Massachusetts Legislature Extends COVID-19 Emergency Paid Sick Leave Act

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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.