UPDATE #2: On September 29, the governor signed H. 4127, which immediately extends the end date for emergency paid sick leave requirements from September 30, 2021 to April 1, 2022. Additionally, an amendment that takes effect on October 1, 2021 adds as a covered use an employee using EPSL to care for a family member who is obtaining a COVID-19 vaccination or recovering from a vaccine-related injury, disability, illness or condition.

UPDATE #1: At the time of publication of this article, the text of the bill linked to on the state legislature’s website did not reflect the final language of the enacted bill. The Massachusetts Executive Office for Administration and Finance (EOAF) has since published the official text of the law (H. 3702 as amended by H. 3771). Some notable substantive differences exist between the two versions of the bill, which impact the analysis in the below article. These differences include the following: 

• The obligation to provide leave began immediately upon the governor’s signature, on May 28, 2021.
• The law will remain in effect until the earlier of 15 days after the state notifies employees that that applications totaling $60 million have been submitted (or an alternative total the agency identifies indicating program costs will approach $75 million in 15 days) or September 30, 2021.
• Massachusetts must be an employee’s primary place of employment for the individual to be a covered employee.
• Employers must pay leave at an employee’s “regular” rate of pay (and with the same employment benefits).
• The state will provide reimbursement for qualifying leave employers provided and paid in a timely manner after receiving a reimbursement application (i.e., there is no longer a 30 business day commitment for reimbursement).

On May 28, 2021, Massachusetts Governor Charlie Baker signed legislation providing every full-time employee up to 40 hours (pro-rated for part-time employees) of job-protected, emergency paid sick leave for certain COVID-19 reasons, including to obtain the COVID-19 vaccination or to recover from symptoms arising from the vaccination. The law also creates a $75 million COVID-19 Emergency Paid Sick Leave Fund to reimburse eligible employers for providing their employees with this additional emergency paid sick leave. This new paid leave entitlement begins on May 28, 2021, and extends until September 30, 2021, or until the fund is exhausted.

While additional guidance will be issued in the coming weeks, including the establishment of a website devoted to the COVID-19 Emergency Paid Sick Leave Program, below is a summary of the law’s key requirements.

Reasons for Leave

All Massachusetts employers, regardless of size, are required to provide emergency paid sick leave to employees who are unable to work for the following reasons:

1. An employee’s need to: (i) self-isolate and care for oneself because of the employee’s COVID-19 diagnosis; (ii) get a medical diagnosis, care or treatment for COVID-19 symptoms; or (iii) obtain or recover from the COVID-19 vaccine.
2. An employee’s need to care for a family member who (i) is self-isolating due to a COVID-19 diagnosis or (ii) needs medical diagnosis, care or treatment for COVID-19 symptoms. A family member is defined the same as in the Massachusetts Paid Family and Medical Leave (PFML) law and includes the employee’s spouse, domestic partner, child, or parent, including a spouse’s or domestic partner’s parent; a person who stood in loco parentis to the employee when such employee was a minor child; and a grandchild, grandparent or sibling of the employee.
3. 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.  
4. 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.
5. An employee’s inability to telework because the employee has been diagnosed with COVID-19 and the employee’s symptoms inhibit the ability to telework.

Leave Amounts

The amount of COVID-19 emergency paid sick leave available to an employee depends on their work schedule. An employee who works 40 hours or more per week shall be eligible for up to 40 hours of COVID-19 emergency paid sick leave.  For employees who regularly work fewer than 40 hours per week, employers must provide leave in an amount that is equal to the average number of hours that such employee works per week.

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 the employee 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.

Similar to the PFML, the maximum benefit available to the employee is $850 per week.  Employers may provide additional leave under their own policies but cannot seek reimbursement from the COVID-19 Emergency Paid Sick Leave Fund for more than $850 for that employee’s absence. In addition, any employer with a separate COVID-19 sick leave policy that meets the leave requirements under the law need not provide the additional 40 hours of COVID-19 emergency paid sick leave.  However, employers cannot claim an offset for COVID-19 sick leave voluntarily provided to employees prior to May 28, 2021.

