United States: Paid Leave And Coronavirus — Part XIII: Massachusetts Legislature Contemplates Providing Government Funded Sick Leave To Employees For Public Health Emergencies

Seyfarth Synopsis: The Massachusetts Legislature is currently considering expanding the Commonwealth's earned sick time law to provide paid sick time to employees who need to take time off from work for certain reasons related to a public health emergency. If the legislature passes this bill, it will become effective immediately. Unlike the Commonwealth's current paid sick time law, which requires employers to provide and pay for sick time provided to employees, the Commonwealth would reimburse employers for their payment of emergency paid sick time.

On May 29, 2020, the Massachusetts Legislature held a virtual hearing regarding proposed legislation that would add a new section to the Commonwealth's current Earned Sick Time law. The proposed legislation, H.4700 and S. 2701, is titled "An Act relative to emergency paid sick time" and was introduced in response to the ongoing Coronavirus pandemic, and resulting COVID-19 disease. Massachusetts is not the first jurisdiction to respond to COVID-19 with an emergency sick leave proposal. A number of other locations, including California, Colorado, and New York, also have issued emergency paid leave legislation in recent months.^[1]

If passed, the Massachusetts law would provide up to 80 hours of "emergency paid sick time" to employees who are not otherwise entitled to leave under the federal Families First Coronavirus Response Act (FFCRA), which applies to employers with fewer than 500 employees (but provides an exemption from certain parts of the law for employers with fewer than 50 employees). This emergency paid sick time would go into effect immediately and would be in addition to the paid sick time currently provided under the Massachusetts Earned Sick Time law. Unlike the FFCRA which is set to expire on December 31, 2020, the Massachusetts law would remain in effect until after the current state of emergency is lifted.

Who would be covered by the new emergency paid sick time law?

Employees. The new law would cover almost all employees including anyone employed by a municipality, district, political subdivision or its instrumentalities. The legislation expressly is intended to bridge certain gaps resulting from FFCRA and to benefit front line, essential workers as its definition of employee specifically includes certain family child care providers who are considered public employees under M.G.L. ch. 15D, § 17 and personal care attendants who provide personal care services under the MassHealth personal care attendant program. Unlike the FFCRA, there is no exemption for health care providers or emergency responders under the proposed Massachusetts legislation.

The law does not require that employees be employed for any particular duration and applies to individuals classified as temporary or probationary employees.

As noted above, employees who are eligible to take paid sick time under the FFCRA at the time they need leave would not simultaneously be eligible for Massachusetts emergency paid sick time.

Employers. The definition of employer is expansive and defined as any individual, corporation, partnership or other private or public agent who engages the services of an employee, including a municipality, district, political subdivision or its instrumentalities.

The law applies regardless of the size of the employer but in practicality will generally only apply to employers with 500 or more employees that are not subject to the FFCRA. Health care providers and emergency responders would be eligible for emergency paid sick time under the proposed Massachusetts law regardless of employer size.

For what reasons can an employee use "emergency paid sick time"?

Emergency paid sick time would be available to Massachusetts employees during a declared state of emergency or disaster if an employee is absent from work and unable to telework (and is not entitled to leave under the FFCRA), for one of the following reasons:

1. An employee's need to (i) self-isolate and care for oneself because the individual is diagnosed with a communicable illness related to a public health emergency; (ii) self-isolate and care for oneself because the individual is experiencing symptoms of a communicable illness related to a public health emergency; (iii) seek or obtain medical diagnosis, care, or treatment if experiencing symptoms of a communicable illness related to a public health emergency; or (iv) seek preventive care concerning a communicable illness related to a public health emergency;
2. To care for a family member who needs to take any of the measures included in Reason #1 above;
3. Determination by (i) a local, state, or federal public official, (ii) a health authority having jurisdiction, (iii) the employee's employer, or (iv) a health care 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 a contagious illness or exhibiting of symptoms, regardless of whether the employee has been diagnosed with a contagious illness;
4. To care for a family member who is subject to a determination as set forth in Reason #3 above;
5. An employee's inability to work or telework while subject to either (i) an individual or general local, state, or federal quarantine or isolation order, including a shelter-in-place order related to a public health emergency or (ii) closure of an employee's place of business by order of the local, state, or federal public official or health authority or at the discretion of the employer due to a public health emergency.

