Massachusetts Emergency Paid Leave Act Updates

AAFCPAs would like to remind clients that in September of 2021, the state of Massachusetts extended their Emergency Paid Sick Leave Act, requiring employers to make paid leave time available to employees. These COVID-19 paid leave obligations will now continue until April 1^st, 2022.

The act is effective Friday, May 28^th, 2021, through April 1^st, 2022 or the exhaustion of $75 M in program funds as determined by the Commonwealth, whichever is earlier.

What’s New?

The continuation of the law, originally enacted back in May of 2021, remains largely intact with just a few changes. In addition to extending the mandate from September 30^th, 2021 to April 1^st, 2022, the legislature made one change to the qualifying reasons for leave. Employees will now be eligible to care for a family member who “is obtaining immunization related to COVID-19 or is recovering from an injury, disability, illness or condition related to such immunization.” This change makes equal the self-care vs family-care provisions of the law and can also be seen as bolstering the Commonwealth’s commitment to encouraging vaccinations.

The extension does not, however, grant any additional leave to employees who have already used their 40-hour entitlement. According to a Frequently Asked Questions page maintained by the Executive Office of Administration and Finance, while the law does not address how many times an employee can take leave, there is a cap with respect to total hours (40).

A Brief Refresher

As a reminder, all public and private employers in Massachusetts (other than the U.S. government) are required to provide up to 40 additional hours of paid leave to employees, who are unable to work due to COVID-19. The amount of paid leave an employee is entitled to depends on the number of hours they work in a given week:

• Employees regularly working 40 or more hours per week will receive 40 hours of COVID-19 paid leave.
• Employees regularly working fewer than 40 hours per week will receive COVID-19 paid leave that is equal to the number of hours that the employee works on average over a 14-day period.
• Employees working varying hours from week to week will receive COVID-19 paid leave equivalent to the average number of hours they worked each week over the six-month period immediately preceding the date on which they take the COVID-19 paid leave. If the employee did not work a six-month period prior to taking leave, then they will receive leave based on their reasonable expectation of the average number of hours per week that they would normally be scheduled to work.

Interaction with Federal Programs

Employers need to comply with the MA Leave requirements and may apply what has already been granted to employees under the federal program previously to the MA total leave and pay requirements.

On June 7^th, 2021, MA released FAQs, that provides clarity into the interaction of Families First Coronavirus Response Act (FFCRA). From the Americans Rescue Plan Act (ARPA), employers with fewer than 500 employees had the option to extend FFCRA benefits through September 30^th, 2021.

MA clarified within their FAQs, that MA EPSL “is for 40 hours between May 28 and the termination of the mandate. For an employee, who took federal leave prior to May 28, the state leave may be in addition to the federal leave. However, to the extent employees have not exhausted their federal leave, the state and federal leave may run concurrently on or after May 28, so long as the state mandate is met in full.”

To that extent, certain covered employers may have opted to obtain payroll tax credits through the extension of the Families First Coronavirus Response Act (FFCRA) and its extensions, most recently through the American Rescue Plan Act (ARPA). They may not seek reimbursement from both the state and the federal government. Payments for leave, that are eligible for reimbursement under FFCRA, are not eligible for reimbursement from the state’s MA EPSL fund.

What Can Employees Use the Leave For?

Employees may use COVID-19 paid leave for the following qualifying reasons:

• Self-isolating and caring for oneself because of the employee’s COVID-19 diagnosis.
• Seeking or obtaining a medical diagnosis, care or treatment for COVID-19 symptoms.
• Obtaining immunization related to COVID-19 or recovering from an injury, disability, illness or condition related to such immunization.
• Caring for a family member who is self-isolating due to a COVID-19 diagnosis.
• Caring for a family member who needs medical diagnosis, care or treatment for COVID-19 symptoms.
• Caring for a family member who is obtaining an immunization related to COVID-19 or is recovering from an injury, disability, illness, or condition related to such immunization.
• Complying with a quarantine order from a public official, health authority, the employer or a healthcare provider.
• An inability to telework due to COVID-19 because they have been diagnosed with COVID-19, and the symptoms inhibit their ability to telework.

The statutory definition of “family member” includes: an employee’s spouse, a domestic partner, a child, a parent (including the parent of a spouse or a domestic partner), a grandchild, a grandparent, or a sibling.

Protections for Employees

Under the law, employers may not compel employees to use other paid leave, provided by the employer, before using COVID-19 paid sick leave.

