Author: Jordan M. Cuttle
Massachusetts Governor Charlie Baker recently signed legislation requiring employers to provide COVID-19 emergency paid sick leave to employees who are unable to work for COVID-19 related reasons. Employees are eligible for COVID-19 Emergency Paid Sick Leave beginning on Friday, May 28, 2021, through September 30, 2021, or the exhaustion of $75 million in program funds as determined by the Commonwealth, whichever is earlier.
Reasons for Leave
Employees may take COVID-19 Emergency Paid Sick Leave for the following reasons:
- An employee’s needs to self-isolate and care for themselves 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;
- 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;
- A quarantine order or similar determination regarding the employee by a local, state, or deferral public official, a health authority having jurisdiction, or a health care provider;
- 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
- An employee’s inability to telework due to COVID-19 symptoms.
- Employers must provide 40 hours of COVID-19 emergency paid sick leave to their employees who work 40 or more hours per week.
- If an employee works fewer than 40 hours per week, employers must provide leave in an amount that is equal to the average number of hours that employee works per week.
- For employees whose schedule or weekly hours vary each week, 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 six months.
- If an employee with a variable schedule has not worked for the employer for six months, the employer must provide leave that is equal to the number of hours per week that the employee reasonably expected to work when hired.
- $850 (including cost of benefits) is the maximum amount an employer is required to pay per employee and the maximum amount for which the employer may seek reimbursement of any one employee.
Employers may not require employees to use other types of available paid leave before they use COVID-19 emergency paid sick leave. Additionally, employers may not require employees to search for or find a replacement worker to cover the time the employee will miss while using COVID-19 emergency paid sick leave. While administrating their COVID-19 emergency paid sick leave programs, employers may not interfere with an employee’s ability to use COVID-19 emergency paid sick leave or retaliate against an employee for exercising rights under the program.
Applying for Reimbursement
Although the Families First Coronavirus Response Act (FFCRA) sick leave provisions expired on December 31, 2020, employers with fewer than 500 employees that voluntarily provide sick leave under the FFCRA through September 30, 2021, are still entitled to a federal tax credit and may not seek reimbursement from both the state and the federal government. Payments for leave that are eligible for reimbursement under FFCRA are not eligible for reimbursement from the Massachusetts COVID-19 Emergency Paid Sick Leave fund. Larger employers that are not covered by the FFCRA, and those that have not elected to provide FFCRA leave voluntarily, can submit claims for reimbursement to the Commonwealth for each employee’s use of COVID-19 Massachusetts Emergency Paid Sick Leave.
Employers who would like to receive reimbursement from the Commonwealth for the costs of providing employees with the COVID-19 Emergency Paid Sick Leave must require their employees to submit requests for COVID-10 emergency paid sick leave in writing. Employers should provide a form to their employees that requires employees to provide the following information for all requests:
- The employee’s name;
- The date(s) for which leave is requested and taken;
- A statement of the COVID-19 related reason explaining why the employee is requesting leave and written support for such reason; and
- A statement that because of the COVID-10 related reason the employee is unable to work or telework.
- Leave requests that are based on a quarantine order or self-quarantine advice, the statement from the employee must all include:
- The name of the government entity ordering quarantine or the name of the health care provider advising self-quarantine; and
- If the person that is subject to the quarantine or advised to self-quarantine is not the employee, the person’s name and relation to the employee.
Additional information to collect and retain in anticipation of applying for reimbursement includes:
- The employee’s social security or tax identification number;
- The employer identification number associated with the position from which the employee took leave;
- 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;
- Benefits applicable to the employee taking leave; and
- The number of hours in the employee’s regular schedule.
Please note that employers must treat health information regarding an employee or employee’s family member as confidential medical records in accordance with applicable state and federal law and must not disclose such information to any third parties without the employee’s express permission.