Massachusetts School Mask Mandate Extended Through At Least January 15, 2022

On October 26, 2021, the Department of Elementary and Secondary Education (“DESE”) extended its statewide school mask mandate until at least January 15, 2022. The mandate requires all students and staff members five (5) years and older to wear masks indoors, regardless of vaccination status, except when eating or drinking. Prior to the extension, the deadline for the end of the mask mandate was set for November 1st. This is the second time DESE has extended the mandate.

Schools are still able to lift the mandate for vaccinated individuals by submitting proof to DESE that at least 80 percent of the student and staff population is vaccinated against COVID-19. This extension of the mandate comes amid news of an expected expansion of eligibility for the Pfizer-BioNTech COVID-19 vaccine to children between the ages of 5 and 11.

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

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

Supreme Judicial Court Finds That Police Officer Who Injured Coworker on Town Property During Working Hours Was Not Acting Within Scope of Employment

On October 25, 2021, the Supreme Judicial Court held in Russell Berry v. Commerce Insurance Company, (No. 2020-P-1316) that the provision of the Massachusetts Tort Claims Act, G.L. c. 258, §2 (the “Act”) which provides civil tort immunity to any public employee acting “within the scope of his office or employment” did not apply to a Raynham police officer who struck a fellow officer with his truck on town property while returning from a paid lunch.

The incident in question occurred at a firing range owned by the Town of Raynham.  Officer Shawn Sheehan was an employee of the Raynham Police Department and a certified firearms instructor who was being paid overtime to conduct a day-long training for fellow officers. The plaintiff, Officer Russell Berry, was also an employee of the Raynham Police Department who was required to attend the training. Following the morning session, Officer Sheehan left the range to buy lunch at a nearby store. During this lunch break, Officer Sheehan was still being paid and was planning to eat during a “working lunch” with fellow officers. When he returned, Officer Sheehan drove his pickup truck directly onto the range, intending to park near a group of picnic tables. Driving “faster than he should have,” Officer Sheehan applied the brakes, and the truck slid and struck Officer Berry, pinning his leg between the truck and a picnic table.

Officer Berry sustained several injuries to his leg and incurred medical bills in excess of $130,000. As a result of his injuries, Officer Berry received leave with pay under G.L. c. 41, § 111F, which applies to police and firefighters injured “in the performance of [their] duty.” However, when Officer Berry submitted a written demand letter to Officer Sheehan’s insurer, it denied coverage on the ground that Officer Sheehan was a public employee who had been acting within the scope of his employment and, thus, was immune under G.L. c. 258, §2. Officer Berry then sued in Superior Court and the judge entered a declaratory judgment in his favor.

After the Commerce Insurance Company appealed, the SJC, exercising direct appeal, affirmed the decision of the Superior Court. The Court explained that three factors must be considered when determining whether an employee’s conduct falls within the scope of employment: (1) “whether the conduct in question is of the kind the employee is hired to perform”; (2) “whether it occurs within authorized time and space limits”;  and (3) “whether it is motivated, at least in part, by a purpose to serve the employer.” The SJC concluded that Officer Sheehan was not acting within the scope of employment at the time of the accident because his conduct – driving his truck too fast on the range, braking suddenly, and causing his truck to slide into Officer Berry – was not part of the duties that he was hired to perform as a firearms instructor. The Court added that Officer Sheehan’s actions were not motivated, even in part, by a purpose to serve the Raynham Police Department.

The SJC reconciled this analysis with the fact that Officer Berry was injured “in the performance of his duty” and qualified for paid leave under G.L. c. 41, § 111F. The Court explained that the standard used in cases involving an injured employee’s entitlement to benefits is much broader than the “scope of employment” test used to determine whether an employer is liable for the employee’s negligent acts, pointing out that the statutes have different purposes justifying different treatments.

This case is important to municipal employers because it may limit employer liability for tortious acts committed by an employee in some circumstances even when the conduct occurred on employer property during working hours and qualified the other, injured employee for § 111F leave. As always, the specific facts will determine the relevance of this decision in a given case.

If you have any questions regarding the content of this update, or any other questions regarding employer liability, please contact us.

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

Four VDH Attorneys Named 2021 Massachusetts Super Lawyers and Rising Stars

Robert D. Hillman and John Foskett have been named Massachusetts Super Lawyers for 2021 and Nicholas J. Dominello and Jennifer F. King have been named Massachusetts Rising StarsSuper Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. This selection process includes independent research, peer nominations and peer evaluations. Rising Stars are chosen by their peers as being among the top up-and-coming lawyers and must be 40 years old or younger, or in practice 10 years or less.

Massachusetts Legislature Extends COVID-19 Emergency Paid Sick Leave Act

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.

Suffolk Superior Court Allows Governor Baker’s Vaccine Mandate to Go Into Effect Despite Challenge from Police Union

On September 23, 2021, the Suffolk Superior Court issued a ruling in State Police Association of Massachusetts v. Commonwealth of Massachusetts, et al. (No. 2184-CV-02117), allowing Massachusetts Governor Charlie Baker’s October 17th deadline for mandatory vaccinations for all Commonwealth Executive employees to remain in effect. Siding with the Commonwealth, the Court denied motions from the State Police Association of Massachusetts (the “SPA” or “Union”) requesting a preliminary injunction and a temporary restraining order that would have paused the implementation of Executive Order 595 (the “Order”).

On August 19, 2021, Governor Baker issued the Order, which mandates the Human Resource Division (“HRD”) to establish a policy requiring that all employees of the Commonwealth’s Executive branch submit proof of full COVID-19 vaccination by October 17, 2021, as a condition of continued employment. The Order affects roughly 42,000 state employees. Notably, the policy is to allow for limited exemptions from the vaccine mandate for medical or religious reasons.

