[co-author: Joyce Dos Santos]

On May 28, Gov. Charlie Baker (R) signed Bill H.3702 into law, legislation that provides employees with emergency paid sick leave, capped at 40 hours a week or $850, for certain reasons related to COVID-19. This legislation similarly creates a $75 million COVID-19 Emergency Paid Sick Leave Fund to reimburse eligible employers for providing employees with emergency sick leave. Employees are entitled to benefits starting this Monday, June 7, and continuing through September 30, or until the state’s MA EPSL fund is exhausted, whichever occurs first.

Employees are entitled to emergency paid sick leave in addition to all other job protected leave that the employer is required to provide under the Massachusetts Earned Sick Time Law, the employer’s existing policies or programs, collective bargaining agreements, or federal law.

The following summary comes from the language of the statute, with minor editing for clarity and format.

What is a qualified reason?

Under the newly enacted law, all Massachusetts employers, regardless of size, are obligated to provide up to 40 hours of emergency paid sick leave to Massachusetts-based employees who are unable to work for any of the following reasons:

• An employee’s need to (1) self-isolate and self-care because of a COVID-19 diagnosis; (2) seek or obtain a medical diagnosis, care or treatment for COVID-19 symptoms; or (3) recover from a COVID-19 immunization.
• An employee’s need to care for a family member who is (1) self-isolating due to a COVID-19 diagnosis; or (2) needs medical diagnosis, care, or treatment for COVID-19 symptoms. The statute defines “family member” as the employee’s spouse, domestic partner, child, parent (including the parent of a spouse or domestic partner), grandchild, grandparent, or sibling.
• 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 due to COVID-19 diagnosis or symptoms.

How much paid sick leave time must be made available?

• Employees working 40 or more hours per week are entitled to the maximum entitlement of 40 hours of emergency paid sick leave.
• Employees working fewer than 40 hours per week on a regular schedule are entitled to a pro–rated benefit in an amount equal to the average number of hours worked during a regular 14-day schedule.
• Employees working varying hours and schedules are entitled to a pro–rated benefit in an amount equal to the average hours they worked during the prior six months.
• Employees with variable schedules who have not worked for 6 months are entitled to a pro-rated benefit equal to the number of hours per week that they reasonably expected to work when hired.
• The maximum weekly amount an employer is required to pay, or may seek reimbursement for, per employee, is $850.
• Employees may use emergency paid sick leave on an intermittent basis and in hourly increments.

Handling requests for leave

Employers who want to receive reimbursements for the costs of providing employees with leave must require their employees to submit requests for COVID-19 emergency paid sick leave in writing. All requests must include the following:

• the employee’s name;
• the date(s) for which leave is requested and taken;
• a statement of the COVID-19-related reason the employee is requesting leave and written support for the reason; and
• 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 (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.

Employers wishing to be reimbursed should also collect the following information from employees:

• the employee’s Social Security or tax identification number;
• the length of the leave (in hours), and wages paid during that leave;
• benefits applicable to the employee taking leave; and
• the number of hours in the employee’s regular schedule.

Any health information collected must be treated as confidential medical records and kept separate from the employee’s personnel file.

What else do employers need to know?

• As already noted, employees are entitled to emergency paid sick leave in addition to all other job protected leave that the employer is required to provide under the Massachusetts Earned Sick Time Law, the employer’s existing policies or programs, collective bargaining agreements, 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 emergency paid sick leave.
• While an employee is on leave, the employer must maintain the same benefits to which the employee would be entitled (such as health insurance, life insurance, disability insurance, sick leave, or vacation leave).
• Employers are required to post a notice regarding emergency paid sick leave in the workplace. They must also distribute the notice electronically if any portion of the workforce is teleworking. We expect the notice to be issued next week.
• Employers may not obtain “dual” payroll tax credits. If the employer is seeking tax credits through the Families First Coronavirus Response Act or the American Rescue Plan Act, it may not seek reimbursement under the Massachusetts statute. Moreover, payments that are merely eligible for tax credits under federal law are not eligible for reimbursement from the state.
• As always, it is unlawful for an employer to interfere with an employee’s ability to use emergency paid sick leave or retaliate against an employee for exercising rights under the program.

Guidance has been issued, but it conflicts in some respects with the statute, which would take precedence. Additional (and, we hope, revised) guidance will be issued soon, including the model notice described above, a standard form for employee leave requests, and information for employers about applying for reimbursement.

Joyce Dos Santos has been a paralegal with Constangy since 2015. She recently graduated from Suffolk University School of Law, and will be admitted to practice next week. She will then become an associate attorney in Constangy's Boston Office.