Seyfarth Synopsis: During a tumultuous week, Massachusetts enacted legislation to eliminate the traditional one-week waiting period for unemployment benefits. In parallel, the Massachusetts Department of Unemployment Assistance (“DUA”) has filed emergency regulations and published guidance regarding unemployment benefits for workers impacted by COVID-19. Lastly, the Office of the Massachusetts Attorney General (“OAG”) has issued FAQs regarding the unemployment and wage-and-hour impacts of temporary shutdowns in Massachusetts.
On March 15, 2020, Massachusetts Governor Charlie Baker announced that his administration intended to take steps to make it easier for workers impacted by the COVID-19 pandemic and the associated declaration of a state of emergency to obtain unemployment benefits. On Monday, March 16, the Governor sponsored a bill eliminating the one-week waiting period for unemployment benefits. Two days later, the bill was signed into law.
The new law waives the one-week waiting period for any person making a claim for unemployment benefits who has become separated from work due to COVID-19 or the effects of the Governor’s March 10, 2020 declaration of a state of emergency. The effective date of the law is retroactive to March 10, 2020, and it will expire 90 days after termination of the state of emergency. The law can be found here: https://malegislature.gov/Bills/191/S2599.
In parallel to this legislative change, the Massachusetts Department of Unemployment Assistance (“DUA”) has filed emergency regulations and issued guidance to make it easier for workers impacted by the COVID-19 crisis to apply for and obtain unemployment benefits. The emergency regulations establish the concept of “standby,” which refers to a claimant who is temporarily unemployed because of a lack of work due to COVID-19, with an expected return-to-work date. For workers on standby to be eligible for benefits, they must take reasonable measures to remain in contact with their employers during the shutdown and must be available for any work their employer may have for them that they are able to do. The DUA will ask employers to verify the return-to-work date, and if employers fail to respond, standby status will be assigned for four weeks. Employers may request to extend the period of the covered shutdown to a maximum of eight weeks, and workers can continue to receive benefits during the extension so long as they continue to meet the eligibility conditions. If workers remain out of work beyond the duration of the standby period, then the workers must satisfy the standard eligibility criteria to receive benefits beyond the standby period.
The DUA has also issued guidance for both employers and employees in response to COVID-19 and the state of emergency. For employers, the DUA is easing some of the normal filing rules. Businesses which are severely impacted by COVID-19 can request extensions of up to 60 days for filing reports, paying unemployment contributions, or making certain payments in lieu of contributions. The DUA will also excuse missed filing deadlines due to the effects of COVID-19 if an employer can demonstrate good cause -- namely that the employer’s business operations are severely impacted by COVID-19.
For workers, the guidance broadens who may be eligible for unemployment benefits. Employees who are quarantined due to an order by a civil authority or a medical professional may be eligible for unemployment benefits. Individuals who leave work due to a reasonable risk of infection or to care for a family member may be eligible for benefits as well. Self-employed individuals and independent contractors will become eligible for unemployment benefits if President Trump makes a disaster unemployment declaration applicable to Massachusetts.
In addition to efforts relating to unemployment, the Fair Labor Division of the Office of the Massachusetts Attorney General (“OAG”) has issued a series of Frequently Asked Questions (“FAQs”) relating to COVID-19 for employers and employees. These FAQs are not formal regulations or guidance and do not have the force of law. However, they do offer insight as to the Attorney General’s position on some wage and hour issues. The below represents a summary of some of the most significant issues addressed. All of the FAQs can found here: https://www.mass.gov/service-details/frequently-asked-questions-about-covid-19-employee-rights-and-employer-obligations.
Most significantly, the OAG opines that employees who are temporarily laid off are entitled to a payout of accrued vacation time on the date of the layoff. The Wage Act requires employees who are involuntarily discharged to be paid their earned wages, including vacation time, on the date of discharge. The FAQ equates a temporary layoff, where the employer expects to recall the worker after a period of time, to a permanent one. The OAG notes, however, that it will not bring an enforcement action if an employee voluntarily elects to save earned vacation time for later use after a return to work.
The FAQs also address the use of sick time under the Massachusetts Earned Sick Time law. If an employee is required to stay home because the employee or a family member has been exposed to COVID-19, the FAQs encourage employers to allow employees to use earned sick time in these situations. Similarly, the FAQs encourage employers to allow a “liberal use” of sick time or other paid time off if an employee does not feel comfortable carrying out a work assignment. However, if an employee is facing a temporary layoff or partial unemployment due to reduced hours, the FAQs state that employees may not be required to use their sick time before applying for unemployment.