On May 28, 2021, Governor Baker signed new legislation (H.3702: An Act providing for Massachusetts COVID-19 emergency paid sick leave) implementing new emergency paid sick leave requirements for employers effective Monday, June 7, 2021 through Thursday, September 30, 2021 (or exhaustion of the COVID-19 Emergency Paid Sick Leave Fund, whichever first occurs).  

PLEASE NOTE: While the law is effective immediately, the provisions regarding the funding and when employers must comply is 10 days from the effective date, which is June 7.

The Act requires Massachusetts employers to provide up to forty (40) hours of paid sick time for employees due to a COVID-19 related reason, with employers permitted to apply for reimbursement for paid leave from the newly created COVID-19 Emergency Paid Sick Leave Fund. The Act is applicable to all public and private employers in the Commonwealth, so employers will need to act quickly to review and revise their existing leave policies in order to be ready to implement this requirement prior to Monday. Employers should carefully review the preliminary Employer Guidance released by the Commonwealth to ensure compliance. Additional guidance and information will be forthcoming from the Executive Office of Labor and Workforce Development including more information on how to apply for reimbursement provided under the Act.

What Employers Need to Know

Effective Monday, June 7, 2021, all public and private employers in the Commonwealth will be required to provide up to forty (40) hours of paid sick time to their employees who are unable to work due to any of the following COVID-19 related reasons:

Employee medical reasons:

• The employee has been diagnosed with COVID-19 and is required to self-isolate
• The employee needs to seek a medical diagnosis, care, or treatment for COVID-19 symptoms
• The employee needs to recover from a COVID-19 immunization

Employee’s Family Member medical reasons:

• The employee needs to care for a family member defined as “the spouse, domestic partner, child, parent or parent of a spouse or domestic partner of the employee, a person who stood in loco parentis to the employee when such employee was a minor child or a grandchild, grandparent or sibling of the employee provided, however, that for the purposes of this definition, ‘person who stood in loco parentis’ shall not include a person with whom the employee has no personal relationship” who:
  • Has been diagnosed with COVID-19 and must self-isolate; or
  • Needs to seek a medical diagnosis, care, or treatment for COVID-19 symptoms

Quarantine Order:

• The employee is subject to a quarantine order or similar determination issued by a: local, state, or public official; health authority having jurisdiction; or health care provider
• The employee must care for a family member who is subject to a quarantine order or similar determination issued by a: local, state or public official; health authority having jurisdiction; or health care provider

Inability to Telework:

• The employee has been diagnosed with COVID-19 and is unable to telework due to COVID-19 symptoms.

Interactions with other paid leave or other sick leave policies

Generally, employers may not require employees to use other types of existing paid leave before taking emergency sick leave under this program, nor require employees to find their own coverage during their absence.  

Employers who have a COVID-19 sick leave policy in place who make available an amount of COVID-19 sick leave sufficient to meet the requirements of the Act and which permits employees to exercise such leave for the same purposes and under the same conditions as the Act, are not required to provide additional COVID-19 emergency paid sick leave under the Act.

Notice requirement

Within seven (7) days of the effective date of the Act (June 4, 2021), the Executive Office of Labor and Workforce Development will release a model Notice for the Act which must be conspicuously posted in the physical location where employees work, with copies disseminated to all employees. If there is no physical workspace, or an employee teleworks, then notice must be effectuated through electronic communication or a conspicuous posting in a web-based platform.  

Requests for leave and documentation requirements

Employees must submit their requests for leave in writing in order for an employer to be eligible for reimbursement. A standard request form will be released by the Commonwealth for employees to use. Alternatively, employers can develop and use a form of their own creation.

The written request from the employee must include the following:

• Employee name;
• Date(s) of leave requested;
• Statement of reason for leave with written support. If the leave is related to a quarantine order or advice to self-quarantine, the written support must include: Name of the governmental entity ordering or health care provider advising quarantine, or Name and relationship to employee if family member is the individual subject to the order/advice
• Statement that the employee is unable to work or telework due to a COVID-19 related reason

Employers should collect and retain the following information for the purposes of substantiating reimbursement requests:

• Employee’s SSN or TIN;
• Employer ID number for the position from which the employee took leave;
• Hours of leave and wages paid during the leave that are NOT eligible for federal tax credits or payable under any other governmental program or law;
• Benefits applicable to the employee taking the leave;
• Number of hours of the employee’s regular or variable schedule.

Employers may not retaliate against or interfere with an employee’s use of COVID-19 emergency paid sick leave. Employers are required to provide the same employment benefits to an employee during their period of leave consistent with the terms of their employment including, but not limited to, group life insurance, health insurance, disability insurance, sick leave, annual or vacation leave, educational benefits and pensions.

Amount of leave and employer reimbursement

Employees who work forty (40) or more hours per week are entitled to up to forty (40) hours of COVID-19 emergency paid sick leave.

• For employees who regularly work less than forty (40) hours per week or who work variable schedules, then an average number of hours per week based on such schedules must be provided. Employers should consult the preliminary Employer Guidance from the Commonwealth for how these leave amounts are determined.
• Employees may take leave intermittently and in as little as hour increments.

Employers are required to pay an employee’s full rate of pay up to a cap of $850.00, including benefits.

Employers will be permitted to apply for reimbursement for all COVID-19 emergency paid sick leave (up to the cap of $850.00 per employee) from the newly established COVID-19 Emergency Paid Sick Leave Fund. The Commonwealth will be releasing information on the reimbursement process including the application form in the coming weeks.

Any qualified sick leave wages paid by an employer that are eligible for the tax credit for paid sick and paid family and medical leave under the federal Families First Coronavirus Response Act, the 2021 federal Consolidated Appropriations Act, and the American Rescue Plan Act shall not be eligible for reimbursement from the Massachusetts COVID-19 Emergency Paid Sick Leave Fund.

Where the program runs until September 30, 2021 or exhaustion of the Fund, whichever occurs first, employers should seek reimbursement of paid sick leave as soon as possible to ensure they receive reimbursement.  

Additional resources

Employers should monitor the Executive Office of Labor and Workforce Development website for additional employer guidance, including applicable forms and notices required under the Act.

Disclaimer: The information contained herein is not intended to be construed as legal advice, nor should it be relied on as such. Employers should closely monitor the rules and regulations specific to their jurisdiction(s) and should seek advice from counsel relative to their rights and responsibilities.