Beginning on June 7, Massachusetts employers must temporarily provide employees up to 40 hours of COVID-19 Massachusetts emergency paid sick leave (MA EPSL) when they are unable to work due to specific qualifying reasons related to the pandemic as follows:
An employee’s need to:
- Self-isolate and care for themself because they have been diagnosed with COVID-19;
- Get a medical diagnosis, care, or treatment for COVID-19 symptoms; or
- Get or recover from a COVID-19 immunization;
To care for a family member who:
- Must self-isolate due to a COVID-19 diagnosis; or
- Needs medical diagnosis, care, or treatment for COVID-19 symptoms;
- A quarantine order or similar determination regarding the employee by a local, state, or federal public official; a health authority having jurisdiction; or a health care provider;
- An employee’s need to care for a family member due to a quarantine order or similar determination regarding the family member by a local, state, or federal public official, a health authority having jurisdiction, the family member’s employer, or a health care provider; or
- An employee’s inability to telework due to COVID-19 symptoms.
Definition of Family Member
The law defines “family member” as an employee’s spouse, domestic partner, child, parent (including the parent of a spouse or domestic partner), a grandchild, grandparent, or sibling.
Diverging from the federal emergency paid sick leave (EPSL) under the Families First Coronavirus Response Act (FFCRA), employers cannot opt out of this new law. There are also no employer size thresholds tied to the leave, as such, all employers (other than federal agencies) must provide MA EPSL to all Massachusetts employees.
Pay During Leave
Employees working at least 40 hours per week are entitled to the maximum entitlement of 40 hours of MA EPSL. Employees working fewer than 40 hours per week on a regular schedule with consistent hours are entitled to MA 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 MA EPSL in an amount equal to the average hours they worked during the prior six-month period.
Employers must pay employees up to a maximum of $850 per week. While MA EPSL is in addition to other required forms of paid time off, it may be reduced if the total amount the employee receives would exceed the employee’s average weekly wage. MA EPSL may also be reduced by the amount of wages or wage replacement that an employee receives under any government program or law.
Use of Leave
Leave may be taken intermittently or in hourly increments.
Concurrence with Other Types of Leave
MA EPSL is in addition to existing paid time off benefits offered by employers or required by law, such as leave under Massachusetts Earned Sick Time, a collective bargaining agreement, or federal law. Employers who have voluntarily created a COVID-19 sick leave policy that provides employees the required amounts of COVID-19 sick leave for the qualifying reasons under the law are not required to provide additional MA EPSL. Employers may not require an employee to use other forms of leave before using MA EPSL (unless required by federal law).
Reimbursement for Employers
Employers may seek reimbursement from the state for the amounts of MA EPSL paid to employees, up to the $850 per week cap. However, employers cannot obtain reimbursement for MA EPSL payments if they are also seeking a tax credit for leave provided under the FFCRA.
To obtain reimbursement for MA EPSL, employers should request the following information from employees:
- A written request to use EPSL
- Employee’s name
- Dates of the requested leave
- A statement of the covered reason for the leave
- A statement that because of the reason for leave, the employee is unable to work or telework
- If the leave is due to a quarantine or isolation order, the name of the governmental entity or health care provider advising to quarantine, and if the person quarantining is an employee’s family member, the name of the family member and relation to the employee
Employers should also ensure they have a record of amounts paid to the employee during leave, the amount of leave taken, the employee’s regular schedule, and other information to claim reimbursement.
All health-related information obtained from the employee is considered a medical record and should be treated as confidential and should be kept in a file separate from other personnel records.
Employers are required to post a notice to employees about MA EPSL. The state will be issuing a form of notice in the coming days.
Employees are eligible to take MA EPSL from June 7, 2021 to September 30, 2021, or whatever earlier date the state’s $75 million fund for MA EPSL is exhausted. It should also be noted that the state can decide to extend the leave beyond September 30.
Additional guidance on MA EPSL is expected to be released by the state. HR Works will continue to monitor this legislation and provide updates as needed.