Effective June 7, 2021, a new law will go into effect requiring all Massachusetts employers, regardless of size, to provide COVID-19 emergency paid sick leave (“emergency leave”) to employees. The law also establishes a $75 million COVID-19 Emergency Paid Sick Leave Fund (“the Fund”) to reimburse employers up to $850 per employee for use of the emergency leave.
Qualifying Conditions
The emergency leave is in addition to the benefits that an employee receives from their employer, including all job-protected paid and unpaid time off, and applies to employees who are unable to work or unable to telework as a result of COVID-19, including when an employee:
- Needs to self-isolate, obtain medical care or immunization, or is recovering from injuries as a result of immunization.
- Needs to care for a family member who is self-isolating due to a COVID-19 diagnosis or needs medical care.
- Is under quarantine order by employer, health care provider or authority, or public official, regardless of diagnosis.
- Needs to care for a family member who is under quarantine order by employer, health care provider or authority, or public official.
- is unable to perform telework due to COVID-19 diagnosis and prohibitive symptoms.
Leave Amounts and Logistics
The amount of emergency leave that an employee receives will be commensurate with their typical work week hours. An employee who works a 40 hour work week will receive 40 hours of emergency leave; a regularly scheduled, part-time employee will receive emergency leave that is equal to the number of hours typically worked during the 14-day period prior to taking leave; and, an employee with a fluctuating schedule and flexible hours will receive emergency leave that is equal to the number of hours they were scheduled to work in the six months before they needed to request leave. Emergency leave may be utilized by employees in hourly increments and on an intermittent basis.
Employees must notify employers of a need to use the emergency leave as soon as possible, by submitting a written request that includes the following:
- Employee name
- Date(s) leave is requested
- Statement of COVID-19 related reason for emergency leave request
- Statement of inability to work in-person and/or remotely
- Name of entity or health care provider advising quarantine
- Name and relation of family member in quarantine if not employee
During leave, an employer can require an employee to follow “reasonable notice procedures,” but cannot require an employee to find a replacement worker to cover their hours. Employers may not require employees to use other employer-provided paid leave prior to seeking emergency leave under this law.
Employer Reimbursement
The Massachusetts Executive Office for Administration and Finance (“MA EOAF”) will oversee the Fund, which allows eligible employers to obtain up to $850 per employee reimbursement for emergency leave. The exception for reimbursement concerns employers who continue to voluntarily provide COVID-related emergency leave pursuant to the Families First Coronavirus Response Act (“FFCRA”), as extended by the American Rescue Plan. Because these employers are eligible for the federal tax credit under the FFCRA, they may not seek reimbursement from the Fund. Applications for reimbursement may be submitted until the funds are no longer available, or by September 30, 2021.
The MA OEAF will establish a form for employers to apply for reimbursement from the Fund. Though the form has not yet been made available, we are aware that employers will be required to include the following information:
- Employee name
- Date(s) leave was requested and taken
- Statement of COVID-19 related reason for emergency leave request
- Statement of inability to work in-person and/or remotely
- Name of entity or health care provider advising quarantine
- Name and relation of family member in self-isolation or quarantine if not employee
Record Keeping and Non-Retaliation
As with any health information related to an employee or family member, employers must maintain COVID-19 health information as a confidential medical record, kept on a separate form and in a separate file from the employee’s personnel records, and disclosed only to the related employee or with permission by the related employee. Additionally, employers are prohibited from denying an employee’s use of the emergency leave, or from any form of discrimination or retaliation against an employee for their use or vocal support of the emergency leave.
For more information
If you have any additional questions about the new law or its impact on your organization specifically, please contact Greg Vanden-Eykel or your Barton Gilman attorney at 617-654-8200.
Greg Vanden-Eykel is a partner and member of the employment law team at Barton Gilman. The team provides comprehensive legal guidance to a wide variety of employers on all aspects of the employment cycle—from hiring through separation—including personnel policies and handbooks, non-compete agreements, and representation before state and federal courts and agencies. Click here to learn more.