Continuation of Benefits During Leave

COVID-19 emergency paid sick leave is in addition to all job-protected paid and unpaid time off available to employees under Massachusetts Earned Sick Time Law (Mass. Gen. Laws. ch. 149, § 148C), any existing employer policy or program, collective bargaining agreement, or federal law, to the extent permitted by that federal law.  However, an employee cannot receive more than 100% of their regular weekly wages, and, if applicable, the COVID-19 emergency paid sick leave benefit may be reduced by wages received from any government program.

Employees who use COVID-19 emergency paid sick leave will maintain all benefits to which they are entitled, including health insurance, vacation leave, sick leave, disability insurance and pension. In addition, an employer may not require an employee to use other paid leave before using COVID-19 emergency paid sick leave, unless federal law requires otherwise.

Notice of the Need for Leave

An employee is required to provide notice of the need for COVID-19 emergency paid sick leave as soon as practicable or foreseeable. After the first workday an employee receives COVID-19 emergency paid sick leave, an employer may require the employee to follow reasonable notice procedures in order to continue receiving COVID-19 emergency paid sick leave. An employee may use COVID-19 emergency paid sick leave 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 emergency paid sick leave.  

Request for Reimbursement

Although the Families First Coronavirus Response Act (FFCRA) sick leave provisions expired on December 31, 2020, employers with fewer than 500 employees that voluntarily provide sick leave under the FFCRA through September 30, 2021 are still entitled to a federal tax credit.  Larger employers that are not covered by the FFCRA, and those that have not elected to provided FFCRA leave voluntarily, can submit claims for reimbursement to the Commonwealth’s trust fund for each employee’s use of COVID-19 Massachusetts emergency paid sick leave. Employers must require written requests from any employee seeking COVID-19 emergency paid sick leave that includes:

1. the employee’s name;
2. the date(s) for which leave is requested and taken;
3. a statement of the COVID-19-related reason for leave with support; and
4. a statement that because of the COVID-19-related reason the employee is unable to work or telework.

For leave requests based on a quarantine order or self-quarantine advice, the statement from the employee must also include:

1. the name of the governmental entity ordering quarantine or the name of the health care provider advising self-quarantine; and
2. 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 law is silent as to the timeframe by which an employer must seek reimbursement following payment of the COVID-19 emergency paid sick leave. Once the application for reimbursement is submitted, payment will be issued to the employer within 30 business days. However, since the leave program will expire upon the depletion of the COVID-19 Emergency Paid Sick Leave Fund, it would behoove employers to file applications promptly.

In administering the leave, if an employer obtains health information relating to an employee or their family member, it must maintain that information on a separate form and in a separate file from other personnel information and treat the information as a confidential medical record.  An employer may not disclose such health information without the employee’s express permission. The Executive Office of Labor and Workforce Development (EOLWD) is developing a template request form for supporting the requested leave.

Non-Retaliation Provisions

The new law also includes broad anti-retaliation provisions, restricting employers from: 

1. interfering with an employee’s ability to take COVID-19 emergency paid sick leave, including, but not limited to, by using an employee’s taking of COVID-19 emergency paid sick leave as a negative factor in any employment action, such as an evaluation, promotion, disciplinary action, or termination;
2. disciplining or taking any other adverse action against an employee for using COVID-19 emergency paid sick leave; and
3. taking any adverse action against an employee because the employee opposes practices believed to be in violation of this program, including initiating an action or providing testimony. 

As currently drafted, the COVID-19 Massachusetts emergency paid sick leave law does not provide a private right of action for violations.

Next Steps

The EOLWD, in consultation with the Executive Office for Administration and Finance, will release a model COVID-19 Massachusetts emergency paid sick leave notice by June 4, 2021, which employers must display at a conspicuous location within the workplace.  If the employer does not maintain a physical workplace, or an employee teleworks, employers will be required to send notification via electronic communication or a conspicuous posting in the web-based platform.