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Massachusetts COVID-19 Temporary Emergency Paid Sick Leave Program

Effective May 28, 2021, Massachusetts employers are required to make paid leave time available to employees for COVID-related illnesses, quarantine, and vaccinations. Paid leave benefits are paid by the employer and then reimbursed by the Commonwealth. The program remains in effect until the earlier of September 30, 2021, or until the funding is exhausted, as determined by the Commonwealth.
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Types of Leave

Employers must offer Massachusetts employees, defined to mean any person whose primary place of employment is in the Commonwealth, paid leave time for the following reasons:

  1. an employee’s need to:
    1. self-isolate because they have been diagnosed with COVID-19;
    2. get a medical diagnosis, care, or treatment for COVID-19 symptoms; or
    3. get or recover from a COVID-19 immunization;
  2. an employee’s need to care for a family member who:
    1. must self-isolate due to a COVID-19 diagnosis; or
    2. needs medical diagnosis, care, or treatment for COVID-19 symptoms;
  3. 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;
  4. 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
  5. an employee’s inability to telework due to COVID-19 symptoms.

Note that in general, employers may not require employees to use other types of available paid leave before using COVID-19 emergency paid sick leave for the above reasons.

Amount of Leave

The amount of paid leave available is based on the number of hours per week worked by the employee:

  • Employers must provide 40 hours of COVID-19 emergency paid sick leave to employees who work 40 or more hours per week.
  • For employees who regularly work fewer than 40 hours per week, employers must provide leave in an amount equal to the average number of hours that such employee works per week.
  • For employees whose schedule and weekly hours vary from week to week, employers must provide leave equal to the average number of hours that the employee was scheduled to work per week over the previous 6 months.
  • If an employee with a variable schedule has not worked for the employer for 6 months, the employer must provide leave equal to the number of hours per week the employee reasonably expected to work when hired.

The maximum amount an employer is required to pay per employee, and the maximum amount for which the employer may seek reimbursement for any one employee, is $850 (including cost of benefits). Employers will only be reimbursed by the Commonwealth if they are not eligible for reimbursement under the FFCRA.

An employee may use COVID-19 emergency paid sick leave on an intermittent basis and in hourly increments.

Documenting Requests for Paid Leave

Employers who intend to seek reimbursement from the Commonwealth for the cost of providing employees with paid leave must use a written form for leave requests that include the following leave related information:

  1. the employee’s name;
  2. the date(s) for which leave is requested and taken;
  3. a statement of the COVID-19 related reason the employee is requesting leave and written support for such reason; and
  4. 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 form must also include:

  1. the name of the governmental entity ordering quarantine or the name of the health care provider advising self-quarantine; and
  2. if the person subject to quarantine or advised to self-quarantine is not the employee, that person’s name and relation to the employee.

A standard form is currently being developed by the Massachusetts Secretary for Administration and Finance and will be posted on the mass.gov website in the coming weeks. Employers must treat health information regarding an employee or employee’s family member as confidential in accordance with applicable state and federal law.

Employers should also collect and retain the following information in anticipation of applying for reimbursement:

  1. the employee’s social security or tax identification number;
  2. the employer identification number associated with the position from which the employee took leave;
  3. the length of the leave (in hours) and wages paid during that leave not eligible for federal tax credits and not otherwise paid under any other government program or law;
  4. benefits applicable to the employee taking leave; and
  5. the number of hours upon which the employee’s leave entitlement is based.

Employer Notice Requirements

Employers must post a notice in a conspicuous place and distribute the notice to all telecommuting employees. The model notice may be found here.

Non-Retaliation Provisions

The emergency paid sick leave program also prohibits retaliation by employers. In particular, employers may not:

  1. interfere with, restrain, or deny an employee’s ability to take COVID-19 emergency paid sick leave, including, but not limited to, by using an employee’s taking of COVID19 emergency paid sick leave as a negative factor in any employment action, such as an evaluation, promotion, disciplinary action, or termination;
  2. discipline or take any other adverse action against an employee for using COVID-19 emergency paid sick leave; or
  3. take any adverse action against an employee because the employee opposes practices believed to be in violation of this program, or because the employee supports the exercise of rights of another employee.

Additional guidance will be issued on the Mass.gov website in the coming weeks, including detailed information on how employers may apply for reimbursements.

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