On May 28, 2021, the Massachusetts legislature passed “An Act Providing For Massachusetts COVID-19 Emergency Paid Sick Leave.”  The Act requires all private and public employers within Massachusetts to offer employees leave time for COVID-19 related issues. This mandate is in effect from May 28, 2021 until September 30, 2021, or the exhaustion of the $75 million dollars allocated by the legislature, whichever is earlier.

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 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 is expected to draft a form for employers to use in obtaining 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.

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

On May 13, 2021, the Appeals Court issued a decision, 15 LaGrange Street Corporation, et al. v. Massachusetts Commission Against Discrimination, et al, (20-P-726) vacating a Superior Court decision finding that a Complainant properly claimed to be terminated on the basis of race which accordingly put the respective Respondents on notice of the claim.

In 2011, the Complainant filed a charge with the Massachusetts Commission Against Discrimination (“MCAD”) alleging that he was terminated in retaliation for raising safety concerns to his employer.  Without so stating, the Complainant also indicated in his charge that he was treated less favorably than coworkers of a different protected class.  MCAD found probable cause to credit the allegations, and certified the matter for a public hearing.

Ahead of the hearing, the parties submitted their positions to the MCAD, of which the Complainant echoed his claims from the charge and seemingly indicated that he was terminated because of his race.  The Respondents countered that it would be improper for the race-based termination claim to be heard where it was not previously alleged in the investigation process.  Despite this, during this hearing, Complainant alleged that “race played some role in the decision to terminate…”  The Hearing Officer agreed, and the Respondents sought further review from the MCAD Commissioners and Superior Court, arguing that they were deprived of meaningful notice and ability to respond to the claim.  The MCAD Commissioners and Superior Court affirmed the decision, and the matter was brought to the Appeals Court.

The Appeals Court concluded that the initial charge, “even read indulgently, did not provide fair notice of a claim of racially motivated termination…[n]owhere in [the] complaint, however, did [complainant] allege that he was terminated because of his race.”  While the Complainant and the MCAD acknowledged that this may be true, they contended that other parts of the investigation process provided the Respondents proper notice of the claim.  Complainant and MCAD argued that (1) Complainant’s deposition testimony sufficiently addressed his race-based termination claim; and (2) the MCAD’s investigation process allows it to infer claims where the facts permit.  These arguments were unpersuasive and rejected by the Appeals Court, which held that the Respondents were deprived of due process where notice of the claim was wholly inadequate.

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

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

VDH attorney John Foskett worked with the National School Boards Association and the four state school boards located in the First Circuit and filed an amicus brief.  The plaintiffs claimed that Maine’s tuition assistance program violates the First Amendment’s bar on religious discrimination because, while it permits school districts that are unable to offer a full public education program to their residents to instead offer tuition assistance for attendance at private schools, it bars that assistance where the chosen school is sectarian. The amicus brief argued that there is no discrimination because the plaintiffs are not deprived of a benefit based on religion – they are being given the same opportunity to receive the benefit of a public education as is given to all others in the same districts without regard to religion. The First Circuit agreed and distinguished this case from two recent Supreme Court decisions (Trinity Lutheran and Espinoza) regarding what constitutes discrimination based on religion when the state makes a publicly-funded benefit available. Unlike those cases, the Court of Appeals held that the plaintiffs in this case sought to make a religious use of public funds and that the state could properly refuse to consent to that use.

Employers can expect several changes to come in 2021.  As detailed further below, there are many upcoming changes to federal and state laws that require employers be prepared.

Families First Coronavirus Response Act (“FFCRA”)

In 2020, the federal government passed the FFCRA, which encompassed two acts providing leave time to certain employees impacted by COVID-19: the “Emergency Family and Medical Leave Expansion Act” (“EFMLA”) and the “Emergency Paid Sick Leave Act” (“EPSLA”).  The FFCRA has required that all public employers, and all private employers with fewer than five hundred (500) employees, must provide leave consistent with the EFMLA and EPSLA.  The legislation passing the FFCRA called for the Act to expire on December 31, 2020, with no further EFMLA or EPSLA leave to be taken by employees beyond that date.

The recent pandemic relief package did not extend the FFCRA into 2021.  However, employers may voluntarily offer leave consistent with the FFCRA to employees.  Employers that choose to do so may utilize payroll tax credits to cover any voluntary FFCRA benefits provided through the end of March 2021.  At the time of this advisory, it appears that public employers are not entitled to payroll tax credits.  However, the Internal Revenue Service (“IRS”) has yet to issue definitive guidance on this issue.

Massachusetts Paid Family and Medical Leave Act (“PFMLA”)

Beginning on January 1^st, certain employees in Massachusetts will be able to access PFMLA leave for:

• Twelve (12) weeks of family leave to bond with a child newly born, adopted or placed in foster care;
• Twelve (12) weeks of family leave to manage family affairs while a family member is on active duty overseas;
• Twenty (20) weeks of medical leave to manage the employee’s own serious health condition; and
• Twenty-six (26) weeks of family leave to care for a family member who is a covered Service Member.

