In the final days of May, Massachusetts passed a new COVID-19 emergency paid sick leave (EPSL) law to be effective between May 28 and Sept. 30, 2021 (or when program funds are exhausted if earlier), for COVID-19 related reasons. While all Massachusetts employers – regardless of size – must provide all employees with EPSL, Massachusetts offers an employer reimbursement of up to $850 per week per employee. Employers must provide EPSL in addition to any other leave entitlement, but if the employer already provides a COVID-19 emergency paid leave benefit in addition to other leave programs, the employer may use that paid sick leave benefit to satisfy this new EPSL requirement provided that the employee is able to access their full entitlement under EPSL as of May 28, 2021.

Which employees are entitled to EPSL?

Any employee is entitled to EPSL if their primary place of employment is in Massachusetts. Massachusetts provides the following definition of place of employment:

An employee's "primary place of employment" means the work site or physical location where the employee spent the greatest percentage of work hours between the dates of Jan. 1, 2020 and April 30, 2021; temporary telecommuting arrangements entered into during this period should not factor into this determination. For a new employee who commences work on or after May 1, 2021, "primary place of employment" means the work site or physical location where the employee is expected to spend the greatest percentage of work hours between the first day of work and Sept. 30, 2021, based on the work arrangement agreed upon between the employer and the employee.

Lockton comment: For workers who were or are temporarily telecommuting from Massachusetts due to COVID-19 or for another temporary reason, it appears those employees will not become entitled to EPSL. However, employees that have standard telecommuting arrangements from a Massachusetts location will be entitled to EPSL.

Payment amount and qualifying reasons

A full-time employee is entitled to up to 40 hours of EPSL (prorated for employees working less than 40 hours per week) and must be paid up to $850 per week, but not more than their weekly wage.

The employee may not be paid more than 100% of the employee’s regular compensation but the employer can reduce EPSL by any wage replacement received under any other government program or law.

Lockton comment: Note that employers can choose to pay employees their regular wages that exceed the law’s cap of $850 per week, but reimbursement is limited to $850 per week.

EPSL may be taken in full days or on an intermittent basis in hourly increments for the following reasons:

• An employee who (a) has been diagnosed with COVID-19 and needs to self-isolate or care for oneself; (b) has COVID-19 symptoms and needs to seek or obtain a medical diagnosis, care or treatment; or (c) needs time to obtain the COVID-19 vaccine or to recover from such vaccination.

• An employee who needs to care for a family member who is self-isolating due to a COVID-19 diagnosis or who needs medical diagnosis, care or treatment for COVID-19 symptoms.

• An employee is subject to a quarantine order or other determination by a local, state or federal public official, a health authority having jurisdiction, or a healthcare provider that the employee’s presence would jeopardize the health of others because of exposure to or symptoms of COVID-19 regardless of diagnosis; or the employee’s need to care for a family member under such circumstances.

• An employee’s inability to telework (if available) due to COVID-19 symptoms after receiving a positive diagnosis.

For purposes of taking leave to care for another, the term “family member” is defined as an employee’s:

• Spouse

• Domestic partner

• Child

• Parent

• Grandchild

• Grandparent

• Sibling

• Parent of a spouse or domestic partner

• A person who stood in loco parentis to the employee when such employee was a minor child

Lockton comment: This is the same definition used under the Massachusetts Paid Family and Medical Leave Act. Employers should be cautious when the employee’s qualifying reason for EPSL leave is to care for a family member and ensure any concurrent FMLA due to care of a family member with a serious medical condition is triggered only when care is provided for the employee’s spouse, son, daughter or parent (including a person who stood in loco parentis).

Calculating leave entitlement

Employees who work 40 or more hours per week are entitled to 40 hours of COVID-19 EPSL. For those that work less than 40 hours per week, entitlement to EPSL is calculated as follows:

• Employees who regularly work fewer than 40 hours per week are entitled to leave in an amount that is equal to the average number of hours that employee works per week.

• Employees whose schedule and weekly hours vary are entitled to leave that is equal to the average number of hours that the employee was scheduled to work per week over the previous six months.

• Employees with variable schedules who have not worked for six months are entitled to leave equal to the number of hours per week that the employee reasonably expected to work when hired.

Employees taking EPSL are entitled to job protection, must continue to receive benefits including health insurance, vacation leave, sick leave, disability insurance and pension, and may not be discriminated against for or prevented from taking EPSL.

Reimbursement from the program fund

Employers are entitled to reimbursement from the Commonwealth for up to $850 per week for an employee’s EPSL provided that the program funds totaling $75 million have not been exhausted. Payments eligible for tax credits under the federal Families First Coronavirus Response Act (FFCRA) program are not eligible for reimbursement under the program fund, nor are payments made to an employee from a government program or law eligible for reimbursement. Leave time taken prior to May 28 does not satisfy the state mandate and is not eligible for reimbursement under this state program.

To obtain reimbursement from the program fund, an employer must require that employees request leave in writing and include the following in that request:

• Employee’s name

• Date(s) of requested leave (or dates leave has been taken)

• A statement identifying the reason for leave and that the employee is unable to work or telework because of the reason identified

• If applicable, the name of the governmental entity ordering quarantine or the name of the healthcare provider advising self-quarantine

• If applicable, the name and relationship of the family member being cared for

Employers may create their own administrative forms or may use the form created by the Commonwealth. Any medical information shared must be held confidentially in accordance with state and federal law and may not be shared with any third party without the employee’s consent.

Lockton comment: Although the Commonwealth intends to issue a standard form for employees to request leave, they have not yet done so. Employers can create their own forms. The Lockton sample form can be found here (opens a new window).

To obtain reimbursement, employers must also be able to provide the program fund with additional information including:

• The employee’s Social Security number or TIN

• The employer identification number associated with the position from which the employee took leave

• The number of hours of EPSL leave taken and amount of eligible wages paid

• Benefits applicable to the employee taking leave

• The hours used to determine the number of hours for which the employee was entitled to EPSL (regular schedule or average time if schedule is variable)

Massachusetts will be issuing additional guidance providing specifics on the reimbursement process.

Employee notice obligations

An employee must request leave for the first workday for which EPSL is requested as soon as is practicable or foreseeable. For subsequent days, an employer may require the employee follow reasonable notice procedures.

Employer notice obligations

Employers must provide notice to any employee whose primary place of employment is in Massachusetts. Employers are required to both post notice about the new EPSL law and provide an electronic copy to employees working remotely. The poster form must be posted in a conspicuous location and may be found here (opens a new window). Notice must be sent via electronic communication or an electronic posting on web-based platform for employees who are teleworking. Employers may also voluntarily elect to provide notice to individual employees. This standard notice may be found here (opens a new window).

Conclusion

As this program was just passed and implemented, we expect the Commonwealth to provide additional guidance and forms over the next month. The Commonwealth’s current FAQs can be found here (opens a new window). Be aware that this requirement, unfortunately, became effective immediately upon passage of the law, so retroactive application may be required. If you have any questions, please reach out to one of your Lockton account team.

Lisa Carlson
Vice President, Senior ERISA Attorney

Paula Day
Vice President, Director, HR Compliance Consulting

Not legal advice: Nothing in this communication should be construed as legal advice. Lockton may not be considered your legal counsel, and communications with Lockton's HR Compliance Consulting group are not privileged under the attorney-client privilege.

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