Massachusetts COVID-19 Emergency Paid Sick Leave: What Employers Need to Know

On May 28, 2021, Massachusetts Governor Charlie Baker signed into law “An Act providing for Massachusetts COVID-19 emergency paid sick leave.” The act requires eligible Massachusetts employers to provide emergency paid sick leave to employees who meet certain criteria, with reimbursement by the Commonwealth.

Employers must provide leave to employees in the following scenarios: (1) when an employee needs to “self-isolate and care for oneself because of the employee’s COVID-19 diagnosis”; (2) when an employee needs to “care for a family member who is self-isolating due to a COVID-19 diagnosis”; (3) when an employee needs to obtain a “medical diagnosis, care or treatment for COVID-19 symptoms”; (4) when an employee needs to “care for a family member” seeking a “medical diagnosis, care or treatment for COVID-19 symptoms”; (5) when an employee is unable to telework due to a COVID-19 diagnosis “and the symptoms inhibit the ability of the employee to telework”; (6) when an employee uses the time to obtain a COVID-19 vaccination or recover from illness related to the COVID-19 vaccination; or (7) when a quarantine order or similar determination applies to an employee or his or her family member due to COVID-19 exposure or symptoms, “regardless of whether the employee” or the employee’s “family member has been diagnosed with COVID-19.”

For eligible employees seeking paid sick leave under the act for any of the reasons discussed above, employers must provide:

• 40 hours of COVID-19 emergency paid sick leave for “an employee who works 40 hours or more per week”;
• employees who work consistent hours per week and work less than 40 hours per week are entitled to the number of weekly hours of leave equal to the average number of hours per week over a 14-day period;
• for an employee with varying weekly hours, the number of hours of leave “equal to the average number of hours that the employee was scheduled to work per week over the” previous six months; or
• for an employee with varying weekly hours who has worked for the employer for fewer than six months, the number of hours of leave equal to the employee’s reasonable expectation at the time he or she was hired of “the average number of hours per week that the employee would normally be scheduled to work.”

Eligible employees cannot receive “COVID-19 emergency paid sick leave in excess of $850 per week.” Employers are also not eligible for reimbursement under the act for any one employee in excess of $850 per week, including the cost of benefits. “[U]nless federal law requires otherwise,” employers may not require employees to use other paid leave before using the COVID-19 emergency paid sick leave (and the emergency leave is specifically in addition to existing paid or unpaid time off).

According to the law, “any qualified sick leave wages paid by an employer that are eligible for the tax credit for paid sick and paid family and medical leave under” applicable federal law are not eligible for reimbursement under the act.

Eligible employers seeking reimbursement under the act must require employees to submit requests for COVID-19 emergency paid sick leave in writing. Eligible employees must provide their names, the dates for which they are requesting and taking leave, “a statement of the COVID-19 related reason” for taking leave, and a statement that because of the COVID-19 related reason the employee is unable to work, including telework. If leave is based on a quarantine order or self-quarantine advice, the employee must also provide:

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.”

The Commonwealth will reimburse eligible employers after they complete an application form (that is forthcoming as of the publication date of this article).

The act will remain effective until September 30, 2021, or the exhaustion of $75 million in funds, which ever is earlier.

Ogletree Deakins will continue to monitor and report on guidance with respect to the act and will post updates on the Massachusetts blog and the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.