Beginning on July 1^st, employees will be able to access PFMLA leave for:

• Twelve (12) weeks of family leave to care for a family member with a serious health condition.

Public employees may only access PFMLA leave if the public employer has chosen to opt-in to providing PFMLA leave.

Eligible employees may access PFMLA benefits by submitting an application to the Massachusetts Department of Family and Medical Leave (“Department”).  Weekly benefits are determined and capped by the Department, but the actual benefit amount depends on an employee’s average weekly wage and the average weekly wage for workers in Massachusetts.  Employees can receive up to twenty-six (26) weeks of PFMLA leave in a benefit year.

PFMLA leave runs concurrently with the federal FMLA and the Massachusetts parental leave act.  An employee must choose between utilizing accrued paid leave or PFMLA benefits, however an employee is not required to exhaust accrued paid leave before using PFMLA benefits.  An employer must continue to provide employment-related health insurance benefits at the level and under the conditions that coverage would have been provided if the employee had been working, however the employee is responsible for paying the employee’s share of health insurance premiums.

Juneteenth Holiday

The Commonwealth of Massachusetts has designated Juneteenth as an official state holiday.  As a result, public offices must be closed on Juneteenth and employees may be entitled to holiday pay.  Employers should review their policies and collective bargaining agreements relative to holiday pay provisions.

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

This update is provided for informational purposes only and is not considered legal or tax advice.

The Commonwealth Employment Relations Board (“CERB”) recently issued a decision holding that Andover Public Schools teachers participated in an illegal strike in violation of G.L. c. 150E, § 9A when they refused to enter school buildings on the first work day of the school calendar for 2020-2021 and insisted instead on performing their work outside the buildings on a remote basis.

In Andover Education Association, No. S.I.-20-8176 (Sept. 8, 2020), the district had designed, and then obtained approval from DESE for, a “hybrid” school reopening plan.  Teachers were directed to report to their designated buildings on the first day of the work year to engage in professional development – no different than any other year.  The variation in this year’s professional development work, however, was based on the Commissioner of DESE’s reduction of student learning time by 10 days, from 180 to 170, pursuant to emergency regulations and on his entry into an MOU with the MTA, AFT, and Boston Teachers Union that the 10 days would instead be devoted to reopening “preparation” work.  The district therefore scheduled activities for the first day that included tasks mandated by DESE’s COVID-19 reopening guidelines such as moving desks, testing Wi-Fi operation between classrooms and offices inside the buildings, and wayfinding around the buildings to learn new walking paths.

The union voted to have its members engage in what was labeled a “workplace safety action” in which teachers would allegedly work remotely outside of the buildings which they claimed had HVAC concerns.  As a result, many teachers did not accomplish their assigned duties for that day.  The School Committee filed a strike petition and the Department of Labor Relations’ strike investigation promptly ensued on September 3, 2020.  The CERB issued its decision on September 8, finding that those teachers who refused to enter their schools had engaged in an illegal strike and that the union and its officers also had violated the statute by condoning and encouraging a strike.

The CERB found first that the duties scheduled for the first day were required and were established by consistent practice even though the specific tasks may have been new for this school year.  It pointed out that the scheduled tasks inside buildings were an intrinsic part of the teachers’ duties given the unique circumstances of this school year arising from the pandemic.  The CERB noted that the union cited no authority permitting its members to “unilaterally dictate where they perform their work.”  It emphasized that a strike that violates § 9A is not limited to a full or partial refusal to perform duties but also covers a concerted refusal to report for duty.  The issue, therefore, was what constitutes reporting for duty under the law.

The CERB concluded that the phrase “report to duty” in G.L. c. 150E, § 1 “means reporting not only when but where the employer has ordered its employees to report.  In this case, that means inside the school buildings, including inside classrooms.”  The CERB expressly rejected the union’s argument that the law permits an employee to report to any location from which an employee can perform duties remotely.  Finally, the CERB ruled that despite labeling what happened as a “workplace safety action”, the union had presented insufficient evidence of circumstances giving rise to an “imminent risk of serious injury or death” such as might justify a refusal to enter the buildings.

The CERB therefore ordered the union and its officers to cease and desist; ordered the union’s officers to notify union members of their obligation to fully perform their duties; and ordered them to inform members of the contents of the order.

This decision addresses the “new normal” driven by the pandemic, in which remote work and learning are part of the fabric of public education in Massachusetts.  Under this ruling employees who attempt to unilaterally dictate when or where they will perform work, or what work will be performed, now risk being found to have violated Massachusetts law.

If you have any questions about the content of this update, or employment or school law generally, please contact us.

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