On May 28, 2021, Massachusetts Governor Baker signed a new law requiring all Massachusetts employers to provide full-time employees up to 40 hours of emergency paid sick leave for certain COVID-related reasons. The obligation is effective from May 28, 2021 to September 30, 2021 or until the $75 million allocated by the legislature to fund the program is exhausted, whichever is first. Employers are required to notify their workforce of the new law. The English poster is available here. The notice can be transmitted electronically (and/or posted on the employer’s intranet) for employees who are working remotely.
Additionally, under the American Rescue Plan Act (ARPA), signed into law by President Joseph R. Biden, Jr. in March 2021, certain qualified beneficiaries are relieved from paying the premium costs related to their continuation of group health insurance coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) and under similar state laws (“mini-COBRA” laws) applicable to smaller employers, from April 1, 2021 to September 31, 2021, as long as they remain eligible for the federal subsidy. Employers were required to notify assistance eligible individuals by May 31, 2021.
This alert summarizes employer obligations under both programs.
MA Emergency Paid Sick Leave (MA EPSL)
Eligibility for MA EPSL
All employees (including new hires, family care providers and personal care attendants) whose primary place of employment is in Massachusetts, are eligible for MA EPSL. According to the guidance issued by the state, the law applies to a non-Massachusetts resident who travels to Massachusetts for work, but would not apply to a Massachusetts resident who works outside the state.
Given that many employees are still working remotely as a result of the current pandemic, it may be difficult to determine what is an employee’s “primary place of employment.” The guidance clarifies that an employee’s locale is the “worksite or physical location where the employee spent the greatest percentage of work hours between” January 1, 2020 and April 30, 2021, and that a temporary telecommuting arrangement during this period should not be considered for purposes of this analysis. For employees hired after May 1, 2021, the employer should consider the location where the employee is expected to spend the most time, through September 30, 2021.
Benefits Available
Qualifying employees are eligible for up to 40 hours of MA EPSL in the case of full-time employees. That amount is pro-rated amount based on average hours regularly worked for part-time employees.
Qualifying employees are paid at their regular rate of pay for MA EPSL time, up to a maximum of $850. For employees who earn more than $850 per week, any MA EPSL used after the dollar cap is reached will be unpaid. However, an employee may use another form of accrued paid time off available to them, such as accrued sick leave, to receive pay during the remaining unpaid MA EPSL time. Any accrued paid time off used for remaining unpaid MA EPSL will run concurrently with the MA EPSL.
Reasons for Leave
MA EPSL may be taken for any of the following reasons:
- an employee’s need to: (i) self-isolate and care for oneself because of the employee’s COVID-19 diagnosis; (ii) get a medical diagnosis, care, or treatment for COVID-19 symptoms; or (iii) get or recover from a COVID-19 vaccination;
- an employee’s need to care for a family member who: (i) must self-isolate due to a COVID-19 diagnosis; or (ii) needs medical diagnosis, care, or treatment for COVID-19 symptoms;
- a quarantine order or similar determination regarding the employee by a local, state, or federal public official, a health authority having jurisdiction, or a health care provider;
- an employee’s need to care for a family member due to a quarantine order or similar determination regarding the family member by a public official, health authority, or the family member’s employer or health care provider; or
- an employee’s inability to telework due to COVID-19 symptoms.
The above reasons are largely consistent with leave that was mandated under the federal Families First Coronavirus Response Act (FFCRA). We previously reported on the FFCRA requirements. Although the FFCRA employer mandate expired on December 31, 2020, federal legislation enacted by President Trump, and most recently President Biden (pursuant to the American Rescue Plan Act of 2021 (ARPA) extended the availability of the tax credit for employers who voluntarily chose to extend FFCRA leave benefits to their workforce, through September 30, 2021. (ARPA also modified the leave entitlements under FFCRA).
Importantly, employers who voluntarily chose to provide FFCRA paid leave to Massachusetts workers between January 1, 2021 and May 28, 2021 are required to provide an additional 40 hours of paid time off under the MA EPSL. Likewise, MA EPLS is separate from employee’s sick time entitlement under the MA earned sick leave law. Therefore, use of MA EPSL may not be deducted from an employee’s sick leave or vacation bank. However, MA EPSL can run concurrently with:
(A) with federal FFCRA, if used between May 28 and September 30, 2021; and/or
(B) an employer policy, separate from sick time, providing employees with paid time off in order to get vaccinated or recover from the COVID vaccine.
Seeking Reimbursement for MA EPSL
The state has determined that the federal tax credit program under the FFCRA is the primary source of funding for COVID-related paid sick time. Therefore, an employer applying for reimbursement under the state program will need to represent that it is not eligible for the FFCRA tax credit for any of MA EPSL benefits for which they seek reimbursement. If the employer is otherwise eligible for the tax credit under the federal FFCRA, a request for reimbursement from the Massachusetts program will be rejected. We expect this would be the case even if the employer previously chose not to continue offering FFCRA benefits after December 31, 2020.
Employers who plan to seek reimbursement from Massachusetts for the cost of providing MA EPSL should do so promptly, to ensure that funds will be available, and follow applicable documentation requirements. Although, as of this writing, the state had not developed the application for reimbursement, it has indicated that the following information will be needed:
- the employee’s name;
- the date(s) for which leave is requested and taken;
- a statement of the COVID-19 related reason the employee is requesting leave and written support for such reason; and
- a statement that because of the COVID-19 related reason the employee is unable to work or telework.
Federal COBRA Subsidy under ARPA
Under ARPA, the federal government will reimburse 100% of the cost of COBRA premiums for “assistance eligible individuals” (i.e. qualifying employees and their beneficiaries, or “AEI’s”) who lost their coverage due to involuntary termination or reduction of hours and who would have paid COBRA premiums for any part of the period from April 1, 2021 to September 30, 2021. On May 18, 2021, the IRS issued much needed guidance to provide further clarification regarding the COBRA subsidy.
Under the law, employers were required to (1) identify all employees, who lost their health coverage due to a reduction of hours or involuntarily termination and their beneficiaries, and who are or could have been eligible for COBRA coverage for any part of the COBRA subsidy period, and (2) send such individuals an updated COBRA notice with the COBRA subsidy language, by May 31, 2021.
This exercise required an 18-month look-back to terminations that occurred as early as October 2019 (as those former employees may continue to be eligible to elect COBRA). Please note that notice must be sent to all AEI’s, even those who did not previously elect COBRA. AEI’s get another chance to elect COBRA; this election can be retroactive to the time coverage was lost, or can begin as of April 1, 2021.
Employers who have not yet notified eligible former employees and/or their qualified beneficiaries are urged to do so as soon as possible. Please contact any member of our Labor & Employment group for assistance.