Massachusetts Governor Charlie Baker recently signed legislation requiring employers to provide COVID-19 emergency paid sick leave (“COVID-19 EPSL”) to employees who are unable to work for COVID-19-related reasons. In this post, we summarize and answer some frequently asked questions.
What is COVID-19 EPSL?
- Effective May 28, 2021, Massachusetts employers must provide employees with up to 40 hours of COVID-19 EPSL.
- COVID-19 EPSL is effective from May 28, 2021 through September 30, 2021 (or until the exhaustion of $75,000,000 in program funds, if earlier than September 30, 2021).
- The Commonwealth issued Employer Guidance for employers, FAQs for employers and employees, a Notice to Employees and a Notice to Employees in Poster Format.
What Does COVID-19 EPSL Provide?
- MA employees are eligible to take up to 40 hours of COVID-19 EPSL if they are absent from and unable to work because of:
- (1) An employee’s need to: (A) self-isolate and care for oneself because of a COVID-19 diagnosis, (B) seek or obtain medical diagnosis, care, or treatment for COVID-19 symptoms, or (C) obtain immunization related to COVID-19, or to recover from an injury, disability, illness, or condition related to such immunization.
- (2) An employee’s need to care for a family member who: (A) is self-isolating due to a COVID-19 diagnosis, or (B) needs medical diagnosis, care, or treatment for COVID-19 symptoms.
- (3) A quarantine order, or other determination by a local, state, or federal public official, a health authority having jurisdiction, the employee’s employer, or a healthcare provider, that the employee’s presence on the job or in the community would jeopardize the health of others because of the employee’s exposure to COVID-19 or exhibiting of symptoms (regardless of whether the employee has been diagnosed with COVID-19).
- (4) An employee’s need to care for a family member due to a quarantine order, or other determination by a local, state, or federal public official, a health authority having jurisdiction, the family member’s employer, or a healthcare provider, that the family member’s presence on the job or in the community would jeopardize the health of others because of the family member’s exposure to COVID-19 (again, regardless of whether the family member has been diagnosed with COVID-19).
- (5) An employee’s inability to telework because: (A) the employee has been diagnosed with COVID-19, and (B) the symptoms inhibit the ability of the employee to telework.
- Note: A “family member” includes an employee’s spouse, domestic partner, child, parent (including the parent of a spouse or domestic partner), a grandchild, grandparent, or sibling.
How Much Leave is Available Under COVID-19 EPSL?
- Employees working at least 40 hours per week are entitled to the maximum entitlement of 40 hours of COVID-19 EPSL.
- Employees working fewer than 40 hours per week on a regular schedule with consistent hours are entitled to COVID-19 EPSL in an amount equal to the average number of hours they work during a regular 14-day schedule.
- Employees with varying hours and schedules are entitled to COVID-19 EPSL in an amount equal to the average hours they worked during the prior six-month period.
- Note: Employees may use COVID-19 EPSL on an intermittent basis and in hourly increments.
How Does COVID-19 EPSL Interact with Current Leave Policies?
- Employees are eligible to take COVID-19 EPSL in addition to all other job protected leave that an employer provides to employees under the Massachusetts Earned Sick Time Law, the employer’s existing policies or programs, collective bargaining agreements, or federal law (whether the leave is paid or unpaid).
- Employers who have voluntarily created a COVID-19 sick leave policy that provides employees the required amounts of COVID-19 EPSL for the qualifying reasons under the COVID-19 EPSL are not required to provide additional COVID-19 EPSL.
- Note: An employer may not require an employee to use other forms of leave before using COVID-19 EPSL.
What are COVID-19 EPSL’s Payment Limitations?
- During COVID-19 EPSL, an employer is required to compensate an employee up to a maximum of $850 per week, but may compensate employees in an amount that exceeds such weekly cap under the COVID-19 EPSL.
- Although COVID-19 EPSL is in addition to other required forms of paid time off, it may be reduced if the aggregate amount the employee receives would exceed the employee’s average weekly wage.
- COVID-19 EPSL also may be reduced by the amount of wages or wage replacement that an employee receives under any government program or law.
How are Employers Reimbursed for COVID-19 EPSL?
- As noted above, employers are required to provide COVID-19 EPSL.
- However, employers may seek reimbursement from the state for the amounts of COVID-19 EPSL paid to employees, up to the $850 per week cap.
- Note: If an employer obtained payroll tax credits through the Families First Coronavirus Response Act (“FFCRA”) and its extensions, it 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 COVID-19 EPSL fund.
Is COVID-19 EPSL a Protected Leave?
- Yes! While an employee is on leave under COVID-19 EPSL, an employer must maintain the same employment benefits to which the employee is otherwise entitled (e.g., group health insurance, life insurance, disability insurance, sick leave, or vacation leave).
- Additionally, COVID-19 EPSL explicitly states that it is unlawful for an employer: (1) to interfere with, restrain, or deny an employee’s use of COVID-19 EPSL, or (2) to retaliate against an employee for the use of COVID-19 EPSL or for opposing any practice in violation of the COVID-19 EPSL.
What are the Notice and Record Obligations under COVID-19 EPSL?
- Employees are required to provide notice to employers of the need for COVID-19 EPSL as soon as practicable or foreseeable.
- Employers may require employees to provide a written request, with relevant information, for COVID-19 EPSL.
- Employers who want to receive reimbursements from the Commonwealth for the costs of providing employees with COVID-19 EPSL must require employees to submit requests for COVID-19 EPSL in writing. Accordingly, employers may prescribe a form that requires employees to provide the following information for all requests:
- (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.
- Note: A standard form is in development, and this post will be updated once the form is made available. The standard form may be used at the employers’ option.
- 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.
- Employers should also collect and retain the following information in anticipation of applying for reimbursement:
- (1) the employee’s social security or tax identification number;
- (2) the employer 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 COVID-19 EPSL, including hours for which such employee took leave of any type; or (B) if the employee did not work over such 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.
- Note: Employers must treat health information regarding an employee or employee’s family member as confidential medical records (i.e., in accordance with applicable state and federal law), and may not disclose such information to any third parties without the employee’s express permission.
What Are Next Steps for Employers?
- (1) Employers should review the Employer Guidance and the FAQs to ensure compliance with COVID-19 EPSL.
- (2) Employers must provide the Notice to Employees or Notice to Employees in Poster Format to all employees.
- Employers should review current leave policies, including those created in response to COVID-19, to ensure they understand how EPCL may work in conjunction with their employees’ current leave entitlements.
For additional information on this law and how it impacts your workforce, please reach out to a member of Mintz’s Employment, Labor & Benefits team. We will also be hosting a webinar on Thursday, June 17 discussing the current COVID-19 compliance landscape and will touch on this and many more issues. Please register here if you are interested in attending.