Laws on Employee Leave
Below is an introduction to laws on employee leave in Massachusetts. Note that leave requirements vary from state to state. This page is designed to help farmers ensure that they are adhering to applicable laws, but it is not a legal document and is not exhaustive.
COVID-19-Related Expansions to Sick and Family and Medical Leave
The federal Families First Coronavirus Response Act (FFCRA) temporarily provides employees with federally funded paid sick leave and expanded family and medical leave for COVID-19-related reasons during the period from April 1, 2020 to December 31, 2020. Note that these new benefits add to – but do not supplant – the existing benefits outlined in the Sick Leave and Family and Medical Leave sections below, and employers cannot require their employees to take any other available leave before they take this expanded leave. Employers may not retaliate against employees for exercising their rights under this Act. More details on the new FFCRA leave benefits and requirements are below, and see also the U.S. Department of Labor’s FAQ page here for more information.
All employers must notify their employees by April 1, 2020 (or upon hire thereafter) about their rights to paid sick leave and expanded family and medical leave under FFCRA. This notification should be posted conspicuously in the workplace and/or emailed or mailed to remote workers. See more details on new leave benefits below.
Paid sick leave benefits
Under FFCRA, employees are eligible for two weeks of additional paid sick leave for specified reasons related to COVID-19. For full-time employees, allowable leave is capped at 80 hours (even if the employee usually works more than 40 hours per week). For part-time employees, allowable leave is equal to the number of hours worked over two regular work weeks (if hours vary, this can be calculated using a 6-month average). This leave is available to employees upon hire, and employees cannot be required to use any other leave that they have accrued first. Employees are entitled to 100% of their regular pay rate (up to $511 daily or $5,110 total) if they are unable to work or telework due to reasons #1-3 below, and are entitled to 2/3 of their regular pay rate (up to $200 daily or $2,000 total) for leave if they are unable to work or telework due to reasons #4-6 below:
- A government-issued quarantine or isolation order related to COVID-19
- Being advised by a health care provider to self-quarantine related to COVID-19. Note that this reason DOES NOT include employees choosing to stay at home due to self-diagnosis or general concern alone.
- Experiencing COVID-19 symptoms (fever, a dry cough, shortness of breath, and/or other symptoms identified as a COVID-19 symptom by the CDC) while actively pursuing a medical diagnosis or awaiting a test result.
- Caring for an individual who is experiencing #1 or #2 above. Note that this individual must be someone with whom the employee has a “personal relationship that creates an expectation that the employee would care for the person if he or she were quarantined or self-quarantined.”
- Caring for a child who has no school/childcare due to COVID-19-related reasons. Note that this includes not just licensed childcare programs, but also family members and friends who regularly provide paid or unpaid childcare.
- Experiencing another substantially similar condition, as specified by the U.S. Department of Health and Human Services.
Expanded family and medical leave benefits
Under FFCRA, employees who have been employed for at least 30 days are eligible to take up to two weeks of unpaid family and medical leave (which can be paid if it is taken concurrently with the paid sick leave above) plus an additional ten weeks of paid family and medical leave if they are unable to work or telework due to reason #5 above (i.e. lack of childcare due to COVID-19). Note that the first two weeks can be taken as paid sick leave if employees want compensation for this time. For weeks three to twelve, employees are entitled to 2/3 of their regular pay rate (up to $200 daily or $10,000 total). For purposes of family and medical leave (unlike for sick leave) the regular weekly pay rate should take into account any overtime hours worked; however, pay does not need to include a premium for overtime hours. If employees have already taken any family and medical leave this year, this time would count towards the twelve weeks available under FFCRA.
Recovering costs of paid sick leave and expanded family and medical leave
The direct payroll costs of paid sick leave and expanded family and medical leave benefits will be paid up front by employers and then reimbursed in full by the federal government through tax credits (federal income, social security, and/or medicare tax) or other refunds. See an overview of options for promptly recovering these costs here, and more details in this IRS guidance. Note that it is extremely important to properly document the qualifying reasons for the leave (through doctors’ notes, childcare letters, etc.) to ensure the federal government will reimburse your costs.
