Update Applicable to:
All Employers operating in Massachusetts
On May 28, 2021, Governor Baker passed Bill H.3702 which has allotted funding to provide COVID-19 emergency paid sick leave (CEPSL) to employees.
What are the details?
The bill will begin June 7, 2021 and extend until either September 30, 2021, or until the fund is exhausted. If an employer has a separate existing COVID-19 emergency paid sick leave policy that meets the leave requirements under the law, they will not need to provide the additional hours of CEPSL.
All Massachusetts employers, regardless of size, are required to provide emergency paid sick leave to employees who are unable to work for the following reasons:
- An employee’s need to:
- Self-isolate and care for oneself because of the employee’s COVID-19 diagnosis.
- Seek or obtain medical diagnosis, care, or treatment for COVID-19 symptoms.
- Obtain immunization related to COVID-19, or the employee is recovering from an injury, disability, illness, or condition related to such immunization.
- An employee’s need 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.
- 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.
- 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, regardless of whether the family member has been diagnosed with COVID-19.
- An employee’s inability to telework because the employee has been diagnosed with COVID-19 and the symptoms inhibit the ability of the employee to telework.
A full-time employee who works 40 hours or more per week will be eligible for up to 40 hours of CEPSL. While part-time employees are eligible to receive CEPSL hours at a pro-rated amount based on the employee’s averaged scheduled hours per week over the previous six months. Any employees who have not worked for the employer for six months must be provided leave that is equal to the number of hours per week that the employee is reasonably expected to work when hired. For both full and part-time employees, the maximum benefit is $850 per week and employers can seek reimbursement using the fund, but not for more than the weekly $850 for that employee’s absence. However, employers cannot claim an offset for COVID-19 sick leave voluntarily provided to employees prior to June 7, 2021.
Employers who were covered by the Families First Coronavirus Response Act (FFCRA) and its extensions 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 state’s MA EPSL fund. Employers can submit claims for reimbursement to the Massachusetts Commonwealth’s trust fund for each employee’s use of COVID-19 Massachusetts emergency paid sick leave. Employers must require written requests from any employee seeking COVID-19 emergency paid sick leave that includes:
- the employee’s name.
- the date(s) for which leave is requested and taken.
- a statement of the COVID-19-related reason for leave with support.
- a statement that because of the COVID-19-related reason the employee is unable to work or telework.
For leave requests 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.
- if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.
Once the application for reimbursement is submitted, payment will be issued to the employer within 30 business days. Although the law does not state a reimbursement request timeframe, clients should take the deadlines for the bill into consideration.
The CEPSL is to be provided in addition to all job-protected paid and unpaid time off available to employees under Massachusetts Earned Sick Time Law, any existing employer policy/program, collective bargaining agreement, or federal law, to the extent permitted by that federal law. The employee cannot receive greater than 100% of their regular weekly wages and, if applicable, the CEPSL benefit may be reduced by wages received from any government program.
Employees are required to provide notice of the need for CEPSL as soon as practicable or foreseeable. After the first workday an employee receives CEPSL, an employer may require the employee to follow reasonable notice procedures in order to continue receiving CEPSL. An employee may use CEPSL on an intermittent basis and in hourly increments. An employer may not require an employee to find a replacement worker to cover the hours during which the employee is using CEPSL.
The bill also includes the following anti-retaliation provisions that employers should be aware of:
- Interfering with an employee’s ability to take CEPSL, including, but not limited to, using an employee’s taking of CEPSL as a negative factor in any employment action (ex. evaluation, promotion, disciplinary action, or termination).
- Disciplining or other adverse action against an employee for using CEPSL.
- Taking any adverse action against an employee because the employee opposes practices believed to be in violation of this program, including initiating an action or providing testimony.
Employers must display the model COVID-19 Massachusetts emergency paid sick leave notice at a conspicuous location within the workplace. The required notice can be found here. If the employer does not maintain a physical workplace, or an employee teleworks, employers will be required to send notification via electronic communication or a conspicuous posting in the web-based platform.
The bill can be read here.
What do employers need to do?
Employers should review the information detailed above, as well as the bill, and update their workplace policies, as required, to accommodate the new leave.