The reasons for leave under the proposed Massachusetts law are broader in many regards than the reasons for leave under the FFCRA. Specifically, Massachusetts emergency sick leave would be available to anyone who is absent from work because they are subject to a general shelter-in-place order. By comparison, FFCRA paid sick time is available to employees who are subject to a targeted quarantine or isolation order, or after satisfying a complicated "but for" analysis related to more general shelter-in-place or stay-at-home orders (for more information, see our FFCRA Final Regulations client alert). The law also extends to absences where the employees' place of business is closed pursuant to a government requirement or because the employer elects to close for reasons related to the public health emergency. In addition, Massachusetts emergency paid sick time would be available in cases where an employer determines that the employee's presence on the job would jeopardize the health of others. Notably, unlike the FFCRA, the law does not provide emergency paid sick time to an employee who needs to be out of work to care for a child whose school or place of care has been closed.

One open question is whether an employee who works for an employer with under 500 employees and is eligible for leave under the FFCRA would be able to take emergency paid sick time if the reason the employee needed leave was covered by the Massachusetts law but not the FFCRA. Testimony submitted in support of the proposed legislation tends to stress the importance of funding, given the grave economic impact many employers have suffered post-pandemic, and to recommend reliance on health care professionals' quarantine instructions to support the first and second reasons for leave.

Who qualifies as a family member?

The proposed law's definition of "family member" is expansive and would include an employee's:

• Spouse or domestic partner
• Child
• Parent or parent of a spouse or domestic partner
• Grandchild
• Grandparent
• Sibling
• An individual who resides regularly in the home of the employee or a similar individual with whom the employee has a relationship that creates an expectation that the employee would care for the person if he or she were quarantined or self-quarantined
• Any other individual related by blood or whose close association with the employee is the equivalent of a family relationship.

How much emergency paid sick time would be available?

Employees who work 40 hours or more per week will be able to take at least 80 hours of emergency paid sick time.

Employees who work fewer than 40 hours per week would be provided emergency paid sick time in an amount equal to at least the amount of time the employee is otherwise scheduled to work, or works on average, in a 14-day period. The law does not specify the period of time that an employer should take into account in determining an employee's average work hours.

Unused emergency paid sick time would carry over to the next calendar year and remain available to the employee until the state of emergency or disaster has been terminated. It is unclear whether employees would be eligible for an additional 80 hours (or a prorated amount) in the following year in addition to the amount carried over.

How does emergency paid sick time affect other types of leave?

Massachusetts emergency paid sick time is in addition to all job protected time off that an employer must provide employees under the Massachusetts Earned Sick Time law, Massachusetts Paid Family and Medical Leave law, any existing employer policy or program, pursuant to a collective bargaining agreement, or any federal law. Emergency paid sick time would also be in addition to any workers' compensation benefits for which an employee would be eligible.

The law would specifically prohibit employers who provide paid leave on the day before the effective date of the emergency paid sick time law from changing their paid leave policies after the effective date of the emergency paid sick time law to avoid being subject to the additive emergency sick time provisions.

In addition, employers may not require that an employee use other employer-provided paid leave before the employee uses emergency paid sick time.

Do employees need to provide notice of their need for emergency paid sick time?

Employees would be required to provide notice of the need for emergency paid sick time as practicable, only when the need for sick time is foreseeable and the employer's place of business has not been closed. Employers would not be able to require that an employee search for or find a replacement worker to cover the hours during which the employee is using emergency paid sick time.

Are employees required to provide documentation regarding their need for emergency paid sick time?

No. Employers would not be allowed to require documentation. To the extent that an employee provides an employer with health information related to the employee's need for emergency paid sick time under the Massachusetts proposed law, the employer would need to (i) maintain this information on a separate form and in a separate file from other personnel information, (ii) must treat the documentation as a confidential medical record; and (iii) may not disclose the information except to the affected employee or with the employee's express permission.

Can emergency paid sick time be used intermittently?

Yes. Employees would be permitted to use emergency paid sick time on an intermittent basis. In addition, employers would need to allow use of this time in the smaller of hourly increments or the smallest increment that the employer's payroll system uses to account for absences or use of other time. This would be a deviation from the FFCRA standard, under which employees can only use paid sick time intermittently in certain situations and when agreed to by their employer.

