New England Biz Law Update
Massachusetts employers have faced numerous challenges in the past year with the COVID-19 pandemic. Despite swift development of promising vaccines, the pandemic continues unabated, leaving many employers to confront pressing employee absence issues while navigating new employment leave laws.
Naturally, due to the novel issues presented, Massachusetts employers frequently have questions about not just the new laws, but about how the federal, state and local laws interact with each other and related employer obligations. Among those questions are the following.
Is there a federal leave law addressing employee absences necessitated by COVID-19?
The Families First Coronavirus Response Act — or FFCRA — became the first paid leave of absence law to be enacted on a nationwide level. Applying to employers with fewer than 500 employees and governmental agencies, the FFCRA created two new emergency paid leave requirements in response to the COVID-19 global pandemic: Emergency Paid Sick Leave — or EPSLA — and Emergency FMLA Leave — or EFMLEA. Protected paid leaves were available to employees between April 1 and Dec. 31, 2020.
Under the EPSLA, a full-time employee was eligible to take up to 80 hours (two weeks) of leave for COVID-19 qualifying reasons, and under the EFMLEA, an employee was eligible to take up to 12 weeks of leave for child care COVID-related reasons.
As of Dec. 31, 2020, those paid leave benefits are no longer mandatory. However, employers may elect to voluntarily permit employees to use any unused FFCRA leave through March 31, 2021, in exchange for a payroll tax credit.
If an employer chooses to extend its provision of FFCRA leave and pay, employees who have exhausted available FFCRA paid leave entitlements will not be entitled to additional paid leave time. However, if an employee has not exhausted all his or her FFCRA paid leave as of Jan. 1, 2021, and a covered employer chooses to do so, the employee’s deadline to use any remaining FFCRA leave may be extended through March 31, 2021. Employers will not receive tax credits for benefits provided in excess of statutory limits.
Employers that have not yet paid employees who took FFCRA leave from April 1 to Dec. 31, 2020, will be required to do so. Even if the employer does not elect to extend the FFCRA leave past Dec. 31, it must compensate the employee for eligible FFCRA leave taken in 2020.
Notwithstanding the FFCRA’s expiration, employers must continue to comply with the Americans with Disabilities Act, the Family and Medical Leave Act, and any other applicable federal, state and local laws, including any laws that subject employers to additional employee leave and/or pay requirements.
If an employer elects to extend FFCRA benefits, how will it impact any Family and Medical Leave Act leave that may be available to an employee in 2021?
The FFCRA amended the FMLA to grant emergency FMLA leave to an employee who was unable to work (or telework) due to the need to care for a child whose school or child care provider was closed or unavailable for reasons related to COVID-19.
Under the EFMLEA portion of the FFCRA, employees received up to 10 weeks of job-protected paid leave (in addition to two weeks of unpaid leave for this same reason). Any EFMLEA leave counted against an employee’s regular FMLA entitlement. Likewise, an employee’s prior use of FMLA may limit the overall amount of EFMLEA available to an employee.
Depending on how an employer calculates the employee’s 12-month FMLA period (i.e., calendar year, fiscal year, a 12-month period measured forward from use of FMLA leave, or a rolling 12-month period measured backward from use of FMLA leave), an employee may be entitled to the balance of his or her FMLA entitlement in 2021. For example, an employee who took six weeks of EFMLEA leave to care for a child during virtual learning may still have six weeks of unpaid FMLA leave remaining for leave for another FMLA-qualifying reason.
Does the new Massachusetts Paid Family and Medical Leave Law provide any protection for employees affected by COVID-19?
Beginning on Jan. 1, 2021, employees in Massachusetts are eligible to apply for and receive paid leave under the Paid Family and Medical Leave — or PFML — law.
While the PFML does not specifically provide leave for COVID-19-related reasons, it does allow up to 20 weeks of paid, job-protected leave for eligible employees with a serious health condition (and effective July 1, 2021, 12 weeks of leave to care for a family member with a serious health condition). A positive COVID-19 test is not necessarily enough, by itself, to establish a serious health condition for PFML purposes.
Under the PFML, a “serious health condition” is defined as an illness, injury, impairment, or physical or mental condition that involves “inpatient care … or continuing treatment by a health care provider.”
