On September 29, 2021, the Massachusetts legislature extended the “Act Providing For Massachusetts COVID-19 Emergency Paid Sick Leave,” through April 1, 2022.  The Act, which requires all private and public employers within Massachusetts to offer employees leave time for COVID-19 related issues, was set to expire on September 30, 2021.  It will now remain in effect until April 1, 2022, or the exhaustion of the seventy-five million dollars allocated by the legislature, whichever is earlier.  If funds are expected to be depleted prior to April 1, 2022, the Commonwealth will provide employers with fifteen days advance notice.

The Act does not require employers to award additional hours of leave beyond those originally created in April 2021.  Instead, it merely extends an employee’s time to access the existing benefit through April 1, 2022.  Accordingly, if an employee already exhausted the benefit the employer is not required to provide additional hours.

In addition to extending the time to use the benefit, the legislature amended the reasons for which an employee may access this leave.  Effective October 1, 2021, employees may now also use the Massachusetts COVID-19 Emergency Paid Sick Leave to care for a family member who needs to obtain an immunization related to COVID-19 or recover from “injury, disability, illness or condition related to” such immunization.  The original reasons for leave, detailed below, remain in effect as do the requirements regarding the amount of leave to which an employee is entitled, how an employee requests such leave, and protections against retaliation.  Please see below for details regarding these requirements.

There was a notice requirement for employers when the original Act was passed.  Employers are encouraged to inform their employees regarding the extension of this leave and the expansion of reasons for which the leave may be used.

Original Qualifying Reasons for Leave

Employers are required to provide emergency paid sick leave to employees who are unable to work for one or more of the following reasons:

1. 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;
2. An employee’s need to care for a family member who:
   • must self-isolate due to a COVID-19 diagnosis; or
   • 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 health care 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 health care provider; or
5. An employee’s inability to telework due to COVID-19 symptoms.

A “family member” under the Act is defined as an employee’s spouse/domestic partner, child, parent, grandchild, grandparent, or sibling, a parent of a spouse, or a person who stood in loco parentis to the employee when such employee was a minor child.

Employers may not require employees to use other types of available paid leave in lieu of this emergency paid sick leave, and may not require an employee to search for or find a replacement worker to cover the time that the employee will miss while on leave provided by the Act.

Increment of Leave

1. For employees who work 40 or more hours per week, the employer must provide 40 hours of emergency paid sick leave.
2. For employees who regularly work less than 40 hours per week, employers must provide leave in the amount equal to the average number of hours that such employee works per week.
3. For employees with varying weekly hours 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 6 months.
4. For an employee who has not been employed for at least 6 months and has a schedule where weekly hours vary, the employer must provide leave equal to the number of hours per week that the employee reasonably expected to work when hired.
5. The maximum an employer is required to pay an employee per week and seek in reimbursement is $850.00, including costs of benefits.

Employee Requests for Leave

Employers who seek reimbursement from the Commonwealth must require their employees to submit requests for emergency paid sick leave in writing. The state created a form for employers to use in obtaining that information, which is available at: https://www.mass.gov/info-details/covid-19-temporary-emergency-paid-sick-leave-program.  The form must contain the following information:

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 the employee is requesting leave and written support for such reason; 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.

All employee health information gathered is to be treated as confidential, subject to applicable state and federal law. No health information should be disclosed to any third parties without express permission from the employee.

Reimbursement Protocol

In anticipation of applying for reimbursement, the state has advised that employers should collect and retain the following information:

1. The employee’s social security or tax identification number;
2. The employer’s 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 6-month period immediately preceding the date on which such employee takes the 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 6-month period, the number of hours the employee reasonably expected to work at the time that the employee was hired or the average number of hours per week that the employee would normally be scheduled to work.

Retaliation Prohibition

Employers may not interfere with an employee’s ability to use the emergency paid leave under the Act or retaliate against an employee for exercising the rights described above. This includes considering the use of the emergency sick leave as a negative factor in any employment action or taking an adverse action against an employee because the employee supports the exercise right of another employee.

If you have any questions regarding the content of this update, or any other questions regarding labor and employment law generally, please contact us.

Earlier this year, the Massachusetts Appeals Court issued a decision, Meehan v. Medical Information Technology, Inc., 99 Mass. App. Ct. 95 (2021), holding that terminating an employee solely for exercising his right to submit a written rebuttal to his personnel file pursuant to G.L. c. 149, §52C does not fall within the public policy exception to the general at-will employment rule.