What is the rate of pay employees would receive?

Employees would be paid emergency paid sick time at the employee's regular hourly rate at the time the employee uses sick time. The hourly rate may not be less than the effective minimum wage rate and is capped at $850 per week. The law includes a provision that would require the Commonwealth to adjust the maximum weekly benefit amount annually to 64% of the state average weekly wage. The adjusted weekly benefit amount would be effective as of January 1 of each year.

How do employers get reimbursed for emergency paid sick time provided to employees?

The law would reimburse employers in full for amounts paid to employees for emergency paid sick time once an employer provides proof of payment to the department of revenue (DOR). The law requires that the DOR reimburse employers within 5 business days either by direct deposit or by check to the employer. The Commonwealth will make these payments utilizing funds from the Commonwealth Stabilization Fund.

Employers would not be entitled to reimbursement for emergency paid sick time payments if the employer is entitled to receive a federal payroll tax credit for these payments, including federal payroll tax credits under the FFCRA.

Is emergency paid sick time job-protected leave?

Yes. Employers could not take adverse action against an employee for taking emergency paid sick time and could not interfere with, restrain or deny an employee from exercising his right to use emergency paid sick time.

Employers would also be required to maintain an employee's benefits, including health care benefits, during the period an employee uses paid emergency sick time.

Do employers have to provide notice?

Yes. The law would require that employers (i) post a notice in a conspicuous locations accessible to employees in every establishment where employees with rights to emergency paid sick time work and (ii) provide a copy of this notice to each employee. If an employer does not maintain a physical workplace or an employee teleworks, an employer must send notice via electronic communication or a conspicuous posting on a web-based platform.

The notice would need to include the following:

• Information describing the employee's rights to emergency paid sick time;
• Information about the notices, documentation and any other requirements the employer imposes in order for employees to use emergency paid sick time;
• Information that describes the protections afforded an employee who exercises his rights to emergency sick time;
• The name, address, phone number and website of the Attorney General's Office where questions about the rights and responsibilities related to emergency paid sick time can be answered; and
• Information about how an employee can file an action under the emergency paid sick time law.

How will this new law be enforced?

Like the Massachusetts Earned Sick Time Law, the Massachusetts emergency paid sick time law would be enforced by the Attorney General. If an employer violates the law, the Attorney General would be authorized to issue a written warning or civil citation requiring that the employer: (i) rectify the infraction, (ii) pay restitution to the aggrieved party, and (iii) pay a civil penalty of not more than $25,000 for each violation. The maximum civil penalty is lower for employers who have not been previously criminally convicted or issued a citation under Chapter 149.

The law also would allow employees to file a civil action 90 days after filing a complaint with the Attorney General, or sooner if the Attorney General assents in writing. Any claim would be barred after 3 years from the alleged violation, but the three-year period would be tolled from the date the employee (or similarly situated employee) files a complaint with the Attorney General until the date that the Attorney General issues a letter authorizing a private right of action or the date that an enforcement action by the Attorney General becomes final.

Employer Takeaways:

If the Massachusetts legislature passes this emergency legislation, it will become effective immediately. Accordingly, employers should review their current leave policies now to understand how the emergency paid sick time law would impact their business.

With the COVID-19 and paid leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with this proposed bill and paid leave requirements generally. Consult Seyfarth's COVID-19 Resource Center for updated information regarding the rapidly evolving COVID-19 situation and its impact on the workplace.

Footnotes

1. If passed, the Massachusetts would join a growing list of states and municipalities that have passed emergency or supplemental paid sick time mandates in response to COVID-19. In addition to the FFCRA, the locations that have issued some type of emergency sick leave mandate include: (1) California - State (food service only); (2) California - Long Beach; (3) California - Los Angeles City; (4) California - Los Angeles County; (5) California - Oakland; (6) California - San Diego; (7) California - San Francisco; (8) California - San Jose; (9) Colorado - State (limited to specific industries); (10) Michigan - State; (11) New York - State; and (12) Washington, DC. Several other locations with existing paid sick leave laws have either amended their paid sick leave laws or regulations or issued non-binding guidance related to COVID-19.