Documentation required for leave
In order to ensure that you will be able to receive reimbursement for leave, you should keep the following documentation for each employee’s requested leave, and should retain these records for at least 4 years.
General documentation required:
- The employee’s name and the date(s) for which leave is requested;
- A statement of the COVID-19 related reason the employee is requesting leave and written support for such reason; and
- A statement that the employee is unable to work, including by means of telework, for such reason.
Additional documentation required in the event of quarantines (i.e. reasons #1 and 2 above):
- The name of governmental entity or health provider advising quarantine
- The name of person being quarantined, and their relation to the employee
Additional documentation required in the event of school/childcare closing (i.e. reason #5 above):
- The name and age of the child (or children) to be cared for;
- The name of the school that has closed or place of care that is unavailable;
- A statement that no other suitable person is able to provide care for the child during the period for which the employee is receiving family medical leave; and
- If you are unable to work/telework because a child older than 14 needs care during daylight hours, you must also include a statement that special needs/circumstances exist requiring the employee to provide care.
Small business exemption to childcare-related leave requirements
The Families First Coronavirus Response Act does not automatically exempt small businesses from any of its leave requirements. However, small businesses with under 50 employees can claim an exemption from providing childcare-related leave (whether paid sick leave and/or family and medical leave) if they can show that providing the leave would jeopardize business viability. To do so, an authorized officer of the business must be able to show that at least one of the conditions below applies. Note that the applicability of the conditions below must be assessed separately for each worker (given that different employees’ leave may impact a business’s viability in different ways).
- The provision of paid sick leave or expanded family and medical leave would result in the small business’s expenses and financial obligations exceeding available business revenues and cause the small business to cease operating at a minimal capacity;
- The absence of the employee or employees requesting paid sick leave or expanded family and medical leave would entail a substantial risk to the financial health or operational capabilities of the small business because of their specialized skills, knowledge of the business, or responsibilities; or
- There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee or employees requesting paid sick leave or expanded family and medical leave, and these labor or services are needed for the small business to operate at a minimal capacity.
Under Massachusetts law, all employees must be allowed to earn up to at least 40 hours of sick time per calendar year, accruing sick time at a rate of at least one hour per 30 hours worked. If sick time is accrued on a weekly or monthly basis, employees must be allowed to carry over at least 40 hours of sick time from year to year. For farms with an average of eleven or more employees per pay period over the course of the year (including all seasonal, part-time, or temporary workers) this sick time must be paid time; otherwise it may be unpaid. Employers are required to track the number of hours worked by employees and taken for sick leave, and it is illegal for employers to retaliate against employees who request sick leave. For more information on Massachusetts’ sick leave law, click here.
Family and Medical Leave
All workers (of all genders) who have been employed for at least three months at a Massachusetts business with six or more employees are currently entitled to eight weeks of unpaid, job-protected parental leave for purposes of giving birth, caring for a newborn, or adopting a child. If two employees of the same employer request leave for the same child, however, the employees are entitled only to eight weeks of leave combined. Covered employers are required to display a poster of employee rights under the Parental Leave Act.
In addition, state legislation was passed in 2018 to implement a state-run, paid, job-protected family and medical leave program in Massachusetts. Starting January of 2021, employees will be eligible to take up to 12 weeks of paid family leave and/or 20 weeks of medical leave, up to a maximum of 26 weeks total per year. This leave can be used to:
- Receive treatment for a serious medical condition
- Bond with a newborn or newly adopted child
- Care for a family member injured during military service
- Handle matters arising from a family member’s active duty military service/deployment
- Care for a family member with a serious medical condition (beginning July 2021)
As of September 30, 2019, all employers in Massachusetts are required to provide written notification to their existing employees in writing (in the employees’ primary language) about available paid family and medical leave benefits under the program. This notice must be issued to new employees within 30 days of their first day of employment, and the employer must ask employees to sign an acknowledgement of receiving this notice.