Defendant employed Plaintiff as an at-will employee and placed him on a performance improvement plan (“PIP”). Approximately two weeks later, Plaintiff emailed a lengthy rebuttal to the PIP to his supervisor. That same day, Defendant’s management team met to discuss the rebuttal and decided to terminate Plaintiff’s employment immediately. Plaintiff’s legal counsel then protested his termination, filing a complaint in Superior Court asserting wrongful termination in violation of public policy.

Defendant moved to dismiss the Plaintiff’s complaint for failure to state a claim, arguing that even if it had terminated Meehan solely for submitting a rebuttal, that action did not fall within the public policy exception to the general at-will employment rule. The trial judge agreed, and the Massachusetts Appeals Court affirmed.

While the at-will employment doctrine holds that employment at-will can be terminated for any reason or no reason at all, Massachusetts courts have consistently recognized a narrow exception to this rule when termination runs contrary to a well-defined public policy. To qualify as an exception to the general rule, “the public policy must be well defined, important, and preferably embodied in a textual law source.” Ryan v. Holie Donut, Inc., 82 Mass. App. Ct. 633, 636 (2012). The Supreme Judicial Court has recognized three categories of activities that fall within the public policy exception: “employees who are terminated for asserting a legally guaranteed right (e.g., filing [a] workers’ compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to do that which the law forbids (e.g., committing perjury).” Smith-Pfeffer v. Superintendent of the Walter E. Fernald State Sch., 404 Mass. 145, 149-150 (1989).

Although section 52C provides that an employee who disagrees with information contained in their personnel record “may submit a written statement explaining the employee’s position,” the Appeals Court held that this right does not fall within any of the three protected categories. The Court reasoned that the section is neither sufficiently important nor clearly defined enough to justify the exception. Since section 52C only provides a right of rebuttal to information in the personnel record – which, by definition, is an internal record of the employer – the Court reasoned that these rebuttals have no effect on the public in general.

Employers must remain careful, however, and should not be tempted to read Meehan’s holding beyond the narrow circumstances of the case. For instance, it remains uncertain whether the outcome would change if the rebuttal referenced activities that clearly fall within the public policy exception, such as filing a workers’ compensation claim or claiming violations of anti-discrimination laws. It is also unclear whether Meehan’s holding can be extended to any other section 52C rights, including the right to request one’s personnel file.

The Supreme Judicial Court has agreed to conduct a further review of this decision. Until the Supreme Judicial Court issues its ruling on this matter, Meehan will continue to leave employers without clear answers on the legality of terminating an employee based on the submission of a rebuttal. Accordingly, employers should continue to use caution before terminating an employee based solely on the submission of a rebuttal to their personnel file, especially when the contents of the rebuttal may concern protected activity.

This update is provided for informational purposes only and should not be considered legal advice.

On August 25, 2021, the Massachusetts Department of Elementary and Secondary Education (“DESE”) implemented a requirement that all public school students (age 5 and above), staff members and building visitors wear a mask indoors through at least October 1, 2021.  In particular, the mandate specifies that:

• Masks should cover an individual’s nose and mouth;
• While students younger than 5 years old are not required to wear a mask, it is strongly recommended;
• Districts should honor medical and behavioral reasons that would exempt individuals from the mask requirement;
• The mask requirement does not apply indoors when an individual is eating, drinking, taking a mask break or when necessary to participate in an elective (i.e. wind instruments in band);
• Districts should have disposable masks available for students who need them;
• Consistent with a federal public health order, masks must be worn on school buses;
• Districts should consult their discipline policies and legal counsel in addressing student discipline for failure to wear a mask;
• Districts must submit a plan to DESE confirming health and safety procedures by September 3, 2021.

Lastly, the mandate provides after October 1^st, school districts that can demonstrate that 80% or more of students and staff are vaccinated will no longer be subject to the DESE mask mandate.  DESE will provide more guidance ahead of October 1^st in how school districts can demonstrate this vaccination rate.

If you have any questions regarding this mandate or school law generally, please contact us.

This update is provided for informational purposes only and should not be considered legal advice.