Retaliating against employees for using leave is also prohibited. Employers also cannot require, as a condition of taking leave, that an employee search for or find a replacement worker to cover their shifts while the employee is out on COVID-19 paid leave.

Employers must retain the same employment benefits for those eligible for COVID-19 paid leave, while they are on leave. These benefits include group life insurance, health insurance, disability insurance, sick leave, annual or vacation leave, educational benefits and pensions.

Notice of rights

The Executive Office of Labor and Workforce Development has created a notice of rights under the COVID-19 paid leave law.

As with other legal notices of employment rights, employers must place notice of the COVID-19 paid leave law in a conspicuous location accessible to all employees and additionally provide a copy to each employee. Remember remote workers when posting legal notices; additional posting on a company intranet is recommended.

Record-Keeping Obligations

Employers should develop a written request for leave form and maintain a copy in the employee’s personnel file. Employers must also keep written medical documentation from an employee if the employer is going to request reimbursement from the state.

While this law has no express restrictions, on what medical documentation an employer may collect, employers are cautioned to keep any health information confidential and not disclose it to any third parties without the employee’s permission.

Employers, who want to receive reimbursements from the Commonwealth for the costs of providing employees with COVID-19 Massachusetts emergency paid sick leave, must require their employees to submit requests for COVID-19 emergency paid sick leave in writing. Employers should therefore prescribe a form, that requires employees to provide the following information for all requests:

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, that the employee is requesting leave for, and written support for such reason; and
4. a statement, that because of the COVID-19 related reason, the employee is unable to work or telework.

For leave requests, 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, then – that person’s name and relation to the employee.

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.

Employers should also collect and retain the following information in anticipation of applying for reimbursement:

1. the employee’s social security or tax identification number;
2. the 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. 1. if the employee has no regular schedule, the hours that the employee was scheduled to work per week over the 6- month period, immediately preceding the date, on which such employee takes the COVID-19 Massachusetts emergency paid sick leave, including hours, for which such employee took leave of any type; or
   2. if the employee did not work over such 6-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 would normally be scheduled to work.

What Will This Cost Employers?

Employees are entitled to full wage replacement, up to a cap of $850. In other words, any employee, who earns less than $850 per week, will receive full pay during their COVID-19 paid leave. Fortunately, the law maintains the $75 million COVID-19 Emergency Paid Sick Leave Fund, created in May to reimburse eligible employers for the costs of this new mandate. Eligible employers will be reimbursed from the fund for providing COVID-19 paid leave, until the amount of the fund is depleted.

Importantly, employers may seek reimbursement for employee benefits costs as part of the $850 cap. Employers would be wise to calculate the hourly costs of benefits, when calculating their reimbursement requests.

How to Apply for Reimbursement

Beginning July 8, 2021, and until April 1, 2022 or the exhaustion of $75 million in program funds, as determined by the Commonwealth, employers may apply for reimbursement of the costs of providing COVID-19 emergency paid sick leave, consistent with the program parameters described above. The application is available through the Department of Revenue’s MassTaxConnect website.

The following are step-by-step instructions for submitting a claim:

1. Log into your MassTaxConnect account.

2:  Select the More… tab.

3: Select the Register for Emergency Sick Leave Reimbursement hyperlink in the Other Actions panel.

4: Read the instructions carefully.  When you have, select the Acknowledge check box and select Submit.  This will create an Emergency Paid Sick Leave account.

5: Select the Summary tab to return to your list of tax accounts.

6: Locate the Emergency Paid Sick Leave panel and select Returns hyperlink.

7: Here you will find a list of returns, that are available to be filed to submit your reimbursement request.  Select the File Now hyperlink for the week ending in which the sick leave was paid.

8: On the return fill out the required fields with the information for each employee, for which you are seeking reimbursement.  Read the Information section carefully and select the Attestation check box for each employee.   Choose Next, when you are finished.

9: Review the confirmation information and then choose Submit to file your request.

10: You have successfully made a request for Emergency Paid Sick Leave reimbursement.  Select OK to return to the Returns screen. If you need to file a request for another week, you can follow steps 5 – 11 again.  You do not need to create another Emergency Paid Sick Leave account.

11: The status of the return you just filed is Submitted.  The status will change to Processed overnight. If you need to, you can View or Amend a previously submitted and processed return.

The state put together a YouTube video to explain this as well. Additional information and FAQs can be found at the state website.

If you have any questions about how these provisions affect your organization, please contact your AAFCPAs Partner.