All employers in Massachusetts will soon be required to provide up to 40 hours of job-protected, paid leave for various COVID-19-related reasons. Massachusetts Governor Charlie Baker signed House Bill 3702 into law on May 28, 2021. The MA Emergency Paid Sick Leave (“MA EPSL”) will take effect on June 7, 2021 and will extend through September 30, 2021 or until the $75,000,000 fund established to reimburse employers for this new paid leave is exhausted, whichever occurs first. Significantly, MA EPSL is generally in addition to all other job protected time off (paid or unpaid) that employers are required to provide under the Massachusetts Earned Sick Time Law, the employer’s existing policies, or federal law to the extent permitted by such federal law. However, an employer who has already adopted a separate COVID-19 sick time policy that may be used for the same reasons and under the same conditions as MA EPSL is not required to provide additional paid sick leave under this new law.

We anticipate that guidance will be issued shortly and hope that it will address important unanswered questions about some of the details of how this new law is expected to work. In the meantime, the following summary outlines the basic requirements.

Coverage and Qualifying Reasons

MA EPSL covers leave taken for the following reasons:

• An employee’s need to: (a) self-isolate and care for oneself because of the employee’s COVID-19 diagnosis; (b) get a medical diagnosis, care or treatment for COVID-19 symptoms; or (c) obtain or recover from the COVID-19 vaccine.

• An employee’s need to care for a family member who: (a) is self-isolating due to a COVID-19 diagnosis; or (b) 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 health care provider. 

• 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 health care provider.

• An employee’s inability to telework because the employee has been diagnosed with COVID-19 and the employee’s symptoms inhibit the ability to telework.

Leave Amounts and Benefits

The maximum MA EPSL leave allotment depends on an employee’s work schedule. 

• Employees regularly scheduled to work 40 hours or more per week are eligible for 40 hours of MA EPSL leave. 

• Employees regularly scheduled to work fewer than 40 hours per week are eligible for MA EPSL in an amount equal to the average number of hours they work per week over a regularly scheduled 14-day period.

• Employees whose schedule and weekly hours worked vary from week to week are eligible for MA EPSL in an amount equal to the average hours they were scheduled to work per week over the prior six-month period.

Employees may use MA EPSL on an intermittent basis and in hourly increments. Employers may not require an employee to find a replacement worker to cover the hours while the employee is on leave under MA EPSL.

The maximum benefit available under the MA EPSL is $850 per week. 

Reimbursement

Employers can seek reimbursement from the state fund for up to $850 per week for each employee’s absence, except that payments for leave that are eligible for reimbursement under FFCRA are not eligible for reimbursement from the state fund. 

Employer Notice

The MA Executive Office of Labor and Workforce Development is expected to issue a sample notice for employers’ use on or before June 14, 2021. Employers are required to post such notice in a conspicuous location accessible to employees in every establishment where employees work and also provide a copy to employees. In cases where an employer does not maintain a physical workplace, or an employee teleworks or performs work through a web-based platform, notification must be sent via electronic communication or a conspicuous posting in the web-based platform.

Employee Notice

Employees are required to provide notice of the need for MA EPSL leave as soon as practicable or foreseeable. After the first workday an employee receives MA EPSL leave, an employer may require the employee to follow reasonable notice procedures in order to continue receiving MA EPSL leave.  

Benefits and Job Protections

During MA EPSL leave, employers are required to maintain the same employment benefits to which the employees is otherwise entitled (e.g., group health insurance, life insurance, disability insurance, etc.). Also, employers may not require employees to use other paid time off before using MA EPSL leave, unless otherwise required by applicable law.

It is unlawful for an employer to interfere with, restrain, or deny an employee’s ability to take MA EPSL leave, to subject to or take any adverse action against an employee for the use of such leave, or to take any adverse action against an employee because the employee opposes practices believed to be in violation of the law or because the employee supports the exercise of rights of another employee under the law.