The Massachusetts legislature is considering expanding the state’s generous paid sick leave statute to add up to 80 hours of emergency paid sick leave for use in times of a declared state of emergency or disaster. While inspired by the current COVID-19 pandemic, the bill would make these benefits permanent, and the benefits would be available during any future state of emergency or disaster. If passed, the statute would take effect immediately, include a private right of action, and subject employers to mandatory triple damages — even for good faith or technical mistakes. What do you need to know about this proposal?
How Much More?
As most Bay State employers are aware, Massachusetts already requires that all employees accrue sick time at a rate of 1 hour for every 30 hours worked, up to 40 hours annually. Employers with 11 or more employees must pay for this leave, while smaller employers may offer the leave unpaid. This leave can be used for a number of reasons including routine medical appointments, personal illness, to care for certain family members with an illness, and to deal with the impacts of domestic violence.
The pending legislation would add an addition 80 hours to this total for full-time employees to use during a declared state of emergency or disaster. Part-time employees are eligible for the number of hours the employee is otherwise scheduled to work in a 14-day period. There is no length of service or other eligibility requirements for employees in order to qualify for the emergency leave.
When Can The Leave Be Used?
The emergency paid leave under the draft bill would only be available during a “declared state of emergency or disaster” in Massachusetts. Though the leave would carry over from year-to-year, it is only available until the state of emergency declaration is terminated. Importantly, this bill is designed to outlast the present COVID-19 pandemic and be available for any future state of emergency or disaster as well.
According to the Massachusetts Emergency Management Agency, there have been 11 state of emergency declarations since 2011, usually related to weather such as winter storms, hurricanes, and tornadoes. Prior to the COVID-19 pandemic, the most recent declaration was in 2018 as a result of a series of gas explosions in the Merrimack Valley. That declaration remains in place. How the leave could be used outside of a public health emergency is unclear.
How Can the Leave Be Used?
The draft legislation includes five qualifying uses for the emergency leave:
- An employee’s need to self-isolate and care for oneself due to a diagnosis of a communicable illness, due to symptoms of a communicable illness, to seek a medical diagnosis, or to seek preventative care concerning a communicable illness related to a public health emergency;
- To care for a family member for any of the reasons in number 1;
- Due to a determination by a local, state, or federal public health official, a health authority having jurisdiction, the employee’s employer, or a health care provider that the employee’s presence on the job or in the community would jeopardize the health of others;
- Care of a family member subject to number 3; and
- An employee’s inability to work or telework while subject to an individual or general local, state, or federal quarantine, including a shelter-in-place order, related to a public health emergency, or a closure of the employee’s place of business by order of a local, state, or federal public official, or a closure at the discretion of the employer due to a public health emergency.
You should be aware that this proposed leave is significantly broader than the emergency paid sick leave provisions in the Families First Coronavirus Relief Act, under which a generally applicable shelter-in-place or business shutdown order does not qualify employees for paid leave. The proposed legislation also appears to entitle employees to leave when they are not otherwise scheduled to work, which is not permitted under existing state paid sick leave law.
What Would This Cost And Who Would Pay For It?
This paid leave would be paid at the same hourly rate as the employee regularly earns, subject to a weekly cap of $850 per week. In a lone bright spot for employers, the additional paid leave would be fully reimbursable by the Massachusetts Department of Revenue within five business days of an application for reimbursement, so long as the employer has not taken a federal tax credit under the FFCRA for the same payments.
Of course, the actual leave payments are not the only cost to employers, as the bill creates onerous record keeping and notice provisions and imposes additional job protections. The bill also makes clear that this new leave would be in addition to any leave already offered by the employer and prohibits employers from modifying existing leave policies as a result of the bill. Employers would not be able to require the use of other paid leave before using the emergency paid leave either.
Finally, and most importantly for employers, the legislation would subject employers to claims of interference and retaliation, would provide a private right of action for employees, and would impose mandatory triple damages under the Massachusetts Wage Act for any employer mistakes, regardless of how minor or whether they were made in good faith.
The bill is one of several efforts across the country to expand the availability of paid time off as a result of the COVID-19 pandemic. As of publication, the bill had been referred to committee and there is no timetable for its passage, but any updates are available here.