Under a law that took effect on May 28, 2021, and which was extended effective October 1, 2021, all employers in Massachusetts must provide employees with up to 40 hours of Emergency Paid Sick Leave (EPSL) if an employee is unable to work due to certain reasons related to COVID-19. Unlike the federal emergency paid sick leave program under the Families First Coronavirus Response Act (FFCRA), employers in MA cannot opt out of this new law, nor are there carve outs in the statute for employers of certain sizes—it appears that all employers (other than federal agencies) must provide EPSL under this law to all MA employees. EPSL is generally in addition to other paid time off that employers provide to their MA employees. Notably, employers can seek reimbursement from the Commonwealth for the cost of EPSL used by employees.
The following are the key aspects of this new law:
Under the extended law, employees are eligible to take EPSL until the earlier of April 1, 2022, or when the date on which Commonwealth’s $75 million fund for EPSL is exhausted.
MA employees can use EPSL for one of the following reasons:
EPSL can be used intermittently and in hourly increments. Employees who work 40+ hours per week are eligible to receive up to 40 hours of EPSL. Employees who regularly work fewer than 40 hours per week are eligible for an amount of EPSL equal to the average number of hours they work each week. If an employee works an irregular schedule, they are eligible for an amount of EPSL equal to the average number of hours they were scheduled to work over the prior six months. If an employee with an irregular schedule has not been employed for at least six months with the employer, the employee’s EPSL entitlement is equal to the number of hours per week the employee was scheduled to work when hired.
The maximum amount an employee is eligible to be paid for EPSL is $850 (including cost of benefits).
Employers should note that Massachusetts will reimburse employers up to $850 per employee for payments made to employees who utilize EPSL. To date, these reimbursements appear to be underutilized and employers who have provided EPSL to employees should consider seeking reimbursement.
Employers that plan to seek reimbursement should obtain the following from an employee who takes EPSL:
All health-related information the employee provides in connection with an EPSL request is a medical record and should be treated as such by the employer (meaning, it should be kept confidential, maintained in a file separate from other personnel records, etc.).
The employer should also ensure it has a record of amounts paid to the employee during EPSL, the amount of EPSL taken, the employee’s regular schedule, and other information to facilitate reimbursement.
Employers cannot obtain reimbursement from Massachusetts for EPSL payments if also seeking or sought reimbursement from the federal government pursuant to such leave under the FFCRA.
Employers are required to post a notice to employees about EPSL. The required notice is available online.
Our Nixon Peabody team will continue to provide updates on other issues facing employers and solutions to assist them in navigating these quickly evolving times.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.
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