June 2021: Massachusetts COVID-19 Emergency Paid Sick Leave Fund Enacted

Update Applicable to:
All Employers operating in Massachusetts

What happened?
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:

  1. An employee’s need to:
  2. Self-isolate and care for oneself because of the employee’s COVID-19 diagnosis.
  3. Seek or obtain medical diagnosis, care, or treatment for COVID-19 symptoms.
  4. Obtain immunization related to COVID-19, or the employee is recovering from an injury, disability, illness, or condition related to such immunization.
  5. 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.
  6. 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.
  7. 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.
  8. 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:

  1. 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).
  2. Disciplining or other adverse action against an employee for using CEPSL.
  3. 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.

Articles discussing the bill can be found here and 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.

December 2020 Massachusetts HR Legal Updates

Massachusetts Provides Updates and Forms Regarding Paid Family and Medical Leave

What happened?
The Massachusetts Department of Family and Medical Leave (PFML) has released two forms for use related to the upcoming Paid Family and Medical Leave program.

What are the details?
The department released two documents for employers and employees to use in relation to the upcoming PFML requirement. In addition to further guidance.

The first document released is an updated PFML Workplace poster. Massachusetts employers are required to have this poster in the place of work. This can be found here.

The second document is the certification form that employees and employers must submit to the Department when requesting to use their PFML under the public program. This can be found here.

The department has also posted a new FAQ about the PFML, as well as an employee guide to the PFML. The FAQ can be found here. While the employee guide can be found here.

What do employers need to do?
Massachusetts employers should review the available guidance above if they have any questions about the state ran Paid Family Leave program. 

November 2020 Massachusetts HR Legal Updates

New COVID-19 Regulations for Businesses

What happened?
On November 2, 2020, Governor Baker signed several COVID-19 related measures restricting the actions of businesses in the state.

What are the details?
The orders center on five main points: (1) a Stay-At-Home Advisory, (2) Early Closure of Businesses and Activities, (3) Face Covering Order, (4) Gatherings Orders, and (5) Sector-Specific Guidelines.

The Stay-At-Home Advisory directs residents to stay at home except for a few select activities, like grocery shopping and satisfying medical needs.

The Early Closure of Businesses and Activities order limits how long businesses may remain open. The order requires certain businesses to close at 9:30 p.m. To be specific:

  • In-person dining at restaurants must stop at 9:30 p.m., but takeout and delivery may continue for food and non-alcoholic beverages.
  • Liquor stores and other retail establishments that sell alcohol must stop alcohol sales at 9:30 p.m. but may continue to sell other products. In general, the service and sale of alcohol is prohibited during the restricted hours. This prohibition applies to all retailers, restaurants, private clubs, catering halls, events, casinos, and delivery services licensed to sell alcohol.
  • Adult-use marijuana sales, not including medical marijuana sales.
  • Indoor and outdoor events.
  • Theaters and movie theaters, including drive-in movie theaters, and both outdoor and indoor performance venues.
  • Close contact personal services, such as hair and nail salons.
  • Gyms, fitness centers, and health clubs.

The Face Covering Order creates new requirements for when people must wear face coverings, essentially everywhere public. Should a customer refuse to remove their mask due to a medical reason, businesses my not request documentation proving the condition. However, employers may ask for that documentation when an employee makes the same claims.

The Gathering Order will be restricting indoor gatherings to 10 people for private residences, and 25 people for outdoor gatherings. All gatherings must be end and disperse by 9:30 p.m.

The Sector-Specific Guidelines specifically target the following sectors: retail businesses, theaters and performance venues, close contact personal services, and arcades and other indoor or outdoor games and recreation businesses.

A detailed article going over these orders in more detail can be found here.

What do employers need to do?
Massachusetts employers should review the above changes and make any needed changes to workplace policy to stay in compliance.

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REMINDER: MA Paid Family and Medical Leave Effective January 1, 2021

What happened?
The statewide Massachusetts Paid Family and Medical Leave (PFML) program will be fully effective January 1, 2021.

What are the details?
Effective January 1, 2021, employees will be able to apply to use the PFML that has been funded through payroll deductions.

An article covering this change can be found here.

What do employers need to do?
While employers should already be in compliance with the state ran program, they may need to review with their administrative staff to ensure everyone understands the requirements and times when the new leave may be used.

October 2020 Massachusetts HR Legal Updates

Paid Family Medical Leave Upcoming Effective Date

What happened?
Beginning January 1, 2021 employees will be able to apply for Paid Family Medical Leave (PFML). The administrative body needs employers to submit (if they have not already) their leave administrator’s contact information by October 31, 2020.

What are the details?
Employees have been paying into the PFML program for almost two years now, via payroll deductions administered by employers. Starting January 1, 2021, they will be able to start using this program. Employers should ensure that their leave administrator contact information is up to date. This information is required by October 31, 2020. The Department of Family and Medical Leave (DFML) provided the following steps to follow for employers:

  1. Find the email from DFML with the subject line: Action Required: Submit Your Leave Administrator Contact Information.
  2. If you can’t find the email, you may want to check with the person in your company that submits taxes to the MA Department of Revenue, as it was sent to them.
  3. Visit https://www.mass.gov/forms/leave-administrator-contact-information by October 31, 2020, and enter the employer-specific verification code that was provided in the email when prompted.
  4. Enter your preferred contact information for leave notifications.

What do employers need to do?
Massachusetts employers should review the steps listed above to ensure they have their correct contact information listed for the Department. More steps will be sent out by the Department once the system goes live on December 2, 2020.