On July 19, 2021, the Appeals Court issued a decision, Bradley v. Records Access Officer, Department of State Police (20-P-0419) holding a public body violated M.G.L. c. 66, §§ 10 and 10A, (the “Public Records Law”) in ignoring an individual’s requests for public records and directives from the Commonwealth’s Supervisor of Public Records (“SPR”) to respond to the requests.

Beginning in September 2018, Adam Bradley (“Bradley”) began filing public records requests with the Department of State Police (“Department”).  The Department’s Record Access Officer (“RAO”) failed to respond to Bradley’s requests.  Bradley sought an order from SPR directing the Department’s RAO to respond to his requests.  SPR issued multiple orders, yet the RAO failed to respond despite the orders.

Consistent with the procedure set forth in the Public Records Law, Bradley filed a complaint in Superior Court alleging among other things, that the Department’s failure to respond constituted a violation of the Public Records Law.  While the Superior Court permitted the RAO’s motion to dismiss the complaint, the Appeals Court took an entirely different approach in finding  “blatant violations” of the Public Records Law.  In particular, the Appeals Court held that the RAO failed to abide by certain requirements of the Public Records Law, primarily, not issuing a response within the ten (10) business days of receipt of the request and ignoring orders from SPR to respond to the requests.  The Appeals Court also rejected the RAO’s post-hoc attempts to justify its failure to respond to the requests.

This decision serves as an important reminder for public bodies to fully understand their obligations under the Public Records Law.  Certain key responsibilities include:

• Designating an RAO to respond to public records requests;
• Issuing a response to a request within ten (10) business days of receipt of a request, which may:
  • Provide documents responsive to the request;
  • Deny the request and cite the statutory basis for denial;
  • Request clarification of the request;
  • Assess fees for time spent responding to the request;
  • Inform the requestor that additional time is needed to respond to the request.
• Understanding the distinction between a request for documents and a request for information;
• Understanding the categories of information that may be redacted or withheld in documents; and
• Understanding the distinction between the Public Records Law and Open Meeting Law as it pertains to meeting minutes.

If you have any questions regarding the Public Records Law, please contact any of the attorneys below.  We are pleased to assist RAOs in properly responding to public records requests.

This update is provided for informational purposes only and should not be considered legal advice.

On July 12, 2021, a federal judge in Indiana ruled against a former teacher who alleged that his employer, a local high school, discriminated against him when it requested his resignation after the teacher continuously refused to call transgender students by their chosen names and pronouns.

The Indiana case was precipitated by the school district’s adoption of a policy that allowed transgender students to change the first names and pronouns listed in their school records and required all staff to address students accordingly. In response to the new policy, an orchestra teacher wrote a letter to his principal stating that he could not follow the name policy due to his religious beliefs. In an attempt to accommodate the teacher, school administrators proposed that the teacher call all students by their last names only and without any gender-based titles, such as Miss or Mr. The accommodation resulted in an undue hardship to the school and evidence demonstrated that at least two students suffered because of the last-names only accommodation. Ultimately, the school could not continue the accommodation and requested the teacher’s resignation.

Following his resignation in May of 2018, the teacher asserted thirteen allegations against the school and several of its employees, including a claim that the school discriminated against him by refusing to accommodate his religious belief that prohibited him from using a transgender student’s preferred name and pronouns. The majority of those claims were dismissed, leaving only the teacher’s claims against the school for failure to accommodate and retaliation under Title VII for the teacher’s religious beliefs. The court ruled in favor of the school on both claims.

The court held that the teacher’s religious opposition to transgenderism was directly at odds with the school’s policy of respect for transgender students. Therefore, as a matter of law, the school could not accommodate the teacher’s religious beliefs. Quoting Shakespeare, the court wrote “[w]hat’s in a name? William Shakespeare suggested maybe not much, for ‘that which we call a rose, by any other name would smell as sweet.’ But a transgender individual may answer that question very differently, as being referred to by a name matching one’s identity can provide a great deal of support and affirmation.”

The Indiana decision is the most recent in a line of cases brought by teachers who claim they were unfairly disciplined for refusing to use the preferred names or pronouns of transgender students. In Massachusetts, DESE has published guidance for Massachusetts public schools on creating a safe and supportive school environment. On the issue of names and pronouns DESE advises that school personnel should use the student’s chosen name and pronouns appropriate to a student’s gender identity, regardless of the student’s assigned sex at birth.

This update is provided for informational purposes only and should not be considered legal advice.