Massachusetts COVID-19 emergency sick leave now in effect

The Commonwealth of Massachusetts has updated its website to include several frequently asked questions (FAQs) regarding the new COVID-19 Emergency Paid Sick Leave. Please click here to view that information >

The employee notice which is required to be posted by all employers in accordance with the Act is now available here >

The poster format for the employee notice is available here >

On May 28, 2021, Governor Baker signed An Act Providing for Massachusetts COVID-19 Emergency Paid Sick Leave implementing new emergency paid sick leave requirements for employers effective Friday, May 28, 2021* through Thursday, September 30, 2021 (or exhaustion of the COVID-19 Emergency Paid Sick Leave Fund, whichever first occurs). *This date was clarified by the new FAQs released by the Commonwealth this week.

Importantly, any paid sick leave taken prior to May 28, 2021 does not satisfy the state mandate, and is not eligible for reimbursement under this program.

The Act requires Massachusetts employers to provide up to forty (40) hours of emergency paid sick leave (EPSL) for employees due to a COVID-19 related reason, with employers permitted to apply for reimbursement for eligible paid leave from the newly created COVID-19 Emergency Paid Sick Leave Fund. (See exceptions to reimbursement below).

The Act is applicable to all public and private employers in the Commonwealth, so employers will need to act quickly to review and revise their existing leave policies in order to be ready to implement this requirement.

For multi-state employers or Massachusetts employers who have MA and out-of-state employees, the law will apply only to those employees whose “primary place of employment is in the Commonwealth”. See Q#6 under Eligibility.

Employers should carefully review the preliminary Employer Guidance and FAQs on the Commonwealth website to ensure compliance. Additional guidance and information will be forthcoming including more information on how to apply for reimbursement provided under the Act.

What Employers Need to Know

Effective Friday, May 28, 2021, all public and private employers in the Commonwealth will be required to provide up to forty (40) hours of EPSL to their employees who are unable to work due to any of the following COVID-19 related reasons:

Employee medical reasons:

  • The employee has been diagnosed with COVID-19 and is required to self-isolate
  • The employee needs to seek a medical diagnosis, care, or treatment for COVID-19 symptoms
  • The employee needs to get or recover from a COVID-19 immunization

Employee’s Family Member medical reasons:

  • The employee needs to care for a family member defined as “the spouse, domestic partner, child, parent or parent of a spouse or domestic partner of the employee, a person who stood in loco parentis to the employee when such employee was a minor child or a grandchild, grandparent or sibling of the employee provided, however, that for the purposes of this definition, ‘person who stood in loco parentis’ shall not include a person with whom the employee has no personal relationship” who:
  • Has been diagnosed with COVID-19 and must self-isolate; or
  • Needs to seek a medical diagnosis, care, or treatment for COVID-19 symptoms

Quarantine Order:

  • The employee is subject to a quarantine order or similar determination issued by a: local, state, or public official; health authority having jurisdiction; the employee’s employer; or health care provider
  • The employee must care for a family member who is subject to a quarantine order or similar determination issued by a: local, state or public official; health authority having jurisdiction; the family’s member employer; or health care provider

Inability to Telework

  • The employee has been diagnosed with COVID-19 and is unable to telework due to COVID-19 symptoms.

Interactions with other paid leave or other sick leave policies

Generally, employers may not require employees to use other types of existing paid leave before taking EPSL under this program, nor require employees to find their own coverage during their absence.

Employers who have a COVID-19 sick leave policy in place who make available an amount of COVID-19 sick leave sufficient to meet the requirements of the Act and which permits employees to exercise such leave for the same purposes and under the same conditions as the Act, are not required to provide additional EPSL under the Act. This includes employers who have voluntarily continued to offer paid sick leave under the FFCRA and its extensions. See Q #4 under Leave Detail. The sick leave provided under the federal and state programs during the applicable period would run concurrently.

-> Per the FAQs: For an employee who took leave prior to May 28, 2021 under a federal program, that employee would still be entitled to up to 40 hours of MA EPSL for a COVID-19 qualifying reason for the period of May 28, 2021 through September 30, 2021 (or exhaustion of the Fund).

Notice requirement

The Notice for the Act must be conspicuously posted in the physical location where employees work. While the Act states that “Employers shall post this notice in a conspicuous location . . . and shall provide a copy to their employees”, the recently released FAQs state that posting alone is sufficient for notice purposes. If there is no physical workspace, or an employee teleworks, then notice must be effectuated through electronic communication or a conspicuous posting in a web-based platform. Employers may use either the poster or notice format for posting purposes.

The employee notice is now available here >

The poster format is available here

Requests for leave and documentation requirements

Employees must submit their requests for EPSL in writing in order for an employer to be eligible for reimbursement. A standard request form will be released by the Commonwealth for employees to use. Alternatively, employers can develop and use a form of their own creation.

The written request from the employee must include the following:

  • Employee name;
  • Date(s) of leave requested;
  • Statement of reason for leave with written support. If the leave is related to a quarantine order or advice to self-quarantine, the written support must include: Name of the governmental entity ordering or health care provider advising quarantine, or Name and relationship to employee if family member is the individual subject to the order/advice
  • Statement that the employee is unable to work or telework due to a COVID-19 related reason

*The Commonwealth has advised as follows relative to medical documentation required in support of a request for EPSL.

