Massachusetts has enacted legislation (House Bill 3702) that requires all employers to provide COVID-19 emergency paid sick leave. Employers that provide the leave may request reimbursement from the state's COVID-19 Emergency Paid Sick Leave Fund. The leave requirement will expire when the $75 million fund is exhausted or September 30, 2021, whichever occurs first.
Use of Leave:
Employees may use COVID-19 emergency paid sick leave for the following reasons:
- To self-isolate and care for themselves because of the employee's COVID-19 diagnosis; get a medical diagnosis, care, or treatment for COVID-19 symptoms; or obtain or recover from the COVID-19 vaccine.
- To care for a family member who is self-isolating due to a COVID-19 diagnosis or needs medical diagnosis, care or treatment for COVID-19 symptoms.
- If they or a family member are subject to a quarantine order, or other determination by a local, state, or federal public official, a health authority having jurisdiction, their employer, or a healthcare provider.
- Their inability to telework because the employee has been diagnosed with COVID-19 and the employee's symptoms inhibit the ability to telework.
A family member is defined as the employee's spouse, domestic partner, child, or parent, including a spouse's or domestic partner's parent; a person who stood in place of a parent to the employee when the employee was a minor child; and a grandchild, grandparent or sibling of the employee.
An employee may use COVID-19 emergency paid sick leave on an intermittent basis and in hourly increments.
Amount of Leave:
Full-time employees:
An employee who works 40 hours or more per week must be provided 40 hours of COVID-19 emergency paid sick leave.
Part-time employees:
An employee who works less than 40 hours a week, but maintains a regular schedule with consistent hours per week, must be provided leave equal to the number of hours that the employee works per week, on average over a 14-day period of their regular schedule.
Variable schedule employees:
For an employee whose schedule and weekly hours vary from week to week, the employee must be provided leave that:
- Is equal to the average number of hours that the employee was scheduled to work per week over the 6-month period immediately preceding COVID-19 emergency paid sick leave, including hours for which the employee took leave of any type; or
- If the employee did not work over the previous 6-month period, is equal to the reasonable expectation of the employee at the time of hire of the average number of hours per week that the employee would normally be scheduled to work.
Pay and Benefits During Leave:
Under the law, the leave is paid, and employees maintain the same employment benefits to which they are entitled as a term of employment. However, no employee is entitled to receive more than $850 per week in COVID-19 emergency paid sick leave.
Employee Notice:
Employees must provide notice of the need for COVID-19 emergency paid sick leave as soon as practical or foreseeable. After the first workday of leave, the employer may require the employee to follow reasonable notice procedures to continue receiving COVID-19 emergency paid sick leave.
Employer Reimbursement:
An eligible employer who pays an employee for COVID-19 emergency paid sick leave may seek reimbursement from the Executive Office for Administration and Finance, which must provide reimbursements directly to eligible employers within 30 business days of the employer submitting the application. Reimbursement is limited to $850 per week per employee. Employers are ineligible for reimbursement if they are eligible for tax credits for providing the paid family and medical leave under federal law.
Documentation for Reimbursement:
Employers' applications for reimbursements must include, but not be limited to, a copy of a written request for COVID-19 emergency paid sick leave from the employee, in which the employee provides:
- The employee's name;
- The date(s) for which leave is requested and taken;
- A statement of the COVID-19 related reason they're requesting leave and written support for such reason; and
- A statement that they're unable to work, including telework, for such 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.
Recordkeeping:
Health information related to COVID-19 emergency paid sick leave must:
- Be maintained on a separate form and in a separate file from other personnel information;
- Be treated as confidential medical records;
- Not be disclosed except to the affected employee or with the express permission of the affected employee; and
- Be kept confidential in accordance with any other state or federal law.
Employer Notice:
Employers must post a notice in a conspicuous location in every establishment and must provide a copy to their employees. In cases where the employer doesn't maintain a physical workplace, or an employee teleworks or performs work through a web-based platform, notification must be sent electronically or posted conspicuously on a web-based platform. The state has developed a notice, which is available here.
Interaction with Other Leave:
COVID-19 emergency paid sick leave generally must be provided in addition to all job protected time off, paid and unpaid, that the employer is required to provide to employees under federal or state law or otherwise provided under an existing policy. Employers are prohibited from requiring an employee to use other paid leave provided by the employer before the employee uses COVID-19 emergency paid sick leave, unless federal law requires otherwise.
Note: COVID-19 emergency paid sick leave provided by an employer may be reduced by the amount of wages or wage replacement that an employee receives for that period under any government program or law.
Compliance Recommendations:
Massachusetts employers should review policies and practices to ensure compliance with House Bill 3702. Supervisors should also be trained on the new leave law. Please contact your dedicated service professional with any questions.