Massachusetts: Emergency Paid Sick Leave Now in Effect!

H. 3702, as amended by H. 3771, requires employers to provide 40 hours of emergency paid sick leave (EPSL) to full-time employees, with separate prorated calculations for part-time (i.e., work less than 40 hrs./wk.) and variable hour employees. EPSL must be provided from May 28, 2021 through September 30, 2021, or until 15 days after the state receives $60 million in reimbursement applications, whichever is earlier. There is a $75 million fund available for employers to seek reimbursement from the state for EPSL benefits paid.

Employees whose primary place of employment is Massachusetts are eligible for leave. EPSL can be used: (1) for self-care following a COVID-19 diagnosis, get a diagnosis, care, or treatment for COVID-19 symptoms, or obtain or recover from the COVID-19 vaccine; (2) care for a family member with a COVID-19 diagnosis or who needs a diagnosis, care, or treatment for COVID-19 symptoms; (3) an order to quarantine from a specified authority, the employer, or the employee’s healthcare provider; (4) to care for a family member subject to an order to quarantine from a specified authority, the family member’s employer, or the family member’s healthcare provider; or (5) an employee’s inability to work remotely due to their COVID-19 symptoms and receiving a COVID-19 diagnosis.

The maximum benefit is $850 per week. Employers may provide additional leave benefits, but those amounts are not subject to state reimbursement. If an employer has a separate COVID-19 sick leave policy that meets the new requirements, it is not required to provide the additional 40 hours required here. Employers may not require an employee to use any other paid leave before using EPSL, unless otherwise required by federal law. Employee benefits are protected during EPSL taken.

Employees must provide notice of the need for leave as soon as practicable or foreseeable. Employees must also submit a written request for EPSL with their name, dates of leave, reason for leave, and that the reason prevents the employee from working in person or remotely. If the employee is seeking leave due to a quarantine order or advisory, they must also state the name of the government entity or healthcare provider giving the order/advice, and the name and relationship of the person the employee is caring for if it is not themselves. Employers must provide additional information when applying for reimbursement. Employees may use EPSL intermittently and in hourly increments. Any health information obtained must be kept confidential, and the bill prohibits retaliation.

Employers should request reimbursement as soon as it is available given the limitations of the fund. Employers taking a tax credit under the Families First Coronavirus Response Act (FFCRA) should note that the federal tax credit is primary. Employers must attest they are ineligible for federal tax credits for any costs for which they are applying for state reimbursement. EPSL may run concurrently with the federal emergency paid sick leave under the FFCRA, so long as the state mandate is met in full.

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