See Q#4 under Documentation and reimbursement inserted below:

Q4. Is an employer permitted to request medical documentation for the categories of leave related to an employee or family member’s diagnosis or treatment for COVID-19? And if so, are there limitations? Is written support required in order to access reimbursement?

“Yes; written medical documentation must be requested of an employee in order for an employer to claim state reimbursement. There are no express limitations on the medical documentation an employer may collect; however, 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.”

Per the FAQs, employers are also required to obtain documentation of proof of immunization if they intend to seek reimbursement from the Fund for EPSL granted for the purposes of obtaining or recovering from illness or injury related to a COVID-19 vaccine.

Employers should collect and retain the following information for the purposes of substantiating reimbursement requests:

  • Employee’s SSN or TIN;
  • Employer ID number for the position from which the employee took leave;
  • Hours of leave and wages paid during the leave that are NOT eligible for federal tax credits or payable under any other governmental program or law;
  • Benefits applicable to the employee taking the leave;
  • Number of hours of the employee’s regular or variable schedule.

Employers may not retaliate against or interfere with an employee’s use of EPSL. Employers are required to provide the same employment benefits to an employee during their period of leave consistent with the terms of their employment including, but not limited to, group life insurance, health insurance, disability insurance, sick leave, annual or vacation leave, educational benefits and pensions.

Amount of leave and employer reimbursement

Employees who work forty (40) or more hours per week are entitled to up to forty (40) hours of EPSL.

  • For employees who regularly work less than forty (40) hours per week or who work variable schedules, then an average number of hours per week based on such schedules must be provided. Employers should consult the preliminary Employer Guidance from the Commonwealth for how these leave amounts are determined.
  • Employees may take leave intermittently and in as little as hour increments.

Employers are required to pay an employee’s full rate of pay up to a cap of $850.00, including benefits. For employees whose regular rate of pay exceeds this cap, they may use other paid time off to supplement this benefit and receive their full rate of pay during such leave.

Employers will be permitted to apply for reimbursement for all qualifying EPSL (up to the cap of $850.00 per employee) from the newly established COVID-19 Emergency Paid Sick Leave Fund. See additional information and exceptions regarding reimbursement under the Interaction with Federal Programs section below.

The Commonwealth will be releasing information on the reimbursement process including the application form in the coming weeks. However, in the interim, employers should continue to collect and retain the documentation required to substantiate employee requests for reimbursement for EPSL as discussed above. See Q#1 under Documentation and Reimbursement.

Interaction with federal programs

The state mandate runs from May 28, 2021 through September 30, 2021 (or exhaustion of the COVID-19 Emergency Paid Sick Leave Fund, whichever first occurs).

Any paid sick leave provided under a federal program prior to May 28, 2021, is not credited towards the MA EPSL employer mandate nor is it eligible for reimbursement.

Employers who are eligible to claim the tax credits for qualified sick leave wages under the FFCRA and its extensions (CAA and ARP) are not eligible to seek reimbursement for paid sick leave under the MA EPSL program.

The federal credits are primary and employers must ATTEST that they are ineligible for federal tax credits for any costs for which they are seeking reimbursement from the Commonwealth.

Ineligible” is explained by the FAQs as follows:

  1. “An employer may be ineligible for the federal tax credits because the employer is categorically disqualified.” This likely refers to employers who have over 500 employees and are therefore not covered under the FFCRA and its extensions.
  2. “The parameters of the leave program the employer offers do not meet federal requirements.” This likely refers to:
    – Employers who have not voluntarily continued federal paid sick leave since expiration of the federal mandate and who will not or cannot undertake the requirements of those programs relative to the MA EPSL program.
    – Employers who have already exhausted all federal credits relative to qualified sick leave wages paid, but are still required to provide additional EPSL under the Act.

See recently added questions under “Interactions with Federal and Non-Federal Programs” for more information.

For those employers who are eligible for reimbursement, where the program runs until September 30, 2021 or exhaustion of the Fund, whichever occurs first, employers should timely seek reimbursement of eligible EPSL to ensure they receive reimbursement.

Information regarding the reimbursement process will be forthcoming from the Commonwealth.

Additional resources

Employers should monitor the COVID-19 Temporary Emergency Paid Sick Leave program website for additional resources and information as it is released.

Disclaimer: The information contained herein is not intended to be construed as legal advice, nor should it be relied on as such. Employers should closely monitor the rules and regulations specific to their jurisdiction(s) and should seek advice from counsel relative to their rights and responsibilities.

By Megan Butz
General Counsel, HR Compliance, Checkwriters
Megan joined Checkwriters in 2020 and is responsible for reviewing, revising, and implementing internal policies of the company, advising on human resource, employment, and labor matters, and monitoring and publishing state and federal legal updates to the Checkwriters News and Compliance Center for distribution to thousands of clients around the country. Before joining Checkwriters, Megan served as a judicial law clerk for the justices of the Massachusetts Probate and Family Court performing legal research and writing, followed by private practice in Cape Cod.

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