Federal Paid Sick Time & Leave Requirements  

The Families First Coronavirus Response Act (FFCRA) recently passed by Congress requires certain employers to provide new sick time benefits and newly created Public Health Emergency Leave to employees affected by the current health crisis. RAM members should be aware of their new obligations under the law as well as how the law intersects with the existing Massachusetts Earned Sick Time Law requirements.  The following information is intended to help you understand your available options for protecting your workforce during the ongoing pandemic and safeguard your business against liability.  

Members are strongly encouraged to visit the Department of Labor’s website to find FAQ’s, an Employer Fact Sheet, and the law’s Required Employee Notice Poster.

How is sick time earned?  

Under the Massachusetts Earned Sick Time Law, most workers have the right to earn and use up to 40 hours of job-protected sick time each year. The sick time is earned at a rate of 1 hour for every 30 hours worked but may also be provided as a lump sum. Once earned, there is no waiting period for use of available accrued sick time. The Massachusetts law applies to almost all employers with in-state employees.

The FFCRA requires employers to provide full time workers 80 hours of sick time, and a pro rata allotment for part time workers. This time is not earned, instead it must be provided to all employees as of April 1st or on employee’s first day of employment and may be used through December 31, 2020 for covered reasons. The FFCRA sick time requirement applies to businesses with less than 500 employees. Size is determined as of the date the leave is taken and includes all full time and part time employees throughout the United States.

For what reasons may sick time be used?   

MA sick time may be used by an employee to care of him or herself and certain family members (child, spouse, parent, spouse’s parent) who fall ill, are injured or have a routine medical appointment.  Employees may also use sick time to address issues related to domestic violence. 

FFCRA sick time use is limited to instances when an employee is unable to work or telework for certain reasons related to the COVID-19 outbreak.  Qualified reasons include the employee (1) being subject to a quarantine or isolation order issued by the government or a medical professional, (2) experiencing COVID-19 symptoms, (3) having a bona fide need to care for an individual under a quarantine or isolation order or experiencing COVID-19 symptoms, or (4) having a need to care for a child whose school or daycare has been closed due to the pandemic. 

It is important to note that the FFCRA applies to quarantine or isolation orders specifically directed at an individual and not blanket government actions such as Governor Baker’s Stay-At-Home Advisory or Essential Services Order currently in effect in MA.

Is sick time a paid benefit?  

Under the MA law, all employers must provide sick time, but only employers of 11 or more employees must provide sick time that is paid at the employee’s regular rate.  Determination of the business size is made by a straight head count of ALL employees, including full time, part time, seasonal, per diem, temporary, out of state workers and owners and officers of the company that are on payroll.

All sick time provided under the FFCRA is paid.  Sick time taken by an employee to care for him or herself must be compensated at the employee’s regular rate of pay, capped at $511 per day.  Sick time taken to care for a family member or for child care is compensated at two thirds of the employee’s regular rate of pay, capped at $200 per day.

Can sick time be used intermittently?

The smallest amount of sick time an employee must be allowed to use under the MA law is one hour.  For uses beyond one hour, employees may use earned time in hourly increments or in the smallest increment used by the employer’s payroll system.  However, if the absence requires that the employer hire a replacement, then the employer can require sick time use up to the full shift.

Under the FFCRA, employees must use a full day increment unless the employer agrees to a smaller amount.  The law also prohibits the use of incremental sick leave in instances where the employee took leave due to COVID-19 exposure or infection.  In such cases the employee must use sick time each day for the duration of the allowable leave or until the qualifying reason for leave ceases.

 Can an employee be required to use other leave benefits before using sick time?

Employers may satisfy the requirements of the MA law through their own sick leave policy or other paid time off policy that employees use as sick leave, as long as the policy provides the same benefits and protections that the law requires, or better.  However, employees are given the discretion as to whether they want to use accrued sick time or another type of leave available to them.  Employers may not require that the employee use accrued sick time.

FFCRA prohibits employers from requiring that employees use other available sick time or leave benefits before FFCRA provided benefits are made available.  FFCRA sick time must be provided in addition to any vacation, PTO or sick leave previously offered to the employee.  When combined with the MA law, covered employers will have to provide 120 hours of sick time to their workers in MA—40 hours under the MA law then 80 under the FFCRA.   

Do employees have to provide proof of their need for sick time?

The MA law requires that employees provide notice to employers of their intent to take leave unless there is an emergency.  Employers are only allowed ask for a doctor’s note or other documentation of proof in limited circumstances—in particular, only if an employee misses more than 3 consecutive workdays.  Requesting specifics about the underlying illness or reasons for the absence are prohibited.  Employers are allowed to request that the employee fill out a form stating that they are using sick time for a covered purpose.

When foreseeable, an employee should provide notice of leave to the employer under the FFCRA. After the first day of paid sick time, an employer may require employees to follow reasonable notice procedures in order to continue receiving paid sick time.

The federal law also requires employees to provide a statement outlining the FFCRA eligible reason for taking leave and to provide documentation in support.  Employers are required to maintain the statement and supporting documentation as part of their records and are therefore permitted to request such from the employee.  The required documentation varies based on the eligible need stated by the employee seeking leave.

Public Health Emergency Leave

In addition to the 80 hours of COVID-19 related sick time, the FFCRA also requires employers with fewer than 500 employees to provide employees who have worked for the business for 30 calendar days with an additional 12 weeks of Public Health Emergency Leave (PHEL) to care for a child whose school or day care has been closed due an emergency shut down order.  The first two weeks of PHEL are unpaid but other accrued leave may be used at the discretion of the employee.  The new PHEL is compensated at two thirds the employee’s regular rate of pay, capped at $200 per day.

The law does allow for a hardship exemption for businesses with less than 50 employees when providing benefits would jeopardize the viability of the business.  This exemption will only apply to leave taken to care for a child whose school or daycare center is closed.  The Department of Labor is currently working on regulations to govern the exemption. 

Are employers responsible for funding these new FFCRA benefits?

While employers are required to pay wages to employees taking FFCRA sick time or PHEL, the law provides a dollar for dollar refundable tax credit for all qualifying wages paid by the employer.  The tax credit is available for all qualified wages paid for sick time or leave taken between April 1 and December 31, 2020. The tax credit is applied against the employer’s portion of payroll taxes.

Do employers have to provide notice of these benefits? 

The FFCRA requires covered employers to provide a model notice created by the Department of Labor to all employees.  The notice should be posted in the workplace and also provided to each employee individually.  For more information regarding notice requirements please visit the DOL’s frequently asked questions.

Do businesses that have closed due to the current state of emergency have to provide FFCRA benefits?

If an employer closes the business after the April 1st effective date of the law then they are no longer obligated to provide FFCRA sick time or leave benefits.  This holds true even if an employee’s request was made prior to the closure.  If, however, the employer closes the business while an employee is already on FFCRA leave, the employer must pay for the leave taken prior to the closure.  Once a business has closed, employees are no longer eligible for FFCRA benefits but may be eligible for unemployment benefits.

Must an employer maintain health coverage while an employee is out on FFCRA leave?

Employers must maintain health coverage on the same terms offered prior to the leave and employees must continue making contributions.  Costs associated with employee health coverage are considered payroll and are therefore eligible for the payroll tax credit.