The day of the Order, the SPA – which represents roughly 1,800 members of the Department of State Police – issued a demand to bargain the impacts of the Order. On August 30, 2021, Commonwealth representatives met with members of the Union to discuss the Union’s proposed changes to the policy. These proposed changes included the option for Union members to engage in weekly testing, to be conducted while on-duty, and mask-wearing as an alternative to vaccination; treating October 17th as the date for starting, rather than completing, the vaccination process; and deeming any COVID-related illness suffered by a Union member as a line-of-duty injury, entitling the member to benefits.

On September 10, 2021, HRD sent an email to all Executive branch employees explaining how to verify vaccination and the date by which they would have to receive the first shot of a vaccine to comply with the mandate. In response, the Union wrote to Commonwealth representatives expressing concern that the mandate would go into effect without bargaining. The Commonwealth insisted that the October 17th deadline would not be changed.

Days later, the Union filed a Charge of Prohibited Practice with the Division of Labor Relations (“DLR”) and a complaint in Suffolk Superior Court seeking a declaration that the Commonwealth violated their obligation to bargain under G.L. c. 150 E, §10 and an injunction enjoining enforcement of the October 17th deadline until the parties negotiated to resolution or impasse.

In denying the Union’s request for an injunction, the Superior Court reasoned that neither the Union nor its members would suffer any irreparable harm from the mandate’s implementation and that the Union’s interest in effecting its right to bargain is outweighed by the Commonwealth’s more significant interest in protecting the health and safety of its workforce and the public.

This decision is important both for its holding that Commonwealth Executive employees must still submit proof of vaccination by October 17th and for its reasoning that the public interest in curbing the spread of COVID-19 outweighs the Union’s interest in effecting its right to bargain over the terms and conditions of employment. This reasoning may be used in other cases as precedent favoring employers’ vaccine mandates.

If you have any questions regarding the content of this update, or any other questions regarding the labor law implications of vaccine mandates, please contact us.

Massachusetts Appeals Court Holds that Employee May be Terminated for Exercising Right to Submit a Rebuttal to Personnel File

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.

Federal Court Permits Employee to Bring Both Title VII and Title IX Actions Against Educational Institutions for Gender Discrimination

On August 12, 2021, the U.S. District Court of Massachusetts issued a decision, Harrington v. Lesley University, et al. (20-11718-DPW) holding that employees of educational institutions that receive federal financial assistance may bring discrimination claims under both the Title VII and the Title IX statutes, subject to the limitations of each.

Defendant Lesley University hired the plaintiff as an art librarian in 2016.  She alleged that shortly after her hiring, her direct supervisor (also named as a defendant) engaged in nonconsensual, sexualized physical contact and made sexually charged comments toward her.  In 2018, she filed an internal complaint with the Title IX Coordinator, which was not resolved.  Two years later, she filed a complaint with the Massachusetts Commission Against Discrimination (“MCAD”) alleging violations of Title VII, as well as a lawsuit in Massachusetts superior court alleging discrimination, harassment and retaliation under Title IX.  Ultimately, the plaintiff combined the MCAD and superior court complaints and they were removed to federal court.

Defendants sought to dismiss the Title VII and Title IX claims.  In particular, they argued that the statute of limitations with respect to the Title VII claim had passed and that the plaintiff could not bring a cause of action under Title IX as an employee.  The court agreed with the limitations argument as to Title VII because the plaintiff had not complied with the requirement that a complaint be filed with the MCAD within 300 days of the latest discriminatory event.

As to the Title IX claim, the court rejected an argument that Title IX claims are limited to students.  Title IX provides that “[n]o person…shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”  While there is a split among the federal appellate courts on this issue, the Court of Appeals in this circuit has expressly rejected that result.  The district court therefore held that the term “person” in Title IX “encompasses claims of both students and employees of federal funded educational programs and activities.”  The court refused to adopt an additional theory that Title IX’s statutory scheme otherwise precludes an employee from bringing a sex discrimination claim.

This decision is an important reminder for school districts to ensure that learning environments and workplaces are free of sex-based discrimination or harassment.  It is also a reminder that while most Title IX claims may be brought by students, a school district should be alert to the fact that a gender discrimination claim by an employee may invoke both the Title IX process and the Title VII/Human Resources process.  Our office frequently provides training to educational institutions on how to properly investigate and respond to allegations of sex-based misconduct.  Moreover, we are pleased to review policies responsive to obligations under Title VII and Title IX.

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.

DESE Issues Mask Mandate for 2021-2022 School Year

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 1st, 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 1st 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.

DESE Updates Masking Guidelines

On July 30, 2021, the Massachusetts Department of Elementary and Secondary Education (“DESE”) released a memorandum containing updated guidelines on masking, COVID-19 testing, and quarantine protocols – the guidance can be found here: DESE Guidance.

Guidelines on masking are as follows:

  • DESE strongly recommends that all students in kindergarten through grade 6 wear masks when indoors.
  • DESE strongly recommends that unvaccinated staff in all grades, unvaccinated students in grades 7 and above, and unvaccinated visitors wear masks indoors.
  • Masks are not necessary outdoors or while eating.
  • DESE recommends that schools allow vaccinated students to remain unmasked.
  • Individuals at heightened risk for severe disease from COVID-19, or with a household member who is at high risk, are encouraged to wear masks
  • By federal public health order, all students and staff are required to wear masks on school buses.
  • All staff and students must wear masks while in student health offices.

DESE further encourages Districts to maintain or establish a plan for COVID-19 testing in schools, including both diagnostics testing and pooled testing for students.

Additional guidance from DESE is forthcoming.

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

Appeals Court Addresses Public Records Law Requirements for Public Bodies

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.