The Massachusetts Legislature is considering two bills containing expansive new protections for parents who are unable to return to work during the COVID-19 pandemic because of a lack of childcare as well as paid sick time for employees who aren’t eligible for the same benefit under a federal law Congress passed in March.
Because the bills have been designated as emergency legislation, they would take effect immediately if they pass and are signed into law. Here is a summary of how they would work.
Indefinite Leave, Unemployment Benefits for Employees Without Childcare
Massachusetts Senator Adam G. Hinds (D-Western Mass) recently filed S.2869, An Act to Protect Working Parents During the COVID-19 Emergency. The bill would:
- Forbid employers from firing “an employee who cannot physically report to work due to a lack of childcare”;
- Require employers to provide reasonable accommodations to an employee without childcare “to the best of their ability,” including telework and flexible schedule arrangements;
- Allow employers to require employees to use any available paid time off (PTO), including vacation, sick, and personal time, to receive pay for any period of time they are unable to work because of a lack of childcare;
- Extend state unemployment benefits to covered employees from the time they exhaust their PTO until 90 days after Governor Charlie Baker lifts the existing state of emergency; and
- Require employers to reinstate the employees at that time.
The bill spans just two paragraphs and leaves many key questions unanswered. For example, under what circumstances would employees lack childcare? Must the child’s school or usual place of care be physically closed? Or would employees also lack childcare if they voluntarily decide not to send their children back to a school or other place of care that’s open? And do employees have any obligation to consider potential alternatives before claiming they lack care?
Similarly, what must employers do to show they provided reasonable accommodations “to the best of their ability”? And what about the employees—do they have any obligation to look for work from an employer that could accommodate them while they’re collecting unemployment? Or must employers foot the bill for their indefinite unemployment benefits for the duration of what could be a very long state of emergency?
Bottom line. If the bill becomes law as written, you may face a mass exodus of employees with very little guidance about who really qualifies for job-protected leave, not to mention unexpected vacancies in positions that could be essential to your ongoing operations and would be impossible to fill on a temporary basis.
We hope the questions will be answered before the legislation passes. Otherwise, we’ll be looking to the attorney general for swift guidance.
Paid Sick Time for Employees Ineligible for Same Benefit Under FFCRA
The legislature is also considering S.2882, An Act Relative to Emergency Paid Sick Time. The Committee on Labor and Workforce Development has already approved the bill, which would establish a $55 million COVID emergency paid sick leave fund to provide the benefits for employees who aren’t eligible for Families First Coronavirus Response Act (FFCRA) leave.
The FFCRA gives many employees up to 80 hours of paid sick time for various pandemic-related reasons but doesn’t cover businesses with more than 500 workers. It also allows a business to be exempt from coverage if it employs (1) healthcare providers or emergency responders or (2) fewer than 50 employees if an officer certifies that providing the benefits to the workers would jeopardize the company’s ongoing viability.
S.2882 is broader than the FFCRA in significant ways. For one thing, it would remain in force after the current state of emergency is lifted and apply during any future public health emergency tied to COVID-19. Second, it would allow employees to use the paid sick time for several reasons not available to employees covered by the FFCRA, specifically:
- To seek (or care for a family member who is seeking) “preventative care” for COVID-19, a term that isn’t defined;
- To self-quarantine (or care for a family member who is self-quarantining) at the employer’s request because they were exposed to COVID-19 or are exhibiting symptoms, even without a healthcare provider’s recommendation; or
- To deal with a workplace closure by governmental order or at the employer’s discretion because of a public health emergency.
Finally, unlike the FFCRA, the bill doesn’t provide paid sick time to employees who can’t work because of a lack of childcare.
All covered employees, including temporary employees, would be eligible to take the paid sick time, regardless of how long they have been employed. Those who use it would receive their regular rate of pay for the duration of the absence, up to a maximum of $850 per week, and employers would receive reimbursement from the COVID Emergency Paid Sick Leave Fund by the Massachusetts Department of Revenue.
Employees could use the time on an intermittent basis in increments of 1 hour or the smallest increment of time by which the employer accounts for uses of other paid time, whichever is smaller. And employers wouldn’t be allowed to require employees to exhaust any other paid time they may have available—including regular earned sick time—before using the paid sick time provided by the bill, unless required by federal law.
Employees would be required to provide advance notice of the need to use the time only if the need is foreseeable and only as much notice as is “practicable.” Employers would be forbidden from requiring employees to search for or find a replacement to cover for them during the absence.
Finally, S.2882 contains typical nondiscrimination and retaliation provisions that would make it unlawful for employers to (1) interfere with, restrain, or deny the actual or attempted exercise of rights provided by the law or (2) take any adverse action against an employee who opposes any practice she believes is contrary to the statute, institutes legal action, or provides information in connection with any inquiry or proceeding. Employees whose rights are violated could file a civil action and seek mandatory triple damages for any lost wages and other benefits, along with reasonable attorneys’ fees and costs.
The attorney general would be empowered to adopt emergency rules and regulations to implement the program, and employers would have to post a notice of rights provided by the law in a conspicuous location and distribute a copy to their employees.
Bottom line. The principal challenges you’ll face if the bill becomes law are the lack of time to plan and prepare before it takes effect and the absence of critical guidance until the attorney general publishes regulations. Anyone who followed the U.S. Department of Labor’s (DOL) effort to implement the FFCRA understands just how many questions a law like it can generate and just how difficult it is to answer all questions quickly without raising even more questions.
The attorney general has the DOL’s efforts to draw upon for guidance, but the state measure isn’t identical, and implementing it will still take time. Meanwhile, if the law is in effect, covered employers will have no choice but to comply with it as best they can from day 1.
Erica E. Flores is an attorney with Skoler, Abbott & Presser, P.C., in Springfield, Massachusetts. You can reach her at firstname.lastname@example.org.