expected as soon as this week, but here is a summary of what we know so far about how this new law will work.
 
Use of Leave:  Under the new law, every employer in the Commonwealth (except the federal government) will be required to provide all of their employees up to 40 hours of “COVID-19 Massachusetts emergency paid sick leave” (hereinafter, “COVID-19 Sick Leave”) that may be used for any of the following reasons:

•    To seek or obtain a medical diagnosis, care, or treatment for COVID-19 symptoms;
•    To self-isolate and provide care for themselves due to their own COVID-19 diagnosis;
•    To obtain the COVID-19 vaccine;
•    To recover from any injury, disability, illness, or condition related to the COVID-19 vaccine;
•    To care for a covered family member who needs a medical diagnosis, care, or treatment for COVID-19 symptoms;
•    To care for a covered family member who is self-isolating due to a COVID-19 diagnosis;
•    To quarantine pursuant to an order or other determination by (1) a local, state or federal public official; (2) a health authority with jurisdiction; (3) the employee’s employer; or (4) the employee’s health care provider that the employee’s presence on the job or in the community would jeopardize the health of others because the employee has been exposed to COVID-19 or is exhibiting symptoms of COVID-19, regardless of whether the employee has been diagnosed with the disease; or
•    To care for a family member who is the subject of such a quarantine order or determination, regardless of whether the family member has been diagnosed with COVID-19.

COVID-19 Sick Leave may be used intermittently, in one hour increments, but employees are required to telework if it is feasible for them to do so unless they have been diagnosed with COVID-19 and their symptoms inhibit their ability to telework.  Employees must also continue to receive all employment benefits during any period of COVID-19 Sick Leave.
 
Covered family members are the employee’s spouse, domestic partner, child, parent, grandparent, grandchild, sibling, parent of their spouse or domestic partner, and any person who stood in loco parentis to the employee when the employee was a minor with whom they have a personal relationship.  Parents and children are defined to include foster, step, and guardian relationships.

COVID-19 Sick Leave will be available to employees until September 30, 2021, or 15 days after the state gives notice that the $75 million in funds earmarked for this program will likely be depleted within 15 days, whichever occurs first.
 
Amount of Leave:  Full-time employees are entitled to 40 hours of COVID-19 Sick Leave.  Part-time employees who work a regular schedule are entitled to an amount of COVID-19 Sick Leave equal to the number of hours they work each week, on average, over a 14-day period.  Part-time employees whose hours vary are entitled to an amount of COVID-19 Sick Leave equal to the average number of hours they were scheduled to work during the six months preceding their request to take the leave (including any hours they took any type of leave) or, if they have not worked for the employer for six months, a number of hours equal to the number of hours the employee reasonably expected to work each week at the time the employee was hired.
 
Employee Notice:  Employees must give employers notice of their need to use COVID-19 Sick Leave as soon as practicable or foreseeable, must submit their request for leave in writing, and must follow the employer’s reasonable notice procedures after the first day of the leave.  The written request must include the employee’s name, the period of leave requested, a statement of the qualifying reason for the request with “written support for such reason” and a statement that the employee is unable to work or telework for that reason.  Where the reason is a quarantine order, the request must also include the name of the governmental entity or health care provider requiring or advising a quarantine and, if applicable, the name of the quarantining family member and their relation to the employee.  What other “written support” employees will be required to submit is, so far, unknown.  However, all health information related to COVID-19 Sick Leave must be kept separate from an employee’s regular personnel records, may not be disclosed to anyone other than the employee without the employee’s express permission, must be treated as confidential medical records and must be kept confidential in accordance with any other state or federal law.
 
Employer Notice:  By this coming Friday, June 4, 2021, the Executive Office of Labor and Workforce Development will be publishing a notice about the new law.  Employers will be required to post the notice in a conspicuous location in each of their establishments and to distribute it directly to employees.  Employers who have employees that telework or work through a web-based platform must send the notice via e-mail or post it on the web-based platform.
 
Concurrent Use of Other Leave:  This new paid sick leave bank is a brand new bucket of paid sick time available for the COVID-related reasons listed above.  This means that leave under the new law does not run concurrently with Massachusetts Earned Sick Time or any other job-protected leave, paid or unpaid, that is provided under any employer policy or program, collective bargaining agreement, or federal law.  However, employers who already provide paid time off to employees for the same COVID-related reasons and under the same conditions are not required to provide additional leave under the new law.  Additionally, employers may not require employees to use any other paid time off provided by the employer before the employee uses COVID-19 Sick Leave unless otherwise required by federal law.  Employers may reduce the amount of wages they would otherwise pay to an employee by the amount of any other wages or wage replacement the employee receives for the same time period under any other government program or law or if the aggregate amount the employee would otherwise receive would exceed the employee’s average weekly wage.
 
Employer Reimbursement:  As noted above, employers are entitled to be reimbursed by the state for all wages they pay to employees during COVID-19 Sick Leave out of the newly-established $75 million COVID-19 Massachusetts Emergency Paid Sick Leave Fund – with two exceptions.  First, wages are not reimbursable if the paid leave is also eligible for the federal tax credit under the federal Families First Coronavirus Response Act (FFCRA).  (You can find more information about the FFCRA at our COVID-19 Resources page on our website.)  Second, employers are not required to pay employees more than $850 per week while they are on COVID-19 Sick Leave, and will not be reimbursed for any wages they pay in excess of that amount.  Preliminary guidance published by the state suggests that this cap is inclusive of the cost of benefits provided to the employee during the leave.
 
Reimbursements will be paid “in a timely manner” after an employer submits an application.  Applications must be on prescribed forms and must include a copy of the employee’s written request with all required information.  Importantly, the law gives the Executive Office for Administration and Finance the authority to require employers to maintain records sufficient to document payment of COVID-19 Sick Leave to employees and to impose penalties for false or deliberately misleading statements.  We expect the Executive Office to issue regulations on these, and other aspects, of the law.  Until that happens, however, the state’s preliminary guidance recommends that employers keep a record of the number of hours of leave paid, the wages paid that are eligible for reimbursement, the benefits the employee received during the leave, and the average number of hours the employee works each week.
 
No Retaliation or Interference:  The law includes standard non-retaliation and non-interference provisions that prohibit employers from taking any adverse action against an employee for taking COVID-19 Sick Leave, opposing any practice the employee believes is contrary to the new law, or supporting another employee’s exercise of rights under the law.  Notably, however, the law does not expressly allow employees to file suit in court or take any other legal action to enforce those provisions.