COVID-19 Emergency Paid Sick Leave

Governor Baker recently signed legislation requiring employers to provide COVID-19 emergency paid sick leave to eligible employees who are unable to work for COVID-19-related reasons. Eligible employees will be entitled to up to 40 hours of paid leave, with a weekly cap of $850.

What Are The Qualifying Reasons For Leave?

Massachusetts employees are eligible to take up to 40 hours of emergency paid sick leave if they are 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) obtain a medical diagnosis, care or treatment for COVID-19 symptoms; or (c) obtain or recover from a COVID-19 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.

   Note: A “family member” includes an employee’s spouse, domestic partner, child, parent (including a spouse’s or domestic partner’s parent), a grandchild, grandparent or sibling.

3. A quarantine order, or other determination by a local, state, or federal pubic official, a health authority, 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 exhibits 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, 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, regardless of whether the family member has been diagnosed with COVID-19.
5. An employee’s inability to telework because the employee has been diagnosed with COVID-19 and the symptoms inhibit the employee’s ability to telework.

How Much Is An Employee Entitled To Be Paid While Out On Emergency Paid Leave?

• Employees working at least 40 hours per week are entitled to be paid the maximum of 40 hours of emergency paid sick leave.
• Employees working less than 40 hours a week on a regular schedule are entitled to be paid 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 be paid in an amount equal to the average hours they worked during the prior six-month period. If, however, 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 expected to work when hired.

How Does This Leave Interact With Other Employer Leave Policies?

COVID-19 emergency paid sick leave is to be provided to employees in addition to any other employer provided vacation, sick leave or other paid time off leave.

An employer may not require an employee to use other forms of leave before using COVID-19 emergency paid sick leave.

Employees may use COVID-19 emergency sick leave intermittently or in hourly increments.

What Notice Must An Employee Who Needs COVID-19 Emergency Paid Sick Leave Give?

An employee who needs COVID-19 emergency paid sick leave must provide written notice to the employer as soon as practicable or foreseeable. Notice from the employee must include:

• the employee’s name;
• the date or dates for which leave is requested and taken;
• a statement of the COVID-19 related reason the employee is requesting leave with written support for the reason; and
• a statement that the employee is unable to work or telework because of the stated COVID-19 related reason.

For a leave request based on a quarantine order or self-quarantine advice, the statement form the employee must also include:

• the name of the governmental entity ordering the quarantine or the name of the healthcare 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.

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.

How Do Employers Get Reimbursed?

An employer is entitled to reimbursement for the wages paid up to the $850 per week cap. If, however, an employer received a tax credit for wages paid to employees out on leave through the employer’s voluntary extension of the Families First Coronavirus Response Act (FFCRA”), it may not seek reimbursement from both the state and federal government. Payments for leave that are eligible for reimbursement under the FFCRA are not eligible for reimbursement from the COVID-19 emergency paid sick leave fund.

In anticipation of applying for reimbursement, employers should also collect and retain the following information:

• 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, or (a) if the employee has no regular schedule, the hours that the employee was scheduled to work per week over the six-month period immediately preceding the date on which the employee takes the COVID- 19 Massachusetts emergency paid sick leave, including hours for which the employee took leave of any type; or (b) if the employee did not work over such six-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.

Is Covid-19 Emergency Sick Leave A Protected Leave?

Yes. While an employee is on emergency COVID-19 sick leave, an employer must maintain the same employment benefits to which the employee would otherwise be entitled.

Is An Employee Protected From Retaliation For Taking Leave Under the Covid-19 Emergency Sick Leave Act?

Yes. The statute explicitly prohibits an employer from: (a) interfering with, restraining or denying an employee’s use of COVID-19 emergency paid sick leave; (b) retaliating against employee for exercising rights under the program; and (c) opposing any practice an employee believes may be in violation of the COVID-19 emergency paid sick leave law.

What Notice Must An Employer Give Its Employees?

Employers are required to post a notice concerning the COVID-19 emergency paid sick leave act, which can be accessed here. The notice must be posted in a conspicuous location accessible to employees. If the employer does not maintain a physical work space or if the employee teleworks or performs work though a web-based platform, the notification must be sent by electronic communication or a conspicuous posting in the web-based platform.