August 2020 Massachusetts HR Legal Updates

Massachusetts Releases Final Regulations for Paid Family and Medical Leave

What happened?
Following a truncated period of public comment and hearings, the Massachusetts Department of Family and Medical Leave (Department) released the final regulations under the Massachusetts Paid Family and Medical Leave Law (PFML), effective July 24, 2020. Beginning on January 1, 2021, all private Massachusetts employers must provide covered individuals with paid family and medical leave, funded through a payroll tax.

What are the details?
The changes made by the final regulations are summarized below:

Private Plan Exemptions
Under the PFML, employers have the option of providing equivalent benefits to their employees through an approved private plan or self-insurance. The Department has significantly modified the regulations concerning exemptions through adoption of a private plan. While employers may continue to apply for an exemption from medical leave, family leave, or both, the final regulations prohibit the grant of an exemption for a private plan that covers only a portion of the workforce. Instead, per the PFML regulations, all employees, covered workers, and former employees must be included within the private plan in order for the employer to be exempted.

Applications for Benefits and Benefit Availability
The final regulations now require the covered individual to provide notice to their employer prior to applying for benefits. The Department will reject benefits applications absent proof of such notice. Covered individuals must submit benefits applications at least 30 days in advance of the anticipated leave start date, but no more than 60 days in advance. The final regulations, however, also provide that covered individuals may file applications as soon as practicable, if the covered individual was unable to meet the filing deadline for reasons beyond the covered individual’s “reasonable” control.

Reductions to Benefits
The final regulations add additional categories of wages or wage replacement benefits that will reduce PFML benefits. The weekly benefit amount is calculated on the individual’s average weekly wage at the time of the filing of a leave request, which is determined by the individual’s earnings in the base period as reported to the Massachusetts Department of Revenue. In addition to unemployment benefits or any state or federal disability benefits, the final regulations provide that the weekly benefit amount will also be reduced by benefits received from an employer through an approved, exempted private plan or any wages received from “another employer or covered business entity or through self-employment.” The final regulations remove language that the weekly benefit amount may be reduced where a covered individual has an outstanding tax obligation or obligation for child support.

Waiting Period
The final regulations clarify that there will be an initial seven-day waiting period for each application for benefits with the exception of medical leave during pregnancy or recovery from childbirth if supported by a healthcare provider that this medical leave follows immediately after the family leave.

The final regulations update some of the definitions as well. The final draft can be found here.

What do employers need to do?
Employers in Massachusetts should review the changes made and update their employee handbook sections dealing with leaves. Additionally, they should adjust their payroll practices to account for the increased cost to fund the PFML.

July 2020 Massachusetts HR Legal Updates

Massachusetts Issues Final Amendments to Paid Family Medical Leave Regulations

What happened?
The Massachusetts Department of Family and Medical Leave (“DFML”) has released the unofficial version of the final amendments to the Paid Family and Medical Leave (“PFML”) regulations.

 What are the details?
The DFML has made final changes to the PFML regulations that have been finalized as of July 24, 2020. Some of the final changes made include:

  • Added language to close gaps in coverage when an employee was transitioning to a different private plan or between State Trust Fund and a private plan
  • Changed the time for an employee to notify the employer of a change in the term of an approved private plan exemption from 30 to 60 days.
  • Clarified that if an employee who separated from a company, but less than 26 weeks since separation, is filing for benefits, they will file under their previous employer if still unemployed or their current employer if they’ve since found new work.
  • Substance abuse treatment is now considered a serious health condition, allowing employees receiving treatment for substance abuse issues to be counted as a qualifying reason to take PFML. However, absences caused by the employee using substances do not qualify for leave.

The regulations in their entirety can be found here.

What do employers need to do?
Employers in Massachusetts should update their policies to reflect the final PFML regulations. Training should be provided to supervisors and managers to recognize protected leaves to reduce the chance of violations.

January 2020 Massachusetts HR Legal Updates

Paid Family and Medical Leave (PFML) Quarterly Returns and Contributions

What happened?
Employers that are participating in the Commonwealth’s PFML program (meaning they have not applied for and received an exemption for qualifying private family and medical leave plans) must file their returns and remit PFML contributions for October 1, 2019 through December 31, 2019 by January 31, 2020. 

What are the details?
Employers can file their returns and remit contributions electronically on MassTaxConnect.  Each employer has a PFML account on MassTaxConnect, where they will see an option to “File Return” for the quarter ending December 31, 2019.  Employers will be asked to include employee names, Social Security Numbers or Individual Taxpayer Identification Numbers, and applicable wages for the covered quarter.  The return also asks for PFML Eligible Year-to-Date (YTD) Wages.  For Q4 2019, the Department of Family and Medical Leave (DFML) has clarified that employers should not provide actual YTD wages.  Rather, they should only provide PFML eligible wages from Q4, given that PFML contributions were not withheld for the first three quarters of 2019.  This means that the Social Security annual wage cap will only be applied against fourth quarter wages. 

The DFML has provided step-by-step videos on how to file returns on behalf of individual employees and how to file bulk returns on behalf of groups of employees on its website.

What do employers need to do?
Once an employer has filed its return, MassTaxConnect will ask for payment of contributions.  Employers can make this payment through an electronic payment from their checking or savings account or with a credit or debit card.

Article: https://www.seyfarth.com/news-insights/massachusetts-pfml-quarterly-returns-and-contributions-due-by-january-31-2020.html