Updated 10/5/21: On September 29, 2021, Governor Baker approved legislation extending Massachusetts COVID-19 Paid Sick Leave through April 1, 2022, or the exhaustion of program funds. This means that leave will be available to employees for COVID-19 related reasons through April 1, 2022 or the exhaustions of program funds, whichever is earlier. In addition the extension expands the qualifying reasons to include leave to care for a family member who needs to obtain or recover from a COVID-19 vaccine.

Updated July 2021 – The state has made additional resources and sample forms available to employers on its guidance page, including a section section on how to apply for reimbursements which includes a YouTube video explaining the process and demonstrating each step with screenshots. This article has been updated to include the additional guidance.

Compliance Snapshot

  • Applies to any employer with at least one Massachusetts employee;
  • Provides a new and separate bank of up to 40 hours of COVID-19-related paid sick leave;
  • Eligible employers may apply for reimbursement for the cost of providing sick leave from the state’s COVID-19 Emergency Paid Sick Leave Fund;
  • Takes effect on May 28, 2021 and will remain in effect through September 30, 2021 (or upon the exhaustion of program funds issued by the state, whichever is earlier);
  • Applies to employees who are unable to work or telework due to a COVID-19 qualifying reason;
  • Requires employers to provide a notice posting to employees.

On May 28, 2021, Massachusetts Governor Baker signed Bill H.3702 into law providing employees up to 40 hours of emergency paid sick leave (MA EPSL) for certain qualifying reasons related to COVID-19. The new law also established a COVID-19 Emergency Paid Sick Leave Fund (“Fund”) to reimburse eligible employers for the cost of providing this additional bank of MA EPSL to their employees. Employees are entitled to MA EPSL beginning May 28, 2021, continuing through September 30, 2021, or until the exhaustion of the Fund, whichever comes first.

Which Employers are Covered by MA EPSL?

All Massachusetts employers, regardless of size, must provide Massachusetts-based employees access to MA EPSL for qualifying COVID-19-related reasons.

Who is Covered by MA EPSL?

All employees whose primary place of employment is in Massachusetts that have a qualifying reason for leave.

Does MA EPSL apply to Massachusetts Residents who work in Another State?

Eligible employees are defined as those whose primary place of employment is in Massachusetts. An employee’s “primary place of employment” means the worksite or physical location where the employee spent the greatest percentage of work hours between the dates of January 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 worksite or physical location where the employee is expected to spend the greatest percentage of work hours between the first day of work and September 30, 2021, based on the work arrangement agreed upon between the employer and the employee.

What are the Qualifying COVID-19-related Reasons for MA EPSL?

Massachusetts employers are required to provide MA EPSL to employees who are unable to work for the following COVID-19-related reasons:

  • An employee’s own need to:
    • self-isolate and care for themself because they have been diagnosed with COVID-19;
    • get a medical diagnosis, care, or treatment for COVID-19 symptoms; or
    • get or recover from a COVID-19 immunization;
  • An employee’s need to care for a family member who:
    • must self-isolate due to a COVID-19 diagnosis; or
    • needs medical diagnosis, care, or treatment for COVID-19 symptoms;
  • An employee being subject to, or need to care of a family member that is subject to, a quarantine order or similar determination by a local, state, or federal public official, a health authority having jurisdiction, or a health care provider; or
  • An employee’s inability to telework due to COVID-19 symptoms.

Who is considered a Family Member for purposes of MA EPSL?

MA EPSL uses the same definition of “family member” as the Massachusetts Paid Family and Medical Leave Act, which includes an employee’s spouse, domestic partner, child, parent, grandchild, grandparent, or sibling, a parent of a spouse or domestic partner of the employee, or a person who stood in loco parentis to the employee when such employee was a minor child. 

Is an Employer Permitted to Request Medical Documentation for MA EPSL Related to an Employee or Family Member’s Diagnosis or Treatment for COVID-19?

Yes, and written medical documentation must be requested of an employee in order for an employer to claim state reimbursement. There are no express limitations on the medical documentation an employer may collect; however, employers must treat health information regarding an employee or employee’s family member as confidential medical records in accordance with applicable state and federal law and must not disclose such information to any third parties without the employee’s express permission.

What Amount of MA EPSL must be provided?

The amount of leave differs based on hours worked:

  • Employees working 40 or more hours per week – are entitled to the maximum of 40 hours;
  • Employees working less 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 were reasonably expected to work when hired;

Can employees use MA EPSL Intermittently?

Yes. Employees may use MA EPSL on an intermittent basis and in hourly increments.

What is the Rate of Pay for MA EPSL?

