Seyfarth Synopsis: The Labor and Workforce Development Committee of the Massachusetts Legislature has recommended favorable action on a bill that would provide up to 80 hours of paid sick time to employees who need to take time off from work for certain reasons related to the current COVID-19 public health emergency and who are not currently eligible for paid sick time under the federal Families First Coronavirus Response Act. The Legislature is also considering another bill that would provide job protection to Massachusetts workers who cannot work due to a lack of childcare and would require employers to provide reasonable accommodations to these employees. The Committee is accepting input on the childcare bill until Friday, August 7, 2020. Both of these bills are designated as emergency legislation and would become effective upon passage.
Protections For Employees Lacking Childcare
The Massachusetts Legislature is considering S. 2869, titled “An Act to protect working parents during the COVID-19 emergency.” This bill includes the following provisions:
Prohibits an employer from terminating an employee who cannot physically report to work due to a lack of childcare;
Allows an employer to require that an employee use paid time off, including vacation, sick, and personal time, for any time that an employee cannot perform their duties due to a lack of childcare;
Requires employers, “to the best of their ability,” to provide reasonable accommodation to employees lacking childcare, including, but not limited to, telecommuting and flexible schedule arrangements; and
Specifies that an individual who is unable to perform their job functions due to a lack of childcare and who has exhausted all of their paid time off benefits, will be eligible for unemployment benefits until 90 days following the termination of the COVID-19 state of emergency. At the end of this period, employees will be entitled to return to their position.
The summary above includes all of the details provided in the Act and leaves open a number of questions including:
What constitutes a lack of childcare?
What is the standard that will be used to determine if an employer can provide a reasonable accommodation?
During the period that an individual is eligible for unemployment, does an employer have to maintain the employee on their benefit plans?
If an employer must replace an employee because he or she is unable to work, is the employer required to terminate the replacement employee when the employee is able to return to work?
Employers are able to submit comments about this proposed bill in writing or by video to the Labor and Workforce Development Committee anytime between now and 5:00 p.m. on Friday August 7, 2020. Additional information about how to submit comments can be found here.
Emergency Paid Sick Time
On August 3, 2020, the Labor and Workforce Development Committee recommended passage of a separate bill, S. 2882, titled “An Act relative to emergency paid sick time.” This bill is a re-draft of emergency paid sick time legislation that the Legislature has been considering for months and on which we reported. With a few exceptions discussed below, the re-drafted bill is identical to the previous draft. However, because the funding of this leave will come from the Commonwealth, this bill’s passage may be tied to negotiations and passage of the State budget.
If passed, the Massachusetts law would provide up to 80 hours of “emergency paid sick time” to employees who are not otherwise entitled to leave under the federal Families First Coronavirus Response Act (FFCRA), which applies to employers with fewer than 500 employees (but provides a potential exemption for employers with fewer than 50 employees). The Massachusetts bill is designed to extend similar sick-time benefits as those provided in the FFCRA to employers with 500 or more employees and other employees not covered by the FFCRA (e.g., health care providers and emergency responders). This emergency paid sick time would go into effect immediately and would be in addition to the paid sick time currently provided under the Massachusetts Earned Sick Time law.
Reasons for Use of Emergency Paid Sick Time
Emergency paid sick time under the proposed bill is similar in some respects, but not identical to that provided by the FFCRA. The Massachusetts law would make sick time available to employees during the current declared public health emergency if an employee is absent from work and unable to telework (and is not entitled to leave under the FFCRA), for one of the following reasons:
An employee’s need to (i) self-isolate and care for oneself because the individual is diagnosed with a communicable illness related to a public health emergency; (ii) self-isolate and care for oneself because the individual is experiencing symptoms of a communicable illness related to a public health emergency; (iii) seek or obtain medical diagnosis, care, or treatment if experiencing symptoms of a communicable illness related to a public health emergency; or (iv) seek preventive care concerning a communicable illness related to a public health emergency;
To care for a family member who needs to take any of the measures included in Reason #1 above;
Determination by (i) a local, state, or federal public official, (ii) a health authority having jurisdiction, (iii) the employee’s employer, or (iv) a health care provider, that the employee’s presence on the job or in the community would jeopardize the health of others because of the employee’s exposure to a contagious illness or exhibiting of symptoms, regardless of whether the employee has been diagnosed with a contagious illness;
To care for a family member who is subject to a determination as set forth in Reason #3 above;
An employee’s inability to work or telework while subject to either (i) an individual or general local, state, or federal quarantine or isolation order, including a shelter-in-place order related to a public health emergency or (ii) closure of an employee’s place of business by order of the local, state, or federal public official or health authority or at the discretion of the employer due to a public health emergency.
