With many businesses in Massachusetts slowing (and shutting) down due to COVID-19 concerns, some companies are looking for solutions to assists employees who are working fewer hours and taking home significantly lower pay.

Use of Vacation Time

One short-term alternative to layoffs or furloughs is to allow employees to use vacation time when they are not reporting to work. An obvious downside to this alternative is that the employer will not reduce payroll expenses. However, it will provide employees with some relief where work hours in many industries are being reduced drastically.

Sick Time Pay

Employees who have accrued paid time off under the Massachusetts Sick Leave Law (employers of 11+) may take sick time because they are ill or are caring for sick family members. Employers may not force employees to use this paid time off for reasons not covered by that law. If the employer provides additional sick time (beyond that required by the Massachusetts law), the applicable policies should govern how and when this can be used. Employers that want to provide additional support to workers can consider: (i) allowing workers to use earned sick time even though the typical circumstances don’t apply (e.g. if the employee wants to stay home to self-quarantine, even though they are not sick); (ii) accelerating the earning of sick time (if it’s earned on some accrual basis) to provide employees with access to all or part of the full annual allotment now (the risk is that an employee doesn’t stay long enough to have otherwise earned it, in which case the employer can’t recoup what’s been paid); and/or (iii) granting additional paid sick days beyond the annual allotment. (Please note that the receipt of sick pay in any week is likely to impact unemployment benefits, if applicable, for that week.) There may be new legislation regarding paid Sick Time, so please understand that like the rest of the world, this is all subject to sudden changes.

Unemployment Benefits

Under many scenarios, there may be eligibility for unemployment benefits. The following is an excerpt of Governor Baker’s March 15, 2020 public statements on this topic: “We will be relaxing some of the requirements around current unemployment claims. This will allow many of the workers who are affected by closures to get some financial relief faster. We will file emergency legislation that will allow new claims to be paid more quickly by waiving the one-week waiting period for unemployment benefits that currently exists under state law. We will also file emergency regulations expanding the eligibility around collecting unemployment for people who have been impacted by COVID-19.” Employers can obtain additional information on the Commonwealth’s website:

https://www.mass.gov/info-details/covid-19-guidance-and-directives#businesses-&-employers-

(click on “Businesses and Employers”). As you will see from the website, the in-progress legislation (going through the state legislature on an expedited basis) allows for benefits if (among other possible scenarios): “The workplace is shut down and expects to reopen in four or fewer weeks.” This can then be extended to eight (8) weeks (and possibly longer). As a result, when feasible it will be helpful to workers if any no work period is initially for no more than four (4) weeks. If workers aren’t being terminated but instead are being placed on a work hold for a period of time, we recommend that you refer to this as a “no-work” period, rather than a layoff.

The Massachusetts Department of Unemployment Assistance may now pay unemployment benefits to an employee who is the subject of a quarantine by a medical professional or civil authority, or who stops working due to reasonable risk of exposure/infection or to care for a family member and does not intend to or is not allowed to return to work. The worker does not need to provide medical documentation and need only be available for work when and as able. In the various circumstances described above (as well as in the event of termination and substantial reduction of hours), employers should advise employees to file for unemployment benefits, and should provide employees with this link (or a printout of the form found at this link) for more information:

https://www.mass.gov/doc/how-to-apply-for-unemployment-insurance-benefits-form-0590a/download

Please be careful not to make promises or otherwise represent to employees that they are or are not eligible for benefits; instead, just notify them that they may (and should) apply. The decision rests entirely with the Massachusetts Department of Unemployment Assistance.

Please note that employees may have additional rights under employment contracts and/or employment policies. Similarly, union workers may have additional rights under collective bargaining agreements.

If you have questions or would like to discuss COVID-19 concerns, please contact Attorney Michael P. Doherty, Attorney Andrew M. Kepple, Attorney Gabe Bell, or one of our other employment attorneys at 508-541-3000.

This blog is for informational purposes only.  It should not be considered legal advice.  All those who read this blog should seek the advice of a professional before taking action based upon any information provided herein.

© 2020 Doherty, Dugan, Cannon, Raymond & Weil, P.C.

Article by Attorney Michael P. Doherty

Attorney Michael P. Doherty represents organizations and individuals in business, succession planning and litigation matters, and also assists clients with estate planning, wills and trusts.

124 Grove Street, Suite 220
Franklin, MA 02038

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