Employers must pay the employee at their regular rate of pay (up to the $850 maximum benefit amount) and must maintain all benefits to which they are entitled (including health and disability insurance). An employee may not receive more than 100% of his or her regular weekly wages in a week.

Is there an Employee Notice Requirement?

An employee must provide notice to the employer of the need for MA EPSL soon as practicable or foreseeable for the first workday in which an employee uses the leave. For subsequent days, an employer may require the employee to follow reasonable notice procedures or policies in order to continue receiving MA EPSL.

How long will MA EPSL be Effective?

Employees are eligible to take EPSL from June 7, 2021, to September 30, 2021, or earlier if the Fund for MA EPSL reimbursement is exhausted.

Which Costs are Eligible for Reimbursement from the Fund?

Under the MA EPSL program, an employer that is not eligible for reimbursement through the federal tax credit under the Families First Coronavirus Response Act (FFCRA), or the extension provided under the American Rescue Plan Act of 2021 (ARPA) may seek reimbursement from the state Fund for the cost of paying an employee and continuing their benefits up to $850. This means that if an employer has opted to obtain payroll tax credits for paid sick leave wages provided through the FFCRA or the ARPA extension of the tax credit time period, they cannot double dip and claim a reimbursement from both the state of MA and the federal government.

How will Employers Receive Reimbursement from the Fund?

In order to receive reimbursement from the Fund, employers must require their employees to submit requests for MA EPSL in writing, which must include the following:

  1. the employee’s name;
  2. the date(s) for which leave is requested and taken;
  3. a statement of the COVID-19 related reason the employee is requesting leave and written support for such reason; and
    1. If the leave is 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. 
  4. a statement that because of the COVID-19 related reason, the employee is unable to work or telework.

Employers may create their own form to capture the content requirements above or use the standard form that will be developed by the state. All health information regarding an employee or an employee’s family member must be treated as confidential medical records in accordance with applicable state and federal law.

What Information will be Required from Employers when Applying for Reimbursement from the Fund?

To apply for reimbursement, employers will need to collect the following information from the employee:

  1. Employee’s social security or tax identification number;
  2. Employer identification number associated with the position from which the employee took leave;
  3. The length of the leave (in hours) and wages paid during that leave that are not eligible for federal tax credits, and are not otherwise paid under any other government program or law;
  4. Benefits applicable to the employee taking leave; and
  5. The number of hours in the employee’s regular schedule; or
    1. If the employee has no regular schedule, the hours that the employee was scheduled to work per week over the six- month period immediately preceding the date on which such employee takes MA EPSL, including hours for which such employee took leave of any type; or
    2. If the employee did not work over such six-month period, is equal to the reasonable expectation of the employee at the time of hiring of the average number of hours per week that the employee was to be normally scheduled to work.

Employers should expect additional guidance from the state about the reimbursement application process. The state has indicated that it will provide a reimbursement application form, though it is not yet available. Employers will be reimbursed within 30 business days of submitting the application.

How does MA EPSL Interact with Existing Leave Policies?

MA EPSL must be provided in addition to all other job protected leave required under the Massachusetts Earned Sick Time Law, federal law, or the employer’s existing policies. However, employers who have voluntarily created a COVID-19-related sick leave policy that provides employees the required amounts and for the same qualifying reasons under MA EPSL are not required to provide additional emergency paid sick leave.

What are the Notice Posting Requirements?

Employers are required to post notice to employees about MA EPSL in a conspicuous workplace location and must also distribute the notice electronically if any portion of the workforce is teleworking. The notice requirement can be satisfied by using either the poster form or the document form of the notice made available on the Massachusetts MA EPSL webpage.

Are there any other Prohibitions placed on Employers?

Employers may not retaliate or take adverse employment action against an employee exercising their rights under the MA EPSL program. Employers are also prohibited from requiring employees to use other types of available paid leave before taking MA EPSL and may not require employees to find a replacement to perform their work while they are on MA EPSL.

Employer Considerations

Given the law’s effective date, Massachusetts employers are encouraged to consider taking the following actions as soon as possible:

  • Review any existing sick leave policies and determine whether adoption of revisions are necessary to meet the requirements of MA EPSL;
  • Collect employee requests for MA EPSL in writing;
  • Employers eligible to seek reimbursement of the cost of providing leave from the state Fund should be gathering information for purposes of applying for reimbursement when their employee requests MA EPSL;
  • Given the increased complexity of overlapping state, local and federal COVID-19 paid sick leave requirements, employers should continue to monitor developments and consult with employment counsel to update employer policies, as necessary.

Additional Resources

Lizet Ramirez – Lizet is a Client Compliance Manager for Sequoia One, where she works with our clients to optimize and streamline benefits compliance. In her free time, Lizet enjoys live music, travel, hiking and spa days.