Unlike the FFCRA, the Massachusetts bill does not provide paid sick time for employees who are unable to work because their child’s school or place of care is closed or their child care provider is unavailable. As discussed above, instead of providing additional leave benefits, the Legislature is seeking to address this issue in a separate bill by providing additional protections to employees who are out of work because of a lack of childcare.
Funding for Leave
The proposed sick-time legislation establishes a COVID Emergency Paid Sick Leave Fund of $55 million that will be used to reimburse employers for the cost of sick time. Sick time provided by employers to employees under the proposed legislation will be reimbursed by the state. The maximum amount an employee may receive for sick time is capped at $850 per week.
Employers will have to seek reimbursement from the Department of Revenue (DOR) for sick time benefits paid to employees. The proposed law requires the DOR to reimburse employers within 5 business days either by direct deposit or by check to the employer.
Employers would not be eligible for reimbursement for emergency paid sick time payments if the employer is entitled to receive a federal payroll tax credit for these payments, including federal payroll tax credits under the FFCRA.
Revisions to Prior Bill
Of interest to employers, the re-draft of the bill includes the following substantive revisions:
The scope and duration of the proposed bill is more limited. Instead of amending the current Massachusetts Earned Sick Time law to provide additional paid sick time during any declared state of emergency or disaster, the current bill is a stand-alone law that would provide additional paid sick time only during the current COVID- 19 public health emergency or any subsequent states of emergency related to the COVID-19 virus.
The revised bill clarifies how an employer should calculate the amount of paid sick time available to an employee who works fewer than 40 hours in a week. Consistent with the prior bill, the revised bill states that employees who work fewer than 40 hours in a week are entitled to sick time equal to the amount of time the employee is otherwise scheduled to work or works on average in a 14-day period. The revised bill now states that the employee should receive whichever amount is greater. The revised bill also provides a specific method for employers to determine how much sick time an employee should receive if their schedule varies from week to week.
The prior bill specifically stated that documentation supporting the need for paid sick time would not be required. That provision has been deleted from the revised bill; however, the revised version does not indicate what type of documentation an employer may request or what an employee will be required to provide.
Additional details about the proposed bill can be found in our prior Legal Update, including: (i) how much sick time an employee can take; (ii) employer and employee notice requirements; (iii) impact of this emergency leave on other types of leave; (iv) intermittent leave; and (v) enforcement of the proposed law.
As noted, if the Massachusetts Legislature passes these proposed bills, they will become effective immediately. The paid sick time bill is currently before the Senate Ways and Means Committee. The status of the bill can be tracked here. Employers should review their current leave policies now to understand how the emergency paid sick time law would impact their business. Employers can track the status of the childcare bill here.
With the COVID-19 and paid leave landscape continuing to expand and grow in complexity, companies should reach out to their Seyfarth contact for solutions and recommendations on addressing compliance with this proposed legislation and paid leave requirements generally.
 A family member is defined as an employee’s spouse or domestic partner, child, parent or parent of a spouse or domestic partner, grandchild, grandparent, sibling, an individual who resides regularly in the home of the employee or a similar individual with whom the employee has a relationship that creates an expectation that the employee would care for the person if he or she were quarantined or self-quarantined, and any other individual related by blood or whose close association with the employee is the equivalent of a family relationship.
 The prior bill stated that funding would come from the Commonwealth’s Stabilization Fund. The revised bill sets up a separate COVID Fund to support this initiative.