“Inpatient care” includes any hospitalization overnight. “Continuing treatment” generally means that an individual is incapacitated (and cannot work) for more than three consecutive calendar days and receives continuing treatment by a health care provider (e.g., multiple doctor’s appointments and/or follow-up care, including prescription medication).
Employees with COVID-19 who experience serious symptoms requiring inpatient care, including hospitalization, will be deemed to have a serious health condition under the PFML. Employees with COVID-19 who experience serious symptoms requiring multiple doctor visits that include a regimen of prescription medication may also qualify for PFML.
Employees with COVID-19 who suffer only mild symptoms, however, may not be covered by the PFML, as that would not rise to the level of a serious health condition. Because the PFML’s definition of a serious health condition mirrors the FMLA, the eligible employee may also be entitled to concurrent FMLA leave if FMLA-eligible.
If an employer elects to extend FFCRA benefits, how will that affect the benefits available under the PFML?
If a covered Massachusetts employer elects to voluntarily extend the employee’s deadline to use any remaining EPSLA benefits through March 31, 2021, and the need for EPSLA leave also meets the PFML’s definition of “serious health condition,” it is unclear whether the EPSLA leave will run concurrently or consecutively with the PFML-qualifying leave.
A U.S. Department of Labor FAQ provides that if an employee takes paid sick leave under the EPSLA, that leave does not count against other types of paid sick leave to which the employee is entitled under “State, or local law; an applicable collective bargaining agreement; or employer’s existing company policy.”
There is an argument to be made, however, that because the extension of FFCRA benefits into 2021 is voluntary, the employer is offering greater benefits to its employees than those allowed by the PFML, and thus is allowed an offset. The Department of Paid Family and Medical Leave has not issued guidance on this issue.
Can employees use the PFML to care for a family member with COVID-19?
Similar to employees who are suffering from COVID-19 symptoms, and as discussed above, whether an employee can use the PFML to care for a family member with COVID-19 will depend on whether that family member has a serious health condition.
Employers should keep in mind that the PFML’s definition of family member is broader than the FMLA’s and includes leave to care for domestic partners, siblings, grandparents and grandchildren.
If an employee’s leave time related to COVID-19 does not qualify under the PFML, are there any other Massachusetts statutory leaves available?
Even if an employee is not entitled to leave under the PFML, employees may be entitled to job-protected leave under the Massachusetts Earned Sick Time Law — or EST.
Even if an employee is not entitled to leave under the PFML, employees may be entitled to job-protected leave under the Massachusetts Earned Sick Time Law.
Under the EST, most employees have the right to earn and use up to 40 hours of job-protected sick leave for certain medical-related reasons. All employers, regardless of their size, must provide sick leave to employees. Employers with 11 or more employees, however, must provide paid sick leave.
For example, sick leave may be used for one’s own or family member’s physical or mental illness, injury or medical condition that requires home care, professional medical diagnosis or care, or preventative medical care. EST can also be used to attend routine medical appointments or to travel to and from appointments, pharmacy or other locations related to the medical purpose.
Employers cannot require medical documentation from employees unless they have been absent for more than three consecutive days. Practically speaking, however, employers should bear in mind that it may be difficult for employees to see a doctor during the current crisis, so requiring such documentation may prove infeasible.
Is the PFML or FMLA available for an employee without symptoms who has been exposed and is under quarantine?
If the employee has no symptoms, it is likely he or she will not be entitled to leave under the PFML or FMLA, because that person is not deemed to have a serious health condition.
The EST allows leave, however, for “preventative care,” which has been interpreted to cover quarantines. The Massachusetts attorney general has specifically instructed that the EST can be used when a public health official or a health care provider either requires or recommends that an employee or the employee’s family member quarantine.
While leave for employees who miss work because of a school’s closure due to COVID-19 is not covered under the EST, the AG encourages employers to allow the use of the EST, or other accrued paid leaves, for that purpose.
With the expiration of the FFCRA, Massachusetts employers must evaluate COVID-related leave requests under other available statutes. And they are encouraged to consult their employment counsel considering the complexity of the issues, and the fact that courts have not yet interpreted the new laws and administrative guidance continues to evolve.
Alice A. Kokodis, an attorney at Littler in Boston, litigates on behalf of employers and provides advice on complex employee leave and accommodation issues.
