Joining a continually increasing number of federal and state courts around the country, a justice of the Hampden Superior Court has denied a request for an injunction against the state-wide school mask mandate first ordered by the Commissioner of DESE on August 25, 2021 and against several local school districts’ school mask policies.

In The Family Freedom Endeavor, Inc. et al. v. Riley, et al., two entities and several individual parents brought six actions in various superior courts against DESE, eighteen school districts, and two municipalities, claiming that all lacked legal authority to issue school mask mandates and that these mandates violate various individual constitutional rights. At the request of all defendants, the cases were consolidated in the first-filed case in Hampden County and argument on the injunction requests was heard on October 26, 2021.

On November 16, 2021, the court issued a 15-page decision denying the requests. Addressing the claim against DESE first, the court held that G.L. c. 69, § 1B “unambiguously evinces a legislative intent that [DESE] ensure that students attend classes in a healthy and safe educational environment” and that DESE has “authority …during an unprecedented pandemic to establish policies to ensure safe in-person learning in public schools.” The court rejected an additional argument that there were no “exigent circumstances” that allowed DESE to act under its regulations, stating “the plaintiffs’ blanket denial of exigent circumstances and of the need for masks in schools contradicts the guidance issued by the CDC, the DPH, and the American Academy of Pediatrics.”

Regarding the authority of the local districts to issue school mask mandates, the court held that local entities have the power to “impose health related rules in their own schools” and that this authority has not been preempted by the Commonwealth because there is no conflict between DESE’s mask mandate and the local policies, and because the mandates are “guided by the DPH, other public health authorities, and medical experts.”

Last, the court emphatically rejected the claims that these mandates violate any constitutional rights. The court pointed out that parents do not have a “fundamental interest in not having their children masked at school”; that parental rights “do not include the liberty to expose the community or a child to communicable diseases”; and that these mandates “were created, tailored, and implemented in consultation with medical experts and on the basis of widely accepted public health recommendations.” Noting that the plaintiffs’ arguments “are premised upon nonauthoritative cases as well as thin and heavily contradicted evidence”, the court ruled that the mandates survive judicial review because “[t]hey serve the legitimate State interest of slowing the spread of COVID-19”. Accordingly, the court decided that the plaintiffs had failed to satisfy the requirements for enjoining the mask policies.

The court’s decision means that school districts have the authority to impose rational requirements to protect the health of students so long as those requirements do not conflict with DESE’s policies and orders. While the plaintiffs may try to seek some form of appellate review, the court’s decision is consistent with overwhelming authority throughout the United States and is both thorough and well-reasoned.

Local districts should consult with counsel regarding any questions about mask policies, including whether exemptions or accommodations apply in individual cases.

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

On October 27, 2021, the Department of Elementary and Secondary Education (DESE) issued an updated joint advisory with the Department of Children and Families (DCF) concerning mandated reporting responsibilities for school personnel in cases of suspected child abuse and neglect.  The update replaces the previous advisory on the same topic issued in 2010.

The updated advisory summarizes the mandated reporting law and answers common questions regarding the law and responsibilities of mandatory reporters.  In addition to school personnel having a duty to report, school committees continue to have a duty to inform teachers, administrators, and other professional staff regarding their reporting duties.  The advisory is intended to assist school committees in meeting this obligation.

A link to the reporting form is included in the updated advisory, making it easy for mandatory reporters to find and submit the required information consistent with Section 51A.

The definitions of “abuse” and “neglect” have been updated:

• Adding “victimization of a child through sexual exploitation and/or human trafficking, whether or not the person responsible is a caregiver” to the definition of “abuse.” And noting the location of the actions do not impact that definition.
• In addition, the advisory makes clear that “neglect” cannot be solely due to a parent or caregiver’s “disability or limited physical condition.”
• The updated reference to “sexual exploitation or human trafficking” was added to various sections of the advisory, making clear that mandatory reporters are responsible for reporting when this conduct is suspected.

Additional guidance regarding a school or district’s ongoing concerns and concerns for children already involved with DCF or the courts in included in the update:

• Even if a reporter is aware that a child is involved with DCF or the court the reporter must still report any suspected abuse or neglect, even when the reporter has already notified the child’s social worker.
• Only if the concerns do not rise to the level of a 51A requirement, can the reporter limit notification to the social worker.
• The guidance goes on to indicate that if a school or district has ongoing concerns after speaking to the social worker the school or district may reach out to the DCF Area Office and speak with the Area Program Manager or Director. When necessary, a school or district may also speak to the DCF Office of Ombudsman or the Office of the Child Advocate Complaint Line if they do not believe DCF is being responsive.

The updated advisory modifies DESE/DCF’s response to questions regarding reports of student harassment, assault or abuse by another student.  Previously the advisory indicated the matter “should be reported to DCF” and police.  The updated advisory is more nuanced and indicates responses will vary based on allegations, applicable laws, regulations, and policies, advising reporters and schools to consult with school counsel.  If abuse is suspected of a student under eighteen the guidance does, however, advise it be reported.

The updated advisory also notes the need to report abuse or neglect of disabled persons aged eighteen and over to the Disabled Persons Protection Commission (DPPC).

While the advisory previously discouraged districts from notifying parents or guardians of a DCF interview at school if the child could be placed at risk of further abuse or neglect, the updated advisory directs districts to consult with counsel regarding these questions.

The update emphasizes that reports of suspected abuse by school employees must be reported “immediately.”

The updated advisory can be found here: https://www.doe.mass.edu/lawsregs/advisory/child-abuse.html

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

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

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.

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.