Massachusetts COVID-19 Paid Sick Leave
On May 28, 2021, Governor Baker signed legislation providing every full-time employee up to 40 hours of job-protected, emergency paid sick leave (pro-rated for part-time employees) for certain COVID-19 related reasons, including to obtain the COVID-19 vaccine or to recover from symptoms arising from the vaccine. The law also creates a fund to reimburse eligible employers for providing their employees with this paid leave, unless they are eligible to receive tax credits from the federal government. The state mandate continues until September 30, 2021, or until the fund is exhausted.
Eligible Reasons for Leave All Massachusetts employers, regardless of size, are required to provide the state-mandated paid leave to employees who are unable to work for the following reasons:
1. an employee's need to:
a. self-isolate and care for themselves because they have been diagnosed with COVID-19;
b. get a medical diagnosis, care, or treatment for COVID-19 symptoms; or
c. get or recover from a COVID-19 immunization;
2. an employee’s need to care for a family member who:
a. must self-isolate due to a COVID-19 diagnosis; or
b. 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.
Leave Amounts The amount of COVID-19 paid leave available to employees depends on their work schedule. An employee who works 40 hours or more per week is eligible for up to 40 hours of COVID-19 paid sick leave. An employee who works less than 40 hours a week, but maintains a regular schedule with consistent hours per week, must be provided leave that is equal to the number of hours that the employee works per week on average over a 14-day period working a regular schedule. For an employee whose schedule and weekly hours worked vary from week to week, the employee must be provided leave that: (A) is equal to the average number of hours that the employee was scheduled to work per week over the 6-month period immediately preceding the date on which the employee takes the COVID-19 emergency paid sick leave, including hours for which the employee took leave of any type; or (B) if the employee did not work over this 6-month period, is equal to the reasonable expectation of the employee at the time of hiring of the average number of hours per week that the employee would normally be scheduled to work.
Employers may provide additional leave under their own policies but cannot seek reimbursement from the state COVID-19 Emergency Paid Sick Leave Fund for more than $850 per week for that employee’s absence. Again, if the leave is eligible for federal tax credits, the employer may not receive reimbursement through the state. Any employer with a separate COVID-19 sick leave policy that meets the leave requirements under the state mandate need not provide the additional 40 hours of state mandated COVID-19 paid leave. Employee Notice of the Need for Leave An employee is required to provide notice of the need for COVID-19 leave as soon as practicable or foreseeable. After the first workday an employee receives COVID-19 emergency paid sick leave, an employer may require the employee to follow reasonable notice procedures in order to continue receiving COVID-19 paid leave.
An employee may use COVID-19 emergency paid sick leave on an intermittent basis and in hourly increments. An employer may not require, as a condition of an employee’s taking COVID-19 paid leave, that the employee search for or find a replacement worker to cover the hours during which the employee is using COVID-19 paid leave.
Mandatory Employer Notices The state has issued model employer notices as well as set up a website with more information about the law. At the bottom of the website, under "Additional Resources" are a variety of notices. There is a poster format or a document format of the model notice in English, and a document format of the model notice is also available in several other languages.
Under the law, employers must display either the poster or document format of the model notice at a conspicuous location within the workplace and provide a copy to their employees, or, in cases where the employer does not maintain a physical workplace, or an employee teleworks or performs work through a web-based platform, notification must be sent via electronic communication or a conspicuous posting in the web-based platform.
Interaction with Other Types of Leave The new state-mandated COVID-19 paid leave is, subject to the qualifications below, in addition to all job-protected paid and unpaid time off the employer is required to provide to employees under the Massachusetts Earned Sick Time Law, any existing employer policy or program, collective bargaining agreement, or federal law, to the extent permitted by that federal law. While the new state mandate requires the leave to be provided under its terms, if the leave is eligible for tax credits by the federal government, the employer may only receive federal tax credits; it may not double-dip and receive reimbursement and tax credits by both the state and federal government. Under the law, an employee cannot receive more than 100% of his or her regular weekly wages. In addition, if applicable, the COVID-19 emergency paid sick leave benefit may be reduced by wages or wage replacement received from any government program such as unemployment benefits. Employees who use the state-mandated COVID-19 paid leave must maintain all benefits to which they are entitled, including health insurance, vacation leave, sick leave, disability insurance, and pension. In addition, an employer may not require an employee to use other paid leave before using the state-mandated COVID-19 paid leave, unless federal law requires otherwise.
Request for Reimbursement by the State The state will reimburse an employer for qualifying paid leave except where such wages are eligible for a federal tax credit. To be eligible for reimbursement by the state, employers must require written requests from any employee seeking COVID-19 paid leave that includes:
the employee’s name;
the date(s) for which leave is requested and taken;
a statement of the COVID-19 related reason the employee is requesting leave and written support for the reason; and
a statement that the employee is unable to work, including by means of telework, for the given reason.
In the case of a leave request based on a quarantine order or self-quarantine advice, the statement from the employee must also include:
the name of the governmental entity ordering quarantine or the name of the health care provider advising self-quarantine; and
if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.
Payment will be issued to the employer within 30 business days of submitting the application. Non-Retaliation Provisions The state law also includes anti-retaliation provisions. Employers may not:
interfere with, restrain, or deny an employee’s ability to take COVID-19 emergency paid sick leave, including, but not limited to, by using an employee’s taking of COVID19 emergency paid sick leave as a negative factor in any employment action, such as an evaluation, promotion, disciplinary action, or termination;
discipline or take any other adverse action against an employee for using COVID-19 emergency paid sick leave; or
take any adverse action against an employee because the employee opposes practices believed to be in violation of this program, or because the employee supports the exercise of rights of another employee, including, but not limited to:
filing an action, or instituting or causing to be instituted any proceeding;
providing or intending to provide any information regarding any inquiry or proceeding; or
testifying or intending to testify in any inquiry or proceeding.
Doorways Employment Law, LLC specializes in employment law counseling, strategic advice and representation to employees and businesses across Massachusetts, including with respect to leave law requirements. Contact Doorways for a consultation.