Massachusetts Employment Law Developments – A 2021 Year-In-Review

Boston, Mass. (January 10, 2022) - 2021 was a year of significant new developments in Massachusetts employment law. Some of the new compliance challenges facing Massachusetts employers included the staggered commencement of paid leave benefits under the Massachusetts Parental and Family Medical Leave Act (PFMLA), increases in the state minimum wage, gradual elimination of Sunday and holiday premium pay requirements for some – but not all – legal holidays, and a new emergency paid sick leave mandate for qualifying reasons related to COVID-19.

This alert contains a brief summary of the most significant employment law developments of 2021 in Massachusetts.

Massachusetts PFMLA

Enacted in June 2018 as part of Governor Charlie Baker’s “Grand Bargain,” the Massachusetts PFMLA allows eligible individuals (including full-time, part-time, and seasonal employees and independent contractors earning at least $5,700 over the previous four calendar quarters) to take up to 26 weeks of paid leave for qualifying family or medical reasons. Paid leave benefits are funded by contributions from both employers and individuals that perform services in the Commonwealth.

January 1, 2021 marked the first date upon which covered individuals could begin using leave under the PFMLA for the following qualifying reasons:

• To care for their own serious health condition.
• To bond with a child during the first 12 months after the child’s birth or after adoption or foster placement of a child.
• To care for a family member who is a covered servicemember.
• For exigencies related to a family member’s active duty or call to duty in the armed forces.

As of July 1, 2021, covered individuals could begin using leave under the PFMLA to care for a family member with a serious health condition.

The Massachusetts PFMLA is a complicated statutory scheme with several important differences and distinctions from the federal FMLA. To ensure compliance, Massachusetts employers would be well-advised to consult with a labor & employment law attorney if they have any questions about this complex law and its implementation.

Minimum Wage and Sunday / Holiday Premium Pay

The 2018 “Grand Bargain” law also included important changes to the state minimum wage and Sunday and holiday premium pay requirements. In exchange for a gradual increase in the state minimum wage up to $15 per hour as of January 1, 2023, Governor Baker secured a valuable concession for the business community: the gradual elimination of Sunday and holiday premium pay requirements.

Effective January 1, 20212 the Massachusetts minimum wage increased from $12.75 per hour to $13.50 per hour. The minimum wage for tipped employees also increased from $4.95 per hour to $5.55 per hour.

To offset some of the cost to businesses of the minimum wage hike, the Grand Bargain law included a gradual phase out of Sunday and holiday premium pay requirements over a period of five years. As of January 1, 2021, retailers were required to pay only 1.2x the employee’s regular rate of pay for Sunday and holiday work instead of time and a half. This rate dropped to 1.1x as of January 1, 2022.

Inexplicably, the Grand Bargain law left untouched holiday premium pay requirements for three legal holidays: New Year’s Day, Columbus Day, and Veterans Day. Until further notice, Massachusetts retailer employers should continue to pay their non-exempt employees at time and a half for all work performed on these holidays.

Emergency Paid Sick Leave

In May 2021, Governor Baker signed into law legislation mandating that all public and private employers in the Commonwealth must provide up to 40 hours of emergency paid sick leave (EPSL) when employees are unable to work for a qualifying reason related to COVID-19.

EPSL benefits are in addition to existing paid time off benefits required by law (e.g., Massachusetts earned sick time) or pursuant to existing employer paid leave policies. The law created a new state fund to reimburse employers for offering EPSL to their employees for a covered reason.

Originally, EPSL benefits were intended to be available between May 28, 2021 and the earlier of September 30, 2021 or depletion of the state reimbursement fund. However, in October 2021 and during an uptick in new COVID-19 infections, Governor Baker signed into law legislation extending the EPSL employer mandate through April 1, 2022.

The amount of EPSL to which an employee is entitled depends on the number of hours that they are regularly scheduled to work in a week. Employees regularly scheduled to work 40 hours are eligible for up to 40 hours of EPSL. Employees regularly scheduled to work less than 40 hours per week are entitled to EPSL in an amount equal to the number of hours that they work, on average, over a 14 day period.

Employees are entitled to EPSL if they need to:

• Self-isolate and care for themselves because of a COVID-19 diagnosis.
• Seek or obtain medical diagnosis, care, or treatment for COVID-19 symptoms.
• Obtain immunization related to COVID-19.
• Recover from an injury, illness, or disability related to a COVID-19 vaccination.
• Care for a family member who is self-isolating due to a COVID-19 diagnosis.
• Care for a family member who needs medical diagnosis, care, or treatment for COVID-19 symptoms.
• Care for a family member who is obtaining immunization related to COVID-19.
• Care for a family member who is recovering from an injury, illness, or disability related to a COVID-19 vaccination.
• Comply with a quarantine order from a public official, health authority, their employer, or a healthcare provider.

Employees are also eligible for EPSL if they are unable to work remotely due to COVID-19 because their symptoms inhibit them working remotely.

Massachusetts employers must also be mindful of the important employee protections contained in the EPSL law. These protections include the following:

• Employers must maintain the employee’s existing employee benefits while they are using EPSL. These benefits include group health insurance, life insurance, disability insurance, sick leave, vacation leave, educational benefits, and pensions.
• Employers cannot compel employees to use existing employer-provided paid leave benefits in lieu of using EPSL.
• Employers cannot interfere with, restrain, or deny an employee’s use of EPSL for a qualifying reason or retaliate against any employee who avails themselves of the benefits and protections of the law.
• Employers cannot require employees to find a replacement worker to cover their shifts as a condition of taking EPSL.
• Employers must notify their employers of their rights and benefits under the EPSL by distributing legal postings created by the Massachusetts Office of Labor and Workforce Development.

For more information on these developments, contact the author of this alert. Visit our Labor & Employment Practice page for more alerts in this area.

Author:

Gregory Tumolo, Partner