The paid leave will be funded through a 0.75% payroll tax, which employers must begin collecting as of October 1, 2019. A little over half of this amount will be funded by employees, who will be taxed at a rate currently set at 0.378% of wages. Small employers with under 25 employees will not have to make any additional contributions – they will only have to remit their employees’ contributions. Larger farms with 25 or more employees will, however, be responsible for contributing an additional tax currently set at 0.372% of wages. Employee number is determined by calculating your average number of employees per pay period in the previous calendar year; note that 1099-MISC independent contractors are considered employees for purposes of this calculation if they made up more than half of your workforce. For more information and to verify that the rates above are still up to date, see the Department of Family and Medical Leave’s website.
Note that the federal Family and Medical Leave Act also requires businesses that employ 50 or more employees (for each working day of 20 or more weeks during the current or preceding year) to offer employees up to 12 weeks of job-protected leave per year for family and medical reasons. Covered employers are required to display a poster of employee rights under the federal Family and Medical Leave Act.
Jury Duty Leave
Under Massachusetts law, all employers must provide employees with leave for jury duty. Leave for employees’ first three days of state juror service must be paid; thereafter, it may be unpaid. Employees must not be required to reschedule jury duty or use vacation, sick or personal days to cover the duration of juror service.
Massachusetts law entitles almost all employees to time off to vote – which may be unpaid – during the first two hours that polls are open.The employee must request such time off in advance in order to be eligible for voting leave.
Under Massachusetts law, an employee who must serve as a witness in a criminal action is entitled to obtain leave for purposes of testifying and cannot be punished for doing so, provided they give notice to their employer.
The federal Uniformed Services Employment and Reemployment Rights Act gives employees the right to take job-protected leave from their job to perform uniformed military service, provided that their service has been honorable and that they 1) give you advance written or verbal notice of their service if possible, 2) have five years or less of cumulative service in the uniformed services while working for you, and 3) return to work or apply for reemployment in a timely manner after they finish their service. Following their service, such employees must be restored to the job and benefits they would have attained if they had not been absent due to military service, or, in some cases, a comparable job. Employers are required to provide to covered employees a notice of rights, benefits, and obligations under the act.
Leave for Veterans
Under Massachusetts law, veteran employees working for private employers generally must be granted leave to observe Veterans Day and to participate in a Memorial Day exercise, parade, or service that takes place in the veteran’s community of residence.
Small Necessities Leave
Under Massachusetts law, businesses that employ 50 or more employees (for each working day of 20 or more weeks during the current or preceding year) must grant up to 24 hours of “small necessities” leave per year to any worker who has been employed for at least one year at the business and worked at least 1,250 hours over the past 12-month period. This leave can be used in addition to federal family and medical leave, but an employer can require that an employee use paid sick or vacation leave for such small necessities. Qualifying activities include:
- a child’s school activities
- a child’s routine doctor or dentist appointment, or
- an elder relative’s doctor or dentist appointment or other appointment related to the elder’s care
Domestic Violence Leave
Under Massachusetts law, businesses with 50 or more employees must provide up to 15 days of job-protected leave per year to an employee who is, or whose family member is, a victim of abusive behavior, including domestic violence. This leave can be used to seek or obtain medical attention, counseling, victim services or legal assistance; secure housing; obtain a protective order from a court; appear in court or before a grand jury; meet with a district attorney or other law enforcement official; or attend child custody proceedings or address other issues directly related to the abusive behavior against the employee or family member of the employee.
This webpage was last updated March 2020 and is based upon work supported by the U.S. Department of Agriculture’s (USDA) National Institute of Food and Agriculture under award 2018-70027-28588 and 2016-70017-25423 and by the USDA Agricultural Marketing Service through grant 16FMPPMA0002. Its contents are solely the responsibility of the authors and do not necessarily represent the official views of the USDA.